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Guardian Industries Corp. - ALJ Ruling, March 17, 1997

ALJ Ruling, March 17, 1997

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

of

the Application of Guardian Industries Corp. for a Preconstruction Facility Permit
to construct and operate a new major stationary source of air contaminants,
a Freshwater Wetlands Permit and a Section 401 Water Quality Certification;
and the related Applications of The New York State Electric & Gas Corporation
and the Finger Lakes Railway Corporation for Freshwater Wetlands Permits
and Section 401 Water Quality Certifications.

SUMMARY REPORT, RULING and DISPOSITION

Application Nos.
8-3205-00041/00001 through 00009,
8-3205-00049/00001,
8-3205-00051/00001

THE PROPOSED PROJECT and SEQR BACKGROUND

Guardian Industries Corp., 2300 Harmon Road, Auburn Hills, MI 48326-1714 ("Guardian") proposes to construct and operate a new 700 ton per day float glass manufacturing plant and ancillary facilities on a 83 acre parcel in the City of Geneva Industrial Park, City of Geneva, Ontario County, New York. The industrial park is located in the northern portion of the City of Geneva and is bounded by Route 14 on the west and Pre-Emption Street on the east.

The manufacturing facility will consist of a large building (696,600 square feet), with a planned 126,000 square feet addition and ancillary facilities. The float process produces flat glass by floating molten glass on a bath of molten tin to produce a ribbon of glass. The glass manufacturing building will house manufacturing components, including the glass melting furnace, annealing lehr; warehouse; shipping area; and offices. Ancillary facilities will include: a batch plant to store and mix raw materials, including: silica sand, soda ash, limestone, dolomite, salt cake, rouge, and charcoal; a railroad spur, for receiving bulk quantities of raw materials; an electric substation; two backup diesel generators; detention basin(s) for storm water runoff management; parking areas; and roads.

The proposed project includes several related facilities which will be constructed by other entities. The City of Geneva (the "City") will relocate/reconstruct portions of Forge and Doran Avenues. The New York State Electric & Gas Corporation, Kirkwood Industrial Park, P.O. Box 5226, Binghamton, NY 13902 ("NYSEG") will provide electric and gas service to the project site. The Finger Lakes Railway Corporation, P.O. Box 1099, Geneva, NY 14456 will construct a rail spur to the project site.

The City (through its City Council) assumed Lead Agency status for this project under the State Environmental Quality Review Act ("SEQR"). It determined that this project would be a "Type 1" action, and issued a SEQR "Positive Declaration" dated November 19, 1996. This required the development of an Environmental Impact Statement (EIS). On January 2, 1997, the City accepted the draft EIS (DEIS) as adequate for public review, and made it the subject of a City-sponsored hearing on January 21, 1997. The City accepted public comments through February 3, 1997. On February 18, 1997, the City accepted and issued a Notice of Completion of the Final EIS.

PROCEEDINGS

The development and use of the plant site and related facilities require several permits from the New York State Department of Environmental Conservation ("NYSDEC"), the applications for which were made to NYSDEC Region 8 Staff ("Staff") and which are the subject of this proceeding.

Guardian has applied for a Preconstruction Facility Permit to construct and operate a new major stationary source of air contaminants, a Freshwater Wetlands Permit, and a Section 401 Water Quality Certification (Application Nos. 8-3205-00041 /00001 through 00009). NYSEG (Application No.8-3205-00049/00001) and the Finger Lakes Railway Corp. (Application No. 8-3205-00051/00001) have applied for Freshwater Wetlands Permits and Water Quality Certifications. 1 Statutory provisions applicable to processing these applications are: Environmental Conservation Law ("ECL") Article 3, Title 3 (General Functions); Article 70 (Uniform Procedures); Article 15, Title 5 (Protection of Waters); Article 19, Title 3 (Air Quality Permits); Article 24 (Freshwater Wetlands); and Article 8 (State Environmental Quality Review Act, "SEQRA"). Also applicable is the Federal Clean Water Act, Part 401. Regulatory provisions applicable are Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 621 (Uniform Procedures); Part 624 (Permit Hearing Procedures); Parts 201, 212, and 231-2 (Air Resources); Part 608 (Protection of Waters/Water Quality Certifications), Part 663 (Freshwater Wetland Permits); and Part 617 (SEQR).

In early January, 1997, Staff requested the NYSDEC Office of Hearings and Mediation Services (OHMS) to prepare for a public hearing on the applications. The matter was assigned to the undersigned, Administrative Law Judge ("ALJ") Frank Montecalvo.

NYSDEC Staff deemed the applications complete on January 15, 1997, and on the same day, OHMS issued a combined "Notice of Complete Applications, Availability of Draft Permits, Notice of PSD Approvability, and Public Hearing" (the "Notice"). The Notice was published January 17, 1997 in the Finger Lakes Times and January 22, 1997 in NYSDEC's Environmental Notice Bulletin. On January 17, 1997, OHMS mailed the Notice to the Ontario County Clerk, certain State Agencies, and other persons. Staff mailed the Notice to the Mayor of the City of Geneva, the Supervisor of the Town of Geneva, and to other persons deemed interested.

The Notice set deadlines for filing written comments (February 24, 1997) and petitions to intervene (February 17, 1997), and scheduled a public legislative hearing and an issues conference. The Notice also indicated Staff's tentative determination that the proposed project, if carried out in accordance with the conditions of Staff's proposed Draft Permits (prepared, on file and available for public review), would meet all applicable statutory and regulatory requirements, and that Staff intended to issue the requested permits.

Two written comments and one petition to intervene were filed. The written comments are addressed in Appendix A below, "Summary of Public Concerns." The petition to intervene is addressed under "Issues Conference" below.

Legislative Hearing

As advertised in the Notice, the ALJ convened the public hearing at 7:00 PM on Monday, February 24, 1997, at the North Street Elementary School, 400 W. North Street, Geneva, NY. Approximately 20-30 persons were in attendance. Following statements by representatives of Staff and Guardian, four persons commented on the project and draft permits. These, also, are summarized in Appendix A, below.

Issues Conference

Pursuant to the Notice, the issues conference was convened at 9:00 AM, Tuesday, February 25, 1997, in the Geneva Chamber of Commerce's Community Room, Lakeside Drive, Geneva, NY, to determine party status and to identify issues to be adjudicated in any subsequent hearing. NYSDEC Staff was represented by Paul J. D'Amato, Esq., Regional Attorney, accompanied by Peter A. Lent, Deputy Regional Permit Administrator. Guardian was represented by Harter, Secrest & Emery; Neal D. Madden, Esq., of counsel. Mr. Madden was accompanied by Michael W. Turnbull, Environmental Manager with Guardian. The other applicants did not appear, but sent written statements.

Only the City petitioned to intervene. The City was represented by Nixon, Hargrave, Devans & Doyle LLP; Allan E. Floro, Esq., of counsel.

Prior to the issues conference, the ALJ reviewed the contents of the OHMS file, marked certain documents within as exhibits for identification, prepared a list describing the exhibits and indicating when they had been received, and distributed the list to the conference participants. At the conference, the exhibits were displayed and the list was reviewed. The list was made part of the proceedings' official transcript.

During the conference, the significance of the listed exhibits was discussed, additional documents were marked as exhibits, and the participants agreed that certain other documents would be made exhibits upon receipt at a later date before the record closed. The complete list of exhibits, including the additions made at the issues conference and during the time before the record closed, is attached as Appendix B, below.

The transcript was received March 5, 1997, and the last agreed-upon exhibit was received March 11, 1997.

POSITIONS OF PARTICIPANTS AT THE ISSUES CONFERENCE

The positions of the issues conference participants are expressed with reference to the Exhibits List (Appendix B, below).

Guardian acknowledged that the Number 2 series of exhibits contained all the documents which constitute the pending permit applications. The City, as SEQRA Lead Agency, acknowledged that the Number 3 series of exhibits (excluding its application for party status, 3C), constituted its final determination of the proposed project's environmental impact. NYSDEC Staff acknowledged that the Number 4 series of exhibits contained all the documents which constituted Staff's response to the permit applications. NYSDEC Staff also acknowledged that its determination on the applications was based on no documentation, specific to the proposed project, other than the documents listed in the Number 2 and Number 3 series of exhibits.

Recognizing that the record contained several iterations of draft permits, Staff indicated that with regard to Guardian, only exhibits 4K and 4L were then under consideration and up for acceptance with certain modifications that were orally placed on the record. Staff agreed that prior versions of these draft permits could be disregarded.

Guardian accepted the conditions contained in the draft permits as embodied in exhibits 4K and 4L with the revisions Staff placed on the record.

With regard to the NYSEG and Finger Lakes Railroad applications, Staff indicated that only draft permits exhibits 4I and 4J were presently under consideration and that prior versions could be disregarded. Guardian's representative placed in the record letters from each of these applicants (exhibits 2M and 2N respectively) acknowledging acceptance of those iterations of the draft permits.

With acceptance of the draft permits, the parties acknowledged that no issues remained between them which required adjudication to resolve.

With regard to the City's petition for party status (exhibit 3C), the City indicated that it did not wish to raise any particular issue on the applications, but petitioned in order to participate in an adjudicatory proceeding should others successfully raise issues. Because no one else had applied for party status, and because no substantive and significant issues had been raised, the City withdrew its petition for party status.

DISCUSSION, RULING AND DISPOSITION

Pursuant to 6 NYCRR 624.4(c),"Standards for adjudicable issues," subparagraph (1) an issue is adjudicable if:

"(i) it relates to a dispute between the department staff and the applicant over a substantial term or condition of the draft permit;

"(ii) it relates to a matter cited by the department staff as a basis to deny the permit and is contested by the applicant; or

"(iii) it is proposed by a potential party and is both substantive and significant."

Here, there is neither a dispute between Staff and the Applicants, nor a matter cited by Staff as a basis to deny a permit, nor an issue proposed by a potential party. Therefore, I make the following ruling:

There are no adjudicable issues on the instant applications.

Pursuant to 6 NYCRR 624.4(c)(5), "If the ALJ determines that there are no adjudicable issues, the ALJ will direct that the hearing be canceled and that the staff continue processing the application to issue the requested permit." Therefore, I make the following disposition:

The hearing is hereby cancelled, the record is closed, and Staff is directed to continue processing the applications to issue the requested permits in a manner consistent with the parties' positions placed on the record at the issues conference herein.

Accordingly, this matter is remanded to the Department Staff to complete the SEQRA findings required to be made.

_____________/s/_____________
Frank Montecalvo,
Administrative Law Judge

Dated: Albany, New York
March 17, 1997

Appendices (attached):

Appendix A - Summary of Public Concerns.

Appendix B - Exhibits

Appendix C - Official Service List

To: Official Service List

Summary of Public Concerns

The following persons commented on this matter:

Roberta Hutchinson, Ontario County Industrial Development Agency, Canandaigua, NY

Peter Goodman, Geneva, NY (written and oral)

Linda Oachs, Waterloo, NY

Debby McNaughton, Canandaigua, NY

Diane Heminway, Citizen's Environmental Coalition, Medina, NY (written)

Ms. Hutchinson expressed the OCIDA's support for the proposed project, indicating that the project will significantly enhance the economy of the County and the City of Geneva, and that the project's environmental impacts have been thoroughly studied and addressed.

Ms. Oachs and Ms. McNaughton recognized the need of the area for jobs, but pointed out that the area's clean environment -- especially its clean air -- was a reason for each to have relocated from other places. They were concerned about the release of air pollutants, and about statements that indicate the plant might not be proposing to use the latest control technology. They were also concerned about the release of cooling water, where it would go and how it would be handled. Ms. McNaughton also was concerned over the loss of wetlands.

Peter Goodman and Diane Heminway both made and/or filed lengthy statements, detailing perceived deficiencies in the project application and/or NYSDEC's response. They contend that the ambient air quality information and BACT analyses are insufficient, and want more or better data, modeling and analyses.

Ms. Heminway asks that particulate matter and SO2 control equipment be required and that selective non-catalytic reduction or selective catalytic reduction methods of NOx control be considered and required. She requests a demonstration of Lowest Achievable Emission Rate (LAER) through a survey of all existing State Implementation Plans and all existing sources and a report of emissions actually being achieved. She also contends that the Applicant has not secured creditable Emission Reduction Credit offsets.

Mr. Goodman contends that Staff set the LAER too high at 269 pounds per hour, and that 7 pounds of NOx per ton of glass is achievable with currently available technologies known as the "Pilkington 3R process" and the "oxy-fuel process or the oxygen enriched airstaging system, OEAS" which have been retrofitted at other plants. He proposes that the issue of LAER be revisited in the future. He also contends that Staff should not have changed the units for measuring NOx emissions from pounds of NOx per ton of glass pulled to pounds per hour or pounds per million BTU.

Mr. Goodman is concerned that emission of hazardous air pollutants and other toxics from this plant, and fugitive emissions from process facilities, are not addressed in the permit. He also asks that the NYSDEC ask Guardian Industries to supply data on air emission violations at its flat glass facilities over the last ten years, believing that a clearer picture of this company's compliance track record is needed.

February 24, 1997, Rev 3/11/97

NAME OF HEARING:Application of Guardian Industries Corp. for a Preconstruction facility permit to construct and operate a new major stationary source of air contaminants, a Freshwater Wetlands Permit and a Section 401 Water Quality Certification (Application Nos. 8-3205-00041/00001 through 00009); and the affiliated Applications of the New York State Electric & Gas Corporation

(Application No. 8-3205-00049/00001) and by the Finger Lakes Railway Corporation (Application No.8-3205-00051/00001) for Freshwater Wetlands Permits and Section 401 Water Quality Certifications.

EXHIBITS LIST: 1 HEARING NOTICE DATED January 15, 1997 including Notice of Complete Applications, Availability of Draft Permits, and PSD Approvability

1A Office of Hearings Hearing Notice Distribution List

1B Copy of Hearing Notice published in January 22, 1997 ENB

1C Affidavit of publication of Hearing Notice in Finger Lakes Times on January 17, 1997

1D NYSDEC Region 8 Hearing Notice and Draft Permits Distribution List

2 APPLICATION DOCUMENTS (NO EXHIBIT 2):

2A Wetlands Delineation Report [OHMS Rec'd 1/9/97]

2B Wetlands Impact Analysis Report [OHMS Rec'd 1/9/97]

2C "Application for Air Permit ..." [OHMS Rec'd 1/16/97]

2D 1/13/97 Letter from J. McMullen to P. Lent [OHMS Rec'd 1/16/97]

2E 1/14/97 Letter from M. Turnbull to P. Lent [OHMS Rec'd 1/16/97]

2F Economic and Social Benefits Report under cover 1/15/97 [OHMS Rec'd 1/16/97]

2G "Application for Air Permit ..." [supercedes prior submission - OHMS Rec'd 1/22/97]

2H "Prevention of Significant Deterioration ..." [OHMS Rec'd 1/22/97]

2I Package of various correspondences under 1/21/97 cover [OHMS Rec'd 1/22/97]

2J Wetlands Creation and Enhancement Plan, 2/10/97 - Appendix H of Exhibit 3B [OHMS Rec'd 2/20/97]

2K Stormwater Management Plan 2/12/97, Rev. 3/5/97 [OHMS Rec'd 3/11/97]

2L Electric Substation and Propane Storage Plans 2/7/97 [OHMS Rec'd 3/11/97]

2M 2/21/97 NYSEG letter accepting permit conditions - See 4J [OHMS Rec'd 2/25/97]

2N 2/24/97 Finger Lakes Railroad letter accepting permit conditions - See 4I [OHMS Rec'd 2/25/97]

Exhibits Page Two

3 SEQR LEAD AGENCY (City of Geneva) DOCUMENTS (NO EXHIBIT 3):

3A DEIS, City of Geneva Resolution, and [combined] Notice of Completion of DEIS and Notice of Public Hearing under cover dated 1/3/97 from the City of Geneva [OHMS Rec'd 1/6/97]

3B FEIS, City of Geneva Resolution, and Notice of Completion of FEIS under cover dated 2/19/97 from the City of Geneva [OHMS Rec'd 2/20-21/97]

3C Application for Party Status 2/14/97 [OHMS Rec'd 2/18/97]

3D SEQRA Lead Agency Findings 3/5/97 [OHMS Rec'd 3/7/97]

4 DOCUMENTATION OF NYSDEC REGION 8 STAFF'S POSITION (NO EXHIBIT 4):

4A Draft Permit: Finger Lakes RR Corp. - Article 24 Freshwater Wetlands [OHMS Rec'd 1/21/97]

4B Draft Permit: NYSEG - Article 24 Freshwater Wetlands, 6NYCRR608 Water Qual. Cert.[OHMS Rec'd 1/21/97]

4C Draft Permit: Guardian Industries Corp. - Article 24 Freshwater Wetlands, 6NYCRR608 Water Qual. Cert., Article 19 Air Pollution Control [OHMS Rec'd 1/21/97]

4D Hearings Request dated 1/17/97 with attachments incl List of Major Permits required [OHMS Rec'd 1/21/97]

4E Letter 1/30/97 Peter Lent to Richard Rising - Comments on DEIS [OHMS Rec'd 2/6/97]

4F Cover Letter 2/19/97 Peter Lent to Frank Montecalvo transmitting revised draft permits and summarizing changes [OHMS Rec'd 2/20/97]

4G Draft Permit 2/19/97: Guardian Industries Corp. - Article 19 Air Pollution Control [OHMS Rec'd 2/20/97]

4H Draft Permit 2/19/97: Guardian Industries Corp. - Article 24 Freshwater Wetlands, 6NYCRR608 Water Qual. Cert. [OHMS Rec'd 2/20/97]

4I Draft Permit 2/19/97: Finger Lakes RR Corp. - Article 24 Freshwater Wetlands [OHMS Rec'd 2/20/97]

4J Draft Permit 2/19/97: NYSEG - Article 24 Freshwater Wetlands, 6NYCRR608 Water Qual. Cert. [OHMS Rec'd 2/20/97]

4K Draft Permit 2/24/97: Guardian Industries Corp. - Article 24 Freshwater Wetlands, 6NYCRR608 Water Qual. Cert. [OHMS Rec'd 2/25/97]

4L Draft Permit 2/24/97: Guardian Industries Corp. - Article 19 Air Pollution Control [OHMS Rec'd 2/25/97]

OFFICIAL SERVICE LIST - March 17, 1997

NAME OF HEARING: Guardian Industries Corp. et al; Application Nos. 8-3205-00041 et al

ALJ:

Frank Montecalvo
Office of Hearings and Mediation Services
Department of Environmental Conservation
50 Wolf Road, Room 423
Albany, NY 12233-1550
FAX 518 485-7714;
E-Mail: frank.montecalvo@dec.mailnet.state.ny.us
PHONE 518 457-3468

STAFF: DEC Region 8 c/o
Paul D'Amato, Esq., Regional Attorney
Department of Environmental Conservation
6274 East Avon-Lima Road
Avon, New York, 14414
FAX 716 226-2830; E-Mail: paul.d'amato@dec.mailnet.state.ny.us
PHONE: 716-226-2466

APPLICANT: Guardian Industries Corp. c/o
Harter, Secrest & Emery
700 Midtown Tower
Rochester, New York
attn: Neal D. Madden, Esq.
FAX 716-232-2152; E-Mail: maddenn+atrial%hs&e@mcimail.com; PHONE: 716-232-6500

INTERVENOR - City of Geneva City Council c/o
Nixon, Hargrave, Devans & Doyle LLP
Clinton Square
P. O. Box 1051
Rochester, NY 14603-1051
attn: Allan E. Floro, Esq.
FAX 716 263-1600; PHONE: 716 263-1603

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