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Owl Energy Resources - Ruling, October 30, 1992

Ruling, October 30, 1992

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Applications of

OWL ENERGY RESOURCES INC.

RULINGS
AND
MEMORANDUM TO PARTIES

Introduction

These proceedings involve applications by 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) which pertains to processing and containment of solid waste within an enclosed area or storage of nonputrescible solid waste outside the facility for more than one week; a permit to construct a modification of a stationary combustion installation and a State Pollutant Discharge Elimination System (SPDES) permit.

Proposed Project

The Applicant proposes to purchase from the Proctor & Gamble Manufacturing Company an existing wood-fired boiler which is located at the Port Ivory facility on Western Avenue, Staten Island. Proctor and Gamble has ceased manufacturing operations at the Port Ivory facility. The Applicant proposes to install a larger turbine-generator, a cooling tower and a wet electrostatic precipitator for air pollution control. The Applicant proposes enter into a contract with North American Energy Services Company to operate a waste wood-fired boiler that will produce steam to run a turbine generator to generate 25 megawatts of electricity which will be sold to the Consolidated Edison Company of New York Inc. The Applicant intends to burn approximately 550 tons per day of waste wood consisting of scrap wood pallets, wood from building demolition, shipping crates, and wood scraps from furniture manufacturers and lumber yards which will be stored in a wood storage pile on site. The alternate back-up fuel will be natural gas. The bottom ash and fly ash will be transported to an approved ash landfill in Niagara Falls, New York for disposal. The Applicant proposes to discharge 43,000 gallons per day of stormwater and 1500 gallons per day of treated (demineralized) boiler feedwater to Bridge Creek and the Arthur Kill while the cooling water will be recirculated. The process water will be discharged to a New York City storm sewer after the pH is adjusted to approximately seven.

Party Status

The Applicant and the Department Staff are parties to these proceedings pursuant to regulation. The City of New York, the Staten Island Citizens for Clean Air and Mr. Joseph Marotta, Chairman of Community Board No. 1, have applied for party status.

All of the parties seeking party status have shown they have an interest in these proceedings.

Many of the issues raised relate to the applicability of regulatory requirements and the adequacy of the Applicant's submittals and of the Department Staff review, rather than specific disputes about facts. Review of these claims and proposed issues reveal two fundamental or threshold issues: 1.) whether the proposed action may have a significant on the environment; and 2.) whether the appropriate air regulations have been applied to the proposed project. Rather than analyze each claim and proposed issue in detail, in the interest of administrative efficiency, the basic positions of the parties are summarized and only the fundamental issues raised are discussed below.

Summary Position of the Parties

The Applicant

The Applicant claims that the proposed project will comply with all applicable regulations and requirements and the Department's Negative Declaration is fully supported by the factual record. The Applicant specifically claims that 6 NYCRR Part 219 does not apply to the proposed project because the project is not a private solid waste incineration facility and the proposed project is exempt from the provisions of 6 NYCRR Part 231 because it is a resource recovery facility. The Applicant further claims that the intervenors have failed to identify any facts which raise a substantive and significant issue requiring adjudication and the request for an adjudicatory hearing should be denied. The Department Staff should be allowed to proceed with the issuance of the permits.

The Department Staff

The Department Staff claim that the facility would not pose a significant environmental impact and that the proposed permit conditions sufficiently address any concerns raised which otherwise might pose a substantive and significant issue. The Department Staff requests that all requests for party status be denied and the Staff be directed to issue the permits.

The City of New York

The City of New York seeks party status on the ground that the proposed project may pose a significant threat to the City's natural resources, particularly the Harbor Herons area in northwestern Staten Island. The Harbor Herons area is an extensive wetlands system along the Arthur Kill and the Kill Van Kull which has been colonized by various species of herons, egrets and ibises. The City is concerned about the discharge of heated effluent, particularly during the winter, from the proposed facility into Bridge Creek and the effect it may have on Bridge Creek and the City-owned Howland Hook tidal wetlands which are located on the opposite side of Bridge Creek from the proposed facility. The City claims the Howland Hook wetlands are primary feeding areas for the arbor Herons.

Staten Island Citizens for Clean Air

Staten Island Citizens for Clean Air (SICCA) seek party status because it opposes approval of the proposed project on the grounds that the Environmental Assessment Form was improperly completed and there are significant environmental impacts, including serious adverse air pollution and health impacts on the surrounding community, that will result from the proposed action. SICCA claims that the proposed facility is subject to the Department's Part 219 incinerator regulations and that the Part 231 air quality regulations apply to the proposed facility and therefore the Applicant and the Department must adequately address non-attainment issues.

Joseph Marotta

Mr. Marotta seeks party status primarily on the grounds that the Department Staff's decision to issue a Negative Declaration is flawed and that the Negative Declaration is inadequate. Mr. Marotta claimed that the Negative Declaration must be set aside because of 24 reasons listed in his application for party status. He stated that those reasons also demonstrate the social, economic and environmental interests of his which will be affected by the proposed project.

Applicable Air Regulations

The Applicant has applied for a permit to construct a modification of a stationary combustion installation pursuant to 6 NYCRR Part 227 ( Stationary Combustion Installations). SICCA claims that the proposed project is subject to the provisions of 6 NYCRR Part 219 (Incinerators) and that 6 NYCRR Part 231 (New Source Review In Nonattainment Areas) applies to this project.

6 NYCRR Part 219 (Incinerators)

In response the Applicant claims that the Department issued the initial permit to construct the wood-fired boiler in 1982 and argues that 6 NYCRR 219-2 does not apply to this facility. The Applicant further argues that a privately owned facility which burns solid waste is not regulated by Part 219-2 unless it burns a certain type of solid waste--municipal solid waste. The Applicant claims that it is critical to note that municipal solid waste is a defined subset of solid waste. The Department Staff also claim that the initial permit to construct this facility was issued prior to the effective date of Subpart 219-2 and that this facility is not a "private solid waste incineration facility" as defined in 6 NYCRR 219-1.1(b)(8).

The general definitions of 6 NYCRR Part 200 apply to both Parts 219 (and 231 as discussed hereafter) and must be read in context with those parts. The following definitions (or pertinent parts thereof) set forth in 6 NYCRR Part 200 are relevant to this discussion:

Air contamination source or emission source. Any apparatus, contrivance or machine capable of causing emission of any air contaminant to the outdoor atmosphere, including any appurtenant exhaust system, air cleaning device or emission point excepting an indirect source of air contamination as defined in Part 203. [200.1(d)].

Air cleaning installation, air cleaning device or control equipment. Any method, process or equipment which removes, reduces or renders less noxious air contaminants discharged into the outdoor atmosphere. [200.1(a)].

Incinerator. Any structure or furnace in which combustion takes place and refuse is used as a fuel, alone or in conjunction with fossil fuel. [200.1(cc)].

Modification. Any physical change, or change the method of operation of an incinerator, stationary combustion installation or process which (1) increases the hourly emission rate, emission concentration or emission opacity of any air contaminant, or (2) involves the installation or alteration of any air cleaning installation, air cleaning device or control equipment, or (3) involves conversion of fuel used in any emission source to a fuel with a higher ash content than the fuel used prior to the change, or (4) involves the alteration of any furnace or other physical changes to allow burning of refuse or refuse-derived fuel with fossil fuel. Routine maintenance, repair and replacement of original equipment or parts thereof are not considered physical changes. An increase or decrease in the hours of operation is not considered a change in the method of operation if the total emissions do not cause air pollution or contravention of any applicable ambient air quality standard, and the hours of operation are not restricted through a condition of a permit or certificate issued for the air contamination source. (200.1(hh)).

Refuse. All waste material, including but not limited to garbage, rubbish, incinerator residue, street cleanings, dead animals and offal. (200.1(eee).

The following definitions set forth or referenced in 6 NYCRR Part 219 are also pertinent to the discussion of the applicability of Part 219:

Incinerator. Any structure of furnace in which combustion takes place and type 0, 1, 2, 3, or 4 refuse is used as a fuel, alone or in conjunction with fossil fuel. (219-1.1(b)(3).

Refuse. All waste material, including but not limited to garbage, rubbish, incinerator residue, street cleanings, dead animals, and offal. Refuse is classified in accordance with Table 1, Appendix 2. (219-1.1(b)(9).

Table 1, Appendix 2 classifies Type 0 refuse as refuse containing rubbish consisting of highly combustible material, such as paper, wood and cardboard including up to 10 % treated papers, rags plastic or rubber from commercial and industrial sources as its principal components.

Solid waste. (i)Solid waste means all putrescible and nonputrescible materials or substances except as described in subparagraph (iv) of this paragraph that are discarded or rejected as being spent, useless, worthless or in excess to the owners at the time of such discard or rejection, including but not limited to garbage, refuse, industrial and commercial waste, sludges from air or water treatment facilities, rubbish, tires, ashes, contained gaseous material incinerator residue, construction and demolition debris, discarded automobiles and offal.

(ii) A material is discarded if it is abandoned by being:

(a) disposed of;

(b) burned or incinerated, including being burned as a fuel for the purpose of recovering usable energy; [the remaining portion of the definition and the exemptions in subparagraph (iv) are not relevant to this discussion] ( 219-1.1(b)(11)).

Municipal solid waste. All materials or substances discarded from single and multiple family dwellings, and other residential sources; similar types of materials from institutional, commercial and industrial sources; concurrently incinerated sewage sludge but not hazardous waste as defined in Part 371 of this Title. ( 219-1.1(b)(7)).

Private solid waste incineration facility. Any facility, other than a municipal solid waste facility, that burns municipal solid waste, or any fuels derived from municipal solid waste using thermal destruction technologies, with or without energy recovery. ( 219-1.1(b)(8)).

6 NYCRR Part 219-2 applies to any new or modified private solid waste incineration facility in the State of New York for which an initial permit to construct a source of air contamination is issued after December 31, 1988. The Applicant has applied for a permit to construct a wet electrostatic precipitator for which no permit has yet been issued. According to the definitions in 6 NYCRR Part 200 cited above, this is an air cleaning device and therefore an air contamination source or emission source. Further, the definition of a modification contained in Part 200 specifically includes the installation of any air cleaning installation, air cleaning device or control equipment.

The Applicant intends to burn approximately 550 tons per day of waste wood consisting of scrap wood pallets, wood from building demolition, shipping crates and wood scraps from furniture manufacturers and lumber yards. Clearly in light of the definitions cited above wood is rubbish which has been classified as type 0 refuse, and refuse is waste material. Both are included in the definition of solid waste. The definition of solid waste specifically includes commercial and industrial wastes, construction and demolition debris and materials discarded by burning or incineration. The definition of municipal solid waste does not exclude these materials but includes them as well as similar types of materials from institutional, commercial and industrial sources. This all leads to one conclusion, the proposed project is a private solid waste incineration facility and 6 NYCRR Part 219 including Part 219-2 is applicable to this project.

6 NYCRR Part 213 (New Source Review In Nonattainment Areas)

SICCA also claims that 6 NYCRR Part 231 applies to the proposed project and consequently the Applicant and the Department Staff must adequately address non-attainment issues. 6 NYCRR Part 231 is applicable to applications to construct air contamination source projects submitted after August 10, 1984, for air contamination source projects located within a nonattainment area for the contaminant which will be emitted by the air contamination source project and the annual actual emissions from the air contamination source project will exceed the limits specified in Part 231. An air contamination source project is either a proposed new contamination source or a modification (see discussion above).

The Applicant argues that Part 231 does not apply to this project because the project is by definition a resource recovery facility and therefore exempt from Part 231. A resource recovery facility is defined in Part 231 as a facility at which types 0, 1, 2, and/or 3 refuse is combusted for the purpose of recovering heat for use in producing steam and/or electricity. Energy conversion facilities must utilize solid waste to provide more than 50% of the heat input to qualify as a resource recovery facility. The proposed project will burn 100% type 0 refuse (waste wood) to generate electricity (see discussion above).

The project proposed by the Applicant will emit approximately 158 tons of particulates, 40 tons of sulfur dioxide, 475 tons of nitrogen oxides, 195 tons of hydrocarbons and 355 tons of carbon monoxide annually. These emissions exceed the limits specified in Part 231 for particulates, nitrogen oxides and carbon monoxide, therefore Part 231 is applicable to the proposed project.

The Applicant is correct in asserting that the facility is exempted by 6 NYCRR 231.8 from the off-set requirements set forth in Part 231, but is not correct in claiming that the facility is exempt from the other provisions of Part 231, including the requirement to submit an air quality impact evaluation (6 NYCRR 231.6).

Ruling

The Applicant is directed to submit an application pursuant to 6 NYCRR Part 219 including the information required by Part 231 and the Department Staff is directed to process and review the application pursuant to 6 NYCRR Parts 219 and 231.

State Environmental Quality Review Requirements

Mr. Joseph Marotta and SICCA claim that the Department Staff's decision to issue a Notice of Determination of Non-Significance (Negative Declaration) is flawed and the Negative declaration issued by the Department as lead agency is inadequate.

Section 8-0109 of the Environmental Conservation Law requires the preparation of an environmental impact statement on any action which may have a significant effect on the environment. In determining if a proposed action may have a significant effect on the environment, the lead agency, in this case the Department, MUST consider the proposed action, identify the relevant areas of environmental concern, analyze the areas identified, and set forth the determination of significance with a reasoned elaboration and references to any supporting documentation (6 NYCRR 617.6(g).

The Notice of Determination of Non-Significance ("Negative Declaration") issued by the Department Staff on June 23, 1992 (a copy of which is appended to this memorandum as Attachment A) identified four areas of environmental concern: zoning and community character; traffic; ash disposal and air quality. The Negative Declaration did not identify any water related impacts from the proposed discharge to Bridge Creek.

Air Quality Impacts

The impacts of the air emissions from the proposed project have been compared to the air emissions released during the former operations by Proctor & Gamble which ceased in 1990 rather than being compared to the present situation in which there are no emissions from the facility. The Negative Declaration concluded that there will be a net reduction of NOx (nitrogen oxides) emissions because the emissions of NOx from the proposed facility will be less than the NOx emissions which were released when Proctor & Gamble were operating their facility.

It is clear from reading the Negative Declaration that the Department Staff used an incorrect baseline in determining if the proposed project may have a significant effect on the environment. There are presently no emissions from the Proctor & Gamble facility which has been shut down since 1990. Proctor & Gamble does not have a right to operate the wood burning boiler without complying with the terms of the PSD (Prevention of Significant Deterioration) permit issued by the United States Environmental Protection Agency. The Applicant in these proceedings does not yet hold the current owner's PSD permit. There is no indication that Proctor & Gamble holds any current air permits from the Department; in fact Proctor & Gamble's air permit for boiler no. 3, which the Applicant proposes to use for emergency backup use, expired on January 3, 1991. I note that there is no application to the Department from the Applicant pending in these proceedings for boiler no. 3. There is no indication that Proctor & Gamble intends to resume operations at the Port Ivory facility. The proper baseline to evaluate the environmental impacts of the proposed project is the existing situation at the site, i.e. no emissions.

The Negative Declaration makes no mention of or provides no analysis of the impacts of emissions of particulates, sulfur dioxide, hydrocarbons, carbon monoxide, lead and arsenic, or the other contaminants listed in Parts 219 and 231. As discussed above, the Applicant has not submitted an air quality impact evaluation required by 6 NYCRR Part 231.

Traffic Impacts

Similarly, the truck traffic impacts of the proposed project were evaluated against the traffic including the truck traffic generated by the Howland Hook marine terminal which has reportedly been closed for 8 or more years rather than the existing traffic situation thus artificially deflating the impact of the truck traffic from the proposed project. A description of the routes to be taken by the trucks going to and from the proposed facility is no substitute for an objective analysis of the existing highway capacities and the effects on the level of service which will result from the additional traffic generated by the proposed project.

Water Impacts

As noted below, the impacts of the discharge to Bridge Creek and the effects, if any, on the adjacent wetlands should be also be evaluated when making the determination of significance.

Ruling

The Negative Declaration did not evaluate the effects of the proposed project on existing conditions, therefore I find that the Negative Declaration is legally insufficient. Accordingly, the Negative Declaration issued on June 23, 1992 is rescinded and the matter is remanded back to the Department Staff for reconsideration and preparation of a new determination of significance which will address, in detail, the impacts of the proposed project on existing air quality considering the applicability of 6 NYCRR Part 219 and 231 to this project and the substances controlled by those parts, existing traffic conditions and the impacts of the thermal discharges to Bridge Creek and adjacent wetlands.

Miscellaneous Matters

While this memorandum has concentrated on the two threshold issues discussed above, the underlying facts of which are not in dispute, two other potential issues have been raised which deserve brief comment. Neither of these issues have reached a point where they could be considered substantive and significant factual disputes but they do point out areas where additional information is necessary to determine it the proposed project conforms with the requirements of the applicable regulations. When that information is available, then a determination can be made on whether a substantive or significant issue exists or whether the issue is resolved (see Commissioner's Interim Decision, In the Matter of the Application of Red Wing Properties, Inc., DEC Application No. 3-1334-58/1-0, dated January 20, 1989).

Water Quality (thermal) Impacts and SPDES Permit Requirements

The City is concerned about the discharge of effluent from the proposed facility into Bridge Creek and the effect it may have on the City-owned Howland Hook tidal wetlands which are located on the opposite side of Bridge Creek from the proposed facility. The City claims that the temperature difference between the effluent and the creek water during the winter could have a serious impact along and at the end of Bridge Creek. The City notes that the Department's regulations require that when the effluent leaves the "mixing zone" near the outfall, the temperature be equal to the surrounding water. The City claims the temperature of the proposed discharge, 22 degrees Celsius, is higher than the normal winter temperature in the area which is 4 to 8 degrees Celsius. The City feels that the SPDES permit should specifically address the issue of temperature to avoid significant environmental effects.

The difference in temperature between the discharge and the creek is 14 to 18 degrees Celsius which is equivalent to a temperature difference of 25.2 to 32.4 degrees Fahrenheit. The draft SPDES permit would authorize the discharge of up to 47,000 gallons per day of which 1000 gallons per day would be regeneration wastewater to Bridge Creek. The stream flow and characteristics of Bridge Creek are not contained in the information available to the ALJ. The draft SPDES permit does not specify the limits of the mixing zone as required by 6 NYCRR Part 704.3. The Department Staff's post issues conference submission merely states that the temperature difference is within the standards for thermal discharges set forth in 6 NYCRR Part 704.2. Whether or not there is an issue here for adjudication cannot be determined until the proposed discharge is reviewed considering the stream flows, surface area and cross sectional area of Bridge Creek and then evaluated against the thermal criteria in 6 NYCRR Part 704.2(b)(1) and Part 704.2 (b)(4) or (5) whichever is applicable. This is a matter which could be resolved with the submission of additional information by the Applicant and the Department Staff. Although the City has raised this issue in terms of the SPDES permit conditions, this is a matter which also should be considered in the SEQR review.

6 NYCRR Part 360 Requirements [ 360-1.14(p) Noise Limits]

Mr. Marotta raises the question of noise from the facility, noting that the Applicant has stated the boiler draft fans will be fitted with "attenuators" but challenges the assertion that noise "has not been a problem in the past". The Applicant's Engineering Report (Section 4.4.2) states: "The primary noise sources on the plant property are the induced draft and forced draft fans on the boiler. These fans were fitted with noise attenuators when installed to minimize noise. Specifications of the fans are provided in Appendix 3E. There are no residences within one-half mile of the plant and community noise has not been a problem in the past." Appendix 3E provides no information on the sound levels either generated by the fans or at the property line. There is no information to determine if the express noise levels set forth in 6 NYCRR 360-1.14(p) are applicable or will be exceeded by the proposed project.

The Department Staff claim that they had addressed the noise impacts from the facility as part of the SEQRA review and determined that the facilities's operations would not pose a significant noise impact. As noted above, the Negative Declaration issued by the Department Staff only addressed zoning and community character, traffic, ash disposal and air quality. The Department Staff note that 360-1.14(p) requires that noise limits at the facility comply with specified limits. The Applicant claimed it had identified the primary noise source on the plant property and described the methods to minimize noise to the greatest practicable extent, citing the Engineer's Report, Part 4.4.2, quoted above. Neither the Applicant's or the Department Staff's post issues conference submissions address whether the proposed project complies with the specific regulatory criteria set forth in 6 NYCRR 360-1.14(p).

If the area beyond the property line is authorized to be used for residential purposes, then the express noise levels would apply and the noise levels at the property line would determine if there was an issue to be adjudicated. If the area beyond the property line is not authorized to be used for residential purposes, the express noise levels would not apply and there would be no issue for adjudication. At this point, additional information is required to make that determination.

Appeals

Pursuant to 6 NYCRR 624.4(f), any ruling of the Administrative Law Judge denying or limiting party status may be appealed to the Commissioner in writing within three days of the ruling. Pursuant to 6 NYCRR 624.6(d), the ruling of the Administrative Law Judge setting forth the issues for the hearing may be appealed to the Commissioner in writing within three days of the ruling. At the issues conference, the parties present agreed that the time limit for any appeals of the Administrative Law Judge's rulings would be within 5 days of receipt of the rulings subject to the understanding that any such appeals would be mailed to the Commissioner and those listed on the Official Service List by overnight express mail. At the issues conference, I told the parties that along with my rulings, I would provide them with an extract from the Commissioner's recent Interim Decision in the matter of the application of Hyland Facility Associates (DEC Application No. 9-0232-3/1-0), dated August 20, 1992 for guidance on any appeals. A copy of the pertinent portion of that interim decision is appended to this memorandum as Attachment B. A copy of the Official Service List for these proceedings is appended to this memorandum as Attachment C.

Appeals to the Commissioner should be addressed to:

Commissioner Thomas C. Jorling
New York State Department of Environmental Conservation
50 Wolf Road, Room 604
Albany, New York 12233-1010

Copies of any appeal and any accompanying briefs should be provided to all parties listed on the Official service List as set forth above.

_____________/s/_____________
William J. Dickerson
Administrative Law Judge

Dated: October 30, 1992
Albany, New York

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