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Saint Lawrence Cement Company, LLC - Initial Ruling, December 7, 2001

Initial Ruling, December 7, 2001

TABLE OF CONTENTS

Background and Brief Project Description
Legislative Hearing
Issues Conference
Standard of Review
Proposed Issues
Air Quality
Modeling Protocol
Emission Offsets
Compliance Certification
Air Pollution Impacts to Historic Resources
Compliance with Part 231 and New Source Review
NO_x LAER Analysis - Natural Gas
NO_x LAER Analysis & SNCR
NO_x Permit Limits
PM₁₀ Modeling
Clarity of Air Permit
RTO; LAER Limits - VOC; BACT - CO
Part 231 Alternatives Analysis
PSD Program
BACT - PM
BRPC and MDEP
BACT Opacity Limit
SO₂ BACT Limits
BACT - H₂SO₄
NSPS
Fugitive Emissions
Clinker Handling and Transfer
Spray Conditioning Towers
Raw Material Blending
Raw Mill System
Baghouse CKD
Off-Loading of Dust - Alkali Bypass
Pneumatic Loading of Barges/Ships
Baghouse Hopper Collection Points
Reintroduction of Collected Contaminants
Coal, Coke & Raw Mill Dockside Transfer & Fugitive Dust Control Plan
PM_2.5
Monitoring/Enforcement
SPDES
Stormwater Control
Pug Mill Leachate/CKD Disposal
Mining
SEQRA
Blasting
Town Water Supply
City Water Supply
Noise
Traffic
Waterfront
City Planning
Lands Underwater & Public Access
Coastal Zone
Wetlands, River & Terrestrial Ecology
Biota in Wetlands/Uplands
Conveyor Route
Catskill Structures
Pied-Billed Grebe
Columbia County-SLC Agreement Re: Access Road
Wetland HS-100
Riverine Habitat Mitigation Plan
Visual
Exit Strategy
Historic Resources
Community Character
Economics
Alternatives
Record of Compliance/Fitness
Conclusion
Party Status
Appeals
Attachments

Background and Brief Project Description

These proceedings concern the application of St. Lawrence Cement Co., LLC (SLC) to the New York State Department of Environmental Conservation (DEC or Department) for permits to construct and operate a cement manufacturing plant in the Town of Greenport (Town) and the City of Hudson (City) in Columbia County to produce approximately 2.6 million U.S. tons of clinker per year. The facility would be located on property currently owned by SLC - bounded on the north by the City of Hudson, on the east by Newman Road, on the south by NYS Route 23 and on the west by the Hudson River.⁽¹⁾ In the Town, SLC owns a 1222-acre mine east of U.S. Route 9 and west of Newman Road, an inactive conveyor trestle that extends across Route 9, and an office and laboratory west of Route 9. SLC's facilities in Columbia County also include a dock on the east side of the Hudson River in the City of Hudson. Remnants of the old Universal Atlas Cement plant also stand at the dock and at the Route 9 location. For an overall picture of this planned facility, see Attachment A hereto.

The proposed plant would include a dry process cement manufacturing facility located in the mine site consisting of a raw mill system, kiln feed blending silo, preheater/precalciner tower, rotary kiln, clinker cooler, and finish mill system. In addition, SLC proposes to construct a flexible conveyor between the quarry, the plant and an expanded dock site (which will require dredging and filling in the Hudson River) to transport finished product and to receive raw materials. The applicant has also proposed office and maintenance facilities, access roads, parking areas, a new docking facility and a public park.

If the applicant receives approval to proceed with this project, SLC intends to close its kiln at Catskill. Currently, in Catskill (Greene County), SLC operates a mine, a manufacturing plant, a permitted landfill for cement kiln dust (CKD), and a dock on the west side of the Hudson River. See, Attachment B hereto. SLC would continue to use the Catskill facility to support manufacturing processes in Greenport such as bagging of specialty cement. SLC would also continue to use the landfill for disposal of CKD from the new facility. SLC proposes to demolish the Catskill facility's bunker silos along the Hudson River as well as a stack at the Catskill facility while keeping the kiln structure, and would remove a stack and bank of silos from the old Universal Atlas Cement plant near U.S. Route 9 in Greenport. In addition, SLC plans to rehabilitate certain structures on the property for use and for historic preservation, specifically, the Heermance-Jones house on Route 9 and the old stock house and trestle near the river, both of which the State Historic Preservation Office (SHPO) has expressed interest in preserving due to their unique construction.

For air pollution control, SLC has proposed to use a large multi-chamber baghouse for controlling particulates from the clinker manufacturing process. The applicant has also included staged combustion, a low NO_x burner, flame optimization, process optimization, reduced air combustion, and a selective non-catalytic reduction (SNCR) system in its efforts to reduce and control emissions of nitrogen oxides (NO_x). Sulfur dioxide (SO₂) emissions will be controlled by parallel wet/dry scrubber systems.

To construct and operate this facility, SLC must obtain a state facility permit for air pollution control, Environmental Conservation Law Article (ECL) 19 and Parts 201, et seq. of Title 6 of the New York Compilation of Codes, Rules and Regulations (6 NYCRR); a state pollutant discharge elimination system permit (SPDES), ECL Article 17 and 6 NYCRR Parts 750-758; an Article 15 Protection of Waters permit and § 401 Water Quality Certification, 6 NYCRR Part 608; a mined land reclamation permit modification, Article 23 and Parts 420-426; and a freshwater wetlands permit, ECL Article 24 and 6 NYCRR Part 663.

The Department is lead agency under the State Environmental Quality Review Act (SEQRA - ECL Article 8). On April 8, 1999, DEC staff determined that this facility is a Type I action that may have a significant impact on the environment. Accordingly, the Department issued a positive declaration requiring the preparation of a draft environmental impact statement (DEIS). As lead agency pursuant to SEQRA, DEC must also make a finding that the proposed project is consistent with the State's coastal policies. Executive Law, Article 42; 19 NYCRR Part 600; 6 NYCRR § 617.11(e). DEC staff accepted the DEIS as complete and available for public review on May 2, 2001. A public scoping comment period was provided and a public scoping hearing was held on June 24, 1999 at the Columbia County Office Building in Hudson, New York.

The Department published a combined notice of hearing and complete application and notice of determination of review - prevention of significant deterioration (PSD) in the May 2, 2001 Environmental Notice Bulletin. The applicant published these notices in the May 4, 2001 edition of The Independent and the May 4, 2001 edition of the Register Star. The notice of hearing provided that written comments were to be received by DEC by no later than June 20, 2001. As 6 NYCRR § 617.9(a)(4)(iii) provides that comments will be received by the lead agency for no less than 30 calendar days from the first filing and circulation of the notice of completion or no less than 10 calendar days following a public hearing (whichever is later), a corrected notice was published in the May 9, 2001 editions of the aforementioned publications setting a deadline of July 2, 2001 for mailing of written comments. In addition, based upon the demonstrated need of potential intervenors for more time to prepare petitions for party status and DEC staff's need for more time to prepare draft permits for mining, wetlands and protection of waters, Administrative Law Judge (ALJ) Goldberger agreed to postpone the date for filing petitions to July 13, 2001 and to commence the issues conference on July 18, 2001.

Legislative Hearing

Two sessions of a legislative hearing were convened in this matter on June 20, 2001 at Columbia-Greene Community College. ALJ Goldberger and ALJ Maria Villa of DEC's Office of Hearings and Mediation Services (OHMS) presided over these sessions and the issues conference. Due to the large number of people who wished to speak, these proceedings commenced at 1:00 p.m. and continued with a few short breaks until 12:40 a.m. on June 21, 2001. Over this period, there were well over one thousand people in attendance. One hundred twenty-one people spoke, out of which 15 supported the project. In addition, over one hundred people turned in registration cards indicating a desire to speak, but when called upon did not respond. With respect to written submissions, the OHMS received approximately 982 comments prior to or by the July 2, 2001 deadline. Of these, 561 letters were in opposition to the proposed facility and 421 were in support. At the legislative hearing, the ALJs were also presented with petitions in support of the project with 5,234 signatures and petitions in opposition to the project with 11,342 signatures.

Those who opposed the project expressed concerns about: health-related effects based upon increases in air emissions; impacts to the scenic beauty of the area due to the size of the proposed industrial structures; alteration of the community character due to the change in land use with the addition of this large industrial facility, increased noise, dust, and traffic; effects to historic structures (particularly Olana) due to the visual impacts as well as other impacts from dust, air pollution, and blasting; and impacts to the Hudson River waterfront on both the east and west sides due to increased shipping traffic, visual impacts from dock structures proposed by SLC, dredging and filling, and limitations on public recreational use of this portion of the Hudson River.

Speakers in opposition emphasized the historical and pastoral nature of the surrounding community and expressed concerns about the scale of the project. They stated that this facility would result in significant changes to the quality of life in the communities surrounding the facility resulting in decreased property values and the loss of many businesses, tourism, and second home buyers. Many of these speakers stated that Catskill was a more appropriate location for an industrial facility of this nature due to the small population located near the Catskill plant (500 residents as opposed to 20,000 living near the Greenport location) and the nature of the surrounding area. A large number of commenters also expressed concerns about the choice of fuels by SLC (coal) and the potential that garbage and hazardous waste might also be burned as fuel at this facility. In addition, many people commented that the expected economic benefits from the facility were limited, compared to the anticipated environmental impacts. Still others expressed doubts about the environmental compliance record of SLC and its parents and affiliated companies. Many speakers objected to industrial development of the Hudson River, particularly cumulative effects resulting from the Athens Generating plant and the precedent-setting effect for further heavy industrial development.

Several public officials spoke, including Senator Nuciforo of Massachusetts, who raised concerns about the air, water and health of the Berkshire public affected by SLC's plant. He emphasized that the plant would be located 23 miles from the Massachusetts border and that his state is downwind from the facility site. Village of Athens (Village) Trustee Andrea Smallwood stated SLC did not consider the Local Waterfront Revitalization Plan of Athens although the Village is directly across the river from the proposed facility. Ms. Smallwood said that the Village is concerned about the use of the SLC dock by large barges and ships, stockpiling of material, lighting, noise, and degradation of air quality based upon cumulative effects from the Athens Generating facility. City of Hudson Alderman Robert O'Brien polled his constituents and found an almost even number of people in support of and opposed to the project. However, he concluded that a substantial number of residents were undecided and had concerns regarding the proximity of the plant to the community, the size of the facility, the length of time it would be in operation, and the lack of environmental enforcement by DEC. Alderman Grandinetti also raised concerns regarding the large population concentration that is proximate to the proposed plant. He stated that the choice of fuels was purely an economic one and that SLC chose coal to reduce costs. A number of local business owners spoke, including Nancy Gordon of H.A.V.E. These individuals stated that the scale of the project and its anticipated impacts of noise, vibration from blasting, and dust would be inconsistent with the community character and would harm the economic health of the community.

Speakers in support of the project stated that the County and area were in need of more businesses and that SLC would meet the applicable regulatory criteria; therefore, the project should be permitted. Other supporters maintained that SLC would bring the types of jobs that are lacking in the community, while others commented that SLC's plant would positively affect air quality due to the use of modern technology and the shut-down of the Catskill facility. A number of SLC employees spoke about SLC's to become more efficient in order to sustain itself and remain competitive in the current economy. The employees also stated that the community required a balance of industry and other types of business to become viable. Sarah Nessich, a 30-year resident of Cementon - a village south of Catskill - noted that while living near 3 cement plants at one time presented inconveniences in terms of dust, the beneficial trade-off of increased job opportunity made it worthwhile. She mentioned that she was unaware of any bad health effects from this industry in her community and that the new plant would result in a significant reduction in air pollution. Diane Zipp of SLC stated that the plant would bring less pollution, more dollars to the community, and a quality product made in the United States.

Issues Conference

Preliminary Issues Conference - June 21, 2001

As a result of a conference call held on June 8, 2001 with representatives of SLC, the DEC staff and a number of organizations and municipalities that expressed an intention to file petitions for party status in these proceedings, ALJ Goldberger determined that it was appropriate to postpone the filing date for petitions and to delay the start of the issues conference in order to ensure a thorough evaluation of the project during the conference.⁽²⁾ By this time, DEC staff had not completed preparation of a number of draft permits related to the application and FOH had not had access to files of the Department it had requested. ALJ Goldberger required any organization or individual seeking party status to file a letter of intention by June 13, 2001. The OHMS received such letters from the following: FOH; the Village of Athens; Stand Together to Oppose Power Plant (S.T.O.P.P.); Massachusetts State Senator Andrea Nuciforo, Columbia Hudson Partnership (CHP), Citizens for a Healthy Environment (C.H.E.), Columbia County; a coalition of Scenic Hudson, Inc., Hudson River Heritage, Concerned Women of Claverack, Historic Hudson, Inc., Hudson Antiques Dealers Association, Citizens for the Hudson Valley, and Clover Reach; the City of Hudson and the City of Hudson Planning Commission; The Olana Partnership (TOP); the Preservation League of New York State; Natural Resources Defense Council (NRDC); Town Board and Planning Board of the Town of Greenport; Commonwealth of Massachusetts Department of Environmental Protection (MDEP); Riverkeeper, Inc.; Berkshire Regional Planning Commission (BRPC); and the National Trust for Historic Preservation. ALJ Goldberger determined that on June 21 and June 22, respectively, a preliminary issues conference and site visit would be held.

The preliminary issues conference was convened on June 21, 2001 at 10:00 a.m. at Columbia-Greene Community College. In attendance were: Robert Leslie, Regional Attorney and Michael Higgins of the Division of Environmental Permits on behalf of staff; Thomas S. West, Esq., Michael Peters, Esq. and Yvonne Marciano, Esq. of LeBoeuf, Lamb, Greene & MacRae on behalf of SLC; Jeffrey Baker, Esq. of Young, Sommer...LLC for FOH; Marc Gerstman, Esq. for a coalition of groups including Scenic Hudson, Citizens for Hudson Valley, Hudson River Heritage, Historic Hudson, Concerned Women of Claverack, Clover Reach and Hudson River Antique Dealers Association (Coalition); John Caffry, Esq. for TOP; Albert Butzel, Esq. for NRDC; Kevin Colwell, Esq. for the City of Hudson and the City of Hudson Planning Commission (the City); George Rodenhausen, Esq. and Carl Whitbeck, Esq. of Rapport, Meyers, Whitbeck, Shaw & Rodenhausen, representing the Town of Greenport and the Town Planning Board (the Town); John Leonardson, Deputy County Attorney for the County of Columbia; Andrew Schuyler representing Senator Nuciforo; Susan Falzon of S.T.O.P.P.; Marilyn Fenollosa, Esq. and Autumn Rierson, Esq. of the National Trust for Historic Preservation; Samara Swanston, Esq. for C.H.E., Margaret Ayers, Concerned Women of Claverack; and Daniel Mackay for the Preservation League.

Among the preliminary matters that were addressed at this meeting, ALJ Goldberger identified the application materials including the DEIS, the air permit, the application to the Office of General Services (OGS) for use of land under water, the joint permit application, the SPDES permit application and the draft permits for air and water.⁽³⁾ At this conference, the staff distributed copies of the draft permits for mined land reclamation, freshwater wetlands, protection of waters, and a draft water quality certification. IC Ex. 12a.⁽⁴⁾

At this conference, Mr. Baker stated that FOH had submitted State Freedom of Information Law (FOIL) requests to the Department in January and June of 2001, in which FOH had requested that the staff provide the isopleth data that was submitted to DEC by the applicant as part of its air permit application. The applicant agreed to provide this information to FOH as well as the Town by June 25, 2001. In addition, FOH had made a general request to staff to review its files related to this project and wished to ensure access to them when FOH's expert, Mr. Sagady, would be available to review them. Staff agreed to make the materials available. A discussion then ensued concerning a proposed site visit. Certain intervenors requested that the applicant perform a repeat balloon fly during a future site visit.⁽⁵⁾ Due to the early stage of the proceedings and the fact that the applicant had already performed this demonstration as part of the DEIS, ALJ Goldberger determined that the site visit would instead include a tour of the locations of the proposed project: the plant site in the mine, the office area, the dock area and the path of the conveyor. The possibility that another site visit would be held to view other significant sites in the area that would be affected visually by the proposed facility was left open.

ALJ Goldberger declined the application of the Coalition and FOH to extend the public comment period. In addition, the ALJ found requests by a number of intervenors for the applicant's production of meteorological and blasting data premature.

June 22, 2001 Site Visit

The site visit took place on June 22, 2001. The participants met at SLC's offices on Route 9 in Greenport at 10:00 a.m. In addition to representatives of SLC and DEC staff, representatives of the Town of Greenport, the Coalition, the Preservation League, FOH, TOP, the City, S.T.O.P.P., the National Trust for Historic Preservation, C.H.E., Columbia County, and the Riverkeeper, as well as members of the press, were in attendance. At the beginning of the tour, Thomas West, counsel for the applicant, distributed three drawings that depict the proposed site plan, the location and dimensions of the primary crusher building and the preblend hall, and the proposed dock area. IC Ex. 53. The tour began at SLC's offices on Route 9 in Greenport. From this vantage point, the group viewed the Becraft Mountain ridge that is east of the dock facility area and west of the site of the proposed manufacturing facility. This ridgeline was to be mined late in the project; however, based upon an agreement with Columbia County, SLC has agreed to preserve this ridge.⁽⁶⁾ SLC intends to maintain offices and a testing materials laboratory at the current offices on Route 9. West of this area, the participants viewed other structures that are remnants of Universal Atlas Cement's activities, including the silos and stack, which the applicant intends to remove. See, DEC draft special visual permit condition14a, IC Ex. 12a(i). Based upon the State Office of Historic Preservation's (SHPO) interest in the stock house, the powerhouse building and the trestle, SLC has agreed to clean, rehabilitate and utilize the stock house, rehabilitate the powerhouse and possibly incorporate the trestle into a pedestrian walkway to the river. See, id., DEC draft special visual permit conditions nos. 12 and 15.

From SLC's offices, the participants boarded a bus and proceeded to the mine site where the manufacturing facility would be located. SLC had placed numbered cones in this area to denote the different structures that are planned such as the raw mill building, the blending silos, the preheater tower (largest structure), exhaust stack, clinker cooler, cooler baghouse, the plant office, and the mill building near the Becraft Mountain ridge. We viewed the mine impoundment that functions as a manmade lake in this area. The applicant's representatives described the route of the conveyor and its dimensions (seven feet tall by three and a half feet wide).

Back across 9G, we walked along an access road where the conveyor would be located. At the dock, SLC described the structures it intends to construct at that location, as well as the planned rehabilitation of the stock house, which will be retained and expanded. An expanded dock and a second dock to the south is proposed for the delivery of raw materials such as coal and gypsum, and the shipping of cement, respectively.

August 16, 2001 Site Visit

In response to ALJ Goldberger's request at the June 21 preliminary issues conference for a suggested itinerary for a further site visit to observe areas that would be affected by the project, in their petitions for party status, Coalition and TOP presented suggested locations to visit, including Olana (specifically, Cosy Cottage and the main house) both inside and on the grounds. In addition, the Coalition felt that it was also necessary to visit the City of Hudson, Village of Athens waterfront, Webb Road in Claverack, Routes 9H north and south of the hamlet of Claverack and 23B in the hamlet of Claverack, Route 9G below Mt. Merino, Warren Street in Hudson, Route 9 south of Hudson, Academy Hill, the Rossman-Prospect Avenue Historic District, Cedar Park Cemetery in Hudson, and the Hudson River in the area between the lighthouse and the upper end of the Middle Ground Flats.

In addition, these intervenors requested that as part of this additional site visit, the applicant should bring larger copies of the available photo simulations in the DEIS and conduct another balloon fly. After several discussions on this subject, the ALJ concluded that it was not appropriate to require the applicant to provide these additional pictures and that the difficulties associated with another balloon fly by the petitioners were too unwieldy to coordinate with a second site visit. Instead, ALJ Goldberger requested that the Coalition submit a specific plan for the tour, and stated that if the Coalition wished, it could submit its own photo simulations based upon a balloon fly into the issues conference record. Due to the need for an added day for the issues conference, August 15 and 16 were selected to complete the conference and to hold the second site visit.

On August 16, the participants to the issues conference met again at the SLC offices in Greenport to convene this second site visit. Trustee Chris Pfister of the Village of Athens, Mr. Caffry and Margaret Davidson from TOP, Thomas S. West, Yvonne E. Marciano, Bob Bristol, Gina Facca and Ellen Nicholas representing the applicant, Michael Higgins and Robert Leslie of DEC staff, Jeff Baker, Sam Pratt and Vincent Bilotta for FOH, Alix Gerosa of Scenic Hudson and Marc Gerstman for the Coalition, Joseph Brill for the Hudson City Register, Mr. Howard Cort, and the ALJs were present for this tour. The purpose of the visit was to observe the various historical and scenic locations in the vicinity of the proposed project and also to view the balance of land uses in the area including a number of industrial and institutional facilities.

The first stop on this visit was to the Hudson Waterfront Park which is currently under development. There are plans by the City to extend the park to the south, although there are also some contaminated properties in that vicinity. Farther south is SLC's property. While at the Waterfront Park site, the participants viewed the Hudson Correctional Facility to the east. At the site for the pump house; we viewed a large salt pile as well as the railroad trestle that SHPO has expressed interest in having the applicant preserve. See, draft special visual permit condition 15, IC Ex. 12a(i). SLC intends to construct a "T" dock for barges to dock in this vicinity.⁽⁷⁾ From this location, the submerged aquatic vegetation (SAV) beds were straight ahead of us, as were the Athens Lighthouse and the Village of Athens. From here, we could also see several historic buildings in the Village including the Stewart House.⁽⁸⁾ From this site, the southern edge of the Middle Ground Flats was visible, an island in the river that provides partial screening from locations to the west of portions of the shore where SLC proposes waterfront activities.

We then walked along the shore to the area where SLC proposes to build a park (Lookout Point). SLC has proposed a gazebo and walkway, with an area for picnicking. Staff has raised concerns about destruction of habitat and has suggested a more simple design. See, IC Ex. 12a(i), draft visual permit, special condition 8; IC Ex. 114. From this location we could view the bridge that connects to the South Bay, and, on the other side of the CSX railroad tracks, the vicinity of the proposed wetlands mitigation plan. We also observed the southern edge of the Greenport Conservation area. From here we also viewed the north end of Mount Merino, as well as a pond in which the water level does not fluctuate. On our walk back, the ALJs noted the location of the current stormwater impoundment. The proposed dock impoundment will be in this vicinity, and will be larger.

Driving down route 9G, we noted the location of the prison as well as the presence of water on the side of the road that connects to a stream under the railroad trestle near the proposed dock location.

We next visited Olana, a National Historic Landmark that is on the State and National Registers of Historic Places, and was the home of the Hudson River School painter Frederic Church. As we drove in, we observed the lake built by Church. We went to Cosy Cottage (the original Church residence on the property) and a meadow near it where we could observe where the facility would be located, particularly the main stack and preheater, which is to the east/ northeast of Cosy Cottage. Appendix B, DEIS, IC Ex.7, pp. B1-101 - B1-104. From this vantage point, the views are strikingly pristine with the notable exception of the abandoned Universal Atlas cement plant owned by SLC. This defunct plant is located to the west of the proposed facility. SLC proposes to remove these structures to mitigate the visual impacts associated with the project. There is also a view of Becraft Mountain from this vantage point.

We then walked to the main house where we viewed the restoration of the exterior cornices and the views to the west, northwest and southwest. On the opposite shore of the Hudson are a number of abandoned oil tanks, although the tanks are partially obscured by second growth.⁽⁹⁾ To the southwest, we observed structures at SLC's Catskill facility which the applicant has agreed to remove in part, including the bunkers at the shore and the stack. The facility's plume was also visible. Further southwest is the Lehigh Cement facility.

The tour then crossed the Hudson River to the Village of Athens Waterfront Park, and proceeded down Second Street where there are many well kept older homes. From the waterfront, we viewed the Athens Lighthouse. While a portion of the proposed dock and plant would be obscured by the Middle Ground Flats in some locations of the Park (including the vantage that was photographed by the applicant's consultant - IC Ex. 7, DEIS, Appendix B1-42 - 45), it is clear that, from this location, dock unloading, material stockpiling, a portion of the plant's main stack and its plume will be visible. In addition, the conveyor, pump house, and stock house will also be seen. From this location, the railroad trestle and the Atlas stack and silos are also visible. In addition, based upon the photosimulation contained in the DEIS, Appendix, pp. B1-57 - 59, the main stack of the facility will be visible from the Athens boat launch.

We next drove back across the Hudson River to Claverack where we stopped at a church on 9H and viewed the ADM stacks, as well as the viewpoint from which travelers on Route 9H will be able to see the proposed facility. We then drove to the Old Courthouse in Claverack to observe many of the old historic homes in this hamlet. We traveled to the Colarusso mine that is located off Newman Road and also past the ADM/Lone Star plant site. Our final visits stops included Academy Hill, Rossman Avenue, Promenade Park and the KAZ facility in Hudson. At this last location, we attempted to get a view of the Plumb-Bronson historic house that is located on the prison grounds, but were unsuccessful. The applicant has included photographs and photo simulations in the DEIS of views of the proposed facility from most of these locations. See, DEIS, Appendix B1-7 - 12, B1-18 - 23.

Issues Conference - July 18-July 31, August 15, 2001

The OHMS received timely petitions for full party status from the following organizations: FOH represented by Jeffrey S. Baker, Esq. of Young, Sommer . . . LLC, the Coalition (now comprised of Scenic Hudson, Inc., NRDC, Historic Hudson, Inc., Hudson Antique Dealers Association, Hudson River Heritage, Citizens for the Hudson Valley, Clover Reach, the Concerned Women of Claverack, and Riverkeeper, Inc.⁽¹⁰⁾) represented by Marc S. Gerstman, Esq., TOP represented by John W. Caffry, Esq., the Town represented by George A. Rodenhausen, Esq. of Rapport Meyers Whitbeck Shaw & Rodenhausen LLP, the City represented by Jason Shaw, Esq. of the Rapport Meyers law firm, MDEP represented by Robert Bell, Chief Regional Counsel, and BRPC represented by Elisabeth Goodman, Esq. of Bernstein, Cushner & Kimmell, P.C.⁽¹¹⁾ In addition, timely petitions for amicus status were submitted by the CHP represented by Edward McConville, Esq., the Village represented by Mayor David M. Riley⁽¹²⁾, the County of Columbia represented by John M. Leonardson, Esq., Deputy County Attorney, the New York State Preservation League represented by William A. Hurst, Esq. of McNamee, Lochner, Titus & Williams, P.C., the National Trust for Historic Preservation represented by Autumn Rierson, Esq., and NRDC represented by Albert Butzel, Esq.⁽¹³⁾

During these proceedings, staff was represented by Regional Attorney Robert Leslie and SLC was represented by Thomas S. West, Esq., Robert J. Alessi, Esq., Yvonne E. Marciano, Esq., Michael Peters, Esq., and Frederick B. Galt, Esq. of LeBoeuf, Lamb, Greene & MacRae, LLP.

For a summary of the positions of the various petitioners, see the chart annexed as Attachment D. On July 12, 2001, a conference call was held among the petitioners, the applicant and DEC staff with ALJ Goldberger to set a schedule for the issues conference.⁽¹⁴⁾ Mainly, this schedule was adhered to with the exception of a few proposed issues. The conference schedule was as follows:

July 18 - Air - modeling, meteorology data, offsets, air emission impacts to Olana

July 19 - Columbia County Stipulation, Air - PSD, BACT/LAER, NSR Alternatives

July 20 - Air - BACT/LAER, opacity, PM_2.5

July 23 - BACT/LAER, monitoring, wildlife/plant impacts, wetlands, SPDES

July 24 - SEQRA/mining/Becraft Hills, water supply, blasting

July 25 - Blasting, traffic, noise

July 26 - Wetlands mitigation plan, waterfront, noise

July 27 - Site visit, CKD, economics, community character, alternatives

July 30 - Visual impacts, historic sites, coastal zone

July 31 - Visual impacts, historic sites

August 15 - Met data, fisheries and wetland mitigation plan, revised SPDES permit application, CKD, record of compliance, briefing matters, and 2d site visit itinerary.

August 16 - 2d site visit

The ALJ set a briefing schedule to permit the issues conference participants to provide additional argument on certain legal issues that arose during the conference. Initial briefs were due on September 7, and replies were due on September 21. Due to the events of September 11, a request was made by the Coalition's attorney for more time to file replies and the ALJ agreed to extend the deadline for replies to September 28, 2001. While typically the receipt of the transcript and the reply briefs would close the issues conference record, because we have found a number of outstanding items requiring supplementation of the record, as well as review by staff and the other participants in this process, the issues conference record is being held open pending the fulfillment of these requirements.

By letter dated September 6, 2001 (subsequent to the close of the issues conference), Attorney Whitbeck wrote to advise the ALJs of the Town's determination to withdraw its petition for full party status in light of a pending Host Community Agreement with SLC. IC Ex. 132. The Town also submitted an amicus brief dated September 28, 2001 in support of the project and similar in content to the petition of the County. IC Ex. 154. Accordingly, this issues ruling will not address the Town's proposed issues.

By letter dated November 28, 2001, Mr. Shaw informed the ALJs that the City and SLC have been negotiating the language of a settlement but the Planning Commission has not yet approved this agreement. IC Ex. 176. This ruling addressed the issues raised in the City's petition because, unlike the Town, the City has not withdrawn that petition.

Standard of Review

When Department staff has determined that a permit application will, subject to draft permit conditions, meet all statutory and regulatory requirements, petitioners must demonstrate that an issue is substantive and significant in order for the issue to be subject to adjudication and for the petitioner to achieve party status. 6 NYCRR § 624.4(c)(4). An issue is substantive if there is sufficient doubt about the applicant's ability to meet statutory or regulatory criteria such that a reasonable person would inquire further. 6 NYCRR § 624.4(c)(2). The bases for the ALJs' determination are the petition, the offers of proof, the issues conference presentation in light of the application, the draft permit, the presentations of the staff, the applicant, and the petitioners at the issues conference as well as the issues conference exhibits, briefs, and the applicable law and regulations.

A substantive issue may also be raised by the identification of a defect or an omission of pertinent information in the application and EIS, so as to warrant further inquiry. Matter of Town of Brookhaven, 1995 WL 582471 (Interim Decision, July 25, 1995); Matter of Halfmoon Water Improvement Area, 1982 WL 25856 (Interim Decision, Apr. 2, 1982).

An issue is significant if it has the potential to result in the denial of a permit, a major modification of the project or the imposition of significant permit conditions in addition to those already in the draft permit. 6 NYCRR § 624.4(c)(3).

PROPOSED ISSUES

Air Quality

The Clean Air Act (the Act or CAA) provides national ambient air quality standards (NAAQS) for six pollutants (sulfur dioxide, particulate matter [PM], carbon monoxide [CO], ozone [O₂], nitrogen dioxide [NO₂] and lead) known as "criteria pollutants" that have demonstrated effects on health and the environment at certain levels. 42 USC §§ 7408, 7409, CAA §§ 108, 109; 40 Code of Federal Regulations (CFR) Part 50.⁽¹⁵⁾ The states develop implementation plans to achieve these standards where the standards are not already met. 42 USC § 7410, CAA § 110. When major sources are built or modified in non-attainment areas, new source review (NSR) requirements pertain including the technology forcing standard of lowest achievable emissions rate (LAER). 42 USC 7501(3), CAA § 171(3); 6 NYCRR Part 231. When major sources are modified or built in NAAQS attainment areas, PSD standards apply including best available control technology (BACT). 42 USC §§ 7470-7479, CAA §§ 160-169. PSD increments have been set for SO₂, PM and NO_x at a fraction of the NAAQS levels. Belden, supra, p. 50. Because the applicant has proposed a facility in an area that is subject to both PSD and NSR requirements, in addition to other federal and state air pollution control requirements, it has applied for air pollution control permits from DEC.

Intervenors, FOH, the City, the Coalition, MDEP, TOP, BRPC, and CHP raised potential issues regarding the applicant's air quality analysis and the project's potential impact on air pollution in the surrounding area of the facility and east into Massachusetts. Below is the discussion of those matters and the determinations we came to as a result of our review of the issues conference record. As a general note, for a number of the matters involving the draft air permit, there remains uncertainty due to the staff's declarations during the issues conference that more review (and discussion with the United States Environmental Protection Agency [EPA]) will be necessary to ascertain whether the permit limitations meet regulatory requirements. Accordingly, we have no choice but to find that once there are decisions made by staff on these permit conditions, and assuming there are changes to the draft air permit, the revised draft air permit will have to be subject to further review in the context of the issues conference.

Modeling Protocol

The applicant performed an air quality impact analysis to determine if emissions from its proposed facility, including the existing mine operation and existing background sources, would comply with the NAAQS and New York State Ambient Air Quality Standards (NYSAAQS), PSD increments, and New York State Draft Air Guide-1 concentrations. See, SLC Greenport Air Permit Application, C-1, IC Ex. 8 . To do this analysis, SLC performed dispersion modeling.

FOH, the Coalition, TOP, the City, the BRPC and MDEP argued in their petitions that the applicant's air analysis was flawed because its modeling was based upon meteorological (met) data from the Albany Airport National Weather Service (NWS) station rather than from the on-site Greenport monitoring tower. The applicant constructed a meteorological tower in Greenport and collected data beginning in August 1999 from this location.⁽¹⁶⁾ At the preliminary issues conference, the applicant declined to present this data because the data had not been validated and had not been utilized by SLC in its modeling. In response to a motion to compel production of this material made by FOH on July 18, the ALJ and issues conference participants learned that as part of the protocol for the collection of the data, it had been transmitted to DEC staff and was therefore accessible to the public via FOIL. At that point, both the applicant and staff agreed to furnish the data to the intervenors and additional time was granted for the petitioners to supplement their filings to address this new information. Supplemental filings were provided on August 9, 2001 by FOH, the Coalition, TOP, BRPC, and the Town. IC Exs. 36a, 39a, 40a, 41a and 51a.

After the close of the issues conference, FOH informed the ALJ and other participants by fax dated September 26, 2001 that its consultant, Camp Dresser and McKee (CDM), had performed the air modeling using the local met data and determined that the facility would cause exceedances of the PM₁₀ PSD increment. FOH made a formal motion on October 2, 2001 to make this finding an additional issue for adjudication. The issues conference participants agreed to a response date of October 19, 2001. The ALJs determined in a memorandum dated October 23, 2001 that this additional information did not require a formal reconvening of the issues conference but could be considered as part of this record. IC Ex. 170.

RULING: An issue exists for adjudication because the applicable regulatory authority and facts indicate that the use of the on-site meteorological data in the air dispersion modeling would potentially result in a different outcome, specifically for impacts from particulate emissions from SLC's proposed facility.

Part 61, section 9.3 of Title 40 of the CFR, contains guidelines for air quality modeling. This section provides that "[t]he meteorological data used as input to a dispersion model should be selected on the basis of spatial and climatological (temporal) representativeness as well as the ability of the individual parameters to characterize the transport and dispersion conditions in the area of concern." This section goes on to state that the "representativeness" depends on the proximity of the monitoring site to the area of concern; the complexity of the terrain; the exposure of the monitoring station; and the period of time during which the data is collected. This data is obtained from either a NWS or an on-site measurement program. While these regulations indicate that five years of data is generally preferred, when on-site data of one year or more is available, that data is more preferred. 40 CFR Part 61, § 9.3.1.2.

Essentially, the applicant contends that in developing the modeling protocol and choosing the Albany NWS, SLC worked with DEC and EPA's Region 2 office extensively and complied with all regulatory requirements. TR 55, 2093. According to the applicant, because the project met the applicable requirements for the complex terrain model using the default meteorological values, there was no need to utilize the on-site met data. See, Appendix A to Applicant's Opposition to Friends of Hudson's Motion to Add an Issue For Adjudication, October 18, 2001, IC Ex. 166, p. 4. The Albany Airport is a Class I meteorological station - meaning that it has the highest degree of quality assurance and quality control over the data - and there are many years of data from this station. But this choice would still appear contrary to what is provided in the federal regulations because of the availability of the on-site data, the length of time the data has been collected, and the ability of the applicant to perform the validation necessary to ensure quality assurance.

DEC's Air Guide 26 - NYSDEC Guidelines on Modeling Procedures for Source Impact Analyses (revised 12/9/96), p. 4, also provides that "[o]n-site meteorological data is generally preferred over National Weather Service data."

The on-site data would better reflect conditions in the area than the Airport NWS which is 40 miles away. Moreover, as the CFR notes, the nature of the terrain must be considered. As noted by the intervenors and not disputed by SLC, the two topographies are quite different in that the airport is located on a plain while the on-site monitor is located in an area "with high rolling hills and mountains." See, SLC Air Permit Application, IC Ex. 8, p. C-1. While the applicant pointed out that the Athens facility also had an on-site met tower and that data was not used, this choice did not become an issue in that proceeding. Moreover, there are enough distinctions between the location of the Athens plant and the Greenport facility that may result in differences in the data collected from the two meteorological towers. With respect to validation of the data, while this must be a necessary step in determining whether FOH's modeling results are accurate, it should be noted that CDM did review the filed logs, site inspection checklists, preventive maintenance checklists and calibration/audit reports for the 2000 data and found the data to be "accurate, complete, and of acceptably good quality." IC Ex. 157, Exhibit A, pp. 1-2.

SLC chose two models: (1) the ISCST 3 model for simple terrain (the area below the stack height) and (2) the CTScreen model for areas above the stack height. The ISCST 3 model uses the data from Albany Airport but the complex terrain model uses conservative default data that is supposed to simulate worst case conditions. SLC maintains that the Albany data is more reliable because it is collected over a longer period of time, and thus would be less likely to be unduly influenced by extreme, anomalous weather conditions. In addition, the applicant maintains that it would be a waste of resources to require it to go through the validation process for the on-site data, given the relatively short duration of data collection and the regulatory agencies' approval of the use of the Albany data. Nevertheless, the applicable guidelines provide that one year of data is sufficient, and given the importance of the air issues to the community and the scale of this project, such analysis would not be a waste of resources but rather would ensure that appropriate scrutiny was given to potential air impacts.

Once the local met data was reviewed, these intervenors found that the speed and direction of the winds were at variance from what the applicant presented. While there was an apparent misinterpretation of how the data was presented, CDM prepared a corrected report dated August 24, 2001 and submitted that report to the OHMS on August 27, 2001. CDM calculated that wind speeds from Albany are approximately 55 percent faster than those from Greenport. CDM report, IC Ex. 39b, p. 5. In addition, as noted by the applicant and staff at the August 15 issues conference, the wind rose produced by CDM was also in error - meaning that the wind direction found by FOH's consultants was incorrect.⁽¹⁷⁾ The August 24 report acknowledges this error and finds that the data indicates "a strong channeling of winds in the north and south directions, with a predominant direction from the south and a secondary preference from the north." The winds at Albany are from the south, with a secondary preference from the west-northwest. Id., p. 4. Thus, the intervenors maintained that the differences remain significant and the failure to use the on-site met data has potentially resulted in an underestimation of pollutants from SLC's proposed facility.

Next, FOH presented CDM's dispersion modeling of PM₁₀ using the Greenport met data. IC Ex. 157. In its report, CDM questioned the results achieved by SLC in its PM₁₀ results due to some "suspicious" data points. Id., Siple Report, p.3. Most significantly, Mr. Siple reports that the analysis revealed that the maximum 24-hour PM₁₀ concentration near the property line is predicted to be 31.89 ug/m³ (micrograms per cubic meter) and the second high 24-hour PM₁₀ concentration is predicted to be 30.15 ug/m³. The allowable PSD increment for new sources in this area for the 24-hour PM₁₀ concentration is 30 ug/m³. 40 CFR § 52.21(c). Id., p. 4. The concentrations that CDM found occur at receptors located at the property line of the proposed facility. Id., p. 4. Mr. Siple, who is a Principal Air Quality Scientist at CDM, concludes in his report that the maximum PM₁₀ concentration from SLC must be reduced to protect the PSD increment, a complete cumulative analysis must be undertaken and the effects of these results on PM_2.5 must be determined. Id., p. 5.

The applicant and staff respond to this motion with many criticisms of CDM's analysis. IC Exs. 166, 168. First, these parties emphasize that the protocol employed by SLC to model air impacts was thoroughly scrutinized by the regulatory agencies, and that SLC adhered to that protocol. In addition, these parties argue that because the met data has not been validated and therefore, CDM's results are not reliable. Maureen Hess, on behalf of Malcolm Pirnie, SLC's consultant, emphasizes in a letter dated October 18, 2001 (the Hess Letter), attached to SLC's response, that the failure to validate makes the data suspect and points to several resulting "potential areas of concern . . ." SLC Opposition, Attachment A, p. 6 to IC Ex. 166. This is further supported in the October 17 report of meteorologist Russell F. Lee that was also submitted by SLC with its response. Citing to EPA guidance, Mr. Lee emphasizes that site-specific data is only preferred where there has been quality assurance. SLC Opposition, Attachment B, p.3, IC Ex. 166. While CDM does report that it performed some level of scrutiny to assure itself of the quality of this data, there is no assertion that the validation required by a modeling protocol was performed. Siple, pp. 1-2, IC Ex. 157. It is clear to the ALJs that if we are to adjudicate the issues of fact that exist among the intervenors, the staff, and the applicant on this matter, there must be a starting point of validated data. See, SLC's Opposition, p. 15. Because the applicant has satisfied DEC staff that its air quality analysis was sufficient and the results indicate compliance with applicable regulations, the burden is on the intervenors to show otherwise. 6 NYCRR § 624.4(c)(4). Therefore, FOH is responsible for validation of this data should it wish to proceed to hearing on this matter.

The Hess Letter also questions some of the inputs presented by FOH, claiming that emission point contributions were overstated. Appendix A to IC Ex. 167, p. 7. Malcolm Pirnie reran the model with the data provided by CDM but changed the input of these emissions points, and obtained results of an annual average of 7.97 ug/m³, a 24-hour average of 30.98 ug/m³ and a 24-hour average of the highest, second high of 27.92 ug/m³. Id. While SLC emphasizes that the mistakes that its consultants have determined were made in CDM's analysis should put this matter to rest, instead we find a dispute that cannot be settled in an issues ruling. Rather, resolution requires a hearing where the experts' analyses will be subject to cross-examination so that the Commissioner will have a firm basis to determine what the project's impacts will be. While staff maintains that air modeling is not meant to be an exact predictor of air impacts, if there is a question about whether an essential aspect of the conclusions regarding these impacts exists, that rises to the level of a substantial and significant matter that should be subject to further scrutiny.

Staff emphasizes that even if FOH's analysis is correct, the 30.15 ug/m³ meets the PSD increment because 40 CFR § 52.21(c) sets the increments in whole numbers. However, reading this regulation provides no indication that levels that exceed the 30 ug/m³ meet the increment allowance.

We agree with SLC and staff that while PSD matters may not be adjudicated in this forum, as stated elsewhere in this document, the SEQRA requirements as well as the State's air permitting regulations - 6 NYCRR § 220.3 - require an accurate assessment of particulate emissions from this facility. The application itself provides that particulates will increase as a result of this project. Air permit application, IC Ex. 8, p. C-26; DEIS, IC Ex. 6, p. 14-25. The Department cannot rely on an air standard that it finds to be consistent with protection of public health and welfare if it is not certain what the impacts from these emissions will be and hence whether the appropriate protective standard will be met. Accordingly, to ensure that a potentially significant adverse impact is addressed in this review, the issue of the accuracy of the air dispersion modeling with respect to particulate emissions must be addressed in an adjudicatory hearing.

Emission Offsets

Section 231-2.4 of 6 NYCRR requires that any proposed source that emits any nonattainment contaminant must obtain, inter alia, emission offset credits (ERCs) for that pollutant. See also, 6 NYCRR § 231-2.4(b). Because the proposed facility is located in the ozone transport region (OTR) and the plant will emit volatile organic compounds (VOCs) andNO_x , precursors of ozone, SLC must provide ERCs for these pollutants. In other words, prior to permit issuance, the applicant must demonstrate a reduction of these pollutants within the OTR that compensates for the proposed new emissions in accordance with the ratios set forth in 6 NYCRR § 231-2.12.

The draft air permit does indicate that SLC will obtain emission offsets for NO_x and VOCs; specifically, 149 tons of VOC ERCs and 4,740 tons of NO_x . In addition, the conditions provide that the ERCs shall be identified as to source and amount prior to issuance of the permit. See, conditions 37 and 38, IC Ex. 12, pp. 20-21.

FOH identifies the omission of the exact source of these credits as an issue for adjudication. FOH contends that if SLC does not intend to close Catskill, and instead plans to obtain the ERCs elsewhere, this result will have a significant impact on the SEQRA analysis of the Department.

At the issues conference, SLC stipulated that ERCs will come from the permanent closure of the Catskill kiln prior to the production of the first clinker at the Greenport plant. TR 107. SLC maintained that this information is sufficient to comply with 6 NYCRR § 231-2.10, which requires that ERCs be identified prior to permit issuance, as well as a separate public notice and comment period.

RULING: SLC is directed to identify the source(s) and quantities of ERCs obtained for this project within sixty (60) days from the date of this ruling. In accordance with Part 231, the applicant and staff have committed to identification of the credits as well as providing the requisite public notice and comment. However, because of the proceedings already set in motion by this application and the precedent of other permit proceedings before DEC in which the ALJ required the receipt of the ERC information prior to the close of the issues conference, we will do likewise.⁽¹⁸⁾ The identification of ERCs is not an issue for adjudication.

Based upon the stipulation provided by SLC, we do not find that the closure of the Catskill kiln is an open question and thus, any SEQRA findings related to that event will not be forestalled. However, based upon the above requirement, should there be any question with respect to the ERCs provided by the applicant, the parties will have notice.

Compliance Certification

In addition to the ERC requirement for facilities that will emit nonattainment pollutants, 6 NYCRR § 231-2.4(a)(2)(i) requires applicants to "certify that all emission units which are part of any major facility located in New York State and under the applicant's control (or under the ownership or control of any entity which controls, is controlled by, or has common control with the applicant) are in compliance, with all applicable emission limitations and standards under Chapter III of this title." FOH stated in its petition that SLC has failed to certify its compliance, and must do so now as part of its new source review application. In addition, FOH maintained that SLC should be required to certify the compliance status of other facilities it controls in this state. FOH also alleged that the applicant's parent, Holcim, has interests in Glens Falls and Lehigh/Glens Falls Joint Ventures requiring compliance certification of those facilities.

RULING: SLC stated that as part of its Title V application on behalf of Catskill a compliance certification has been submitted to DEC. Staff agrees that this certification, because it is not current, is not sufficient for this application. The applicant stipulated to recertify. TR 122. As with the ERCs, this certification should be made part of this issues conference record and therefore, SLC is directed to supply this certification to the parties within sixty days of this issues ruling.⁽¹⁹⁾ This omission by SLC is not an appropriate issue for adjudication.

With respect to the Glens Falls facility, SLC explained at the issues conference that there is less than a 10 percent stock ownership by Holcim and Dyckerhoff in this plant and because this is a joint venture, Holcim's interest is less than 5%. Added to that equation, SLC, LLC is a subsidiary of St. Lawrence Group, Inc. which is a Canadian publicly traded corporation - 64% of the St. Lawrence Group, Inc. is owned by Holman and Holman is a wholly-owned subsidiary of Holcim, leaving a long corporate chain to reach the small interest that Holcim has in that facility. FOH has not established sufficient cause to merit further examination with respect to the ties among these entities and whether those ties would warrant compliance certification for the Glens Falls plant.

Air Pollution Impacts to Historic Resources

In their petitions, TOP and the Coalition raised concerns regarding the potential for damage to structures and vegetation at Olana from air pollution associated with SLC's Greenport project. TOP states that such impacts would adversely affect efforts underway to restore and enhance Olana and to continue to attract visitors. Olana is a State historic site and National Historic Landmark (NHL), and was the home of 19^th Century Hudson River School painter, Frederic Church. The house is situated on the original 250 acres plus additional lands acquired by New York State totaling 336 acres and located about 3 miles northwest of the proposed plant site. DEIS, IC Ex. 6, p. 5-12; TOP Pet., IC Ex. 41, p. 4. As set forth in TOP's petition, the 1870's main house at Olana is known for its intricate design and decoration both in and outside of the building. TOP maintains that the pollutants emitted by SLC - sulfur dioxide, nitrogen oxides and others - will erode building materials and reduce their useful life. TOP has retained an analytical chemist with over thirty years of experience in architectural conservation, Norman Weiss, who states in his report that the masonry, copper roofing and lead materials are vulnerable to the expected emissions from the plant.⁽²⁰⁾ See, Exhibits J, K and L to TOP petition, IC Ex. 41.

RULING: As noted by the intervenors, SEQRA includes "objects of historic or aesthetic significance" in its definition of "environment." ECL § 8-0105(6). While the applicant contends that its air analysis indicates compliance with the NAAQS secondary standards that provide protection for structures, there is no indication in the EIS that consideration was given to determining what, if any, significant effects the project's air emissions will have on the structure of the Church residence at Olana given its proximity to the proposed facility. See, Matter of Application of Foster Wheeler-Broome County, Inc., ALJ Ruling (Apr. 26, 1990) (evidence of substantial local adverse impact sufficient to require analysis pursuant to SEQRA that further air emissions reductions were warranted, despite compliance with NAAQS). In fact, staff stated at the issues conference that such analysis was not required by the air permitting process. TR 131. With respect to SLC's position that the closure of Catskill will offset any of the Greenport plant's emissions of SO₂ and NO_x , TOP's expert contends that the difference in proximity of these two facilities to Olana would outweigh any such benefit. TR 134. Accordingly, given the contentions by TOP's expert that the SLC Greenport emissions will cause deterioration of the main house at Olana based upon the constituents of the house's structure and the nature of the pollutants, this omission must be addressed by supplementation of this record. See, Exhibit L to TOP petition.

Compliance with Part 231 and New Source Review Requirements

Pursuant to 6 NYCRR Part 231 and New Source Review under the Clean Air Act § 173, new or modified major sources in nonattainment areas must (1) apply LAER standards to control the NAAQS in question as well as obtain ERCs; (2) certify that facilities they control in New York State are in compliance with air pollution standards; and (3) perform an alternatives analysis that demonstrates the benefits of the project versus the environmental and social costs. As described earlier, as Columbia County is in the OTR, the applicant must apply LAER to its emissions of NO_x and VOCs which are precursors of ozone. SLC does not disagree that these laws are controlling. Nevertheless, FOH and other intervenors raise questions as to whether the applicant has properly applied these standards.

In response to certain matters raised by the petitioners as well as comments received by EPA Region 2 in a comment letter dated June 29, 2001 (IC Ex. 55) concerning the draft air permit, the applicant produced a summary table of stipulated emission limits for PSD/NSR affected pollutants at the July 19, 2001 session of the issues conference. IC Ex. 60. FOH stated that this submission would resolve only its issues regarding the draft air permit's omission of PSD limits for VOCs (FOH Pet., IC Ex. 39, 1F) and the draft permit's lack of terms that specifically provide that the limits subject to PSD are so described (FOH, Pet., IC Ex. 39, 2A). TR 204. This chart was revised and resubmitted to the ALJs on October 26, 2001. IC Ex. 60a.

MDEP and BRPC reserved their concerns regarding the lack of a "top-down" BACT analysis set forth in the application with respect to SO₂ and particulate matter. TR 206. BACT is the applicable standard for air emission control of pollutants subject to PSD.⁽²¹⁾ In 1987, EPA issued a memorandum providing that a "top-down" analysis be performed to determine BACT. EPA New Source Review Workshop Manual, B.2; Citizens for Clean Air v. EPA, 959 F.2d 839, 845 (9^th Cir. 1992). This requires that the most stringent control is first examined and applied unless the applicant demonstrates, and the permitting authority agrees, that due to BACT considerations this technology is not achievable. The next most stringent method is then examined, and so on. Id. These petitioners also wish to see additional monitoring conditions added to the permit - broken bag detectors and a visolite test. TR 208. They also argued that permit language should be added, requiring that the scrubbers be operational whenever the kiln is on. SLC agreed to the latter condition. TR 211. With respect to the other issues, these petitioners and the applicant stated that they would attempt resolution. To date, the ALJs have not heard of any progress regarding these discussions and therefore, consider these concerns as potential issues for adjudication in this ruling.

Based upon the applicant's agreement at the issues conference to stipulate to inclusion of language related to any PSD-related permit condition that would subject these terms to federal enforcement, this concern of FOH is resolved. TR 205. In addition, SLC stipulated to agree to language in the permit that would clarify what pollutants are subject to the PSD program and what pollution controls apply to the facility. TR 205.

Staff indicated that its review of the permit is ongoing, in light of EPA's comments with respect to NO_x, CO, PM and PM-10 limits. TR 194. However, there has been no further report regarding this review, nor has a revised air permit been submitted reflecting the above referenced stipulations by the applicant. We are directing staff within 60 days of this ruling to produce a revised air permit with a status report that incorporates SLC's stipulations and explains any changes, particularly with regard to EPA's comment letter of June 29, 2001. In the event that staff is still engaged in discussions with EPA regarding the draft permit terms, the ALJ and the parties in this process should be provided with a status report and proposed schedule for the issuance of a revised draft permit.

Adequacy of SLC's NO_x LAER Analysis with respect to Natural Gas Alternative

SLC proposes to use coal as its primary fuel at the Greenport facility. The applicant explains that this choice is based upon natural gas's production of high NO_x emissions at cement plants. In contrast, the applicant maintains that the use of coal or oil in the kiln will produce longer, less aggressive flames that will result in a reduction of thermal NO_x . Air permit application, p. 6-13, IC Ex. 8. Pointing to other cement plants in the U.S. and Canada that have used natural gas with Gyro-Therm low NO_x burner technology, FOH contends that SLC did not fully investigate whether SLC can implement additional technologies that would reduce the NO_x emissions in the natural gas to the same levels that would be obtained with coal. FOH's concern with respect to the use of coal is based upon the increased emissions of SO₂ and PM associated with that fuel. FOH maintains that the use of technology to reduce NO_x emissions with natural gas would be LAER, rather than coal, as SLC contends. Furthermore, FOH argues that the use of natural gas as an alternative is consistent with SEQRA because other environmental impacts, related to dredging the river for the HudsonMax vessels, fugitive emissions from coal piles, and noise associated with coal transfer operations would be eliminated. In the alternative, FOH recommends the examination of the use of low-NO_x coal.

The applicant maintains that coal is used in most cement plants because of its "highly effective heat transfer . . .as well as many trace constituents . . . necessary for cement production . . ." In addition, SLC points out that cement kilns operate at much higher temperatures than other industrial boilers and thus, NO_x formation occurs at much greater rates. TR 216. The applicant further asserts that because natural gas raises the operating temperature in the kiln and is also a turbulent fuel, its use increases NO_x formation.

With respect to SO₂ emissions, SLC argues that sulfur is trapped by the "inherent adsorption of the kiln feed mask." TR 219. In addition, the applicant has agreed to install wet and dry scrubbers and baghouses capable of removing SO₂. The applicant contests FOH's claim that the Durkee, Oregon plant referred to in FOH's petition achieved any significant decrease in NO_x from the use of natural gas and the Gyro-Therm burner, and added that the Oregon facility operates on a mixture of gas and coal. TR 220­221.

RULING: The choice of coal as fuel for this facility is not an adjudicable issue with respect to SLC's NO_x LAER analysis. LAER seeks the "most stringent emission limitation achieved in practice, or which can reasonably be expected to occur in practice. . . " 6 NYCRR 200.1(ak). Ultimately, FOH's own consultant agreed with the applicant that the use of natural gas with the Gyro-Therm burner may be a "wash" in terms of NO_x reductions. TR 229-231. Because SLC's investigation indicates that the nitrogen content in the fuel is not the main source of the NO_x output, the use of low-NO_x coal does not address the problem. Air application, p. 60-12, IC Ex. 8. The petitioners have not established a sufficient basis to go forward to a hearing because there is no indication that the use of either of these technologies will result in lower emissions, which is LAER's goal.

With respect to other environmental impacts associated with the use of coal, the applicant noted that the dock expansion and any associated dredging would still be necessary because the HudsonMax ships would be bringing in gypsum. Further, mercury emissions associated with the two fuel sources are not significantly different and mercury emissions will be controlled with scrubber technology. Air permit, IC Ex. 8, E-31, TR 241. With respect to particulates, SLC provided that it is the pulverized stone rather than the fuel that is the main source of these emissions and that a switch to natural gas would mandate that SLC would have to increase the stone to make up for the constituents lost from not using coal. TR 235-236. FOH failed to provide adequate support for these contentions. Thus, the ALJs did not find that there was sufficient doubt requiring further examination in an adjudicatory hearing.

Finally, with regard to SO₂, the applicant maintains that it has captured these emissions sufficiently through the cement production process and add-on technology. Dr. Miller, on behalf of FOH, contends that there is a significant amount of SO₂ that is derived from the use of coal. This is not a LAER matter because the proposed facility is in an attainment area for this pollutant. Rather, emissions of SO₂ are governed by the PSD program as well as Part 257-2. Sulfur content in fuel is also regulated by 6 NYCRR Parts 220 and 225 of 6 NYCRR and the State Acid Deposition Control Act - Title 9 of Article 19 of the ECL.

While staff maintained, without citing to any authority, that DEC does not mandate the use of any particular fuel in a given project (TR 222, 232), the Department has an obligation to ensure through the choice of fuels and appropriate control technology that the applicable standards are met and that significant adverse impacts are avoided. See, e.g., 6 NYCRR §§ 220.6, 225-1.2(f). Accordingly, in Matter of the Applications of Consolidated Edison Co. of New York, Inc., 1983 WL 166627 (Sept. 14, 1983), the issue of whether to allow Con Ed to burn coal was examined. Based upon concerns of cumulative impacts of coal-burning, Commissioner Williams determined that the applicant must install certain control equipment to burn coal in its facilities in New York City.⁽²²⁾ In re Inter-Power of New York, Inc., PSD Appeal Nos. 92-8 and 92-9 (March 16, 1994), 5 EAD 130, 1994 WL 114949, citing to Hawaiian Commercial & Sugar Company, PSD Appeal No. 92-1 at 5, n. 7 (July 20, 1992), EPA expressly found that in deciding BACT for a particular source, the Agency must consider "both the cleanliness of the fuel and the use of add-on pollution control devices." For attainment of reasonably available control technology (RACT) for NO_x, choice of fuel is a compliance option. See, 6 NYCRR § 227-2.5.

However, as this matter does not relate to the LAER analysis, the concerns regarding the use of coal and its effect on SO₂ emissions are addressed elsewhere in this ruling, infra, at pp. 39-40.

Throughout the legislative hearing, individuals raised concerns about the potential use for garbage, waste oil, or some other hazardous substance as fuel in this plant. The draft air permit limits SLC's fuel usage to coal, petroleum coke, distillate fuel oil and natural gas. The draft air permit specifically precludes SLC from burning any type of waste oils. Draft air permit condition 35.2, IC Ex. 12.

Adequacy of NO_x LAER Analysis with inclusion of SNCR

With no disagreement from other participants, SLC states that the cement-making process gives rise to substantial amounts of NO_x due to the high temperatures required to produce this product and the need to remove alkali from the raw materials to meet the standards for cement use in New York and to protect the facility's equipment. Air application, 6-6-6-7, IC Ex. 8; TR 264. Because NO_x is an ozone precursor and Columbia County is in the OTR, this pollutant is subject to control via the LAER requirements. The applicant has agreed to include SNCR to control NO_x emissions, in addition to the low-NO_X burner, combustion design optimization, multi-stage combustion, and a wet scrubber (though due to its limited benefit, SLC states that it has not taken a NO_x reduction credit for this strategy). Air application, IC Ex. 8, pp. 6-8 - 6-24. However, due to SLC's position that the nature of the operation at Greenport and the constituents of the available raw material make for a difficult platform for the use of SNCR, the staff agreed to allow a two-year period for final emission limits for NO_x to take effect.⁽²³⁾ SLC has one year to install SNCR after start-up. This control equipment does not apply to the alkali bypass. FOH, MDEP and BRPC dispute the phase-in, as well as the forecasted limits. Draft air permit, conditions 70.2 and 71.1, IC Ex.12; IC Ex. 60a.

RULING: The adequacy of SLC's NO_x LAER analysis is an appropriate subject for an adjudicatory hearing because there is reasonable doubt as to whether the phase-in is necessary, whether the emission limits set by staff in the draft permit are sufficiently stringent, and why SNCR is not proposed for the alkali bypass.⁽²⁴⁾ In its comment letter dated June 29, 2001, Region 2 EPA raised concerns similar to FOH's with respect to the NO_x limits, in light of the NO_x reduction rates achieved by other cement plants in Europe that utilize SNCR. IC Ex. 55. Similarly, Steven Riva, EPA Air Branch Chief, states that cement plants in the U.S. that do not utilize this control equipment achieve lower emission rates. Id. Finally, EPA indicates that a phase-in for SNCR is unwarranted, given the extensive use of this equipment in European cement plants. Id. SLC argues that European facilities do not have to concern themselves with increases in carbon monoxide levels and opacity violations that may result from increased reductions in NO_x. FOH argues that additional control equipment would address CO.

SLC stresses the case-by-case determinations that must be made regarding LAER because of the nature of the cement industry and the variability in the process and available raw materials. This is the situation for all sources, yet, 40 CFR § 51.165(a)(xiii) provides that LAER must be the most stringent emission limitation contained in a state implementation plan (SIP) of any state for the applicable category of sources, or the most stringent emission limitation achieved in practice by a source in the same category as the applicant. There is no consideration of economic, environmental or energy factors. See, Belden, supra, p. 51.

SLC's concerns regarding implementation of SNCR, and whether those concerns merited postponing the use of this control, cannot be resolved at an issues conference. While staff member O'Connor explained the Department staff's review of the air application and how Staff reached certain conclusions regarding the BACT/LAER analysis, this presentation in some cases underscored the uncertainty of those determinations. See, e.g., NO_x LAER discussion, TR 710-715. This is exactly the type of information that must be presented in an adjudicatory hearing and subjected to examination to determine whether, for example, controls at other U.S. plants that have lower emission limits without SNCR are inapplicable.

While staff spoke of a "road map" that they used to make this determination and others in their review, the record before us is not so descriptive and therefore, further elaboration subject to cross-examination is needed. TR 497. While SLC argues that deference to staff's approval must be given, the standards that govern this proceeding are set forth in Part 624 which requires an intervenor to come forward with a substantive and significant challenge when staff and the applicant are in agreement. Here, based upon the factors cited above, FOH has met this test.

What raises the greatest concern here is that SLC has agreed to use SNCR and thus, the permit relies upon that control equipment, yet there is a lengthy period during which the facility will not be subject to SNCR. Apart from general information about the plant's special operations necessitating this shake-down period, there are not sufficient assurances in this record to accept the conditions as they are. Moreover, the basis for waiting an entire year to install SNCR is lacking, particularly given the area's nonattainment status.

SLC responds to this proposed issue and to many others by stating that FOH's claims are a question of "completeness" pursuant to Part 621 of 6 NYCRR and thus, are not subject to adjudication. 6 NYCRR § 624.4(b)(7). We disagree with that analysis here and elsewhere as indicated. Completeness in the DEC permitting context simply means that an application is ready for substantive review. It does not mean that the application contains all the information necessary to meet regulatory and statutory requirements. See, 6 NYCRR § 621.1(d). And, where information is lacking regarding an applicant's ability to meet regulatory standards, a request for more information is specifically provided for in the permit and hearing regulations. 6 NYCRR §§ 621.15(b) and 624.4(b)(7). Here, the applicant has presented information to the Department indicating why SNCR is problematic. The Department has nonetheless decided to require this technology while allowing a lengthy period for meeting emission standards that appear less stringent than required by LAER given other information presented at the issues conference. This determination should be submitted to adjudication because there is sufficient doubt about the applicant's ability to meet applicable criteria that requires further inquiry. 6 NYCRR §§ 624.4(b)(2), (3).

Adequacy of NO_x Permit Limits

In its petition, FOH argues that the draft air permit fails to set a definitive limit for NO_x emissions, in violation of Part 231. As described above, the permit provides for a phased approach to limiting this pollutant so that over a course of 24 months (one year after the operation has started up) the12-month rolling limit starts at 3.6 pounds of NO_x per ton of clinker produced (no more than 4121 tons per year); and is reduced to 2.8 pounds in month 36 until DEC makes a final determination on the efficacy of the air pollution controls including SNCR. Draft air permit, item nos. 69.2, 70.2, IC Ex. 12; IC Ex. 60a.

RULING: This matter is identical to the preceding discussion regarding the adequacy of the NO_x LAER analysis. As LAER is required once the permit is issued, the phase-in and delay of setting final limits in the draft permit is inapposite to the requirements of 6 NYCRR § 231-2.5. As the permit limits are subsumed by the prior issue, they will be addressed as part of the adjudication of that issue.

PM₁₀ Modeling

FOH contends that SLC failed to use the correct PM₁₀ potential to emit (PTE) emission rate in its modeling and therefore, the worst case scenario is actually 35% higher than what was indicated by the modeling. FOH maintains that since the proposed facility will use 76% of the short-term PM₁₀ significant deterioration increment, this error is significant.⁽²⁵⁾ FOH Pet., IC Ex. 39, p. 20; TR 276. The applicant responded that the worst case scenario for the facility's emissions is not necessarily when the plant would be operating at PTE and that SLC modeled a variety of scenarios to identify the worst case. TR 277. Staff responded that the applicant was required to model the maximum allowable emission rate and this is set forth at Table C7 of the application. Mr. Sedefian, DEC's air expert, pointed out that this analysis shows that the worst case impacts were associated with the lower load for PM emissions.

The endpoint in this discussion from the perspective of the applicant is that SLC has stipulated to an annual PM₁₀ limit of 170 tons per year and that this corresponds to a model run based upon a maximum load scenario of 110 percent of maximum operating load at 8760 hours per year. IC Ex. 60; TR292. At the issues conference, we understood that SLC had also agreed to a short-term limit of 0.0085 grams per dry standard cubic foot (gr/dscf) for PM₁₀ emissions for all sources of particulates. TR 206. The applicant explained that it had made a correction to account for moisture content. However, by letter dated October 26, 2001, a revised stipulation was submitted by SLC that provides for a short-term limit for PM₁₀ of 0.008 gr/dscf for the main stack and for all other stacks a short-term limit of 0.0085 gr/dscf. IC Ex. 60a.

RULING: This is not an issue for adjudication at this time. However, FOH has pointed out that the calculation of PM₁₀ emissions rates is unclear. Accordingly, we are directing staff to complete its review of the information presented by the applicant on this matter and provide its conclusions within sixty days to the ALJ and the other parties.

The proposed facility is in an attainment area for PM₁₀. Accordingly, the applicable program is PSD and BACT. 40 CFR § 52.21. The Department has been delegated by EPA to administer this program in New York State, but it remains a federal program subject to federal law and regulation. Accordingly, it has been found in several recent Article X cases that PSD matters are not subject to adjudication by the Department. This has been confirmed by Commissioner Crotty.

As set forth in ALJ DuBois' ruling of April 9, 2001 in Matter of Ramapo Energy Ltd. Pship., 2001 WL 470658, evidentiary hearings are not part of the process for any of the permits covered by 40 CFR Part 124.40. This includes PSD permits. A Commissioner's decision in that case and others confirms the use of the federal procedures in the PSD program. Ramapo Energy Limited Partnership, 2001 WL 470659, *4 (Apr. 4, 2001). While FOH disagrees with this conclusion, and, indeed, the failure to address this specifically in the regulations governing DEC's permit proceedings (Parts 621 and 624) seems incongruous, these are the holdings of this Department. The fact that these recent decisions were made in the context of Article X proceedings does not distinguish them. The determinations were made in the DEC air permitting process, which is conducted as part of the Article X review, but is otherwise unaltered. In addition, the letter sent by EPA then-Regional Administrator Jeanne Fox dated February 11, 1999 to Public Service Commission General Counsel Lawrence Malone confirms that PSD permits may not be subject to an evidentiary hearing. See, Exhibit F to FOH closing brief, IC Ex. 138.

However, particulate matter is also regulated under Parts 201, 220 and 257-3 of 6 NYCRR. As Commissioner Crotty found in her interim decision in Matter of Mirant Bowline, LLC, 2001 WL 703905 (June 20, 2001), the Department has independent bases to examine these issues. A review of the issues conference transcript regarding this proposed issue will reveal that staff itself considers this matter open. Mr. Sedefian stated thrice that the staff would have to look into whether the modeling supports the emissions rate that was ultimately derived. TR 283-285, 294. Based upon errors that SLC made in its initial documentation (TR 292), the newly produced emissions rates in the stipulation and the staff's statements during the issues conference, it is apparent that further review by staff is needed, and the basis for the numbers derived for the project's particulate emissions must be clarified. While the applicant has stated its commitment to meeting the stipulated figures, without this clarification it is not certain that they are attainable.

Clarity of Air Permit

FOH contends that the draft permit conditions are vague and would permit greater emissions than should be allowed. Specifically, FOH argues that the draft air permit is unclear regarding when monitoring requirements will occur, when a 12-month period commences, and when SNCR is to be installed. TR 299, FOH Pet., IC Ex.39, pp. 12-13. At the issues conference, FOH stated that the short-term emission rates for NO_x would allow SLC a 50 percent increase over the annual limit. TR 298. FOH asserts that an eight or twenty-four hour standard is more appropriate. TR 314. With respect to the continuous emissions monitoring system (CEMS) for NO_x , SLC agreed that it would have this system operational at first clinker production and have it NO_{x -}certified within six months after that.⁽²⁶⁾

Regarding the NO_x NAAQS, SLC argued that this matter was not specifically raised in FOH's petition. SLC maintained that it will have to comply with both annual and short-term limits and therefore could not exceed the limits, as FOH contended. Based upon the variability of NO_x and CO emissions due to the cement production process, SLC asserts that there is a need for the rolling averages contained in the draft air permit. TR 301; draft air permit items 67.2-72.2.

In its letter of June 29, 2001, EPA also questioned SLC's short-term limit and stated that the air permit application, Appendix C, Table C-8, would indicate a short-term limit of 941.29 lbs/hour. IC Ex. 55, p. 3. Apart from Mr. West's statements that preliminary discussions with EPA indicate its willingness to consider these rolling averages, this office has not yet received additional information indicating that EPA's concerns have been addressed.

Staff offered changes to permit language to clarify that the CEMS would be operational upon production of first clinker and SLC agreed to this revision. TR 305.

RULING: NO_x is a precursor of ozone - a pollutant for which the area is in non-attainment. Therefore, it is crucial that the Department limit any introduction of NO_x to ensure that reasonable progress towards attainment is not hampered. SLC and staff argued that the plant could not meet the annual limits if the plant operated at the higher levels of the rolling averages on a regular basis, and that the nature of this facility requires flexibility in these emissions. Yet, it would seem, as FOH proposed, that some balance could be struck to provide greater assurance that LAER is indeed achieved, particularly in light of the availability of the CEMS data. Moreover, as was the case with the issue discussed previously, staff indicated that it was still considering EPA's comments. TR 308. While SLC maintained that rolling averages were quite common, there was no presentation as to how and whether these are used in the same circumstances presented here. EPA's letter appears to indicate otherwise. IC Ex. 55, p.3

Accordingly, we find that the short-term emission limits for NO_x are an appropriate issue for adjudication to determine whether those limits adequately meet new source review requirements. In addition, we are directing staff to revise the draft permit to reflect the stipulations agreed to by the applicant and staff with respect to the implementation of CEMS and that any limits and conditions that are to commence at the start-up of production specifically indicate same by insertion of the language "at first clinker." TR 300, 305. This revised permit should be circulated within sixty days of this ruling to the parties and to the ALJs.

Regenerative Thermal Oxidizer, LAER Limits for VOCs and BACT Limits for CO

FOH maintains that SLC failed to adequately support its determination not to incorporate a regenerative thermal oxidizer (RTO) into its facility design to further control VOCs and CO. FOH points to the use of an RTO in a facility in Dundee, Michigan owned by Holnam, SLC's parent company. FOH argued that, according to the air permit application for that plant, the unit was expected to reduce VOCs by 80% to 90%, and CO between 75% and 85%. FOH asserts that without this equipment or more information about why it cannot be used successfully at Greenport, SLC has not met LAER for VOCs or BACT for CO. Because this location is in attainment for CO, the standard for air pollution control for CO is BACT pursuant to the PSD program.

In addition, FOH noted in its petition that the draft air permit contained no LAER limits for VOCs. FOH Pet., IC Ex. 39, p. 14. This is also raised by EPA in its letter. IC Ex. 60. In the table of stipulated limits that SLC presented at the issues conference, the applicant proposes 129 tons per year and 18 ppmdv THC at 7% (measured as propane-based upon compliance testing).

SLC does not dispute that its Greenport facility is subject to LAER and BACT for VOCs and CO respectively. Nevertheless, SLC takes issue with FOH's contention that use of an RTO in Greenport represents those standards for this facility. SLC described RTO as a system that is used to burn remaining pollutants off after they have come through the facility and other air pollution control systems. TR 317. SLC argues that comparing the two facilities in the U.S. that use RTO to Greenport is not appropriate, due to differences in plant design and variability of raw material feed. TR 319. The applicant further points out that at the Dundee facility, the organic content of the rock is very high, requiring the use of RTO to address odors. TR 320; IC Ex. 64, p. 6. SLC states that the rock it will use at Greenport has a low organic content. Moreover, SLC argued that because SLC has stipulated to annual and short-term permit limits for VOCs that it has found are LAER, they should be accepted. TR 310; IC Ex. 60; IC Ex. 8, 6-4. In further support of this conclusion, SLC provides that this emissions rate is 50% of the maximum achievable control technology (MACT) standard set forth in 40 CFR Part 63 subpart LLL. IC Ex. 8, 6-3.

With respect to the use of RTO to control CO emissions, SLC found that optimized combustion design and RTO could be used, but that the latter would have adverse environmental and energy effects, and SLC determined that such an approach was not appropriate. TR 323. SLC did not find a facility anywhere that used RTO to control an exhaust as great as the rate for Greenport - 660,000 standard cubic feet of gas per minute. TR 325. With respect to energy use, SLC found that it would have to raise the exhaust gas temperature from 120 degrees to 1600 degrees Fahrenheit with only a 75% percent heat recovery that would require burning of gas. TR 326-327. This in turn would result in increased emissions of NO_x and sulfuric acid emissions and uncombusted gas that would also emit hydrocarbons. TR 327-328.

Staff supported SLC's position by stating that it did not find that the VOC emissions were significant enough from this facility to require the installation of an RTO.

FOH's consultant, Frank Sapienza, a senior chemical engineer at CDM who specializes in air pollution control, stated that RTOs are used in many industries that have unsteady process exhaust.⁽²⁷⁾ TR 334. Mr. Sapienza also disputed SLC's claim that huge exhaust outputs were not accommodated by RTO and pointed to a motor company paint spray operation with a 500,000 cubic feet per minute exhaust output. TR 335. In addition, he stated that RTOs are regenerative in terms of energy use and therefore have a high degree of thermal efficiency. TR 335. Mr. Sapienza also disputed SLC's claims regarding increased NO_x emissions from the combustion chamber of the RTO unit due to recent NO_x controls placed on RTOs. TR 336. Similarly, Mr. Sapienza disagreed with SLC's conclusions with respect to increased emissions of sulfuric acid and uncombusted gas. TR 337-339.

RULING: There is an issue for adjudication regarding SLC's conformity with LAER with respect to VOCs and in particular whether the RTO is an appropriate technology to utilize to attain LAER. As stated earlier, 40 CFR § 51.165(a)(xiii) provides that LAER must be the most stringent emission limitation contained in a SIP of any state for the applicable category of sources or the most stringent emission limitation achieved in practice by a source in the same category as the applicant. The air permit application states that the most stringent federal or state regulatory emissions rate it found in a SIP or regulation for VOCs from a cement kiln is the THC limit of 50 ppmdv, at 7% O₂ (reported as propane). Thus, it would appear that SLC has more than met this standard with the 18 ppmdv THC at 7% O₂ (measured as propane-based upon compliance testing). IC Ex. 60a. However, EPA contests this finding in its letter of June 29, 2001 by stating that two cement plants - one in the U.S. and one in Puerto Rico - have achieved lower VOC levels per ton of clinker. Thus, it is not clear that SLC has met LAER for VOCs for this facility.

Mr. Sapienza spoke persuasively with respect to his view that RTO will not have the negative adverse environmental effects that SLC predicts. TR 335-339, 485-487. While SLC's representative disputed the application of this technology based upon a potential "susceptibility of plugging due to the alkalized salts"- this is the kind of argument that must be resolved in a hearing and not at an issues conference where only the basic concepts of the dispute can be heard. TR 490. If DEC issues conferences were to adopt the procedures suggested by SLC - that the "entire spectrum of information regarding [the] technology . . ." be made available - these conferences would become trials rather than issues conferences. TR 490. And, because there is no procedure for examination of witnesses or prior discovery, they would not be trials that would lend themselves to findings of fact. Rather, there is a need for an adjudicatory hearing so that the two technical positions can be subject to cross-examination and a finding made based upon the record.

BACT applies to CO. BACT is defined as the most effective control technology that will address the pollutant in question, taking into account economics, environment and energy concerns. 40 CFR §§ 51.166(b)(12), 52.21(b)(12). As is the case for LAER, to determine BACT the applicant must use EPA's top-down approach to determining what technology is appropriate by starting with the most stringent controls. With respect to this facility, there is a balance that continually must be struck between control of NO_x and CO as the control for one often increases the other. The RACT/BACT/LAER Clearinghouse (RBLC) information reveals that good combustion practices (GCP) are BACT for cement plants.⁽²⁸⁾ Table 5-2, IC Ex. 8, p. 5-19. SLC proposes to use GCP as well as optimized combustion design to achieve the limits set forth in its stipulated emission limits. See, air application, p. 5-8, IC Ex. 8; IC Ex. 60. From the table presented in the air application, lower emission rates are achieved at other cement facilities but not by the use of different technologies such as the RTO. EPA also cites to a plant in Puerto Rico that achieved a lower CO limit in 1996. See, IC Ex. 55 and air application, IC Ex. 8, p. 5-19.

Based upon the prior discussion at pp. 27-28, PSD requirements are not subject to adjudication. However, as noted by EPA, there is no mention of CO in the draft air permit and the stipulated limits agreed to by SLC are not presented. Therefore, the ALJs are not able to discern whether these limits comply with Part 257-4 of 6 NYCRR. Therefore, we direct the staff and the applicant address this omission by providing draft permit conditions within sixty days of this ruling to the ALJs and the other parties.

Part 231 Alternatives Analysis

Section 231-2.4(a)(2)(ii) of 6 NYCRR requires applicants governed by new source review requirements to submit an analysis of "alternative sites, sizes, production processes, and environmental control techniques which demonstrates that the benefits of the proposed source project or proposed facility significantly outweigh the environmental and social costs imposed as a result of its location, construction, or modification within New York State." FOH says that this analysis is not provided in the air permit application and that SLC has failed to consider alternative processes and technologies as set forth above. In addition, FOH contends that SLC has failed to consider a smaller plant or different location which would mitigate some of the air pollution impacts. FOH Pet., IC Ex.39, p. 16.

SLC maintains that it has met these requirements in the DEIS (Section 17) and the air permit application and has gone far beyond the requirements of Part 231 in doing so. TR 354.

With respect to air pollution control technologies, SLC points to its analysis in Sections 5 and 6 of the air permit application to demonstrate that it has considered a variety of alternatives. Staff concurs.

RULING: As noted by ALJ Goldberger in the issues ruling concerning KeySpan Energy, 2001 WL 470660 (Apr. 18, 2001), there is little guidance upon which to rely to determine what constitutes compliance with 6 NYCRR 231-2.4(a)(2)(ii) or Clean Air Act § 173(a)(5), 42 U.S.C. § 7503(a)(5) which requires the same analysis. In re Campo Landfill Project, 1996 WL 344522 (June 19, 1996), NSR Appeal No. 95-1, EPA found that the Act does not set forth specific requirements for this analysis and no regulations have been promulgated that set forth more detail. In addition, citing In re Inter-Power of New York, Inc., 5 E.A.D. 130, 144 (EAB 1994), the Agency provides that in this challenge to a landfill siting, the petitioners bore a heavy burden of showing that the evidence in the record clearly outweighs the regional determination.

As noted in the above rulings, we have found issues for adjudication with respect to certain specific technology alternatives: NO_x and the RTO.

As for this analysis generally, SLC did perform such an analysis in the DEIS and also in its air application that the staff has accepted. In Chapter 17 of the DEIS, SLC provides brief descriptions of alternative scenarios for the project and the reasons for rejecting them. IC Ex. 6. In the air application and response to NOIA dated February 7, 2001, SLC provides information as to how it selected each control technology and why some were eliminated, as well as a comparison of emissions from the Catskill plant. IC Ex. 8, Chapters 5, 6, 11-12; IC Ex. 64. Throughout the DEIS, SLC has set forth its position that the project will benefit the community both economically and environmentally by providing capital investment in the area and through the closure of the Catskill facility. SLC maintains that many of its proposed actions will mitigate any possible disadvantage such as removing obsolete, decaying structures at the waterfront, rehabilitating certain historic buildings, providing a future source of corporate support for community activities, providing public access to the waterfront, and providing an overall decrease in regional air pollution. FOH argues that the analysis is insufficient because it is not contained in the air permit application, and because it is conclusory and does not provide sufficient information to permit an adequate comparison.

The fact that the Part 231 alternatives analysis is not labeled specifically as such is of no consequence. See, Campo Landfill Project, supra (NEPA document [comparable to EIS] could be relied upon for these purposes). Without passing on whether the alternatives analysis is sufficient for SEQRA purposes, we find that with respect to Part 231 requirements, except for the specific rulings related to NO_x and the RTO, there are not sufficient grounds to find that this is a matter for adjudication. It appears that SLC has met the applicable regulatory requirement that an analysis be performed as there are no "express requirements concerning the particular contents of the . . . analysis." Id.

Requirements of the PSD Program

As explained above, because Columbia County is in attainment for the pollutants SO₂, NO₂, PM and CO, SLC, as a potential "major emitting facility," must demonstrate that it would not cause significant deterioration with respect to the attainment status of any of these pollutants.

To comply with this federal requirement (40 CFR § 52.21), SLC has to apply BACT, conduct an ambient air quality analysis, analyze impacts to soils, vegetation and visibility, show that it will not adversely impact a Class I area, and undergo adequate public participation with respect to the permit application. CAA § 165, 42 U.S.C. § 7475.

FOH argues in its petition that the draft permit does not mention the PSD requirements and that PM₁₀, CO and VOC do not have ton-per-year limits making this permit unenforceable under the PSD program. At the issues conference, SLC agreed to permit language that describes the equipment that is subject to PSD and/or Part 231 review and sets forth the pollutants that are subject to BACT and LAER, respectively, as well as identifies the applicable air pollution control equipment.⁽²⁹⁾ At the same time, SLC pointed to its summary table of stipulated emissions limits to address the lack of limits in the draft air permit. TR 377-378. FOH responded that this does not respond to SLC's failure to include PSD limits in one-hour and eight-hour intervals to conform with the framework of the PSD increment analysis.

RULING: As explained above at pp. 27-28, PSD conditions are not subject to adjudication in this forum. Moreover, SLC has agreed to permit language that would clarify the PSD and Part 231 permit requirements. We ask that staff develop this language and include it in the revised draft air permit. With respect to CO however, as 6 NYCRR § 257-4 sets forth limitations for this pollutant in terms of one-hour and 8-hour periods, it appears that this must be the requirement in the permit to conform with State regulation. See, e.g., Foster Wheeler-Broome County, ALJ Ruling (April 26, 1990)(BACT addressed in context of State and PSD regulation).

ALJ Goldberger contacted staff in late September to inquire about the location of the CO permit limitations. Mr. Leslie reminded her that these were not in the permit and informed her that while it appears that there is an agreement between staff and the applicant with regard to the limits set forth in the stipulation (IC Ex. 60), there is still disagreement with regard to the short- term CO emission limits. See, Attachment E to this ruling. However, SLC has presented a revised stipulation that indicates an 8-hour average. IC Ex. 60a. The staff must provide a revised version of the draft permit and submit it to the parties so that these terms can be reviewed as part of this process. As this matter does relate to State as well as PSD requirements, if there remains a dispute between staff and the applicant this matter is automatically subject to adjudication. 6 NYCRR § 624.4(c)(1)(i). Until there is clarification with respect to this matter, we cannot determine whether there is a need for adjudication.

BACT Analysis for PM

FOH's petition asserts that SLC did not perform an appropriate BACT analysis for PM emissions and failed to provide sufficient monitoring for the efficacy of the baghouse system.⁽³⁰⁾ Specifically, FOH explains that except for a vendor guarantee, there is no explanation of the selection of baghouse technology, thus rendering this analysis defective. In addition, FOH contends that the permit provides no emission limit for PM except for draft permit condition 59 that relates to federal NESHAP controls, and that this limit is less stringent than BACT. FOH also comments that the permit must be revised to include a PM limit for all PM sources other than those regulated under the kiln. FOH Pet., IC Ex. 39, pp. 21-23. EPA echoed these concerns in its letter of June 29, 2001. IC. Ex. 55. In its petition and at the issues conference, MDEP questioned whether SLC had performed a top-down BACT analysis and also requested that broken bag detectors and a visolite test be incorporated into the permit requirements. MDEP Pet., IC Ex. 52, p. 2; TR 208. MDEP stated that it could agree to SLC's proposed short-term limits for PM if it had more understanding of the BACT analysis. TR 208.

Putting aside its position that these are not adjudicable issues because they relate to the PSD requirements, SLC responds that this issue is resolved because it has agreed to the following PM limits: 0.01 grains per dry standard cubic foot (gr/dscf) for short-term limits, and 200 tons per year (tpy) for annual emissions. Earlier in the issues conference, Mr. West provided that short-term limits presented in IC Ex. 60 are for all sources of PM and PM₁₀. TR 206. This has apparently been changed by virtue of the new stipulation that contains different short-term limits for PM₁₀ emissions from the main stack and the other stacks. IC Ex. 60a.

With respect to monitoring, SLC maintained that these requirements are appropriate for the operations and maintenance plan that it is required to submit to comply with 40 CFR § 63.1350(a) and its Title V application that will follow the construction and operation of the facility. TR 381,385-386. As for continuous opacity monitoring for the mills, the applicant notes that this is not required under existing regulation, and opacity is to be monitored daily through visual observations. 40 CFR § 63.1350(e); draft permit conditions 78, 79. Draft permit condition 75.2 does require a continuous opacity monitor for the kiln.⁽³¹⁾ TR 386. See also, 6 NYCRR § 220.8.

With respect to its BACT analysis, SLC responds that it did perform the "top-down" analysis and that the rates it has proposed are consistent with what has been determined to be BACT at other facilities. SLC also asserts that the vendor guarantee is the appropriate method to ensure that these limitations are met. TR 387-388.

Staff concurred with SLC's positions but did note that it intended to review the EPA and FOH comments regarding short-term limits, and that it planned to add those to the permit. TR 388.

RULING: We have determined elsewhere in this ruling that there is an issue for adjudication with respect to SLC's particulate analysis in light of the modeling performed by CDM and presented in FOH's motion of October 2, 2001. IC Ex. 157. In addition, we have also found that due to errors that SLC made in its initial documentation (TR 292), the newly produced PM₁₀ emissions rates in the stipulation, and the staff's statements during the issues conference, further review by staff and clarification of the basis for the derivation of the numbers for the project's particulate emissions is needed. In the event that prior determinations about particulate matter prove to be erroneous, the controls and emission rates proposed by SLC and adopted by DEC staff may also have to be adjusted.

We conclude that there is no issue for adjudication. As stated above, PSD conditions are not adjudicable in this forum. In addition, the applicant has agreed to the inclusion of the short-term permit limits. IC Ex. 60a. Because MDEP's sole argument relates to whether there was an appropriate BACT top-down analysis, that matter is not adjudicable. In addition, while FOH generally argued that it was possible that there could be lower limits set, there was no specific offer of proof as to this contention. With respect to the lack of data on the baghouse make-up, without any specific offer of proof as to how this omission leads to a specific regulatory exceedance or environmental harm, there does not appear to be a reason to further delve into this matter.

We do acknowledge that given SLC's potential for significant particulate emissions in a well-populated community, there are SEQRA concerns. DEIS, IC Ex. 6, p. 14-25-14-26; air permit application, IC Ex. 8, p. C-36; FOH Motion to Add Issue, IC Ex. 157. Accordingly, as for the monitoring requirements, while SLC provided that the visual observation methods 22 and 9 are the proscribed measures in the regulations for addressing opacity, given the 24-hour operation of this facility it would seem prudent to consider other methods. In fact, at the recommendation of MDEP, Mr. West stated at the issues conference that SLC would consider the use of a visolite monitoring system that uses dye visible under ultra-violet light to detect leaks and breaks in the baghouses. TR 211-212. We direct that this methodology be made part of the permit.

BRPC and MDEP

BRPC's main concerns are related to air quality impacts on Berkshire County and how SLC's effects on regional air quality will affect the ability of Berkshire County to continue to grow, given the County's own attainment issues. IC Ex. 36; TR 402-411.

Apart from the proposed issues on SO₂ and PM addressed elsewhere in this ruling, MDEP also stated in its petition that DEC should "ensure that the lowest emission levels achievable consistent with BACT and LAER are imposed . . . to minimize PSD increment consumption." MDEP Pet., IC Ex. 52, p. 2.

RULING: Both the petition and BRPC's statements at the issues conference related to these concerns are quite general and more appropriately characterized as comments that the applicant will have to respond to in a responsiveness summary, rather than a presentation of adjudicable issues. See, 6 NYCRR §§ 624.12[b], 617.9[b][8]). While BRPC has offered the testimony of two experts (Dr. Colin High, a scientist with air quality analysis expertise, as well as a planning expert), the basis for requiring these experts' involvement is lacking. BRPC states that it finds the DEIS insufficient in terms of its air quality analysis and also in its lack of examination of impacts to Berkshire County. In addition, BPRC states that the project may adversely affect regional economic development by limiting the availability of air permits for projects in Massachusetts. While these concerns are legitimate, there are insufficient grounds to find adjudicable issues on such sparse information. See, Matter of Adrian Girouard, 2001 WL 300580, (Interim Decision Mar. 16, 2001). Accordingly, we find that BRPC has not presented any adjudicable issues for this forum.

Similarly, MDEP's concerns regarding application of BACT and LAER do not meet the Part 624 standards and should be addressed in the responsiveness summary that becomes part of the FEIS. 6 NYCRR §§ 624.12(b), 617.9(b)(8).

BACT Opacity Limit

FOH contends that because the limit for particulate matter is lower than the federal MACT standard for this facility, the opacity limit should follow suit. FOH Pet. IC Ex. 39, p. 23. The draft permit items 31.1, 56.2 , 60.2 and 73.2 and the federal MACT standard provide for a 20% opacity limit. But due to the more stringent particulate matter condition for the SLC Greenport facility, FOH maintains that the opacity limit should reflect this heightened stringency and argues for a 10% limit for opacity. FOH maintains that the opacity limits are a means to monitor PM, and that to allow the higher opacity limitations will result in failures to detect degraded and broken baghouses.

RULING: The opacity limitation is not a proper subject for adjudication in this forum. The applicant has stipulated to a ten percent opacity limit for exhaust gases in the duct from the clinker cooler, as well as a continuous opacity monitor to ensure compliance with that limitation. TR 437. With respect to the main stack, SLC argues that the opacity limit is properly 20 percent as provided in federal and state regulation. 6 NYCRR § 220.4; 40 C.F.R. § 60.3 LLL. The staff agrees with these limitations, and in addition, will be requiring a stack test to address the PM standards. TR 437-478. While FOH provided a printout from EPA's website showing that the Suwanee American Cement Co. plant in Florida has a 5% opacity limit attached to certain components of its facility, there was no demonstration that a) the opacity limits set with respect to SLC's facility are not in keeping with the applicable regulatory requirements or b) would have an adverse impact on the environment.

We are not deciding whether these limits are subject to BACT. SLC has argued that they are not, claiming that opacity is not subject to these requirements because it is not a specific pollutant, but rather an indicator. FOH points out that 40 CFR § 52.51(j) includes "visible emission standard" as part of what BACT controls.⁽³²⁾ In either case, as stated earlier, strictly PSD matters are not adjudicable here.

SLC is bound to the requirements set forth in Part 220 and applicable federal regulations. In support of its position, SLC produced an EPA Determinations Detail (IC Ex. 70) that answers the question as to what procedure to use to comply with opacity limits when a cement plant's kiln and clinker cooler route their exhaust streams to a single stack. The document provides that because the clinker cooler is subject to a 10% opacity standard and the kiln a 20% opacity limit, a continuous opacity monitoring system is to be installed on the ductwork from the clinker cooler to the preheater that demonstrates compliance with the 10% limit. Another COMS is to be installed on the kiln exhaust that shows compliance with the 20% standard. It is not clear from the draft permit conditions, however, that there will indeed be two monitoring systems as is required by this EPA determination letter. Accordingly, we direct that staff make that clarification in the revised draft air permit.

There is no basis to find that a more stringent limit should be set and therefore no hearing on this matter is necessary. With respect to the baghouse integrity issue, as set forth above at p. 36, we ask that staff include a permit condition requiring the visolite dye system so that tears or broken bags will be detected promptly. In accordance with our other rulings, staff is directed to revise the draft air permit to reflect the stipulations and determinations made by SLC and staff on opacity. TR 437-438.

SO₂ BACT Limits

In its petition, FOH stated that the draft air permit does not contain any condition specifically identifying PSD emissions for SO₂ that constitute BACT. FOH maintains that the failure to provide short term limits for SO₂ and enforceable permit conditions for achieving BACT such as provisions for monitoring and record keeping, are not in keeping with PSD requirements. In addition, FOH argues that the applicant has failed to provide needed detail regarding the scrubbers' operation and maintenance, and that lack of detail could lead to a failure to operate this equipment properly and a lack of control efficiency. FOH Pet., IC Ex. 39, p. 24.

MDEP stated in its petition that there should be a more stringent emission limit for SO₂, and that BACT was not demonstrated for this pollutant. MDEP Pet., p. 2 and attached comment letter dated July 2, 2001, p. 2, IC Ex. 52. MDEP stated at the issues conference that it was "okay with" the short-term limits proposed by the applicant in IC Ex. 60 but still wanted to see more analysis as to how these limits were derived. At the July 19 session of the issues conference, Mr. Bell stated on behalf of MDEP that it wished to see a permit condition requiring that the applicant operate its scrubber whenever the kiln is working. TR 208.

RULING: There is no issue for adjudication on this matter because PSD issues are not subject to adjudication in this forum. In light of the applicant's agreements to a) include SO₂ limits in the draft permit (IC Ex. 60) and b) operate the scrubber whenever the kiln is working (TR 459) as well as draft permit item 3.1 that requires SLC to operate the pollution control equipment in "a satisfactory state of maintenance and repair in accordance with ordinary and necessary practices . . .", FOH and MDEP have failed to identify a specific issue that would meet the substantive and significant standards in Part 624. MDEP was generally seeking more information on the BACT analysis. While we encouraged the exchange of this information at the issues conference, these general queries alone are not sufficient to require a hearing. TR 208-213.

In the air application, SLC provides information on how it determined that BACT for this facility is comprised of wet and dry scrubbing in addition to inherent scrubbing. Air permit application, IC Ex. 8, pp. 5-22 - 5-23. This latter technique uses the cement kiln feed as a natural dry scrubber to absorb SO₂ from cement kiln gases. Id., p. 5-20. A number of other cement facilities rely upon this technique alone for SO₂ control. Id., Table 5-3, p. 5-23. While FOH points out that a few plants in the U.S. have lower emission rates for SO_2, such as Suwanee American, which uses low sulfur material and process control, there is no demonstration that the technology SLC intends to employ is by any means deficient. The use of the three types of scrubbing techniques appears to conform to EPA's interpretation of BACT - that is the use of the most stringent technology unless the applicant can demonstrate technical or economic infeasibility. See, In re Inter-Power of New York, Inc., 1994 WL 114949, 5 E.A.D. 130, p. 4, (Mar. 16, 1994), PSD Appeal Nos. 92-8 and 92-9. The draft permit also contains a requirement that SLC maintain a continuous emission monitoring system (CEMS) that measures SO₂ emissions from the kiln. Draft permit condition 58, IC Ex. 12. While FOH's expert made some statements about the possibilities of getting greater reductions by manipulating aspects of the technologies employed, these are too uncertain to form the basis for an adjudicable issue.⁽³³⁾ TR 469-470.

We recognize that there has been a specific omission in SLC's calculations in the context of the choice of fuel issue raised by FOH. In addition, we note the requirement in 6 NYCRR § 220.6 regarding compliance with Part 225 limitations on emissions of sulfur compounds derived from fuels. Accordingly, we have concerns about the lack of analysis in the application regarding coal composition. On behalf of FOH, Dr. Miller questioned SLC's calculations regarding SO₂ emissions on the basis that the applicant omitted the sulfur content in the coal and relied upon the quantities in the stone in formulating the emissions limits. TR 227. We direct SLC and the staff to provide clarification of this point and second, include in this submission information on how the applicant intends to comply with Parts 220 and 225 in terms of sulfur limits in the fuel and how this is indicated in the air permit.⁽³⁴⁾

In the Inter-Power matter, there is a lengthy discussion of the applicant's analysis of the use of low sulfur fuel; however, that appears lacking here. In its letter of June 29, 2001, EPA also comments on the draft permit's omission of a sulfur limit in the bituminous coal and petroleum coke that can be used at the facility. IC Ex. 55. There is a record-keeping condition (draft permit item 58.2) requiring that the facility demonstrate that the control systems from the kiln result in less sulfur emissions than what would be required by Part 225's sulfur-in-fuel limitations but it should be abundantly clear in the application and draft permit that SLC will meet this condition and how.⁽³⁵⁾ While Columbia County may be in attainment for SO₂, the State's concerns regarding emission of this pollutant go further as manifested in the State's Acid Deposition Control Act. ECL, Article 19, Title 9.⁽³⁶⁾

BACT Analysis for Sulfuric Acid⁽³⁷⁾

Without further elaboration, FOH's petition contends that the draft permit is deficient because it contains no provisions addressing sulfuric acid (H₂SO₄) under PSD or any regulatory program. Pet., IC Ex. 39, p. 25. In response to SLC's submission of the stipulated emission limits at the issues conference (IC Ex. 60), FOH stated that the proposed annual emission limit of 40 tons was too great and was approximately 50 percent higher than what was described in the application. TR 478. The applicant has submitted a revised stipulation indicating that the emission limit for H₂SO₄ is 26.63 tpy and the short-term emission limits have been reduced to 6.08 lb/hr (24-hour rolling average). IC Ex. 60a. However, in its letter of November 6, 2001, FOH maintains that SLC has not performed a proper BACT analysis to demonstrate how it arrived at these limits nor is there any showing as to how this limit will be monitored. IC Ex. 174.

RULING: There is no issue for adjudication pertaining to this matter. This is also a PSD-implicated pollutant. We understand that the technology requirements are the same for SO₂ and accordingly, we rely upon our ruling on the BACT analysis for SO₂ with respect to that discussion.

Federal New Source Performance Stan