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Pete Drown, Inc. - Inteirm Decision 2, April 18,1994

Interim Decision 2, April 18, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1550

In the Matter

- of -

Applications of PETE DROWN, INC. for permits to construct and operate a solid waste incinerator
in the Town of Ellenburg pursuant to the Environmental Conservation Law Articles 19 (Air Pollution Control) and 27 (Solid Waste)

Project No. 5-0936-00019/1 through 4

SECOND INTERIM DECISION

April 18, 1994

Second Interim Decision

This Interim Decision relates to appeals filed to the March 9, 1994 Ruling (the "Ruling") of Administrative Law Judge ("ALJ") Francis W. Serbent filed by the Town of Ellenburg (the "Town") and the Environmentally Concerned Citizens of Ellenburg (collectively referred to as the "Intervenors") and a motion to reconsider the January 27, 1994 Interim Decision which was filed by the Town. A letter appeal of the Ruling was also filed by the Parti Quebecois. However, since it was not granted party status in this proceeding, it has no right to appeal the Ruling.

Appeal of the Ruling

The issue set forth for adjudication in the Interim Decision was whether it was necessary to require the use of an activated carbon injection system in addition to the proposed pollution control equipment in order to show that best available control technology ("BACT") was being employed. Regulated medical waste incinerators, with exceptions not relevant here, are required to employ BACT [ECL 19-0306(6)]. Subsequent to the Interim Decision, the Applicant agreed to employ this pollution control technology. As a result, ALJ Serbent ruled that there was no further need to adjudicate this issue.

None of the issues which the Intervenors seek to raise by way of appealing the Ruling are related to the issue as set forth above. His ruling that no further adjudication of this issue is required is sustained.

Motion for Reconsideration

The Town moves for reconsideration of the January 27, 1994 Interim Decision. Reconsideration is appropriate only where the decisionmaker overlooked or misapprehended the facts or law, or for some other reason mistakenly arrived at a decision [Mayer v. National Arts Club, 192 A.D.2d 863 (3d Dept. 1993)]. It is not an opportunity to reargue points that were already considered and rejected. Essentially, this is what the Town has done.

The principal basis cited for the motion is that the Commissioner did not properly apply the substantive and significant test. However, a review of the Interim Decision shows that, in each case, it articulates why the issues proposed by the Town either met or failed to meet the substantive and significant standard. All of the Town's offers of proof were considered in reaching these conclusions.

The Town also indicates that it believes the Interim Decision overlooked the Department Staff's support for adjudicating several of the issues proposed by the Town. This is not the case. The Department Staff's position was considered but, for the reasons set forth in the Interim Decision, it was not adopted.

Accordingly, the motion for reconsideration is denied.

Other Matters

I have examined the terms of the Department Staff's letter which describes the resolution of the two matters raised in Commissioner Jorling's January 27, 1994 Interim Decision. While the Applicant's acceptance of the use of an activated carbon injection system adequately demonstrates that BACT will be employed, the amendment of the draft permit condition IV.F. which was also directed in the Interim Decision is not satisfactory.

In the event that the Applicant cannot meet the emission limits in its permit, it has the right to request a permit modification. Both the procedures for processing such a modification and the substantive requirements for approving it are established in the Environmental Conservation Law and its implementing rules. Since the permit language in paragraphs 2 through 4 of condition IV.F. may raise a question about whether the procedures and the substantive standard that would otherwise apply to a future modification request are somehow being changed, those paragraphs should be removed from the permit.

There should be no mistake that less stringent emission limits are no more likely to be approved as part of a request for a permit modification than they would be had they been proposed as part of the original permit application. By accepting the permit limits, the Applicant and its investors bear the risk that the project will not be allowed to operate because of the inability to meet permitted emission limits or that the project will only be allowed to operate on terms that are uneconomical.

Conclusion

With the Applicant's acceptance of the use of the activated carbon injection system, there remain no further issues for adjudication. The Department Staff are directed to modify draft permit condition IV.F. as described above. Comments received pertaining to the change in the Applicant's BACT proposal shall be responded to in the final environmental impact statement ("FEIS").

After the FEIS is completed, the Staff shall make the requisite findings required by law and proceed to issue the permits for this application consistent with this Interim Decision.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Second Interim Decision to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York this 18th day of April, 1994

_____________/s/_____________
LANGDON MARSH, ACTING COMMISSIONER

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