Onondaga County Resource Recovery Agency - Ruling, December 11, 1991
Ruling, December 11, 1991
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter of
the Applications of OGDEN MARTIN SYSTEMS OF ONONDAGA, INC. and
the ONONDAGA COUNTY RESOURCE RECOVERY AGENCY for permits to construct and operate
a solid waste management facility, and an air contamination source pursuant to
Environmental Conservation Law Article 27 Title 7 and Article 19; and Title 6 of
the official Compilation of Codes, Rules and Regulations of
the State of New York Part 360 and Parts 200, et. seq
RULINGS ON PARTY STATUS ISSUES
ORDER OF DISPOSITION
The Applicants, OGDEN MARTIN SYSTEMS OF ONONDAGA, INC. ("Ogden-Martin") and the ONONDAGA COUNTY RESOURCE RECOVERY AGENCY ("OCRRA"), applied for permits to construct and operate a solid waste management facility pursuant to Environmental Conservation Law ("ECL"), Article 27 Title 7, and Title 6 of the official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 360; and an air contamination source (incinerator) pursuant to ECL Article 19, and 6 NYCRR Parts 200 et. seq.; for a 990 tons-per-day ("tpd") capacity facility in the Town-a--n-U County of Onondaga which would generate energy from the combustion of municipal solid waste ("MSW").
The Department's Region 7 Staff referred the applications to the Office of Hearings to schedule a hearing thereon. A combined Notice of Complete Application, Notice of Tentative Determination and PSD Approvability, and Notice of Public Hearing (collectively the "Hearing Notice') was published in the March 6, 1991 editions of the Environmental Notice Bulletin, the Syracuse Post-Standard, and the Syracuse Herald-journal.
Pursuant to the Hearing Notice, the hearing commenced before Administrative Law Judge ("ALJ") Frank Montecalvo on Tuesday, April 16, 1991, at the Onondaga County War Memorial, Assembly Hall, Third Floor, 515 Montgomery Street, Syracuse, NY, with two public statement sessions, beginning at 1:00 PM and 6:00 PM respectively, where members of the general public made unsworn comments on the Proposed Project. Written comments were also solicited by the Hearing Notice and received into the record.
The hearing continued at 10:00 AM, April 17, 1991 at the same location with a Preliminary Conference, attended by the Parties and open to participation by anyone who intended to seek Party Status, at which the various documents under consideration were marked for identification and hearing procedures and requirements were discussed. At the Preliminary Conference, as stated in the Hearing Notice, DEC Region 7 Staff ("Staff") indicated it had tentatively determined that the Proposed Project, if carried out in accordance with the conditions of the Draft Permit as then composed and held out for public review (Exhibits 4A and 4B), would meet the applicable statutory and regulatory requirements (including Prevention of Significant Deterioration (."PSD") requirements codified in Title 40 Code of Federal Regulations Part 52.21) and, therefore, Staff would issue the permits sought. At the Preliminary Conference, Applicants stated that they accepted those conditions.
Pursuant to the Hearing Notice, requests for Party Status were received from several individuals or groups, as indicated under the Rulings below, by the may 7, 1991 filing deadline. Prior to the Issues Conference, the Town of Onondaga withdrew its request for Party Status, thus said request was not considered at the Issues Conference and is not considered herein.
The Issues Conference was held commencing at 10:00 AM, Thursday, May 23, 1991, in Room 206 of the Onondaga County War memorial, attended by the Parties and open to participation by those who filed for Party Status, to determine Party Status (and manner of participation) for those who property filed, and to define the Issues requiring adjudication, if any.
At the Issues Conference, Staff changed its position and indicated it wished to make two changes to the Draft Permit: Change #1 - modify Condition #11 (regarding recycling requirements) to require that "updated CRA annual reports must reflect a 40% recycling goal by 1997"; and Change #2 - add a new Condition that Permittee will comply with EPA's "new facility" standards for mercury and other metals when they are promulgated, irrespective of whether or not the Proposed Project is classified as a "new facility." Applicants agreed to Change #1 but rejected Change #2. Applicants and Staff were directed to exchange briefs on the legal authority to impose Change #2) as a condition. The ALJ also requested to be supplied with the full text of the Federal statutes and regulations participants had referred to.
The filings for Party Status and the issues proposed therein were discussed during the Issues Conference. During the course of the discussion, Applicants indicated they would submit for the record their Service Agreement with each other, and secure a revised Letter of Intent ("LOI") in response to certain proposed issues as detailed below. The Issues Conference concluded on May 23, 1991. Rulings on Party Status and Issues were reserved upon pending briefing from Staff and Applicant, and submittal of the other documentation.
Following the Issues Conference, the required briefs and other documents were submitted. In addition, following several exchanges of correspondence, Applicants and Department Staff agreed upon wording for Change #2 and both indicated that there are no longer any disputed issues between them requiring resolution by adjudication. The significant documents received after the Issues Conference are marked for identification concurrently herewith, and are as follows: Exhibit 3A-1 - July 8, 1991 letter from Chambers Development of Virginia, Inc. (with covering letters); Exhibit 3G - Service Agreement; Exhibit 3H Service Agreement Appendices; and Exhibit 4C - Draft Permit revision under July 10, 1991 cover letter. All prospective parties were either sent copies of these documents, or given notice of their submission.
Following the Issues Conference, the Town of Dewitt withdrew its request for Party Status; thus it is not considered further herein.
The matters of hearing Issues and Party Status are now ready for determination.
Rulings and Discussion
RULING I: There are no issues in dispute between REGION 7 STAFF and Applicants which require adjudication.
Since Applicants have accepted the conditions of Staff's Draft Permit as currently formulated (Exhibits 4A and 4B, plus Permit Condition 11 as stated on the record at the Issues Conference, plus the "Mercury Control Permit Conditions to Replace Current Condition l.G." enclosed with Applicants, July 10, 1991 letter (Exhibit 4C)), there are no issues between Region 7 Staff and Applicants needing resolution by adjudication.
RULING II: The request for Party Status received from the WOMEN'S MEDICAL SOCIETY OF NEW YORK STATE ("WMS") is denied.
RULING II A: WMS's contentions raise no substantive and significant issue to be adjudicated.
WMS is a group of over 100 women physicians. WMS did not appear at the Issues Conference. WMS, filing for Party Status (Exhibit 6) expressed concern that the Proposed Project's emissions of lead, sulfur dioxide, and particulates would have an adverse impact on public health. The filing also protested the lack of a plan for human monitoring.
It is not clear that WMS adequately demonstrated a social, economic or environmental interest likely to be affected by the Proposed Project, as required by 6 NYCRR 624.4(b)(1).
No substantive and significant issue (the resolution of which could result in permit denial, major modification of the project, or imposition of a significant permit condition) could be ascertained from WMS' filing. WMS did not indicate that any statutory or regulatory standard was or could be violated by the application or the Proposed Project. There was no indication that the Proposed Project was not going to mitigate, to the maximum extent practicable, adverse environmental impacts (including public health impacts). Nothing specific in theapplications was disputed. No witnesses were offered. The filing did not indicate what WMS wanted to do at an adjudicatory hearing, if one were to take place.
The filing essentially expressed dissatisfaction with the level of information available, and the desire that incinerators not be permitted until more information on their impacts to public health is known. Such comments are legislative in nature, challenging the adequacy of the regulatory process itself more than the merits of this particular application.
Because WMS did not demonstrate an ability to develop the record on a substantive and significant issue, its request for Party Status is denied.
RULING III: The request for Party Status received from MICHAEL B. LAX is denied.
RULING III A: Dr. Lax's contentions raise no substantive and significant issue to be adjudicated.
Dr. Lax, medical Director of the Central New York occupational Health Clinical Center, is a physician, trained in occupational medicine, whose practice involves the diagnosis and prevention of occupational and environmental illness. Dr. Lax did not attend the Issues Conference. Dr. Lax's filing for Party Status (Exhibit 7) indicated his opinion that the assumptions and uncertainties in Applicants' Health Risk Assessment ("HFA") rendered the document of little value.
It is not clear that Dr. Lax adequately demonstrated a social, economic or environmental interest likely to be affected by the Proposed Project, as required by 6 NYCRR 624.4(b)(1).
No substantive and significant issue (the resolution of which could result in permit denial, major modification of the project, or imposition of a significant permit condition) could be ascertained from Dr. Lax's filing. There was no contention that a statute or regulation within the Department's jurisdiction either might have been violated in the application process (including the drafting of the HRA), or could be violated by the Proposed Project. The filing did not indicate that adverse environmental impacts would not be mitigated to the maximum extent practicable. Although the validity of the HRA's information was questioned, no contradictory information was offered. No witnesses were offered. The filing did not indicate what Dr. Lax wanted to do at an adjudicatory hearing, if one were to take place.
The filing essentially expressed dissatisfaction with the level of information available, and with the role the HRA plays in decisionmaking. Such comments are legislative in nature, challenging the adequacy of the regulatory process itself more than the merits of this particular application.
Because Dr. Lax did not demonstrate an ability to develop the record on a substantive and significant issue, his request for Party Status is denied.
RULING IV: The request for Party Status received from TIMOTHY RICE is denied.
RULING IV A: Mr. Rice's contentions raise no substantive and significant issue to be adjudicated.
Mr. Rice is an Onondaga County Legislator representing the 18th District, in close proximity to the site of the Proposed Project. Mr. Rice did not attend the Issues Conference. Mr. Rice's filing for ?arty Status (Exhibit 11) expressed concern over air quality, traffic, size and economics of the project and compliance-with the State's hierarchy for dealing with solid waste. He contended the project would be over built. He disagreed with the local utility being required to purchase electricity from the project at a specified rate.
It is not clear that Mr. Rice adequately demonstrated a social, economic or environmental interest likely to be affected by the Proposed Project, as required by 6 NYCRR 624.4(b)(1).
Mr. Rice did not take a position for or against the project, did not dispute anything in the application, nor did he offer any witnesses. The filing did not indicate what he wanted to do at an adjudicatory hearing if one were to take place. The lack of a clear position and offer of contrary information indicates that no substantive and significant disputed issue was raised, and that no demonstration of an ability to contribute to the record on such an issue was made. For those reasons, Party Status is denied.
RULING V: The request for-Party Status received from VICKI BAKER (separate from the Proposed Consolidated Party, below) is denied.
RULING V A: Ms. Baker's contentions in her separate filing raise no substantive and significant issue to be adjudicated.
Ms. Baker is an Onondaga County Legislator representing the 9th District, and resides "downwind" of the Proposed Project. She had been involved with review of the Proposed Project for over 8 years as a former member of the Onondaga County Health Task Force and as an R.N. In her filing for Party Status (Exhibit 10) Ms. Baker expressed concerns over public participation, health effects and property values, and stated that asphalt emissions and radon exposure were not addressed in the Health Risk Assessment. Ms. Baker advocated that blood tests be required to establish the facility's impact to health.
As a "downwind" resident, Ms. Baker arguably has an interest likely to be affected by the Proposed Project.
However, Ms. Baker did not dispute anything specific in the application, did not offer contradictory information, and did not identify any statute or regulation that might have been violated in the application process, or would be violated by the Proposed Project. She did not indicate that adverse environmental impacts were not going to be mitigated to the maximum extent practicable. She did not specifically indicate what she wanted to do at an adjudicatory hearing if one were to take place. Although Ms. Baker is clearly in an excellent position, by virtue of her prior active involvement, 4 with this matter, to ' testify on the prior history of this project, that was not shown to be relevant to any substantive and significant disputed issue. Since no issue was raised by her filing, and no ability to contribute to the record on an issue demonstrated, Party Status (separate from the Proposed Consolidated Party, below) is denied.
RULING VI: The request for Party Status received from FRANK JOHNSON is denied.
RULING VI A: Mr. Johnson's contentions raise no substantive and significant issue to be adjudicated.
Mr. Johnson resides in an area identified to receive the maximum impact from airborne pollutants, and is afflicted with hard metals disease of the lungs and multiple chemical sensitivities. In his filing (Exhibit 5) Mr. Johnson claimed that for him, because of his illnesses, there are no safe levels of exposure to emissions from the project of the substances that caused his illnesses (tungsten, tungsten carbide, cobalt, and petrochemicals)., He seeks "mitigation" of the situation under Part 219 by requiring Applicants to relocate him outs de the impact area and provide him with resources to renovate his new home to make it environmentally safe for his condition, or rejection of the applications.
Mr. Johnson, because he resides in an area identified to receive the maximum impact from airborne pollutants, arguably has an interest likely to be affected by the Proposed Project.
In his filing, Mr. Johnson indicated he would produce testimony and evidence to support his arguments, but did not otherwise state what the nature of the testimony or evidence would be other than he would produce a tape recording of a meeting between the County Health Commissioner and the County Legislature at which certain statements were made, a witness who could testify to what occurred at that meeting, and evidence of his request to the County to put a monitoring device on his property (and its lack of response). The offered materials do not appear to be relevant to any hearing issue.
At the Issues Conference, Mr. Johnson offered the testimony of his treating physicians that he cannot tolerate emissions from the Proposed Project, but also indicated that he had not as yet arranged with a particular physician to testify on his behalf, thwarting inquiry into what the expert would put on the record and rendering speculative the offer of proof.
As detailed under Rulings VI B and C below where his specific contentions are dealt with, Mr. Johnson failed to raise a substantive and significant issue requiring adjudication. Since he did not indicate an ability to develop the record on any substantive and significant issue, Party Status is denied.
RULING VI B: Mr. Johnson raised no substantive and significant issue related to the validity of the Health Risk Assessment.
Mr. Johnson disputed the validity of the Health Risk Assessment (IHRA"), alleging that the County's consultant stated that all but the most sensitive populations were taken into account in the calculation of the Risk Reference Doses cited in the HRA, and that such would not comply with the requirements of 6 NYCRR Part 219.
Assuming for the sake of argument the quoted statement was true (disputed by the Applicants) Mr. Johnson was unable to cite a specific provision of Part 219, or any other regulation or statute setting standards or a methodology for producing an HRA, that was violated; nor did he offer testimony of a qualified expert that would indicate the HRA was prepared improperly. The lack of showing indicates there is no substance to Mr. Johnson's allegation and no issue was raised.
RULING VI C: Mr. Johnson raised no substantive and significant issue related to Project impact on sensitive individuals.
Mr. Johnson contended that his condition requires that either the permits be denied, or that, in "mitigation,' he be paid to move away from the project's vicinity. Mr. Johnson offered testimony of his treating physicians to establish a lack of tolerance for any exposure to the materials to be emitted.
However, as noted above, Mr. Johnson had not arranged with any particular physician to be his expert witness, rendering the offer of proof speculative in nature, and indicating a lack of substance to the proposed issue.
Assuming for the sake of argument that Mr. Johnson would be able to present his treating physician as an expert witness, Mr. Johnson still failed to point out any legal authority to support his contentions. There is nothing in Part 219 requiring the "mitigation" he seeks.
Nevertheless, there are two regulatory provisions which appear related to Mr. Johnson's concern. They provide as follows:
"Notwithstanding the provisions of this Subchapter, no person shall allow or permit any air contamination source to emit air contaminants in quantities which alone or in combination with emissions from other air contamination sources would contravene any applicable ambient air quality standard and/or cause air pollution. In such cases where contravention occurs or may occur, . the commissioner shall specify the degree and/or method of emission control required." (6 NYCRR 200.6 "Acceptable ambient air quality," emphasis supplied)
"Air pollution. The Presence in the outdoor atmosphere of one or more contaminants in' quantities, of characteristics and of a duration which are or may be injurious to human, plant or animal life or to property or which unreasonably interfere with the comfortable enjoyment of life or property." (6 NYCRR 6200.1(e))
It might be argued that if facility emissions are or may be injurious to humans, or unreasonably interfere with the comfortable enjoyment of life or property, the emissions would be flair pollution' which S200.6 prohibits the Department from allowing. It is not clear, however, that as a matter of law proof of potential injury to an individual with particular sensitivities (which appears to be Mr. Johnson's contention) would be proof that flair pollution" will occur. The definition's use of the terms "or which unreasonably interfere with the comfortable enjoyment of life or property" is similar to the definition of "nuisance," i.e., anything that interferes with the enjoyment of life or property (see Black's Law Dictionary, revised 4th Ed.). In determining what constitutes a-"nuisance" the question is whether the nuisance will or does produce such a condition of things as in the judgment of reasonable men is naturally productive of actual physical discomfort to persons of ordinary sensibility and ordinary tastes and habits. (Id.) Thus, the "air pollution" definition appears to address those situations which may be injurious to persons of "ordinary sensibility" rather than persons with particular sensitivities.
Mr. Johnson's claim seems to assert a private right rather than a public one. The Department has no jurisdiction to adjudicate individuals, private rights, which are properly matters for a court of law.
RULING VII: The request for Party Status received from EUGENE TINELLI and RICHARD WEISKOPF is denied.
RULING VII A: The contentions of Drs. Tinelli and Weiskopf raise no substantive and significant issue to be adjudicated.
Drs. Tinelli and Weiskopf are health care providers concerned with adverse impacts of the Proposed Project on their patients and their medical practice. Their filing (Exhibit 8) proposed two issues for adjudication: (1) mercury emissions and best available pollution control technology (BACT); and (2) due to a unique combination of public health concerns, Onondaga County needs special consideration for "strict BACT" standards.
It is not clear that Drs. Tinelli and Weiskopf adequately demonstrated a social, economic or environmental interest likely to be affected by the Proposed Project, as required by 6 NYCRR 624.4(b)(1).
For the reasons stated under Rulings VII C and D below, the proposed hearing issues were not found to be substantive and significant. Since those were the only issues asserted by these prospective intervenors, they demonstrated no ability to contribute to the factual record on a substantive and significant hearing issue, justifying denial of Party Status.
RULING VII B: For the purposes of determining Issues in this proceeding, Best Available Control Technology ("BACT") is considers to be an applicable requirement for control of mercury emissions.
In light of recent federal law changes, the applicability of BACT as a standard to be applied to mercury emissions has been questioned. This question is relevant to issues proposed by both these prospective intervenors, and the Proposed Consolidated Party ('PCP," below). Although it was pointed out that New York has a definition for BACT (6 NYCRR 200.1(I)), neither these prospective intervenors, nor PCP, cited any New York regulation that explicitly makes BACT a standard to be applied to mercury emissions (and none is known). It's noted, however, that the Department id able to impose requirements to ensure compliance with Federal standards and requirements (6 NYCRR 201.4). As analyzed by these prospective intervenors, the federal PSD ("Prevention of significant deterioration") program regulations (40 CFR Part 52, S52.21(j)(2)) promulgated by the U.S. Environmental Protection Agency ("USEPA") would require the Proposed Project to apply BACT for each pollutant subject to regulation under the Clean Air Act ("CAA," the federal statute partially implemented by the federal PSD program regulations) that it would have the potential to emit in "significant" amounts. Title 40 CFR 52.21(b)(23)(I) explicitly states that emissions of mercury equaling or exceeding 0.1 tons per year are "significant." Thus, since the Proposed Project (per application documents) will emit mercury well in excess of this amount, federal regulations would require BACT to be applied to its emission (and DEC may ensure compliance with this standard).
Applicants admitted that BACT did apply to mercury at the time their application was drafted. However, Applicants argued that BACT no longer applies to mercury emissions because of the November, 1990 changes to the CAA. Under CAA Section 112, the USEPA Administrator is required to promulgate national emissions standards for hazardous air pollutants. Mercury compounds have been placed on a list of "hazardous air pollutants" (CAA 112(b)(1)). Applicants argued that CAA 112(b)(6) specifically makes the PSD program inapplicable to such pollutants. CAA 112(b)(6) states "The provisions -of part C (prevention of significant deterioration) shall not apply to pollutants listed under this section". Section 112(b)(6), thus, would seem to undercut the continuing validity of 40 CFR Part 52 with respect to mercury control.
However, CAA 112(d)(7) "O@her Requirements Preserved" states "No emission standard or other requirement promulgated under this section [i.e., S1121 shall be interpreted, construed or applied to diminish or replace the requirements of a more stringent emission limitation or other applicable requirement established pursuant to section 111, part C or D, or other authority of this Act (underline, bracketed material supplied). The regulations which made BACT applicable to significant emissions of mercury were, at the time of issuance, apparently valid and established under authority of part C. Even though part C no longer applies to mercury because of 5112(b)(6), S112(d)(7) preserves the previously established BACT requirement, as long as it is more stringent. Thus, BACT is required as a minimum. An interpretation of CAA 112(b)(6) that renders totally ineffectual the requirement of BACT for significant mercury emissions would be inconsistent with CAA 112(d)(7), and render ineffective an apparent "anti-backsliding" intent on the part of Congress.
It's noted that PSD regulation 40 CFR 52.21(b)(23)(I) was amended February 11, 1991 (56 FR 5506), after the statutory change, to add to the list-of "significant" pollutants, control of which 40 CFR 52.21(j)(2) makes subject to BACT. Mercury was not removed from the list, thus, the previously established requirement of BACT for mercury emissions was preserved consistent with the above interpretation. It is also noted that the above interpretation is apparently inconsistent with a March 11, 1991, USEPA guidance memorandum cited by Applicants. That memo, however, clearly indicated that it did not represent a final agency action, and that final action might be at variance with the memo. It would be presumptuous to render regulations, which are still on the books, ineffective on the basis of such a memo, and in the face of the apparent "anti-backsliding" intent of S112(d)(7).
RULING VII C: Drs. Tinelli and Weiskopf raised no substantive and significant issue related t-o mercury and BACT
The prospective intervenors claim the application fails in the areas of mercury emissions and BACT. They also claim the Proposed Project will not meet future USEPA heavy metal emission limits expected to be promulgated prior to November 15, 1991 under the new Clean Air Act.
Drs. Tinelli and Weiskopf argued that spray dryer/ fabric filter ("SD/FF") controls to be used by the Proposed Project are not BACT, contending such will not reliably remove mercury from waste gases and that other "[m]ore efficient and adequately demonstrated control technology is available to reduce mercury emissions and better fit BACT standards." They claim that the US EPA stated in December, 1989 that SD/FFs, previously USEPA's choice for BACT, were not reliably removing mercury; that two Ogden-Martin incinerators using SD/FF emitted mercury in amounts much greater than an expected future USEPA standard (130 micrograms-per cubic meter); that NYSDEC set stricter standards for Oyster Bay and Broome County facilities (40 and 25 ug/M3 respectively); and that Europeans have strict (40, 50 ug/M3) standards and use other technologies including wet scrubbers. The prospective intervenors essentially argue that Ogden-Martin improperly ruled out wet scrubbers here because of a local requirement that no liquid discharges be made to the sewer system, while at the same time its European affiliate, Martin GmbH, has operated a plant in Coburg, Germany, since January 1989 that employs wet scrubbers and disposes of the liquid effluent through an evaporative process, with vendor guaranteed mercury emissions of less than 80 ug/M3. At the Issues Conference, Dr. Tinelli recommended that the Swedish limit of 40 micrograms per cubic meter be imposed.
The prospective intervenors' expectation that USEPA will set a mercury emission limit at 130 micrograms per cubic meter was based upon a statement by an environmental consultant (full text in Attachment 12 to their filing) that "[s]ome discussion has centered around setting the U.S. standard to equal the previous European standard of roughly 130 ug/dscm ..." It has not been shown that such a standard actually has been set (i.e., by publication in the Federal Register at a proposed rulemaking or by actual promulgation). Since the limitation is merely a discussion subject at this point, without an offer of proof tying the number to a particular technology, it is speculative to state what the number represents. USEPA's "discussion" of a number is not substantive enough to support a hearing issue.
The filing does not explain why European "strict" numerical standards represent BACT for this facility. "BACT" is made a standard by the CAA and implementing regulations. European standards are presumably based upon European laws - not the CAA. It cannot be assumed that the USEPA (or DEC) has the authority to impose the same numerical standards that European countries do. (Although the DEC has broad authority under the State Environmental Quality Review Act ("SEQRA," ECL Article 8) to do things that might not otherwise be authorized under the CAA, SEQRA has its own requirements which must be met before its authority is exercised.) The prospective intervenors advocated no particular emission limitation except 40 micrograms per cubic meter - because that is the Swedish limit. The prospective intervenors did not explain why that number would be BACT for this facility.
It is noted that the Broome County and Oyster Bay, NY proposed facilities have still to receive permits and be operated, thus it is unknown what mercury limitations will actually be imposed on or achieved by those facilities.
It is noted that the Draft Permit available to these prospective intervenors (Exhibits 4A and 4B) contained as Special Condition I.G. the following: "Mercury emissions from each furnace flue shall not exceed 0.057 lb/hr, or 0.0004 lbs/million BTU heat input, whichever is most stringent." That condition had been agreed to by Staff and Applicants. The prospective intervenors did not address this provision at all. [As noted under Proceedings and Ruling I, said provision has since been amended by agreement of Staff and Applicants (see Exhibit 4C). It now provides: "Mercury emissions from each furnace flue shall not exceed the more stringent of: (a) 0.0182 lbs./hour or 0.00011 lbs./million BTU heat input, whichever is most stringent, unless uncontrolled mercury emissions are reduced by not less than 80% or (b) the final 'new source' mercury emissions limit for mercury emissions from municipal waste combustors of this size to be promulgated by the Administrator of the United States EPA in regulations to be issued on or about November 15, 1991, under Clean Air Act 129(a)(1)(B) and 129(a)(2),(3),(4)." Because the "unless...." clause would allow exceedance of the rates stated in (a) if uncontrolled mercury emissions are reduced by at least 80%, it is not clear that the new draft special condition is more stringent than the original, in spite of its smaller numbers. Nevertheless, this change has not been protested in spite of notice thereof.]
These prospective intervenors, allegations that SD/FFs are not BACT because they do not reliably remove mercury from waste gases and, in essence, that Applicants inappropriately ruled out other control technologies that are BACT, were not adequately explained or substantiated to raise a hearing issue. The prospective intervenors alleged that something other than the technology advocated by Applicants is BACT, and listed several other technologies, but failed to state which one should be considered BACT and explain why. The allegation that other technologies were "inappropriately" ruled out is conclusory. Although their filing implies that they would accept wet scrubbers with a means to evaporate the resulting liquid effluent (because of a restriction on the use of the local sewer system) as BACT for this facility, they did not actually advocate that as their position.
The prospective intervenors' Issues Conference offering of the testimony of Mr. Craig Volland as an expert on different mercury control technologies, possibly under subpoena, and statement that he had not as yet reviewed this particular application, is not an offer of proof, but, rather, an expectation they would be able to secure testimony from him that would support their position. Since "BACT" is determined on a case-by-case basis (6 NYCRR 200.1(I); 40 CFR 52.21(b)(12)), assuming the prospective intervenors could secure Mr. Volland's services, the statement that he had not as yet reviewed this application renders speculative any assertion of what his conclusions will be. Speculation will not support the finding of a hearing issue.
Drs. Tinelli and Weiskopf, therefore, raised no substantive and significant issue related to mercury and BACT.
RULING VII D: Drs. Tinelli and Weiskopf raised no substantive and significant issue related to Onondaga County's unique public health concerns.
Drs. Tinelli and Weiskopf contended that "strict BACT standards" should be required because of unique Onondaga County public health concerns, i.e.: the high levels of inorganic mercury in Onondaga Lake (toxic fish) and landfills, the higherthan-average blood-lead levels for Syracuse area children, Syracuse's high infant mortality rate, the proximity of the proposed project to a high concentration of elderly residents, and the failure of the application to address impacts on the Heart's Tongue ferns present nearby.
The prospective intervenors requested that emissions standards address these concerns, and stated in their filing for Party Status as authority for their proposition:
"Under Emission Guidelines for Municipal Waste Combustors [40 CFR Part 60 I.A. - FR5515, Feb. 11, 1991], States must develop emission standards at least as stringent as the (EPA) guidelines ... Additionally, States may, under section 116 of the CAA, require more extensive controls than are necessary to meet emission guidelines in order to address concerns which are specific to a given State or a particular localized air quality situation." (brackets in original filing)
A reference to CAA 116, "Retention of State Authority," makes clear that the prospective intervenors misconstrued the provision they relied upon. It is not a grant of authority from the federal government to the States to set more extensive controls to address local concerns, but, rather, a recognition that (with exceptions) the CAA does not preclude or deny a State the right to set stricter controls (i.e., the Federal requirements will not pre-empt stricter state requirements).
Since the prospective intervenors did not demonstrate that the Department has the authority to do what they believe to be needed (which was not clear since they proposed no particular permit conditions to specifically address their concerns), no substantive and significant issue was raised by their contentions regarding unique public health concerns.
It must be noted that SEQRA might provide authority for the DEC to impose requirements to address the concerns of Drs. Tinelli and Weiskopf, since DEC can impose requirements to avoid or mitigate a project's adverse environmental impacts to the maximum extent practicable. However, the prospective issue here was not broached in a SEQRA context and, thus, the requisite demonstration to establish the existence of a substantive and significant issue was not made. Specifically, no evidence was offered, nor explanation provided, to indicate that the Proposed Project, as already formulated, would not mitigate adverse environmental impacts to the maximum extent practicable. The intervenors did not offer expert testimony which would show that alternative mitigative measures are practicable for this specific project, which would reduce adverse impacts more than the mitigative measures already proposed. Again, the failure to offer testimony of an expert who reviewed this specific application is fatal.
RULING VIII: The request for Party Status received from the "PROSPECTIVE CONSOLIDATED PARTY" (hereinafter "PCP," consisting of Atlantic States Legal Foundation, Inc.; Recycle First, Inc.,- Iroquois Group of the Sierra Cub; Jamesville Positive Action Committee; Southeast University Neighborhood Association, Inc. and Vicki Baker) is denied.
RULING VIII A: PCP raised no substantive and significant disputed issues requiring adjudication.
PCP's filing for Party Status was marked for identification as Exhibit 9. At the Issues Conference, it supplemented its filing with two other documents, an "Identification of Expert Witnesses Pursuant to 6 NYCRR 624.4(b)" (Exhibit 9A), and a "Statement of Expert Qualifications" for Craig S. Volland (Exhibit 9B).
PCP consists of seven entities who have come together for the purpose of intervening in this proceeding. The Atlantic States Legal Foundation, Inc. ("ASLF"), is a not-for-profit corporation dedicated to environmental conservation with principal offices and many members in Onondaga County. Recycle First, Inc. is a not-for-profit corporation with 2200 members in Onondaga County formed with the purpose of attaining responsible solid waste management for the Syracuse area. The Iroquois Group of the Sierra Club has 2500 members, 1200 of whom reside in Onondaga County, is dedicated to environmental conservation. The Jamesville Positive Action Committee ("JAMPAC") is an unincorporated association concerned with social, economic and environmental matters in the vicinity of the Jamesville-DeWitt School District. The Southeast University Neighborhood Association, Inc. ("SEUNA"), with members consisting of households located within the area to be impacted by the Proposed Project, is a not-for-profit corporation formed to promote a safe and pleasant neighborhood environment conducive to family life. The Outer Comstock Neighborhood Association is an unincorporated association of individuals from the Outer Comstock and Thurber neighborhoods in Syracuse located near the site of the Proposed Project, whose members are particularly concerned with the effect of the Proposed Project on human health and property values. Vicki Baker is a downwind resident of the Proposed Project and a County Legislator (see Ruling V above).
Each of the not-for-profit corporations and organizations within the prospective "Consolidated Party," because they were formed with the purpose of promoting the environmental interests of their members, and have members residing in Onondaga County, arguably are likely to be affected by the Proposed Project. Residing "downwind," Ms. Baker arguably also has such an interest. For the purposes of this proceeding, the seven entities collectively as the prospective "Consolidated Party" are found to meet the 6 NYCRR 624.4(b)(1) "interest" requirement.
Nevertheless, as explained under Rulings VIII B through L below, PCP failed to demonstrate that there are any substantive and significant issues requiring adjudication. Since it has not demonstrated an ability to develop the record on an identified substantive and significant issue, Party Status is denied.
RULING VIII B: No substantive and significant issue exists concerning the Letter of Intent (LOI) in materials.
PCP pointed out that the application was deficient on its face (per 6 NYCRR 360-3.2(e)) because the application's LOI from Chambers Development Company, Inc. ("Chambers") stated that the Arden Landfill in Washington County, PA (unqualified under the regulations) would be a "backup site" to its Charles City County (VA) Landfill for the deposition of ash and bypass materials. The Arden Landfill was unqualified to be a "back up" because it would require a major modification to its permit before it could be used for such purposes, and because it was projected to close in either 1995 or 1997, both within 5 years of the startup of the Proposed Project's operation. PCP indicated at the issues Conference that if Applicants produced another letter from Chambers deleting the reference to Arden, their concerns would be satisfied.
Such a letter dated July 8, 1991 was submitted by the Applicants (see Exhibit 3A-1) and compared by the undersigned to the original dated February 4, 1991 (in section 11 of Exhibit 3A). In substance, the two letters are identical except that the latest letter deletes the reference to the Arden Landfill, and reduces the minimum quantity of waste guaranteed to Chambers on a "put-or-pay" basis from 75,000 to 74,000 tons per year. Any concern over the status of the Arden Landfill has thus been resolved.
RULING VIII C: PCP failed to raise any cognizable issues regarding alleged procedural violations.
PCP claimed that the Draft Permit (Exhibits 4A and 4B) was withheld from public review immediately following the determination of the application's completeness for a period of approximately 5 days, violating 6 NYCRR 621.5(d)(7). The Notice of Hearing (dated March 1, 1991), which included a Notice of Complete Application, was published on March 6, 1991. As required by 6 NYCRR 621.5(d)(7), it contained a statement that the Draft Permit was, available for public review. PCP admitted at the Issues Conference that the Draft Permit was available on March 6, 1991. Thus, neither procedural defect nor hearing issue can be ascertained from PCP's claim. Given the time between publication of the Notice and commencement of the hearing (April 17, 1991) and the due date for Party Status filings (May 7, 1991), no prejudice to anyone is even indicated, much less demonstrated.
No issue or procedural defect can be ascertained from PCP's claim that Department Staff acted in "haste" to approve the Proposed Project before the April 1, 1991 effective date of a new law. The filing for Party Status did not identify the specific law involved. PCP was unprepared at the Issues Conference to identify any specific statutory violations.
Claiming that it represented a procedural violation, and arguing that the matters should have been determined prior to the determination of application completeness, PCP submitted a copy of an April 9, 1991 letter from Ogden-Martin to DEC Staff that summarized and explained changes made between the November 1990 and February 1991 submittals for the Part 219 application, contained a fact sheet summarizing the Proposed Project, and calculated the emission factor for beryllium; all in response to a prior Staff inquiry. PCP failed to identify, however, any specific requirement that could have been violated by either the submission itself, or the fact that it had not been submitted prior to the completeness determination. Since Staff's determination as advertised in the Hearing Notice predated the submission, the significance of these materials is not apparent.
PCP claimed that the formal Record in this matter is incomplete due to the absence of two documents: (1) the Service Agreement between the Applicants and (2) the document setting forth Staff employee Steven Flint's written concerns to which the Record contained responses. With regard to the latter, PCP argued that the public would be unable to understand the responses without seeing the questions. This presents no problem, however, because Mr. Flint's questions were not information submitted from the Applicants, and anyone confused by Applicants' responses would have known that the questions existed and could have requested a copy from Staff. With regard to the Service Agreement, PCP argued, in essence, that the public was prejudiced in its review of the applications because the Service Agreement was not included with the other application materials. Staff indicated at the Issues Conference that it had relied upon information in the Service Agreement when making its determinations on the application. At the Preliminary Conference, however, this document was not mentioned when Staff was asked to identify all the Applicants-submitted documentation Staff relied upon when making its tentative determination. Since the Service Agreement was relied upon, it, should have been considered to be part of the applications, and should have been available for public review with the other application documents. PCP, however, was not prejudiced because it obviously was aware of the Service Agreement's existence and could have accessed it through several sources. The Applicants submitted the Service Agreement with appendices for the record (new Exhibits 3G and 3H) under letter dated June 4, 1991, on notice to all who filed for Party Status. In the absence of anyone coming forward and able to show actual prejudice, the procedural defect appears insignificant.
PCP requested a stay of these proceedings pending determination of its appeal before the Appellate Division, 4th Department, of a Supreme Court determination related to the Proposed Project. PCP's request has been rendered moot by the Appellate Divisions' affirmance of the determination made by the court below.
RULING VIII D: PCP raised no issues concerning BACT:
PCP alleged that the Proposed Project would not employ BACT for mercury and acid gas emissions, and that Applicants failed to properly justify their decision not to employ BACT. PCP requested that the permit application be denied, or, alternatively, that the draft permit be "significantly revised in order to reflect the need for BACT."
In particular, PCP questioned Applicants, choice of an "SD/FF" (spray dryer (absorber)/fabric filter) system when Applicants noted that wet scrubber technology could achieve "the potentially highest acid gas removals," and that due to operating conditions "better mercury condensation and collection should occur than in SDA/FF systems" (citation to pp. 5-90 and 5-151 of the Technical Analysis (Exhibit 3C)). Repeating Applicants, quotation of a USEPA guidance memorandum which described a "top-down" approach to BACT analysis [i.e., the most stringent control available will be BACT unless the applicant shows it to be technically or economically infeasible for the source, in which case the next most stringent control is similarly considered, etc.), PCP alleged that Applicants, as part of the BACT analysis, "completed a cursory examination of the supposedly negative environmental, energy, and economic impacts of wet scrubbers."
PCP noted that among the several reasons why Applicants ruled out wet scrubbers was a local requirement that there be no discharge of process waters into the metropolitan sewage treatment system. PCP agreed with Applicants, assessment that with such a constraint, "any wet scrubbing system considered at the proposed site must incorporate methods by which to evaporate the liquid effluent." Applicants described a possible technique for doing this, but, referring to a 1989 report, asserted it was "being investigated" in Europe. However, relying on an April 11, 1991 report by a Phil Hill, PCP alleged that Ogden-Martin's German affiliate, Martin GmbH, began operating a facility in Coburg, Germany, which employs wet scrubbers and evaporates the effluent, in 1989. PCP called Applicants, reliance on the 1989 report as an "inexcusable" "scientific lapse," and the alleged unawareness of the Coburg facility, "incomprehensible."
PCP also criticized Applicants, discussion of economics of wet scrubbers, alleging the supporting evidence as "suspect," and pointing to what it perceived as conflicting statements in the application. PCP noted that with regard to mercury, USEPA has reopened the issue of whether SD/FFs constitute BACT, and referred to a paper by Mr. Craig S. Volland ("Mercury Emissions from Municipal Solid Waste Combustion") that discusses the concerns over SD/FFs, and three other control technologies that might possibly replace SD/FFs as BACT for mercury. PCP also criticized as "misplaced" Applicants' reliance on the recycling program to obtain separation of batteries (sources pf mercury) from the waste stream because of OCRRA's failure to accept Marcal Paper Mills offer to take the county's junk mail.
As noted under Ruling VII B above, for the purposes of determining hearing Issues herein, BACT is considered an applicable requirement for control of mercury emissions. No one disputed that BACT is the applicable requirement for control of acid gas emissions.
None of PCP's contentions rise to the level of substantive and significant issues capable of adjudication. PCP neither offered its own BACT analyses, nor took a clear position on what is BACT for this facility, to counter Applicants' assertions. PCP did not dispute any of the raw data presented in the application on this matter, nor did it cite any data of its own as being clearly in conflict with Applicants, data.
With regard to acid gas controls, PCP only questioned aspects of Applicants, exclusion of the top level (wet scrubber) control it did not dispute Applicants' ranking of controls. On whether or not the proposed facility could employ wet scrubbers with a technique for evaporating the liquid effluent, PCP offered nothing other than a report by a person of unknown qualifications (Mr. Hill) written for an unknown purpose. PCP did not offer an expert conclusion that such technique is practicable for this facility, much less offer information that could support a conclusion that the technique is "adequately demonstrated" technology (6 NYCRR 200.1(I)((2)).
On mercury controls, PCP took no position on the mercury emission limitation as then proposed in the Draft Permit. PCP submitted an article by Mr. Volland which does not clearly conflict with Applicants' position. Both Applicants, analysis of mercury controls and Mr. Volland's article point out the lack of a clear choice of what is the "best" control technology for mercury [which would essentially thwart a "top-down" approach), and the lack of clear understanding of how the controls, operating variables and waste stream composition interplay. Both discussed essentially the same control technologies. Although the Volland article quoted a USEPA official that in Western Europe wet scrubbers are preferred for removal of heavy metals, both Volland and Applicants note EPA's lack of a decision in this area on what is best. In such a millieu of admitted unknowns and indecision, an adjudicatory hearing is not expected to result in better information than what is already in the application (and thus would not result in permit denial or imposition of a significant permit condition). Applicant provided a "top-down" analysis that rejected wet scrubbers for acid gases. Assuming that wet scrubbers should be given a top rank for control of mercury (neither PCP, nor Volland's article clearly took that position, but they seemed to imply such), then Applicants' rationale for rejecting wet scrubbers for acid gas control would become applicable here.
At the Issues Conference (Exhibit 9A), PCP offered the testimony of Dr. Pieter Kark on PCP's "analysis of the co-applicants' BACT proposal. He will focus on the inadequacy of the proposed pollution control devices, and will demonstrate the superiority of alternatives presently available." Per his Curriculum Vitae, Dr. Kark is a well-published Syracuse neurologist with extensive medical experience. No education or experience in pollution control engineering is evident, however. Dr. Kark is clearly unqualified to render any opinion regarding Applicants' BACT proposal.
PCP also offered the testimony of Mr. Volland on "the current status of the proposed pollution control technologies as they relate to BACT. Mr. Volland will specifically address BACT for acid gases and mercury removal." Per his Statement of Expert Qualifications (Exhibit 9B), Mr. Volland is president of an environmental and industrial market research consulting firm, and holds himself out as an authority on heavy metal emissions from waste incinerators and the capability of air pollution controls. Assuming that he has the requisite expertise, Mr. Volland would be qualified to render opinions on Applicants' BACT analysis. However, PCP admitted Mr. Volland had not yet seen the acid gas BACT portion of the application. Thus, Mr. Volland was not prepared to offer any opinion specific to Applicant's "top-down" analysis, including Applicants' rejection of wet scrubbers. There is nothing in PCP's filing or Issues Conference statements to indicate that Mr. Volland had reviewed the mercury BACT portion of the application, either. Since BACT is determined on a case-by-case basis (6 NYCRR 200.1(I); 40 CFR 52.21(b)(12)), this deficiency is fatal to PCP's attempt to raise BACT as a hearing issue. Because PCP did not offer relevant expert opinions that would support its contentions, PCP did not demonstrate its contentions are substantive and significant issues.
RULING VIII E: PCP raised no issues regarding an alleged endangered species.
PCP alleged that the Hart's Tongue Fern (Phyllitis scolopendrium), an endangered species, can be found in the Clark Reservation and Ram's Gulch within 2 miles downwind of the site; alleged that the ferns at those locations constitute 85% of the US' known specimens; noted the 1988 dSEIS' mere notation of the ferns' presence at Clark Reservation; noted that the Proposed Project would emit pollutants (including acid gases, organics and metals, some of which could accumulate in the soil) and heat (approximately 400 million BTU/hr) into the atmosphere; argued that the ferns could possibly be affected thereby; and recommended that the permit be denied until such time that Applicants could demonstrate (by actual experimental data or a comprehensive review of the literature) that no negative impacts are likely.
PCP offered no evidence to indicate that heat and pollutant emissions from the Proposed Project could reach the ferns in a quantity which might affect either the ferns, or plants in general. Potential impact of the project on the ferns is speculation. PCP's lack of showing indicates that there is neither a substantive issue to be heard, nor a defect in the application that needs to be cured.
RULING VIII F: PCP raised no issue with respect to Applicant's use of the terms "balanced source separation" in its application.
Citing language in the application (Exhibit 3A, p. 3-11, "Implementation of balanced (combustibles and noncombustibles) source separation in a solid waste management program does not adversely affect the HHV of the remaining waste"), PCP claimed that "applicants are planning to deliberately burn potentially recyclable waste as part of a strategy to maintain a constant HHV in the waste stream" contrary to the state's solid waste management hierarchy. PCP's claim was made to support its argument that the Proposed Project is oversized (see Ruling VIII K, below).
The cited language was taken out of context. Table 3-5 projects the impact of recycling on HHV based upon the Comprehensive Recycling Analysis' projections of waste stream components (see Exhibit 3A pp. 3-8, 3-9). PCP offered no alternative data. The claim is innuendo and raises no issue.
RULING VIII G: PCP raised no issue with respect to consistency of the Draft Permit's prohibition of yard waste with the state's solid waste management policy.
While arguing that the Proposed Project was "oversized" (see Ruling VIII K, below), PCP noted that Staff's Draft Permit would require permittee to prohibit yard wastes (leaves, grass, brush/branches and stumps/tree sections) from the facility; but also noted that Applicants' Comprehensive Recycling Analysis ("CRA") indicated that leaves (yard waste) would be incinerated at rates varying from 128 to 147.4 tons per day during the period 1995 - 2010. PCP questioned the consistency of the Draft Permit with the State's solid waste management policy per ECL 27-0106 "since yard waste can be recycled via composting," and went on to argue the sensibility of composting.
The CRA was drafted before the permit condition, and did not anticipate it. Nevertheless, Applicants accepted the permit's prohibition of yard waste (see Proceedings, above). PCP offered nothing to indicate that the Draft Permit's prohibition of yard waste from the facility would discourage or prohibit composting, thus (assuming composting is equivalent to recycling), the question of the condition's consistency with the state's management priorities is nonsensical, and argument that composting makes sense is irrelevant. No issue is raised.
RULING VIII H: PCP raised no issue with respect to Applicants' projection of waste generation rates.
As part of arguments that the Proposed Project is "oversized" (see Ruling VIII K, below) and that Applicants' Comprehensive Recycling Analysis ("CRA") was inadequate (see Ruling VIII I, below), PCP questioned the CRA's projection of a 0.75 per cent annual increase in per capita unit waste generation rates (from 5.08 lb./cap./day to 5.94 lb./cap./day - a 17% increase) over the 1989 - 2010 period, and argued that such an increase would be inconsistent with the State's emphasis on waste reduction per ECL 27-0106, as well as with a prediction, contained in the April 5, 1989 "Division Technical and Administrative Guidance Memorandum - New York State's Solid Waste Management Policy Guidance" from Norman H. Nosenchuck, Director, DEC Division of Solid Waste, that an 8 to 10% waste reduction goal should be realized by 1997 over 1987 levels. PCP noted the CRA's presentation of the County's efforts on waste reduction, and essentially claimed they were not good enough. Arguing that waste reduction is not an impossible goal, PCP noted that the Village of Manlius, with a fee based collection system, achieved nearly a 50% reduction in waste generation through recycling and reduction, and that the City of Syracuse is discouraging lawn clipping disposal by imposing a $5 per bag charge. PCP also cited waste reduction efforts by certain businesses and the State of Maine, and suggested some things that the county could do (such as making grants to area restaurants to finance the replacement of disposable dishes and utensils with reusable ones).
Projection of increased waste generation rates, per se, does not automatically indicate inconsistency with the state's priority on reduction and the above mentioned 8-10% reduction goal. The probable source of the 8-10% reduction figure is The New York State Solid Waste Management Plan, the 1987-1988 Update of which (hereinafter the "SWMP") was cited by PCP regarding recycling (below). The SWMP, although not a regulation, was specifically required to be developed by statute (ECL 27-0103), and required to be "consistent with the state resource recovery policies." Id. With reference to the 1987-1997 period, the SWMP, on p. 7-5, stated "One of the state's goals for 1997 is to reduce the weight of the waste stream by 8-10 percent through waste reduction efforts." However, as applied therein by Table 7-1 "Target Reduction Rates for Per Capita Generation of Packaging Waste" (which immediately followed the quoted sentence on the same page) it's clear that the 8-10% reduction goal is not an 8-10% reduction of per capita generation from 1987 levels, but, rather, an 8-10% reduction from what the future per capita generation rate would be absent reduction efforts, based on historical trends. For "Packaging Waste," Table 7-1 actually projected an increase in per capita waste generated after phasing in the full 10)% reduction goal (i.e., for the "Packaging Waste" example, the annual per capita generation rate would go from 720 to 810 lbs. over the 1987-97 period, a 12.5% increase, or 1.25% per year). Therefore, no inconsistency with state policy is indicated merely because a 0.75% annual increase is projected - the management plan mandated by statute similarly predicts increases.
PCP did not explain why its information regarding Manlius, Syracuse, the State of Maine, certain businesses, etc., and/or its suggestions of waste reduction measures, would be inconsistent with Applicants' projections of future waste generation rates, particularly where it is not clear that Applicants, projections are out of line with the state's waste reduction policy. PCP offered no alternative projections of waste generation of its own employing its information and suggestions. Since it was not demonstrated that PCP's information and/or suggestions could lead to projections significantly different from those of the Applicants, no substantive and significant hearing issue exists.
RULING VIII I: PCP raised no issues regarding the adequacy of the CRA.
Pointing to an April 22, 1990 article in the Syracuse Herald Journal, PCP claimed that the August, 1987 William S. Black survey of consumer attitudes used in the CRA is no longer accurate, and argued that the survey was biased and/or flawed in various respects. PCP argued that the County sends out contradictory messages on the necessity of maximizing recycling, that various groups have given the County "poor marks" on recycling education efforts, and that the information materials distributed "shows a lack of proper professional design," "were obviously not produced by consumer or adult education professionals," and "do not meet literacy standards to be understood and read by significant portions of the population."
PCP claimed that OCRRA made decisions to discourage recycling. PCP argued that only two drop-off centers exist, that the centers, availability has not been promoted, that persons using the Rock Cut Road facility must pay (except for the first bin) to dispose of recyclables at the same rate as for non-recyclables, and that the public was not given notice of the aforementioned policy.
PCP complained that "[t]he lack of an adequate effort to recycle the processible waste stream is particularly evident in OCRRA's treatment of paper ... [t]here is no analysis or breakdown of the paper waste stream by percentages ..." nor mention of "junk mail" as a component. Noting OCRRA's non-acceptance of an offer by Marcal Paper Co. to take the County's magazines and junk mail, PCP argued "there are relatively easy solutions which would achieve significant volume reductions."
Citing statements allegedly made by a County official that the County's goal was to achieve a 33% minimum recycling goal over a ten year period, and alleging that program documents criticized the state's 40% goal as being unrealistic, PCP claimed that "[t]he goals for the recycling and reduction program are not maximized and ... the documents show a lack of commitment by the Co-applicant." Arguing that the County's recycling goals "have already proven to be too low" PCP noted that a January, 1991 newspaper article reported that more than 18.5% of the total trash flow was diverted from the landfill to recycling, exceeding the County's projection of 14.1% for 1990.
PCP questioned the CRA's use of the .75%/person/year waste generation increase for the life of the facility instead of anticipating further reductions. Citing waste reduction efforts by certain businesses and the State of Maine, PCP complained of the lack of a County program to reduce waste generation, and suggested some things that the county could do (such as making grants to area restaurants to finance the replacement of disposable dishes and utensils with reusable ones).
PCP questioned the CRA's waste stream estimates in light of the 49% waste reduction and recycling rate already achieved by the Village of Manlius, and argued that the type of effort made by Manlius could be expanded and copied by others in the County, making the proposed incinerator economically unfeasible.
PCP questioned OCRRA's plan to rely on competition between MRFs (Materials Recovery Facilities) when currently only one MRF is under contract and there is no plan for OCRRA to develop alternative MRF (i.e., construct and operate an MRF of its own).
At the Issues Conference PCP admitted that its experts "had not reviewed the entire CRA."
[The CRA's compliance with a cited Commissioner's Interim Decision is addressed separately under Ruling VIII J below.]
By Staff's acceptance of the application and determination to issue a permit, and the Applicants, acceptance of the conditions of the permit, Applicants, facie, demonstrated that the facility and CRA are, if conditions of the Draft Permit are adhered to, consistent with applicable statutory and regulatory requirements and policy. For there to be a hearing on the sufficiency of the CRA, PCP must offer its own data and analysis refuting the CRA, which, if established at hearing, could support a permit denial, imposition of significant permit conditions other than those already agreed to, or require major modification of the project.
Although PCP questioned some of Applicants, projections, questioned Applicants' methods, and cited information believed to be inconsistent with Applicants, position, PCP did not dispute the CRA's raw data, nor did it offer an alternative analysis. PCP's failure to offer an alternative analysis (employing what it contends are, the proper methods and the cited information), makes it impossible to attach any significance to the alleged defects. [For example, PCP claimed the CRA did not break down the paper waste stream by percentages, and did not mention "junk mail" as a component. The CRA, however, clearly did break down the paper waste stream into different components (see Exhibit 3A, Appendix M, p. 21 and exhibit 9 therein) when accounting for 100% of the waste stream, although a "junk mail" classification was not used. Since all wastes were accounted for, "junk mail" apparently was counted under some other classification(s). Applicants' failure to use a "junk mail" classification is not a patent defect because the regulations do not prescribe a "junk mail" category. If any significance is to be attached to a "junk mail" category, it must be used as part of an alternative analysis.] PCP did not demonstrate the existence of a substantive and significant issue regarding the CRA's analysis of the waste stream or projections of future composition.
The CRA (Exhibit 3A, Appendix M) and its Appendices (Exhibit 3B) set forth in detail the "hows" and "whys," etc., of Applicants, recyclables recovery program, and the expected results. It should be noted that OCCRA is not assuming responsibility for waste collection (at points of origin) or hauling, but, rather, will control waste flow within Onondaga County (through local laws, licensing arrangements with haulers, and agreements with constituent municipalities) and provide the ultimate means of waste disposal (whether by recycling through independent MRFs under contract to OCCRA, incineration at the proposed facility, or landfilling, etc.). The Draft Permit contains 14 numbered conditions (specifically, the last 4 pages of Exhibit 4A) which essentially require implementation of theprogram; periodic reexamination of the waste stream, program operations, and results; the actions to be taken if the results projected by the CRA are not attained; additional measures to strengthen permittee's control of the program; and measures to provide the Department with power to control activities of the facility's contributing municipalities (both directly and indirectly by requiring permittee, at DEC request, to refuse wastes from municipalities that do not meet certain requirements, including submission of DEC approved individual CRAs or a local solid waste management plan).
Applicants' recycling program is largely a "legislative type" of determination - something not normally amenable to adjudication except with reference to objective requirements prescribed by statute or regulation. As with any "legislative" determination, if objective requirements are met, a "program" need only be shown to have a rational basis.
PCP did not identify an objective requirement appearing in either statute or regulation that is violated by the program. PCP suggested no permit condition to address what it perceives to be the failings of OCRRA's plan. PCP pointed out no obvious significant defect in the recycling program. PCP offered no alternative recycling plan of its own for comparison.
It is not enough to assert that certain waste streams are capable of being recycled, or that a market for certain waste streams (e.g., "junk mail") exists. It must also be shown that recycling the waste stream is feasible - requiring examination of what is required to separate the waste stream from others, and all the other steps needed to effect delivery to the user. Applicants made such a showing for the waste streams identified. PCP did not offer anything similar.
PCP's criticism, suggestions, etc., are expressions of dissatisfaction with what it perceives to be an inadequate level of recycling effort on the part of Onondaga County and OCRRA. Such comments are legislative in nature.
Applicants' explanation of its program appears rational even when viewed in light of PCP's criticism. The program, as conditioned by the Draft Permit, provides a basis to believe that waste streams will be recycled to the maximum extent feasible. Since OCRRA will depend to a degree upon the efforts of its constituent municipalities to effect recycling, the recycling rate achieved by Manlius, cited by PCP as an example of a good program, appears to bolster rather than detract from this conclusion. PCP, thus, did not demonstrate the existence of any substantive and significant issue related to the Applicants' CRA.
RULING VIII J: PCP raised no substantive and significant issue regarding alleged non-compliance with the 40% recycling goal.
PCP alleged that the CRA is inconsistent with a "state-mandated" goal of 40 percent recycling.
PCP (citing the New York State Solid Waste Management Plan, 1987/88 Update ("SWMP") and the Commissioner's September 19, 1990 Interim Decision, In the Matter of Foster Wheeler-Broome County (the "Broome County decision")) argued that an overall goal of recycling 40% of wastes that are processible in resource recovery facilities (the "40% goal") has been accepted as state policy, and that the CRA does not demonstrate compliance with this goal because its projected "recovery rates" (48-50% depending upon year projected) included the non-processible materials of leaves (yard waste), tires, bulky ferrous, foundry sand, construction and demolition debris, and sludge. PCP, using CRA figures and its determination of what is "processible," calculated a "net recycling rate" of 33.3%. Applicants noted the CRA was developed before the Broome County decision, and, in a submission distributed the day before the Issues Conference and identified as Applicants' memorandum in opposition to the Party Status filings (Exhibit 13), submitted a new analysis (based on 1990 information not previously available) to support an argument that 41% of what it considered "processible" waste (in accordance with available DEC technical: guidance) will be recycled. Staff indicated at the Issues Conference that it did not think the CRA demonstrated compliance with the Broome County decision, but that its proposed Draft Permit revision (see Change #1, Proceedings, page 2 above) requiring that updated CRA reports (required by the Draft Permit) must reflect achievement of recycling 40% of the processible waste stream by 1997, cured this defect.
The three different approaches presented at the Issues Conference indicate disagreement over how the 40% goal should be applied. Participants disagreed over the meaning of "processible." DEC Staff indicated that the agency had not as yet resolved the matter internally.
The 40% goal is not specified by statute or regulation, but, rather, is derived from the SWMP as a goal for the entire state (see SWMP, pp. S-5, 7-6). In the Broome County decision, the Commissioner stated "in the context of resource recovery facilities, compliance with the goal requires a showing that 40% of the wastes that are processible in such facilities are going to be recycled. Processible waste streams exclude those that cannot be burned due to physical and technical limitations as well as those waste streams that are excluded for environmental reasons (e.g., yard wastes and batteries) ..." The Commissioner also stated that the recycling plan "must, at a minimum, include detailed steps that provide a basis to conclude that the 40% recycling goal is likely to be met or describe the specific local circumstances that impede reaching the goal and what measures are being taken to overcome these circumstances." The "or" makes clear that the 40% goal is not an absolute requirement, but, rather, a guideline, non-attainment of which requires an explanation. The Commissioner's overriding concern was facility size, i.e., "facilities should not be sized to create economic incentives that would divert solid wastes that can be feasibly recycled to other less desirable forms of waste management." The thrust of the decision is that plant size must not exceed that needed to process the waste stream left over after "non-processible" and "feasibly recycled" items are excluded.
Assuming PCP correctly applied the concept of "processible" waste to arrive at a 33.3% net recycling rate, the Broome County Decision would require Applicants to describe the specific local circumstances that impede reaching the 40% goal, and the measures being taken to overcome the circumstances.
Applicants, characterization of the waste stream, and projections of what can potentially be removed from the waste stream, because they are specific to the waste shed, are an expression of the local circumstances. Applicants' characterization and projections are not issues requiring adjudication (Ruling VIII I, above). Applicants, program, as modified by Staff's Draft Permit (including Change #1, Proceedings, page 2 above) describes the measures to be taken to attain the 40% goal. The program is also not an issue to be adjudicated (Ruling VIII I, above). Facility size is not an issue for the reasons set forth in Ruling VIII K, below.
Deficiencies in an application may be cured by an appropriate permit condition. The 14 Draft Permit conditions related to recycling, as amended at the Issues Conference, provide a reasonable assurance that the 40% goal will be attained. In light of these permit conditions, PCP's contentions are not significant.
RULING VIII K: PCP raised no substantive and significant issues regarding the size of the proposed project.
PCP claimed the Proposed Project is "clearly oversized," will adversely affect the reduction and recycling of solid waste in Onondaga County, and is therefore inconsistent with state policy. PCP essentially alleged that the oversizing would result from the Draft Permit's exclusion of yard waste, the lack of a substantial reduction in solid waste, the alleged inconsistency of Applicants, recycling program with the 40% goal, and "balanced source separation." These matters have been addressed in different contexts by Rulings VIII F through J.
Applicants contend the Proposed Project is appropriately sized, and Staff agrees with that assessment.
Concern is raised that the Proposed Project may be "oversized" by the fact that "yard waste," which by Applicants' own projections comprises almost 16% of the waste stream, has now been excluded by the Draft Permit. Concern is heightened if it is assumed that sizing was based on a 33.3% recovery rate (as contended by PCP), but that 40% or more will ultimately be attained.
The concern, however, does not rise to the level of a hearing issue because Staff determined there were sound engineering reasons that would justify maintaining the size as proposed, and PCP failed to offer testimony of an engineer to indicate the degree of downsizing that would be appropriate.
PCP should have been prepared to offer an engineering opinion on what would be an appropriate size for the facility, based upon what PCP believed the size of the waste stream could be after maximum reduction and recycling.
RULING VIII L: PCP raised no substantive and significant issues regarding the economics of the proposed project.
Citing 6 NYCRR 360-3.2(a)(13), PCP contended that the Applicants' economic analysis meets neither the letter nor the spirit of the regulations. PCP claimed that the Applicants, estimate of annual tipping fees over the life of the facility is based on unsubstantiated assumptions, flawed assumptions, and erroneous data; and does not consider the economic impacts of the project associated with achieving the goals of the State's recycling goals. PCP alleged that the economic analysis does not project the minimum solid waste required to be treated at the facility to make the facility economically feasible. PCP argued that Applicants' aggregation of incinerator-related with other solid waste costs and revenues prevented public evaluation of the economics of the project. PCP argued economics of the project. PCP argued that the exclusion of yard waste from the facility [by the permit] requires revision of the application. PCP went on to question the basis for several of Applicants' assumptions, disagreed with the method of analysis, and requested that other alternatives be considered.
The Economic Analysis is Applicants, forecast of the economic impact of the Proposed Project, reduced to terms which the regulations contemplate will be useful for decisionmaking: i.e., "tipping fees." Other than the instructions specified in 6 NYCRR 360-3.2(a)(13), the regulations prescribe neither a particular methodology that must be followed, nor assumptions that must be employed, in developing and presenting an economic analysis. Applicants apparently assumed what they perceived to be reasonable scenarios of future waste management practices for comparative purposes, and calculated tipping fees accordingly. Applicants provided information to illustrate how the tipping fees would change if some of the assumptions were varied (e.g., variations in waste delivered, recycling costs, BTU value, etc.). For comparative purposes, Applicants also presented an alternative that eliminated a currently proposed local landfill, and another that eliminated both the landfill and the incinerator itself.
Although PCP questioned and/or disagreed with certain assumptions used, and wanted other alternatives examined, it failed to demonstrate that any of these perceived flaws could be significant enough (i.e., could result in outcomes that would impair the usefulness of the analysis as a planning document) to warrant further inquiry.
PCP did not explain how Applicants failed to "consider the economic impacts of the project associated with achieving the goals of the State's recycling goals" in light of Applicants, 'base case" economic analysis (Exhibit 3A, Section 10) which assumed 310,000 tons per year would be processed, Applicants, estimates that deliveries to the facility would vary between approximately 305,000 and 336,000 tons per year (Exhibit 3A, Section 3) after accounting for Applicants' estimates of what could be feasibly removed from the waste stream for recycling (in the CRA, Exhibit 3A, Appendix M), and Applicants' estimates of 1994 tipping fees should the waste delivered be 250, 270, 290 or 330 thousand tons instead of the 310 thousand tons base case (Exhibit 3A, Section 10, p.6). Without an explanation from PCP of exactly what, in its opinion, Applicants should have done in their economic analysis, it is difficult to ascertain any significance to PCP's claim.
PCP appears correct in its contention that the economic analysis did not project the minimum amount of solid waste needed to make the project economically feasible, since a review of Exhibit 3A, Section 10 revealed no number actually labeled as the "minimum" required. However, because the Economic Analysis estimated the tipping fee for 250,000 tons per year, and concluded that at that level the project would be economically viable (Exhibit 3A, Section 10, p. 11), without an offer of proof that the waste amount could reasonably be expected to go below such level, the significance of the application not specifically labeling a number as the minimum needed is not apparent.
Without an explanation of how the alleged aggregation of incinerator-related with other solid waste costs and revenues (e.q., those associated with recycling and landfilling) prevented "the public" from evaluating the project's economics, PCP's claim lacks substance. Evaluations are made in ways that depend upon the objectives of the evaluator. Here, as already mentioned, the objective appears to have been to predict the system user's future tipping fee, and how that fee could vary if underlying assumptions were changed. The components of and calculation of the fee were explained. PCP identified neither what it tried to do when making its own evaluation, nor what or how a missing piece of information thwarted its efforts. without such an explanation, the claim appears baseless.
Although PCP noted that excluding yard waste (per the Draft Permit) would likely increase the waste streams' HHV and reduce variability in HHV and seasonal quantities (both undisputed points), it failed to explain its contention that these consequences make the application "seriously deficient" and in need of revision. While the Applicants did not anticipate having yard waste excluded from the waste stream by a permit condition when they made their economic analysis, Applicants, documentation already noted the impact of yard waste on the waste stream - as pointed out by PCP in its filing. PCP's contention appears conclusory and lacking in substance.
The "base case" presented in the economic analysis might be 'flawed" and not the best prediction of the future. The Draft Permit's exclusion of yard waste has already changed the "future" from what was anticipated when the analysis was written, and additional unanticipated changes will likely occur. Premises of the 'base case" might not be well founded or may conflict with information elsewhere in the application. If such "flaws" exist, they may or may not be "significant." what is "significant" or a "flaw" depends upon the perspective of the person using the information.
The economic viability of this facility and/or the accuracy of Applicants' economic analysis have not been shown to be appropriate issues for adjudication. There will always be disagreement, uncertainty, and question when dealing with predictions of the future. Because of the broad realm of possibility, adjudication of what could happen in the future is of questionable value - unless one is choosing between alternatives. With defined alternatives, it might be possible to determine the significance of the disputed issue before committing resources to adjudicate it. No alternative analysis was offered here. only substantive and significant issues may be adjudicated. From the Department's perspective, the test of what is "significant" is whether or not the issue's resolution may result in permit denial, require major modification to the project, or the imposition of significant permit conditions (6 NYCRR 624.6(c)). Here, the Department's role is to ensure that sufficient economic information is provided to enable the host community to judge the advisability of the undertaking (see Broome County Decision). The Department, however, is not a guarantor of Applicants' economic information. Applicants appear to have provided sufficient economic information for the host community to judge the advisability of the undertaking. If there are reasons to believe the "base case" will not be obtained, there appears to be sufficient information to permit the ultimate decisionmakers to either adjust the forecast, or, at least, to know what information may still be needed. PCP has not demonstrated that any of its perceived flaws could be significant. Thus, no substantive and significant issue is found to exist.
Pursuant to 6 NYCRR 624.4(f), any ruling of the Administrative Law, Judge (ALJ) denying or, limiting Party Status may be appealed to the Commissioner in writing within three days of the ruling. The Commissioner will decide the appeal within five days of receipt. Notice of the appeal, and a copy of all briefs submitted in support thereof, shall be given to the ALJ.
Pursuant to 6 NYCRR 624.6 (d), "The ruling of the ALJ setting forth the issues for the hearing may, within three days of the ruling, be appealed in writing to the commissioner, who will decide the appeal within five days of receipt. other parties may submit briefs in support of or in opposition to the ALJ's ruling. Notice of the appeal and a copy of all briefs submitted in support thereof shall be given to the ALJ and all parties to the hearing...'
Because these Rulings are complex and being sent by mail, and because of the approaching holiday season, additional time is provided for filing appeals. All appeals must be received no later than close of business on January 10, 1992.
Parties, or entities who filed for Party Status, who may be adversely affected by an appeal are permitted to file response thereto. Such responses must be received no later than the close of business on January 24, 1992. No further replies are allowed. Service by 'fax' is not allowed.
Appeals to the Commissioner are to be sent to the following address: Commissioner Thomas Jorling, c/o Robert Feller, Assistant Commissioner; NYS Dept. of Environmental Conservation; 50 Wolf Road; Albany, NY 12233-1550. (See Service List attached for other addresses).
Order of Disposition
Subject to the Commissioner's determination of any appeals which might be filed herein, and/or a remand from the Commissioner for additional proceedings, absent the existence of -issues requiring adjudication, the adjudicatory hearing is canceled pursuant to 6 NYCRR 624.6(c), and the applications are remanded to Department Staff for continued processing as may be required, leading to issuance of the permits as drafted in Exhibits 4A and 4B, modified as stated in Exhibit 4C and as articulated at the Issues Conference (Transcript, May 23, 1991 Proceedings, page 6).
Administrative Law Judge
Dated: December 11, 1991
Albany, New York