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Onondaga County Resource Recovery Agency - Summary Hearing Report and Ruling, January 27, 1998

Summary Hearing Report and Ruling, January 27, 1998

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Application of the Onondaga County Resource Recovery Agency and
Ogden Martin Systems of Onondaga, Inc. for modification of their
existing Solid Waste Management Facility permit pursuant to 6 NYCRR Part 360

SUMMARY HEARING REPORT

RULINGS AND ORDER OF DISPOSITION

File No. 7-3142-00028/00001

Proceedings

The Onondaga County Resource Recovery Agency ("OCRRA"), 100 Elwood Davis Road, N. Syracuse, NY 13212 and Ogden Martin Systems of Onondaga, Inc., 5801 Rock Cut Road, Jamesville, NY 13078, (the "Co-Applicants") have applied to the New York State Department of Environmental Conservation (the "Department" or "DEC") for modification of their existing permit (DEC Project No. 7-3142-00028/00001). The Co-Applicants request to increase the yearly tonnage processed at their mass-burn solid waste incinerator facility from 295,000 to 361,000 tons. The facility is located at 5801 Rock Cut Road, Jamesville, Town of Onondaga, Onondaga County, NY. Statutory and regulatory provisions applicable to processing this application are: Environmental Conservation Law ("ECL") Article 3, Title 3 (General Functions); Article 70 (Uniform Procedures); Article 27 Title 7 (Solid Waste Management and Resource Recovery Facilities); Article 19 (Air Pollution Control) and Article 8 (State Environmental Quality Review Act, "SEQRA"). Also, 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); Part 360 (Solid Waste Management Facilities); Part 200, et. seq. (Prevention and Control of Air Contamination and Air Pollution), and Part 617 (SEQR).

The application for modification was initially filed during May, 1997, and revised during July, 1997. Following the submission of other documents, the DEC Region 7 Staff ("Staff") issued a Notice of Complete Application ("NOCA") that was published September 10, 1997 in the Environmental Notice Bulletin ("ENB"), and September 11 and 12, 1997 in the Syracuse Herald Journal and the Post Standard. The NOCA indicated that pursuant to SEQRA, the DEC, as lead agency, determined that the proposed modification was an unlisted action which would not have a significant effect on the environment, that a Negative Declaration was on file, and that a coordinated review was performed. The NOCA provided the public with an opportunity to file written comments with Staff, which received 96 written comments in response.

On October 16, 1997, the DEC Office of Hearings and Mediation Services ("OHMS") received Staff's request to schedule a public hearing. Frank Montecalvo was assigned to be the Administrative Law Judge (the "ALJ") who would hear the matter.

The Notice of Public Hearing (the "Notice") was issued October 23, 1997; was mailed the same day to the Town of Onondaga supervisor, the Onondaga County clerk, and to other persons deemed interested in this proceeding; and was published October 29, 1997 in the ENB. A revised notice to correct an applicant address and the hearing location was mailed October 28, 1997 to the same persons that were on the original mailing list, and was published October 29, 1997 in the Herald Journal and the Post Standard. A correction reflecting the changes was published in the November 5, 1997, ENB. The Notice indicated that Staff had prepared a draft permit which would increase the throughput to 336,000 tons per year, and that Staff had tentatively determined to issue such a permit. The Notice stated that petitions to intervene in the proceedings were to be received by the ALJ by 12 noon, December 1, 1997; that written comments on the Co-Applicants' proposal and Staff's Draft Permit were to be received at or prior to the hearing; and that written comments previously filed with DEC Staff did not have to be resubmitted.

In response to the Notice, the ALJ received 44 written comments and two petitions to intervene.

As advertised in the revised Notice, the ALJ held two sessions of the legislative public hearing, beginning at 2:00 PM and 7:00 PM respectively on December 4, 1997, at the Carrier Theater, Civic Center, 411 Montgomery Street, Syracuse, NY. The first session was attended by approximately 150 people, 38 of whom made oral statements for the record. The second session was attended by approximately 85 people, 30 of whom made oral statements. These statements, along with the written comments filed pursuant to the Notice and the written comments filed with Staff pursuant to the NOCA, are summarized in "Summary of Public Concerns," below.

ALJ Montecalvo convened the issues conference at 9:30 AM the next day, December 5, 1997, at the same location as the legislative public hearing. DEC Staff was represented by Jennifer Powell, Esq., Assistant Regional Attorney. The Co-Applicants were represented by Nixon, Hargrave, Devans & Doyle, LLP; Ruth E. Leistensnider, Esq., of counsel. Requests to intervene were received from the Honorable Vicki Baker, County Legislator, who appeared on her own behalf; and from a group of organizations known as the "Environmental Coalition," who appeared through Carl G. Dworkin, Esq. The Environmental Coalition consists of the Sierra Club, Iroquois Group; New York Public Interest Research Group; Outer Comstock Neighborhood Association; Southeast University Neighborhood Associates; Atlantic States Legal Foundation, Recycle First, Drumlins Citizens for Environmental Protection, and Jamesville Positive Action Committee.

Prior to the issues conference, the ALJ reviewed the contents of the OHMS file, marked certain documents within as exhibits for identification, and prepared a list describing the exhibits. This list was distributed at the issues conference to the conference participants. Upon convening the conference, the exhibits were displayed and the list was reviewed. The ALJ requested that the list be made part of the proceedings' official transcript. The complete list of exhibits, revised to include the additions made at the issues conference, is attached as Appendix A, below. Also, the ALJ prepared and distributed a service list at the issues conference which was reviewed and corrected at the issues conference. The Official Service List, corrected and revised to reflect the changes noted on the record and herein, is attached as Appendix B, below.

The documents comprising the application and Staff's response were identified, and Staff and the Co-Applicants were queried upon the existence of disputed issues between them. Additional documents reflecting their respective positions were marked for identification. Following discussion of Staff's and Co-Applicants' positions relative to each other, the petitions for party status were reviewed and proposed issues for adjudication were discussed.

Ms. Baker filed a letter to withdraw her petition for party status. The substance of her original concern, which involved alleged violations, was discussed on the record with Department Staff, and Ms. Baker indicated that she was satisfied with the response she received from Staff. Because of her withdrawal, Ms. Baker's petition is not considered further herein. However, as a courtesy, she will be maintained on the Official Service List of this proceeding for the purpose of receiving copies of rulings and other documents issued by the ALJ or the Commissioner.

The Co-Applicants objected to the lateness of the Environmental Coalition's petition for party status (the ALJ having received the petition five hours late; the Co-Applicants having received it the day after the due date). The ALJ overruled the objection. Since the Environmental Coalition had been found in the original permit proceeding (1991) to have met the "environmental interest" test in the hearing regulations, and such interest was not challenged, discussion then centered on the Environmental Coalition's proposed issues for adjudication. The Environmental Coalition supplemented its petition and discussion with several documents which were marked for identification and are considered below.

The issues conference concluded at approximately 1 P.M. The relative positions of Staff and Co-Applicants, and the issues for adjudication proposed by the Environmental Coalition, are summarized under "Summary of Proposed Issues," below.

The transcripts of the legislative hearing and the issues conference were received January 7, 1998. No post issues conference submissions were authorized. The matters of whether further proceedings are necessary, what issues should be resolved, and who should participate are now ready to be determined.

Summary of Public Concerns

A vast majority of the written comments opposed granting any increase in through-put to the Co-Applicants. Of the oral comments made in the afternoon session, a large majority favored granting the increase. There was heavy representation by Co-Applicants' personnel at that session. The evening session was more evenly split, with more opposing than favoring the increase. None of these numbers should be considered representative.

Those opposed to the permit modification tended to be neighborhood and environmental organizations, physicians, concerned citizens (especially those living in proximity to the facility), and their elected representatives. They have many concerns. Two main concerns center on increased pollution, especially air pollution, and the effect of the modification on recycling. There also appears to be an overriding concern over trust of the Co-Applicants.

Those opposed point out that if DEC allows more waste to be burned, more pollutants will be released to the air, water and soil. There is fear of what comes out of the facility's stack, especially the fine particulates. It was noted that these particulates can hold toxic metals such as lead, zinc, cadmium, arsenic, and chromium, as well as sulfur and hydrocarbons. The size of these particulates makes them amenable to entrapment deep in the lungs where the toxins may access the bloodstream. Increased burning with its associated pollution is seen as resulting in increased cancer, leukemia, birth defects, infant deaths, asthma, and other maladies.

Assuming that the facility always operates within regulatory guidelines, concern will remain. Pollutant limits set by state and federal regulations, seen as geared to adult males, are not perceived as protective of health, especially the health of women, children and the elderly. There is concern that a lot is unknown about the effects of pollutants. Given the foregoing plus studies indicating that there is no safe exposure to dioxins and dibenzofurans (which can be produced in the incineration process), it appears that no additional burning would be considered acceptable to those opposing the modification. Since economics is sometimes cited as justification of incineration, those opposed point out that there are costs associated with health effects, and that it may be many years before the effects become apparent and the costs can be calculated.

Several people living near the facility complained of dust, odors, noise and traffic; associated respiratory ailments or dying plants with the facility's operation; and essentially are concerned over a perceived degradation of the environmental quality in and desirability of their neighborhoods in comparison with other places.

Although a relatively high recycling rate compared to other places is generally recognized, those opposed to the modification believe that more can be done, and that an increased through-put limit will only be a disincentive to recycling. They base this view on observations of recyclables being otherwise disposed of, lack of recycling containers in offices and various public facilities, conceivable new efforts such as government requiring recycled content for its purchases, and a perceived lack of effort on the part of the authorities to educate those inhabiting certain neighborhoods about recycling. Noting that jobs have been cited as a reason for the modification, they point out that recycling also creates jobs to help the economy. They also believe that more can be done to reduce waste generation.

Overlaying the concerns related to pollution and recycling is the matter of trust. Many of those who oppose the permit modification do not trust the Co-Applicants' motives or their data. Apparently soon after the facility started accepting waste there was a waste shortage that was noted in the local press. Now the Co-Applicants cite increased tonnages as the basis for requesting the permit modification. Some view this increase as a "spike" in waste tonnage that the Co-Applicants have somehow created which does not reflect the real need of the wasteshed. It is believed that once the limit is raised, waste will be imported and tires will be burned, apparently a change from what was local understanding. Indeed, waste importation and burning of tires have been recommended in the Blue Ribbon Committee's report (see below). Some facility violations that were reported in the press, especially a February, 1997, exceedence of a hydrochloric acid limit in an annual stack test, have apparently contributed to the opposition's mistrust.

Other than employees of Co-Applicants, those favoring the increase in the through-put limit tended to be government and business leaders (e.g., the Mayor of Syracuse, the County Executive, Chamber of Commerce, builders, and manufacturers). The report of a "Blue Ribbon Committee" to the county legislature was submitted for the record as a comment. That report recommends that the facility be permitted to operate at its capacity.

Those favoring the permit modification see the modification as essential to development of the local economy and creating jobs. They note that the facility is currently operating at close to the existing permit limit, but well below the actual capacity of the plant as constructed. Maintaining this unused capacity is viewed as wasteful. If there is any increase in the local waste stream beyond current levels, it is believed that the facility will surpass its current limit and will have to turn the waste away. In that event, taxpayers will have to pay again to transport and bury the waste in a landfill with perceived deleterious environmental consequences.

The proponents of the permit modification point out that businesses need stability and predictability in their waste disposal options and costs if they are to grow. Increasing the limit is seen as assuring businesses who are considering relocating to or expanding in the local area a cost effective and environmentally friendly place to dispose of their waste.

Eliminating the limit is seen as a long range solution to solid waste management. The proponents believe that the area is beginning to see new job creation and an economic turnaround -- requiring a place to dispose of the resulting increased waste stream. Several persons referred to a "2010 Plan" which apparently calls for a 1% per year increase in population and 50,000 new jobs by the year 2010.

Those favoring the modification address health concerns by pointing out that the facility contains advanced pollution control equipment, generally operates well within its emission limits, will be subject to the same emission limits with an increased tonnage. The risks associated with the plant are perceived to be no greater than the risks associated with common day-to-day activities.

No disincentive to recycling is perceived from increasing the limit because of the current recycling rate that has been achieved. The facility's proponents point with pride to the local recycling rate and their various recycling programs that have won state and national recognition. They note that the recycling rate has increased even while the amount of waste burned at the facility has also increased.

Summary of Proposed Issues

Department Staff and the Applicant

Although the Co-Applicants have requested that their permit be modified to remove the current 295,000 tons per year limit on waste through-put, Staff is only willing to raise the limit to 336,000 tons per year. The current limitation was set in May, 1992, by DEC Commissioner Jorling as an incentive to recycling. The Co-Applicants contend that their application shows that the Commissioner's recycling goal has been achieved, and justifies their being permitted to use the plant's entire 361,000 tons per year capacity. Staff counters that a 336,000 tons per year limit is still necessary to continue to encourage recycling. How Staff arrived at their through-put limit is explained in their Negative Declaration. In spite of their dispute, the Co-Applicants are willing to accept Staff's limitation provided there are no other issues to be adjudicated. If a hearing is necessary, the Co-Applicants will contest Staff's proposed limitation.

The Environmental Coalition

[I - Need]

The Environmental Coalition challenges the demonstration of need for an increase in the limit. The Coalition contends that if Staff raises the limit to 336,000 tons per year (an increase of 41,000 tons per year or 14%), it will seriously conflict with recycling and waste reduction efforts -- the basis for the limit when it was set. The Coalition claims that the premises upon which Staff found a need to raise the through-put limit (i.e., an addition of 7,400 tons per year of construction and demolition ("C&D") waste from the expected closing of the Camillus Landfill, an addition of 15,000 tons per year of waste from Solvay Paperboard, and accounting for variability in the waste stream with an additional 18,600 tons per year) are erroneous, allegedly being based on flawed analysis, incorrect information, or unrealistic expectations.

The Coalition claims that a significant amount of "processable" waste received at the Camillus Landfill is already being diverted to the Co-Applicants' incinerator. Thus, the Coalition argues that closing the landfill would not significantly increase the amount of waste headed for incineration. The Coalition submitted two letters [Exhibits 6C and 6D] which indicate that approximately 2.5 tons of burnable wood are delivered each day during peak season to the incinerator. The Coalition also notes that the landfill has applied for a time extension of its existing landfill permit.

The Coalition questions Staff 's estimate of waste from an industrial expansion of Solvay Paperboard because Staff relied on a letter from that company [in the record as an attachment to Exhibit 2F] that the Coalition claims was not part of the application considered here or attached to the Negative Declaration. The Coalition points out that the letter does not contain a firm commitment by Solvay Paperboard to send its waste to the incinerator. Noting that it costs $30/ton to landfill such waste, and that the current tipping fee at the incinerator is $84/ton, the Coalition, in essence, argues that without a contract, it is illogical and speculative for Staff to expect that Solvay Paperboard would use the incinerator.

With regard to both the Camillus Landfill and Solvay Paperboard matters, the Coalition seeks to get information from the Co-Applicants, Staff, and personnel of the other entities involved; or make the necessary presentation itself if it cannot obtain cooperation from the others.

The Coalition challenges Staff's analysis allowing Co-Applicants to burn an additional 6% (18,600 tons) to account for "variability" in the waste stream. The number is apparently based on the 6% increase in waste observed between 1995 and 1996. The Coalition also challenges what they construe to be the Co-Applicants' position that a 22% increase in annual through-put is justified by year-to-year variability in the waste stream.. The Coalition alleges that both Staff's and Co-Applicants' conclusions are based on "faulty analyses," and offers testimony of an engineer [unnamed in the petition] with respect to waste tonnages who purportedly would show that the Co-Applicants' analysis is based on "inappropriate" data, and that a "proper" analysis would lead to the "inescapable" conclusion that the existing through-put limit of 295,000 tons per year is adequate for the foreseeable future. The Coalition also offers the testimony of someone trained in statistics [unnamed in the petition] to refute the Co-Applicants' statistical analysis. To support this position the Coalition offered the following observations:

Co-Applicants considered year-to-year variations in combined MSW and C&D waste, ignoring recycling tonnages, rather than using MSW burned and MSW recycled. This is perceived to be an inappropriate assessment of waste stream variability. It is alleged that C&D waste will be variable (depending on whether buildings are being torn down) (Transcript, pp. 114-5 ). When only the burned and recycled MSW is examined, the resultant number is not as variable as that estimated by Staff or Co-Applicants. This is illustrated on a chart prepared by Mr. Hughes (Exhibit 6E).Data from 1990 and 1991 allegedly should be excluded because the amount of C&D waste included within those years' tonnages is unknown. The extremely small sample size make Co-Applicants' correlation of employment with waste generation statistically unmeaningful. The prediction of future waste loads generated by businesses based on historical waste loads is questionable owning to varying business types, new "green" technologies and waste reductionefforts. Usingg Co-Applicants' data for 1992-1996 which indicated that the total waste stream (excluding C&D waste) ranged from 397,000 to 430,000 tons per year; applying a minimum 40% recycling rate to the highest year (1994) to yield 258,000 tons of processable MSW, and adding in 30,000 tons of C&D (the average for 1996 and 1997), results in a capacity of 288,000 tons per year, which is "well below" the existing limit. Although Co-Applicants state that population and business activity are projected to increase, there is no reasonable basis for either prediction, making analyses based thereon invalid.

The Coalition does not dispute the Co-Applicants' raw data. Rather, it would analyze the data in a different way, essentially to eliminate the effect of variability in the C&D waste stream. (See Transcript, pp. 121-4). Mr. Hughes indicated he would be the Coalition's witness, however he indicated that he was still in the process of reaching a final conclusion (Transcript, p. 124).

[II - Future of Recycling]

While applauding OCRRA for reaching the 40% recycling goal, the Environmental Coalition contends that it is feasible to push recycling past 40%, noting that the goal was set many years ago. The Coalition argues that the goal has been treated as a defacto limitation, which would be inconsistent with the State's solid waste management hierarchy [ i.e., (a) to reduce waste generated, (b) reuse or recycle waste, (c) recover energy from waste, and (d) dispose of waste by land burial or other means; see ECL 27-0106(1)]. The Coalition is concerned that many recyclable or re-useable materials routinely are thrown out and burned, rather than recovered as required by the hierarchy. The Coalition submitted documentation of several incidents of recyclable materials being disposed of at the incinerator (Exhibits 6A and 6B) to demonstrate the need for maintaining the previously established limit. They are prepared to offer testimony that a truckload of potentially recyclable envelopes were disposed of at the incinerator, and that an individual was directed to throw recyclables in the trash pile at the incinerator because recycling containers there were full. The Coalition would like to present expert testimony on the feasibility of going beyond a 40% recycling rate in the future. However, the Coalition was not prepared to identify at the issues conference who that expert would be (Transcript, p.65).

[III - Incineration of Materials that are Better Landfilled or Recycled]

The Coalition fears that once the 40% recycling level is achieved, additional materials that are easily recyclable will be burned instead of landfilled or recycled resulting in (1) what they view as a violation of the state's waste management hierarchy and SEQRA, and (2) a release of hazardous substances, including dioxin, to the environment which would otherwise remain inert within an landfill. The Coalition at the issues conference indicated that a "disaggregation" of the waste stream was needed, and that each component had to be evaluated for recyclability, marketability, and appropriateness for incineration. The Coalition was unable to name a particular witness for this proposed issue, claiming to be "in negotiation" with an expert. (Transcript, pp. 79-80).

Discussion

[Overview]

Even though Department Staff and the Co-Applicants have agreed that an increase in the through-put limit from 295,000 tons per year to 336,000 tons per year meets applicable requirements and is acceptable, a segment of the general public and the Environmental Coalition believe otherwise, having voiced a number of concerns. Whether or not the concerns should be addressed in a DEC adjudicatory hearing, as opposed to some other forum, is determined with reference to the requirements of 6 NYCRR Part 624, the DEC Permit Hearing Regulations.

The hearing regulations at 624.4(c) outline the standards for determining if adjudicable issues exist. In general, 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 (624.4(c)(1)).

Here the Staff does not propose to deny the application. The only dispute between the Co-Applicants and Staff over a substantial term or condition of the draft permit is whether or not a 336,000 tons per year limit should be imposed, as opposed to no limit at all. The Co-Applicants have said, however, that they will accept Staff's limit if no other issues are identified for adjudication. Thus, this will be a hearing issue only if someone else proposes an issue that is both substantive and significant.

When the department staff have determined that a proposed project, as conditioned by a draft permit, will conform to all applicable statutory and regulatory requirements, the burden of persuasion is on the potential party proposing an issue to show that the proposed issue is both substantive and significant (In the Matter of the Town of Huntington, Interim Decision of the Commissioner, December 22, 1988 and In the Matter of Bonded Concrete, Inc., Interim Decision of the Commissioner, June 4, 1990. 624.4(c)(4)). To meet the burden, a person must offer assertions that arise from the opinions of qualified prospective witnesses, specifying in the petition for party status "the witness(es), the nature of the evidence the person expects to present and the grounds upon which the assertion is made with respect to that issue." ( 624.5(b)(2); Matter of Halfmoon Improvement Area No. 1, Decision, April 2, 1982 ; see also Oneida County's Energy Recovery Facility, Interim Decision, July 27, 1982).

An issue is substantive if there is sufficient doubt about the Applicant's ability to meet the applicable statutory or regulatory criteria such that a reasonable person would inquire further. To determine whether an issue is substantive, the ALJ must consider the proposed issue in light of the application, and related documents, the draft permit, the content of any petitions filed for Party Status, the record of the Issues Conference and any subsequent written arguments authorized by the ALJ (624.4(c)(2); see also In the Matter of the International Business Machines Corporation, Interim Decision of the Commissioner, July 3, 1990). To be substantive, the issue cannot be based merely on speculation but on facts that can be subjected to adjudication (In the Matter of Concerned Citizens Against Crossgates v. Flacke, 89 AD2d 759 (3rd Dept., 1982), aff'd. 58 NY2d 919 (1983)).

An issue is significant if the adjudicated outcome can result in permit denial, a major modification to the proposed project, or the imposition of significant conditions in addition to those proposed in the draft permit (624.4(c)(3); see also In the Matter of St. Lawrence County, Third Interim Decision of the Commissioner, April 30, 1990; In the Matter of NYC Dept. of Environmental Protection, Chelsea Pump Station, Third Interim Decision of the Commissioner, October 6, 1988 ).

As both the regulations and the case law discussed above recognize, there can be no adjudication of an issue unless someone comes forward to represent the cause. Here, the public's concern over the need to raise the through-put limit, and the impact this would have on recycling, is effectively represented by the Environmental Coalition's position. That position is analyzed in the sections below.

With respect to public health concerns evidenced by the public statements, an adjudicatory hearing would be unable to resolve the concerns of those who have spoken against the proposal for reasons of increased pollution and its effect on human health. This is because no one has come forward with evidence proposing to show that the increase in the facility through-put limit would be likely to result in any exceedence of the health based emission standards or other applicable requirements. The underlying apprehension is that the established standards may not adequately protect health. Attacking these standards, however, is beyond the scope of this proceeding which is about changing the through-put limit. Essentially, the health related issues were already dealt with in the proceedings which led up to DEC issuing the original permit.

Although some of the public's concerns cannot be further addressed here, those concerns have been recorded. The Environmental Coalition's proposed issues are considered next.

[I - Need]

The Environmental Coalition's contentions regarding the need to increase the existing through-put limit challenge Staff's agreement to raise the limit to 336,000 tons, and, in effect, Co-Applicants' request to raise the limit to the facility's design input. The Coalition's petition did not name their witness, which is required by 624.5(b)(2), but Mr. Hughes was proffered at the issues conference. Since the petition was detailed, and certain documents were submitted for consideration, analysis of this potential issue is continued below. For the purpose of continuing the analysis, it is assumed that Mr. Hughes is a qualified witness although the Coalition has not submitted any documentation to establish this.

Whether or not this issue is "substantive" must be determined with reference to the applicable statutory and regulatory criteria. The applicable statutes and regulations provide no express standards for setting, imposing or changing any restriction on the amount of waste that a facility may accept. Rather, the current limit was imposed by Commissioner Jorling in his May, 1992, Interim Decision with the objective of ensuring that the proposed incinerator would not compete with waste reduction and recycling programs. The Interim Decision, thus, represents the case law on how through-put limits should foster recycling in this type of proceeding.

At that time, Commissioner Jorling undertook an analysis of waste stream data to determine whether or not the then-proposed incinerator would compete with waste reduction and recycling efforts in the service area. He began with the total waste tonnage numbers from 1990 (445,448 tons) and 1991 (409,991 tons), and picked the smaller ("more conservative") of the two as the baseline for further analysis. To account for an expected population increase, but not accepting any increase in waste generation per capita, an extrapolation from this number was made which forecast that 416,058 tons of waste would be produced in 1997. From this number, the amount of "non-processable" wastes was subtracted, leaving 367,355 tons of "processable waste." The Commissioner then reduced this amount by 40 percent to reflect the state's 40 percent "goal" (based on Department data gathered separate from the permit proceeding) resulting in 220,413 tons of solid waste to be managed by incineration. This was then supplemented by the "nonprocessables" that the Co-Applicants demonstrated could be managed at the facility, to result in a projection of 255,120 tons for incineration. Stating that "oversizing a facility by up to 15% is acceptable in order to take into account the uncertainties related to the use of estimates in deriving capacity needs," the Commissioner concluded that he could approve of a facility that would handle up to 295,000 tons per year of solid waste (which actually was closer to 16% more than the projected amount). Consequently, the Commissioner set this number as a limit in the permit which, if accepted, would avoid the need for further adjudication. (Interim Decision, pp. 4-6). Ultimately, the Co-Applicants accepted the limit and the permit was issued.

The Co-Applicants now apply for elimination of the limit, based on actual tonnages, anticipated new waste streams, and their interpretation of the Interim Decision (i.e., to add an additional 15% to the total). Co-Applicants indicate they expected to reach the limit in the last quarter of 1997 (see Exhibit 2A, pp. 12-16, especially p. 15).

Staff does not attempt to reanalyze the entire waste stream as the Commissioner did in 1992. Rather, Staff takes the Commissioner's established through-put limit (based on the earlier analysis) and proposes to raise it to allow the facility to handle new wastes expected from the Camillus Landfill closure and Solvay Paperboard, and to allow for "variability" that was observed in the waste stream. The Environmental Coalition now questions each of the three numbers that Staff added to the original limit to produce the proposed new limit.

While the Environmental Coalition questions Staff's reliance on one letter from Solvay Paperboard about that company's expected waste increase, the Coalition points out nothing that requires a binding contract before a commissioner's decision on a through-put increase. Even though no one disputes the spread between the cost of landfilling ($30/ton) and cost to incinerate ($84/ton) at the current tipping fee, the company's letter clearly indicates an interest in becoming a customer of the Co-Applicants' facility. The Environmental Coalition's implication is that they are asking for a DEC hearing to probe the factors used or projected in a business decision that has yet to be finalized. It is speculative that a hearing would lead to certainty as there are no clear standards for judging the outcome. It is not apparent that a hearing would produce more useful information than the record already holds, specifically, that a company has expressed an interest in using the facility and the Staff would raise the limit to allow the facility to be used. The Coalition's position implies that nothing less than certainty about future waste streams would justify raising the limit. I can not agree. The 1992 Interim Decision allowed a 15% oversizing to accommodate such uncertainty. This appears to be reasonable.

Similarly, the challenge to the Camillus Landfill information is unpersuasive. Assuming its information as fact, the Coalition's information would reduce that waste component by only 900 tons from 7400 to 6500 tons per year, having little effect on Staff's sizing and through-put calculations which lead to 336,000 tons. Regarding the landfill's request for an extension of time to stay open, Staff has indicated that even if approved, the landfill will eventually close and the waste will have to go somewhere. If the incinerator has sufficient approved capacity available at the time of closure, the waste could go there.

It is undisputed that Staff based its allowance for waste stream "variability"on the 6% increase in tonnage actually observed between 1995 and 1996, because it was the largest increase found in the available data. No one denies the fact that the actual waste stream increase occurred. In fact, no one has challenged the accuracy of the Co-Applicants' data underlying their analysis. The Coalition's argument that the data used is "inappropriate" for considering waste "variability" because it includes C&D waste is not understood. If C&D waste is actually part of the waste stream that the facility receives, then it would seem to be misleading to ignore it when calculating the variability of what comes into the facility.

While the Coalition criticizes aspects of how Staff determined the new limit, and they claim that a "proper" analysis would lead to the conclusion that the existing limit will be sufficient for years to come, they have presented no clear estimate of their own of what the future need will be. In fact, they have yet to draw a conclusion. (Transcript, p. 124). The closest they come to a conclusion is the calculation in their petition using the 1994 actual processable waste stream plus the average actual C&D waste from 1996-1997 which results in a needed capacity of 288,000 tons -- only 7,000 tons below the current limit. Interestingly, that calculation makes no provision for any new waste streams, meaning that if more than 7,000 tons more than the 1994 amount were to arrive at the facility, it would need to be turned away for disposal elsewhere.

Staff have logically set forth how they arrived at their decision to raise the limit to 336,000 tons. Although the Coalition raises questions about Staff's calculation, the Coalition has yet to present a calculation of its own that leads to a different result. I conclude that the Coalition has not shown that its concern over "need" is a substantive issue.

The Co-Applicants' have presented two key pieces of information that have essentially gone unchallenged: (1) they expected to reach the tonnage limit for the facility some time in the last quarter of 1997 (Exhibit 2A, p.15); and (2) they had actually achieved a 40% recycling rate (Exhibit 2A, p. 12). Whether or not the final data for 1997 will confirm this information is unknown. What is known, as illustrated by the Coalition's calculation above, and by the Co-Applicants' 1996 actual tonnage (289,243 tons; Exhibit 2A, p.16) is that the facility is operating uncomfortably close to the through-put limit while still achieving a recycling rate consistent with the state's articulated goals. That means that the facility's approved capacity is in balance with recycling -- for now. However, absent a decrease in existing waste streams, if any new waste streams had to be accommodated, the limit would have to be raised.

The Solvay Paperboard letter, Camillus Landfill situation, and observed increases have given Staff reason to believe that additional capacity may be authorized now so that the needs can be met as they arise later. This appears to be an exercise of prudent judgment. An alternative, which seems unmanageable, would be to wait and require an application every time a new waste stream comes on line. Staff have estimated the future need based on available information. Since this was only an estimate, there are a number of uncertainties -- precisely the things the Coalition has pointed out. The Interim Decision recognizes that uncertainty is associated with predicting the future, and accommodates uncertainty by allowing a facility to be "oversized" by 15% as a margin of safety. Assuming that the facility is now actually receiving waste at the 295,000 ton limit while meeting the 40% recycling rate (which appears to be the case), the approved capacity could now be oversized by 15%, consistent with the Interim Decision, to cover future uncertainty. Based on only the current usage (i.e., not accounting for the specific new waste streams mentioned or increases due to "variability") oversizing by 15% would result in a number only a few thousand tons larger than the number Staff has already proposed. Since Staff's estimate is within this 15% margin, the debate about Staff's estimate centers on a relatively insignificant tonnage.

Only the future knows for sure whether or not Staff's increased limit will become the disincentive to recycling that the Coalition fears. However, given the permit's reporting requirements, Staff has the means to become aware of this, and will be able to move to correct the situation as needed. The Coalition does not appear to have any information that would clearly lead to a result contrary to what Staff has already determined to do. Based on the above, the proposed "need" issue appears to be neither substantive nor significant.

[II - Future of Recycling]

Regarding the potential to push recycling beyond a 40% rate, allegations that certain incidents happened where recyclable materials may have been incinerated, or that certain institutions or businesses do not recycle, are not a "credible offer of proof that there are waste streams in addition to the ones addressed in an applicant's recycling plan that can be feasibly and reliably recycled over time" (see Interim Decision, 5/10/89, Matter of Harbert/Triga Company; boldface supplied). I am not persuaded that these isolated incidents, even if true, meet this requirement. The Coalition's failure to name a witness and specify facts that could support a conclusion that there are other waste streams which can be feasibly and reliably recycled indicates a lack of substance to its contentions. Consequently further inquiry is not warranted.

The proposed issue has not been shown to be substantive and significant.

[III - Incineration of Materials that are Better Landfilled or Recycled]

Regarding "disaggregation" of the waste stream, which was first brought up at the issues conference by the Coalition's attorney, the Co-Applicants pointed out that a waste characterization and market evaluation had already been performed and are being updated and administrated through existing permit conditions. (Transcript, pp. 83-4). Accordingly, the Coalition's desire for disaggregation is in essence already being done by the Co-Applicants.

Regarding its concern that the proposal will lead to incineration of materials that are better landfilled or recycled, again, the Coalition's failure to name a witness and specify facts that could support a conclusion that the proposed change in through-put will result in a violation of the state's waste management hierarchy, SEQRA, or other applicable requirement indicates a lack of substance to its contentions. Again, further inquiry is not warranted.

The proposed issue has not been shown to be substantive and significant.

[Summary]

While the Environmental Coalition questions the reliability of the numbers that Staff uses to reach the proposed new through-put limit of 336,000 tons per year, the record is undisputed that the facility is already operating at close to the existing 295,000 ton limit while achieving a 40% recycling rate. Applying 15% to this level of through-put to account for uncertainty per the Interim Decision would produce a number greater than 336,000 tons per year. Thus, at the current rate of through-put, the Co-Applicants have already met their burden in establishing a need to increase the limit. It appears that nothing would be achieved by going to hearing on the issue. In so far as the Environmental Coalition believes that greater than a 40% recycling rate is achievable, or that the increased limit will lead to incineration of materials that are better landfilled or recycled, the lack of witnesses or specific facts to support these positions precludes proceeding further with them.

The public's concerns regarding recycling are addressed by the above and by Staff monitoring the recycling data that is submitted pursuant to the permit and regulations. Concern over health effects was considered in the prior proceeding and is addressed by emission standards. To the extent that existing standards are not believed to be protective of health, that subject is beyond the scope of this proceeding.

Rulings

Based on the exhibits, the record of the issues conference and the forgoing discussion, the following rulings are made:

  1. No substantive and significant issues have been raised that require adjudication.
  2. No petition for Party Status is granted.

Appeals

Pursuant to 624.8(d)(2)(i, ii and iii), parties and potential parties have a right to appeal to the Commissioner, on an expedited basis, any ruling of the ALJ which includes or excludes an issue for adjudication, any ruling on the merits of a legal issue made as part of an issues ruling, and any ruling which affects party status. Pursuant to 624.6(e), such appeals must be filed to the Commissioner in writing within five days of the disputed ruling. Notice of the appeal and a copy of all briefs must be filed with the ALJ and served on all parties and potential parties. Thereupon replies in support of or in opposition to the appealed issues may be filed within five days.

Pursuant to authority in 624.6(g), to avoid prejudice to the parties due to the length of these rulings and the fact that they are being sent by mail, additional time is provided for filing appeals herein. All appeals must be received no later than close of business on February 11, 1998, with replies to be received no later than close of business on February 27, 1998.

Appeals to the Commissioner are to be sent in duplicate to the following address: Commissioner John P. Cahill, Esq. c/o G. S. Peter Bergen, Esq., Assistant Commissioner; NYS Department of Environmental Conservation; 50 Wolf Road; Albany, NY 12233-1550. (See Service List attached for service on other conference participants).

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 record is closed, the adjudicatory hearing is canceled pursuant to 624.4(c)(5), and the application is hereby remanded to Department Staff for continued processing as may be required, leading to modification of the permit as the modification has been drafted in Exhibit 3C.

_____________/s/_____________
Frank Montecalvo,
Administrative Law Judge

Dated: January 27, 1998
Albany, New York

Attachments:

Appendix A - Exhibits List

Appendix B - Official Service List

To: Commissioner Cahill

Official Service List - via Fax (where available) and Regular Mail

Rev 1/27/98

OFFICE OF HEARINGS AND MEDIATION SERVICES (OHMS)

NAME OF HEARING: Onondaga County Resource Recovery Agency and Ogden Martin Systems of Onondaga, Inc.; Application No. 7-3142-00028/00001 modification of its existing Air and Solid Waste Permits

EXHIBITS LIST:

1 NOTICE DOCUMENTS SERIES (No # 1)

1A HEARING NOTICE DATED October 23, 1997

1B OHMS Hearing Notice Distribution List

1C Copy of Hearing Notice published in October 29, 1997 ENB

1D HEARING NOTICE DATED October 23, 1997 REVISED WITH CORRECTED APPLICANT ADDRESS AND LOCATION OF HEARING

1E OHMS Distribution List for REVISED Notice

1F ENB Correction published 11/5/97

1G Affidavit of publication of (Corrected) Hearing Notice in the Syracuse Herald Journal on October 29, 1997

1H Affidavit of publication of (Corrected) Hearing Notice in the Syracuse Post Standard on October 29, 1997

2 APPLICATION DOCUMENTS SERIES (No # 2)

2A Part 360 Application 5/97 rev 7/97 (Binder)

2B Leistensnider Letter 5/30/97

2C Leistensnider Letter 7/14/97

2D Short EAF 5/30/97

2E Long EAF (rec 7/15/97 Region 7)

2F Letter 8/28/97 w/ attachment [OHMS rec'd 12/5/97]

2G Letter 8/29/97 w/ attachment [OHMS rec'd 12/5/97]

3 STAFF'S POSITION DOCUMENTS SERIES (No # 3)

3A Notice of Complete Application dated 9/10/97 (NOCA)

3B Staff's SEQRA Determination (Determination of Non-Significance)

3C Draft Changes to Permit (pages 1 and 21 of 26)

3D Staff's Hearing Request Form

3E Staff's 6/12/97 Incomplete Application and determination of Unlisted Action

3F Existing permit [OHMS rec'd 12/5/97]

3G 11/28/97 Letter OCRRA to DEC [OHMS rec'd 12/5/97]

4 PUBLIC COMMENT SERIES (No # 4)

4A Written Comments previously filed with Staff Contact Person in response to the NOCA [OHMS rec'd 12/4/97]

4B Written Comments received by the OHMS during the Public Comment Period [OHMS rec'd through 12/4/97]

4C Transcript of Oral Comments made at the Public Statement Session [OHMS rec'd 1/7/98]

5 PETITION - Vicki Baker, County Legislator [OHMS rec'd 12/1/97]

5A Letter rescinding request for party status [OHMS rec'd 12/5/97]

6 PETITION - The Environmental Coalition [OHMS rec'd 12/1/97]

6A Letter DEC to Rhodes 10/30/97 [OHMS rec'd 12/5/97]

6B Memo 3/21/97 [OHMS rec'd 12/5/97]

6C Letter 7/30/97 W-M Engineers to DEC [OHMS rec'd 12/5/97]

6D Letter 10/26/97 W-M Engineers to OCRRA [OHMS rec'd 12/5/97]

6E Bar chart [OHMS rec'd 12/5/97]

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