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Owl Energy Resources, Inc. - Ruling, May 17, 1993

Ruling, May 17, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 WOLF ROAD
ALBANY, NEW YORK 12233-1550

In the Matter

- of -

the Application of OWL ENERGY RESOURCES, INC. for permits to construct and to
operate a solid waste management facility, a variance from the provisions of 6 NYCRR 360-3.4(b)(2),
a permit to construct a modification of a stationary combustion installation
and a State Pollutant Discharge Elimination System (SPDES) permit
at Port Ivory on Western Avenue, Staten Island, New York.

DEC Project No. 2-6401-00073-00001-0

RULING ON MOTION FOR RECONSIDERATION

May 17, 1993

Ruling on Motion for Reconsideration

This Ruling is in response to a motion by Owl Energy Resources, Inc. ("Owl") to reconsider my Interim Decision of February 26, 1993 in the captioned matter. Owl argues that the reasoning in the Interim Decision is inconsistent with an prior agency permit decision issued after hearing, In the Matter of Hydra-Co. Generations Inc., September 6, 1988.

In the Interim Decision, the proposed project was found to be a new facility because its operations did not qualify for existing facility treatment pursuant to the terms of 6 NYCRR 201.8 and 201.9. As a consequence, all of the emissions projected for the proposed project were treated as new and the project was found to be subject to the requirements of 6 NYCRR Part 231 ("Part 231"). Owl argues that in similar circumstances, the Hydra-Co. Generations project was not found to be subject to Part 231. Based on the legal principle of stare decisis, Owl maintains it is entitled to a determination of Part 231 applicability using the standard applied in the Hydra-Co. Generations case. While the motion for reconsideration suggests that the application of the rationale from the Hydra-Co. Generations case would also result in the conclusion that a draft environmental impact statement under the State Environmental Quality Review Act ("SEQRA") would not be required, the decision in the Hydra-Co. Generations case did not involve any determination concerning SEQRA and extending its rationale is speculative.

Review of the Hydra-Co. Generations decision reveals that the principal issue was the applicability of new facility standards, in particular, the emission limits for SO2 (6 NYCRR 225-1.2), particulates (6 NYCRR 227.3) and NOx (6 NYCRR 227.5). While the decision also addressed the applicability of Part 231, this issue was not vigorously argued or briefed by any of the parties to the proceeding.

Administrative agencies are not inflexibly bound by the principle of stare decisis although agencies that do not follow precedent must articulate their rationale for not doing so (Charles A. Field Delivery Services, Inc. v. Roberts, 66 N.Y.2d 516, 518-519 (1985)). In this instance, the Department has indicated its rationale for requiring compliance with Part 231. I find this rationale to be sound and one which provides a comprehensive framework for determining whether facilities that are temporarily shut-down should be treated as new facilities when they recommence operations.

Owl also states that the 1990 inventory of pollution sources and the small amount of emissions credited to the predecessor operation in that inventory cannot serve as a basis for determining that the proposed project is to be treated as a new facility. However, the reference to the 1990 inventory in the Interim Decision was not intended to set forth an independent legal basis for treating the proposed facility as a new one. Instead, it was included merely to demonstrate that the determination was a sensible one from a policy perspective as well.

In view of the foregoing, the motion for reconsideration is denied.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Ruling on Motion for Reconsideration to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York this 17th day of May, 1993.

_____________/s/_____________
THOMAS C. JORLING, COMMISSIONER

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