Pete Drown, Inc. - Ruling, September 1, 1993

Ruling September 1, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the applications for permits to construct and operate a solid waste incinerator
in the Town of Ellenburg pursuant to
the Environmental Conservation Law Articles 19 (Air Pollution Control) and 27 (Solid Waste),

- by -

PETE DROWN, INC.
13 Cemetery Lane
Ellenburg Depot, NY 12935
Applicant

Memorandum #22 RULINGS on ISSUES and PARTY STATUS

#s 5-0936-00019/1 through 4

PETE DROWN, Inc., c/o Elvin F. Drown, President, 13 Cemetery Lane, Ellenburg Depot, Clinton County (the "Applicant") proposes to construct a MEDICAL WASTE INCINERATOR and therefore submitted to the New York State Department of Environmental Conservation (the "Department") applications dated November 17, 1989 for a permit to construct and a certificate to operate an air emission source and applications for permits to construct and operate a solid waste management facility. The Applicant proposes to construct and operate a medical waste incinerator rated at four hundred (400) pounds per hour, located on State route 190 approximately two (2) miles east of Ellenburg Corners, a hamlet approximately twenty five (25) miles westerly of Plattsburgh in the Town of Ellenburg, Clinton County.

The Department Staff made a tentative determination to issue to the Applicant the permits and approvals sought. The following draft permits are prepared:

• a draft air permit #A093600018500001R, to construct an incinerator as a new air emission point #00001 ("draft air permit") pursuant to ECL Article 19 and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 200 et seq.;
• a draft solid waste management construction permit #5-0936-00019/00001-0 pursuant to ECL Article 27 Title 27 and 6 NYCRR Part 360 and
• a draft solid waste management operating permit #5-0936-00019/00001-0 pursuant to ECL Article 27 Title 27 and 6 NYCRR Part 360.

A prehearing issues conference began as noticed on September 12, 1991 at 10:00 A.M. at the Howard Johnson Motor Lodge, Route 3 at I-87, the Northway Exit 37, Plattsburgh, NY. At the issues conference, consideration is given to whether and to what extent significant impacts, alternatives, mitigation measures or social and economic considerations identified in the draft EIS or comments should be adjudicated, particularly where there is a reasonable likelihood any would lead to a permit denial or significant permit conditions. The function of the issues conference is, as far as possible, to narrow or resolve issues concerning the permit applications raised by the parties and to define and limit the scope of issues remaining as subjects for the adjudicatory hearing sessions. The Department Staff withdrew the draft air permit and the conference was adjourned pending availability of the draft air permit or the denial of the application.

The draft air permit was withdrawn as a consequence of new information as received from the Applicant prior to the issues conference and for additional information sought by Staff based on the statements made at the legislative hearing sessions on the prior day, September 11, 1991. Subsequently, after further consideration, the Department Staff determined that a supplemental environmental impact statement ("EIS") was needed that would also serve as a way to present the additional information.

The draft permits were distributed on February 2, 1993 by the Department Staff to those who filed for party status. In the ALJ's memorandum #18 of March 4, 1993, the authors of the proposed issues were requested to review the prior filings of proposed issues in the context of the revised draft permits and submit or resubmit all proposed issues to this office on or before April 12, 1993.

The prehearing issues conference was reconvened on April 28, 1993 in the Ellenburg Town Hall located in the hamlet of Ellenburg Center. The Applicant and the Department Staff sought and was afforded additional time to review the proposed issues, filed late by the Environmentally Concerned Citizens of Ellenburg ("ECCOE"). The prehearing issues conference was adjourned after an opportunity for hearing additional statements. Responses to the proposed issues were scheduled for May 18, 1993 and extended until May 21, 1993. Replies scheduled for June 4, 1993 were extended to June 9, 1993.

Filings for party status and filings of proposed issues, in response to the Notice of Public Hearing and subsequently, were received from:

The Applicant and the Department Staff are parties pursuant to 6 NYCRR 624.4(a).

The Applicant, Pete Drown, Inc., Elvin F. Drown, President, 13 Cemetery Lane, Ellenburg Depot, New York 12935, is represented by:

Whiteman Osterman & Hanna, Attorneys at Law,
(Philip H. Dixon and also initially John P. Stockli, Jr. Esqs. of Counsel)
One Commerce Plaza
Albany, New York 12260

The Department Staff was represented by:

Marc S. Gerstman, Deputy Commissioner and General Counsel
(Steven Brewer, Esq., Assistant Regional Attorney,
NYSDEC Region 5, of Counsel)
Route 86
Ray Brook, New York 12977)

Others who filed for party status in response to the published Notice of Public Hearing who withdrew their filing at the issues conference of September 12, 1991: Mr. Donald Barnaby, RR1 Box 337 Military Turnpike, Ellenburg Depot, 12935; Ms. Kathryn Sequin, RR1 Box 336 Military Turnpike, Ellenburg Depot, 12935; Mr. & Mrs. Charles E. Durkin, PO Box 91, Ellenburg Depot, 12935. Lothar E. Nachman, Esq. filed a voluminous statement in opposition apparently in response to the published notice of Public Hearing. His filing is considered as a filing for party status, however, he did not participate at the issues conference and apparently is not seeking party status.

The Applicant

The Applicant accepts the draft permits and presents no proposed issues for adjudication.

The Department Staff

The Staff has sufficient technical information from the complete application, the supplemental information it secured both in 1991 and in the supplemental draft EIS, to enable the redrafting of permits for this project. The Staff provided the revised draft permits on February 2, 1993 for an air contamination source and for solid waste management facilities. The draft permits are preliminary and tentative determinations by Staff in satisfaction of all environmental regulatory requirements.

Staff responded to the proposed issues filed by the prospective parties. Staff concurs that as presented certain proposed issues should be considered for adjudication.

The Town of Ellenburg (the "Town") and the Zoning Board of Appeals

The Town proposes nine issues. The Town is critical of the application and draft permits but, as discussed individually below, none of the proposed issues warrant adjudication. The Town generally bases its proposed issues on their own predictions of operating emissions rather than the mandates of the draft permit, including the emission limits and the verification, testing and other provisions in the proposed special conditions. The ruling is that there are no issues as proposed by the Town.

Party Status

Had there been any one Town issue, the Town would have been ruled to be a limited party, limited to its issue or issues for adjudication. Absent any issue, the Town is denied party status.

Proposed Issues

Several of the Town's proposed issues are concerning the draft supplemental EIS. The draft supplemental EIS has been accepted by Staff in its scope, content and adequacy pursuant to 6 NYCRR 617.3 and indicates the substantive content in the supplemental draft EIS. A reevaluation of a draft EIS is not a normal function of an issues conference. A new review would be for an issue arising from it where there is a reasonable likelihood that the issue might lead to the denial of the application, to a project modification or to significant permit conditions. Otherwise, the Town's comments on the draft supplemental EIS may be included in the Applicant's responses to appropriate comments on the draft EIS. The responses are to be filed as exhibits to the hearing record pursuant to 6 NYCRR 617.14(i) with an opportunity for the Parties to contest the contents pursuant to 6 NYCRR 624.7(a)(3).

The Town's proposed issue 1 (originally "A"): "Applicants projected dioxin level is too low and does not accurately represent the level which can be expected from the operation of the facility."

Discussion: The Town claims that the dioxin emission limit in the draft permit is unreasonable and not supported by operating data from existing incinerators. The Applicant primarily relies on certain operating data from a similar incinerator with a lower emission rate than proposed. The Applicant also relies on an additional treatment process as a contingency should it's operating emissions warrant.

The draft air permit is based on the output performance of the facility (2.52 x 10-9 pounds per hour of dioxin equivalents) rather than the proposed input into the facility (400 pounds per hour of waste to be incinerated). The operation of the facility would have to be adjusted or limited to yield no more than the permitted emissions. Therefore there is no need to adjudicate the truth of the predicted emissions from the incinerator. It is not a significant proposed issue.

The draft air permit provides the required environmental protection in accordance with the ECL in the event the proposed incinerator does not meet the emission limit as intended. The draft air permit requires emission testing at start-up for, among other things, dioxin equivalents, (Special Condition IV-B). There are additional safeguards in the draft air permit, e.g. the total charging rate shall not exceed the demonstrated charging rate accepted by the Commissioner upon review of stack sampling results, and/or review of a revised air quality impact analysis, and/or a review of a revised health risk assessment (Special Condition II-B) and also e.g. the specific safeguards on emissions testing prior to issuance of the certificate to operate (Special Condition IV and particularly IV-F). It is expected that the emission limit would be attained at the expense of either or any combination of the hours of operation, the quantity of material incinerated or the composition of the material incinerated.

The Town's proposed issue is not substantial as the adjudication of the Town's proposed issue would not appear to result in denial of the application, project modification or any additional permit special conditions. [Note: Although the Town's presentation quotes the target value for dioxin equivalents of 0.2 nanograms per dry standard cubic meter from 6 NYCRR 219-2.2(d)(1), no comparison to the draft emission limit was presented. Note that 6 NYCRR sub-part 219-3 regulates infectious waste incineration facilities.]

After consideration of the proposed issue, the response and the Town's reply, there is no issue.

The Town's proposed issue 2 (originally "B"): "The facility cannot meet the one in a million cancer risk level for dioxin required of facilities not using BACT, as required by Air Guide-1."

Discussion: The Town contends that to meet the draft permit emission limit for dioxin, additional treatment hardware and processes beyond what is proposed would be required. Therefore, the Town claims that their scheme, with the additional treatment hardware, would define best available control technology ("BACT"). The Town ignores the definition of BACT as found at 6 NYCRR 200.1(h) in favor of it's definition.

As noted above at proposed issue 1, the draft air permit is based on the output performance of the facility (2.52 x 10-9 pounds per hour of dioxin equivalents) rather than the treatment hardware or proposed input into the incinerator. The operation of the facility would have to be varied to yield no more than the permitted emissions. The draft air permit provides the required environmental protection in accordance with the ECL in the event the proposed incinerator does not meet the emission limit as intended. The draft construction permit at Special Condition II-B states:

"The total charging rate shall not exceed the lbs/hr charging rate that is demonstrated as being acceptable to the commissioner upon review of stack sampling results, and/or a review of revised air quality impact analysis, and/or a review of a revised health risk assessment. ..."

Special condition II-C limits total waste incinerated "... to a quantity shown by air quality impact analysis to produce acceptable annual ambient impacts ...". Therefore there is no need to adjudicate the truth of the predicted efficiencies of the treatment. The proposed issue is neither significant, substantial or material at this time.

The Town has not demonstrated any departure from the regulatory criteria of the ECL or 6 NYCRR Part 219-3. Air Guide-1 is a helpful guide but not a mandated requirement of law or regulation. After consideration of the proposed issue, the response and the Town's reply, there is no issue.

The Town's proposed issue 3 (originally "C"): "Applicant's mercury emission factor is grossly under estimated and its facility does not proposed to use the best available control technology to limit mercury emissions."

Discussion: The Town contends that the Applicant's proposed emissions relied on dated data from the EPA. That data does not consider total mercury in the emissions, only particulate mercury and omits mercury vapor. In response, the Applicant acknowledges higher mercury emissions are possible based on more recent operating data generated since the application was made.

However the emission limit in the draft permit has not been raised by the Staff or requested to be raised by the Applicant. The Town has not taken issue with the draft permit emission limit for mercury.

Mindful that it is the function of these rulings to, among other things, define and limit the scope of issues rather than adjudicating the issues, it is noted that the Applicant contends, however, that based on current operating data elsewhere, mercury emissions would be insignificant since operation of similar incinerators by the same manufacturer emit so little mercury that the emissions would be below thresholds of concern pursuant to the Department's Ambient Guideline Concentrations.

In reply to the responses to the Town's proposed issues, the Town now predicts, for the first time, that the maximum mercury emission factor would be 5.46 x 10-2 lb/ton. The prediction and the implied proposal that this emission factor should be assigned to this facility is untimely. Even though any consideration given to it at this time is unfair to all the other parties, it is noted that the draft air permit provides the required environmental protection consistent with the ECL in the event the proposed incinerator does not work as intended.

Regardless of the Town's assertions of greater mercury emissions, the draft permit is unchanged and limits emissions of mercury to 2.59 x 10-6 pounds per hour. The draft permit would require testing at start-up and it is anticipated that the Applicant would comply with the permit. The draft air permit requires emission testing at start-up for, among other things, mercury, (Special Condition IV-B). There are additional safeguards in the draft air permit, e.g. the total charging rate shall not exceed the charging rate accepted by the Commissioner upon review of stack sampling results, and/or review of a revised air quality impact analysis, and/or a review of a revised health risk assessment (Special Condition II-B) and also e.g. the specific safeguards on emissions testing prior to issuance of the certificate to operate (Special Condition IV, especially IV-F).

In reply to the responses to the Town's proposed issue, the Town concludes that fishing in Lake Roxanne is popular and is an available pathway and implies that the Staff's fishery survey should essentially be ignored. The Town has not claimed that the proposed emission limit in the draft permit would trigger a health risk assessment nor has the Town taken issue with the proposed emission limit.

After consideration of the proposed issue, the response and the Town's reply, there is no issue proposed and there is nothing substantial or significant to adjudicate regarding the emission limits in the draft permit for mercury.

The Town's proposed issue 4 (originally "D"): "The project Applicant has failed to completely assess the maximum off site impacts of dioxin in its health risk analysis as required in 92-Air-28."

Discussion: The Town claims there are defects in the Applicant's analysis of predicted dioxin deposits from the incinerator onto the surrounding area. On one hand, the Town wants to use a lesser amount of water in determining dioxin concentrations in Lake Roxanne because of shallow swamp water depths, and that more dioxin should be used in the calculation because water from adjacent areas, including snow melt, would carry more dioxin to Lake Roxanne. On the other hand, the Town states that dioxin is insoluble and associates with particulate matter, and further states that in practice, bioconcentration factors are based on sediment rather than water concentrations.

Higher concentrations in Lake Roxanne would be the result with less water (as the Town proposes) and more dioxin (as the Town proposes) except more dioxin would be in sediments (also as the Town proposes) and as a consequence, dioxin concentrations in the water would consequently decrease. Why water concentrations of dioxin is important to the Town when its practice apparently would be to use sediment concentrations of dioxin for bioconcentration factors in a health risk assessment is confusing. The Town's claimed defects conflict with each other. No substantial issue is raised.

In reply to the responses to the Town's proposed issue, the Town refers to its reply for proposed issue 3, and advises that fishing in Lake Roxanne is popular and is an available pathway. The Town implies that the Staff's fishery survey (that shows too few fish are taken to be of concern), should essentially be ignored. However, the health risk assessment includes a section titled "Special Case Analysis of Fish Ingestion" which analyzes this pathway.

In reply to the responses to the Town's proposed issue, the Town refers to the lack of consideration of background concentrations of dioxin in the health risk assessment as a defect. As stated by the authors of the health risk assessment, the basic purpose of the health risk assessment is to predict the theoretical excess cancer cases occurring beyond the existing background rate of cancer. Background concentrations of dioxin would be beyond the scope of a health risk assessment.

In reply to the responses to the Town's proposed issue, the Town, for the first time here, faults the health risk assessment for significantly underestimating the risks from beef and dairy products consumption. However, the Town has not taken issue with the proposed emission limit for dioxin. As a procedural matter, to add issues at this time beyond past presentations is inappropriate. In its initial offering of proposed issue "D", the Town's concern was fish ingestion as a pathway. The responses were to the fish ingestion pathway. Other pathways as a part of this issue cannot now be incorporated into this issue.

The Town has not demonstrated any departure from the regulatory criteria of the ECL or 6 NYCRR Part 219-3. (92-Air-28 is a guide and not a mandated requirement of law or regulation.) There is an assessment of health risks by the Applicant with seven pathways described including beef and dairy product ingestion. Mindful that it is the function of these rulings to, among other things, define and limit the scope of issues rather than adjudicating the issues, it is noted that the health risk assessment has been accepted by the Department Staff (and the Staff's advisors, the New York State Department of Health).

As discussed above at the Town's proposed issue 1, the draft air permit provides the required environmental protection in the event the proposed incinerator does not work as intended. The draft air permit limits the emission of dioxin equivalents to 2.52 x 10-9 pounds per hour. The draft air permit requires emission testing at start-up for, among other things, dioxin equivalents, (Special Condition IV-B). There are additional safeguards in the draft air permit, e.g. the total charging rate shall not exceed the charging rate accepted by the Commissioner upon review of stack sampling results, and/or review of a revised air quality impact analysis, and/or a review of a revised health risk assessment (Special Condition II-B). The draft air permit provides for revised assessments as the data become available.

After consideration of the proposed issue, the response and the Town's reply, there is no issue.

The Town's proposed issue 5 (originally "E"): "The project Applicant has failed to assess the potentially significant impact dioxin and mercury will have on the wildlife near the project site as required by 6 NYCRR 617.14." and specifically pursuant to 6 NYCRR 617.14(f)(3).

Discussion: The Town argues that since dioxin may reduce the trout population in Lake Ontario, the Applicant should analyze trout that potentially may be in Lake Roxanne and the North Branch of the Chazy River. The Town also argues that loons in Wisconsin have mercury build-ups and that the reproduction of Mallard ducks and loons in Michigan is affected by mercury. The Town concludes that the Applicant should assess this type of risk locally.

The Town wants the Applicant to restate and reevaluate the environmental impacts in the draft supplemental EIS. The significance and substantial nature for an issue based on the potential that trout and/ or loon may inhabit Lake Roxanne and its environs has not been established.

Mindful that it is the function of these rulings to, among other things, define and limit the scope of issues rather than adjudicating the issues, it is noted that the draft supplemental EIS, in sections IV, V IX, among others, includes statements regarding natural and/or human resources as required by 6 NYCRR 617.14 and the Town has not faulted the substance therein. Also, the draft air permit is based on the output performance of the facility rather than the proposed input into the facility. The operation of the facility would have to be limited to yield no more than the permitted emissions. The draft air permit provides the required environmental protection in accordance with the ECL in the event the proposed incinerator does not work as intended. The draft air permit limits the emission of dioxin equivalents to 2.52 x 10-9 pounds per hour and limits emissions of mercury to 2.59 x 10-6 pounds per hour and requires emission testing at start-up, including, among other things, dioxin equivalents and mercury. (Special Condition IV-B).

The Town's proposed issue is a comment on the draft supplemental EIS. No issue has been identified. A written response to substantial comments on the draft supplemental EIS would be an exhibit to the hearing record. As presented by the Town, and after consideration of the proposed issue, the response and the Town's reply, there is nothing to adjudicate.

The Town's proposed issue 6 (originally "F"): "Applicant's air quality and deposition analysis is incorrect because it failed to use an air dispersion model representative of the wind patterns at the site as required by the New York Air Guide-1."

Discussion: The Town speculates that the Applicant's analysis is possibly or potentially "not acceptable" but does not make or propose any contrary offerings to raise an issue to adjudicate. The Town reasons that there is no substitute for on-site data of wind patterns.

The Applicant, with the concurrence of the Department Staff, characterize the wind patterns used from existing data as:

• an accepted practice in the profession and
• the use of these data yield conservative results.

The Town has not demonstrated any departure from the regulatory criteria of the ECL or 6 NYCRR Part 219-3. As presented by the Town, and after consideration of the proposed issue, the response and the Town's reply, there is nothing to adjudicate.

The Town's proposed issue 7 (originally "G"): "The DEIS does not reasonably assess the alternative methods for treating regulated medical waste and reducing the amount of hazardous substances entering its facility." pursuant to 6 NYCRR 617.14(f)(5).

Discussion: Although the Town may not concur with the alternatives presented in the draft supplemental EIS, there are descriptions of alternatives within the draft as required. The alternatives listed are the no action alternative, alternative disposal methods, alternative methods of incineration and alternative sites.

It is noted that the function of an EIS is not to dictate what use is made of private property even though its use may be restricted.

The Town's proposed issue is not substantial, significant or material. After consideration of the proposed issue, the response and the Town's reply, there is no issue.

The Town's proposed issue 8 (originally "H"). In its reply to the responses to the Town's proposed issue, the Town defers to ECCOE to pursue this issue. The Town no longer proposes this issue.

The Town's proposed issue 9 (originally "I"): "The draft permits proposed by the Department fail to include measures for incorporating emissions from emergency bypass events as part of the overall annual emissions rate."

Discussion: The bypass is not a permitted emission point. As proposed, the incinerator cannot physically be fueled (loaded), by design, if the bypass is in use or open to use.

The draft permit requires annual reporting of the total tons incinerated. The draft permit requires, among other things: telephone reporting within 24 hours of an occurrence of "...out of compliance operating parameters ..." (Special Condition V-A). It appears that an unpermitted emergency bypass event would be subject to permit requirements for reporting. Consequently, the proposed issue is not shown to be a significant or substantial subject for adjudication.

In it's reply to the responses to the Town's proposed issue, the Town recommends that the issue can be resolved with a permit condition based on the reporting of each emergency bypass and its duration.

The Town has not demonstrated any departure from the regulatory criteria of the ECL or 6 NYCRR Part 219-3. As presented by the Town, and after consideration of the proposed issue, the response and the Town's reply, there is nothing to adjudicate.

Group RRR Havelock and The Party Québecois of Beauharnois/Huntingdon (collectively referred to herein as "Group RRR")

The Group RRR is from neighboring communities in the Province of Quebec with concerns regarding the Applicant's proposed project. The Group RRR appears to characterize its issues as "international implications" to be addressed in this proceeding. In its earlier presentations, the "international implications" appeared to also reference national agreements and it is not clear that such agreements are now excluded from the proposed issues. There has been no identification of a violation of any national or international agreements in this issues conference. For the record, this proceeding and the review of the permit applications for this project is pursuant to the New York State Environmental Conservation Law (the "ECL"). Any proposed permits that may be forthcoming will comply with the ECL.

Proposed Issues

The Group RRR's proposed issue 1 is labelled "Environmental Impact". A candid summary of the proposed issue is the characteristics and fate of the air emissions of dioxin and air pollutants, including heavy metals. For these rulings, the proposed issue "Environmental Impact" is considered in three (3) parts as follows.

The Group RRR express their position (hereby designated Group RRR's proposed issue 1a) that incineration should be prohibited.

Discussion: The Group RRR would present a report of the International Joint Commission titled "Air Quality in the Detroit-Windsor/Port Huron-Sarnia Region" ("Report") for the purpose of illustrating support for the Group RRR's position of no incineration. Although it is premature at the prehearing conference to find facts and adjudicate issues, it must be noted that the Report's recommendations in the incinerator section are explicitly region specific. There is no correlation presented to demonstrate that incineration in the Report area is or can be applicable to the Ellenburg/Group RRR area. Furthermore, the NYS Environmental Conservation Law ("ECL") does not prohibit nor require the incineration of infectious wastes. The Department regulates incinerator facilities if proposed as the method of choice.

The Group RRR would apparently offer other expert witnesses to present evidence on the general toxic nature (safety and risks)of dioxin, air pollutants and heavy metals (hereby designated Group RRR's proposed issue 1b). The Group RRR does not take issue with the emission limits in the draft permit.

Discussion: There is no dispute that the contaminants pose safety concerns and risks. These are recognized contaminants known to pose safety concerns and risks and consequently are limited in the emissions by the draft air permit. The Group RRR has not taken issue with the numerical limits. The permitted levels of contaminants in the emissions are expected to in compliance with ambient air quality standards and air quality implementation plans.

The Group RRR identifies no departures from the regulatory criteria of the ECL or 6 NYCRR Part 219-3 that might lead to the denial of the application, a major modification to the proposal or the attachment of significant conditions to the pending permit. The safety and risks of contaminants in general are not material or significant to the draft permits. There is no issue proposed.

The Group RRR would provide expert testimony regarding false numerical data used to estimate dioxin dispersal (hereby designated Group RRR's proposed issue 1c).

Discussion: The Group RRR would also apparently present scientific testimony that the dioxin dispersal analysis would yield higher levels of dioxin at spring thaw and due to dusty winds. Although there is no overt claim that the Group RRR dioxin dispersal analysis would result in permit denial or a substantial permit modification, there is an implied claim of an erroneous analysis by the Applicant. The Group RRR would present a refined health risk assessment that presumably would yield a greater risk. The Group RRR also acknowledges the process of assessing risks is inappropriate for some studies because of inherent uncertainties and conservatisms that may lead to significant overestimates and cause undue concern. The accuracy of the health risk assessment is important but the difference has not been shown to have any potential for requiring more restrictive emission limits.

The Group RRR's proposed issue 2 is titled "The Border Effect".

Discussion: In this section of the Group RRR's filing, the resolutions in opposition to this project by the Municipal Regional Councils (e.g. counties), of Haut-Saint-Laurent and Jardins-de-Napierville, are presented. The resolutions are a statement of position rather than an issue for adjudication. The resolutions are received into the official record of this proceeding as unsworn written statements. These are not issues for adjudication at this hearing.

The Group RRR's proposed issue 3 is titled "The Sanctity of Municipal Law".

Discussion: The Group RRR notes that Ellenburg's zoning prohibits incinerators as proposed yet the Department continues with the processing of the applications for permits. The local zoning is a matter for local (not the NYSDEC) enforcement. If there are any permits issued by the Department, the sanctity of local authority, including zoning, would be preserved.

The Department is obedient to the ECL mandate to both render final decisions and to take timely action on applications duly before the Department. The Department would not delay processing an application for a permit because of a zoning question. Compliance with local zoning is not an issue for adjudication.

The Group RRR's proposed issue 4 is named "Havelock".

Discussion: The Group RRR advises that the Havelock community is threatened by the potential environmental degradation from the operation of the proposed project or any new project. A new project would present the potential for risk where no such risk currently exists. Without specific analysis of discrete impacts by identified emissions as permitted, the generalization that there would be pollution because there would be a new emission point is insufficient to frame an issue.

The Group RRR's proposed issue 5 is called "Specific Criticisms of the Draft Permit".

The Group RRR's proposed issue 5a: From draft air permit Special Condition Section I-B, the Group RRR seeks a prescribed methodology to monitor, enforce and report (i.e. how will Staff know when limits are exceeded?) short term emission limits.

Discussion: The draft air permit Special Conditions beyond section I-B provides the monitoring and reporting of incinerator operations. For example, Special Condition IV-B requires testing, at start-up, of constituents listed in the short term emissions limits permitted in Special Condition I-B; Special Condition II-I requires a ten day notice prior to start-up; Special Condition V-A requires reporting excessive emissions by telephone; Special Condition III-A-5 requires continuous monitoring to demonstrate acceptable operation of the particulate control device and would yield data on those contaminants that condense on the particulates (see also the draft supplemental EIS section 5-C Air Resources).

The draft permit provides the tools for enforcement by such provisions as found at Special Condition III-J, requiring the Applicant to post a ten thousand ($10,000) dollar check for the costs of first year monitoring activities and Special Condition IV-C, allowing testing of emissions by the Commissioner at any time.

Although the draft permit addresses the Group RRR's concerns, further discussions with the Applicant and/or the Department Staff would clarify the monitoring and reporting questions. This can be done without adjudication. There does not appear to be concerns of a substantial or significant nature that would require adjudication leading to additional major permit conditions, modifications or permit denial. There is no issue.

The Group RRR's proposed issue 5b: From the draft air permit Special Conditions Sections III-I and V-B, the Group RRR notes files are retained for a two year period.

Discussion: The Group RRR recommends retention of the files permanently or for the life of the facility. The recommendation is before the Applicant and Staff for their consideration. There is no obligatory regulatory criterion for such action identified.

The proposed issue is below the threshold of significance or of substance to be adjudicated. There is no issue.

The Group RRR's proposed issue 5c: From draft permit Section IV-B, The Group RRR questions if there is a protocol for testing of the ash for the same constituents listed for the emissions.

Discussion: The question implies it is a recommendation rather than an offer for adjudication. There is no obligatory regulatory criterion for such data identified. The proposed issue is below the threshold of significance or of substance to be adjudicated. There is no issue for adjudication.

The Group RRR's proposed issue 5d: From draft permit Section VII-A, the Group RRR recommends the annual report include the total tons of ash and by-pass ash for plant operating purposes.

Discussion: The proposed issue is a recommendation rather than an offer for adjudication. There is no obligatory regulatory criterion for such data identified. The proposed issue is below the threshold of significance or of substance to be adjudicated. There is no issue for adjudication.

Party Status

Had there been any one issue, the Group RRR would have been ruled to be a limited party, limited to its issue or issues for adjudication. Absent any issue, the Group RRR is denied party status.

The Environmentally Concerned Citizens of Ellenburg (the "ECCOE")

In its discussion of various proposed issues, ECCOE references correspondence dated November 24, 1992 to Commissioner Jorling seeking, among other things, the Commissioner's intervention in this matter. As ECCOE may know, no party shall communicate directly or indirectly with the Commissioner or with the administrative law judge assigned to the case in connection with any issue unless there is notice and an opportunity for all parties to participate. Likewise, neither the Commissioner nor the ALJ shall communicate with any party concerning any issue without notice and opportunity for participation. (6 NYCRR 624.13)

ECCOE notes that no responses have been made to several comments it submitted earlier concerning the draft supplemental EIS. As ECCOE may know, the final EIS must include responses to all substantive comments pursuant to 6 NYCRR 617.14(i). In this proceeding, the responses will be in writing and filed as an exhibit for the record with an opportunity for the Parties to contest the contents pursuant to 6 NYCRR 624.7(a)(3)].

Several of ECCOE's proposed issues are concerning the draft supplemental EIS. The draft supplemental EIS has been accepted by Staff in its scope, content and adequacy and indicates the substantive content in the supplemental draft EIS. A reevaluation of a draft EIS is not a normal function of an issues conference. A new review would be for an issue arising from it where there is a reasonable likelihood that the issue might lead to the denial of the application, to a project modification or to significant permit conditions. No such issue has been identified.

Proposed Issues

(See the discussion on proposed issues concerning the draft supplemental EIS at the Town's PROPOSED ISSUES section)

ECCOE's proposed issue 1: "No existing need has been demonstrated for this project." pursuant to 6 NYCRR 617.14(f)(1). (6 NYCRR 617.14 is titled "Preparation and content of environmental impact statements")

Discussion: After canvasing hospitals by telephone, ECCOE asserts that no hospital would use the Applicant's incinerator, hence there is no need. It is presumed that if the incinerator has nothing to burn, there would be no emissions or related environmental impact. However, it should be understood that there is no necessity that an environmental impact statement make a determination that a project is needed; it is sufficient that the EIS make a statement regarding the need for the action. (Town of Candor v. Flacke, 1981, 82 A.D.2d 951, 440 N.Y.S.2d 769). The draft supplemental EIS has been accepted by Staff for its scope, content and adequacy pursuant to 6 NYCRR 621.3(a) and 617.3(f). The preparation and content of the supplemental draft EIS is according to 6 NYCRR 617.14(f)(1) and ECCOE has raised no issue on the substance therein. ECCOE has not presented an adequate showing of insufficiency to raise an issue. There is no issue.

ECCOE's proposed issue 2: "The Applicant's analysis to the proposed action is made on incorrect and speculative information rendering the analysis invalid." pursuant to 6 NYCRR 617.14(f)(5) [regarding reasonable alternatives which are feasible considering the objectives and capabilities of the project sponsor].

Discussion: ECCOE disputes the cost estimates in the Applicant's analysis of the alternatives. ECCOE asserts that the estimates were swayed to favor the incinerator and asserts that other alternatives may be less costly. It is noted that it is the intention of SEQR that alternatives be considered based on environmental factors (Ecology Action v. Van Cort, 1979, 99 Misc.2d 664, 417 N.Y.S.2d 165). It is further noted that it is not the function of SEQR to dictate what use is made of private property even though its use may be restricted (ibid.).

However, the draft supplemental EIS includes a range of alternatives to enable decisions after reasoned consideration. The accuracy and detail as alleged by ECCOE is a refinement available for the Applicant's consideration and may result in revisions by the Applicant.

ECCOE's proposed issue 2 simply is not a significant, substantive or material matter for adjudication or further development in this proceeding. There is no issue.

ECCOE's proposed issue 3: "Failure to identify and disclose the affect of the action on drinking water supplies and human health in the area: New information ..." pursuant to 6 NYCRR 617.2(l), 617.14(f)(2) & (3).

Discussion: ECCOE observes that the draft supplemental EIS did not include information concerning the existing spill of TCE and its 1.25 mile long plume in an aquifer (the "TCE plume") from the so-called Atlas missile site ("Atlas") in the Town. ECCOE relies on Department file information as its basis for the proposed issue. ECCOE notes that existing wells draw from the Atlas TCE plume but none are identified as unsafe wells. Prior to the determination of the scope or magnitude of the TCE plume, five residences received carbon water filters (since removed or released to the owners) from the Department. The correspondence that ECCOE relies on as exhibits in support of its issue indicates that the widespread contamination by the TCE plume has occurred at concentrations at or within drinking water standards of the New York State Department of Health ("NYSDOH"). Consequently, ECCOE's concern for a plume with water quality complying with drinking water standards is not a substantial, significant or material matter for adjudication.

ECCOE generalizes that operating wells, such as proposed by the Applicant, draw down the watertable, a condition favorable to advancing any nearby plume toward the operating well and thereby may pollute other wells along the way. ECCOE's assertion that the TCE plume would be drawn to the Applicant's proposed well site is contradicted by its exhibit in its submission of proposed issues. ECCOE's exhibit indicates that the TCE plume ends at the north bank of the Great Chazy River ("River"). The Staff's response to this issue indicates that no TCE contamination was found in wells tested south of the River. The Applicant's site is some distance south of the River. Even if ECCOE's exhibits did not contradict its assertion and assuming the TCE plume could otherwise travel to the Applicant's proposed well, well water drawn from the TCE plume currently satisfies NYSDOH drinking water standards. The TCE plume would not pollute the water from any wells along the way. ECCOE does not demonstrate how the Applicant's proposed well would pollute anyone's well.

The effect on human health, as part of ECCOE's proposed issue here, of water meeting the NYSDOH drinking water standards has not been shown to be a substantial, significant or material matter for adjudication at this proceeding.

ECCOE also notes that two wells, apparently not in the Atlas TCE plume, are contaminated. One well is identified as not warranting remedial work. The only information on the second well is its location at "Whispering Pines" and ECCOE does not identify this well as a potential problem. Consequently, there is no issue concerning either of these two wells that is significant or substantial.

ECCOE further seeks a hydrogeologic assessment in the supplemental EIS to evaluate the quantity of water that might be available for developing the Applicant's proposed well. The draft solid waste management construction permit special condition 2, among other things, requires certification of all construction in accordance with the permit, engineering plans and supplemental information. A proposed well would have to produce a quantity of water as proposed and permitted or else the project would not have enough water to operate as designed. Consequently, the quantity of water in the aquifer for the proposed well has not been shown to be a significant or substantial basis for permit denial or an additional permit condition. There is no issue.

Mindful that it is the function of these rulings to, among other things, define and limit the scope of issues rather than adjudicating the issues, it is noted that the draft supplemental EIS does include sections IV,V,VI,& VII containing descriptions of the environmental setting and statements and evaluations of environmental impacts pursuant to 6 NYCRR 617.14(f)(2)&(3). The draft supplemental EIS has been accepted by Staff for its scope, content and adequacy pursuant to 6 NYCRR 621.3(a) and 617.3(f). The preparation and content of the supplemental draft EIS is according to 6 NYCRR 617.14(f)(2)&(3) and ECCOE has presented no issue on the substance therein. ECCOE's comments on the draft supplemental EIS, as well as Staff's response to this proposed issue* may be included in the Applicant's responses to substantive comments on the draft EIS. The responses are to be filed as exhibits to the hearing record. [*Note: In its response to ECCOE's proposed issue 3, the Staff investigated and evaluated ground water contamination and reported for the record the results pursuant to 6 NYCRR 617.14(f)(2)&(3), including what it believes are reasonably related short and long term effects.]

After consideration of the proposed issue, the response and ECCOE's reply, there is no issue.

ECCOE's proposed issue 4: "The Applicant failed to identify the current health of the community and the area to be impacted by the proposed action." pursuant to 6 NYCRR 617.2(l), and 617.14(f)(2) & (3).

Discussion: ECCOE contends that the Applicant's health risk assessment is invalid. This is based on ECCOE's findings:

• that ten (10%) percent of the population in the community has cancer;
• that after a toxic spill, cancer was found in one or more residents of most homes where well water was sampled by the Department or the NYS Department of Health, and
• that ECCOE believes the health risk assessment was based on a "national average" incidence of cancer rather than Ellenburg's, the highest cancer rate in the State.

The health risk assessment presents risk of excess cancer, meaning the additional cases of cancer occurring as a result of the carcinogenic exposure above and beyond the existing background rate of cancer. Thus, the health risk assessment that ECCOE faults is not dependent or a function of "the current health of the community" as alleged in this proposed issue. The accepted health risk assessment is not invalid because of Ellenburg's alleged high incidence of cancer in the population nor is it invalid because the draft EIS does not reflect ECCOE's findings. There is no issue.

Mindful that it is the function of these rulings to, among other things, define and limit the scope of issues rather than adjudicating the issues, it is noted that the draft supplemental EIS does include sections IV,V,VI,& VII containing descriptions of the environmental setting and statements and evaluations of environmental impacts pursuant to 6 NYCRR 617.14(f)(2) & (3). The draft supplemental EIS has been accepted by Staff in its scope, content and adequacy pursuant to 6 NYCRR 621.3(a) and 617.3(f) and indicates the substantive content in the supplemental draft EIS. The preparation and content of the supplemental draft EIS is according to 6 NYCRR 617.14(f)(2)&(3) and ECCOE has presented no issue on the substance therein. ECCOE's comments on the draft supplemental EIS, as well as responses to this proposed issue may be included in the Applicant's responses to substantive comments on the draft EIS. The responses are to be filed as exhibits to the hearing record.

The re-evaluation of a draft EIS is not a normal function of an issues conference. A new review would be for an issue arising from it where there is a reasonable likelihood that the issue might lead to the denial of the application, to a project modification or to significant permit conditions. No such issue has been identified.

ECCOE's proposed issue 5: "Siting of the proposed action violated Part 360 Solid Waste regulations prohibiting siting in or on an aquifer." pursuant to 6 NYCRR 360 - 1.14(b) [regarding the prevention of depositing solid waste in surface or ground waters and regarding the discharge of leachate according to ECL Article 17, Water Pollution Control].

Discussion: ECCOE claims that the Staff did not complete a site evaluation of the proposed solid waste facilities located in a "sensitive environment" as defined in 6 NYCRR 360-1.2(b)(137). A sensitive environment, candidly, is where a small contaminant release poses a threat to public water supplies. The Applicant neither proposes nor has the Staff drafted permits enabling either the disposal of solid waste on site or the discharge of leachate on site. With no such contaminant releases permitted on site, there is no significant, substantial or material matter as an issue to be adjudicated.

In reply to the responses to ECCOE's proposed issues, ECCOE now alleges for the first time that both the proposed septic system for the disposal of domestic type wastes and the collection of the ash and water in water tight containers for transport and disposal off-site as proposed and as would be permitted, would violate 6 NYCRR 360-1.14(b). This regulation refers to "solid waste" and "leachate" and would not regulate either septic tank disposal systems or water tight containers transported off site. ECCOE's amended proposed issue is not substantial, significant or material to 6 NYCRR 360-1.14(b).

Therefore, there is no issue.

ECCOE's proposed issue 6: "Siting of the proposed action violated Part 663 and 664 of the freshwater wetlands rules and regulations." pursuant to 6 NYCRR 663.1, 663.2(z) and 663.4(a).

Discussion: ECCOE notes that the Applicant's land parcel is a "Site" as defined by 6 NYCRR 360-1.2(b)(141), that includes contiguous property, land areas and buffer areas. ECCOE claims that the land parcel extends into regulated wetlands and therefore a wetlands permit is required.

The boundary of a wetland means the outer limit of certain specified vegetation pursuant to ECL 24-0107.3 (Freshwater Wetlands, Definitions). Adjacent area is one hundred feet outside a wetland or otherwise as defined in 6 NYCRR 663.2(b). ECCOE has not shown that the proposed incinerator is within an area regulated pursuant to 6 NYCRR Parts 663 & 664.

In reply to the responses to ECCOE's proposed issues, ECCOE now essentially expands its proposed issue to emphasize, among other things, "... impacts upon a wetland from a distance, including atmospheric discharges, fugitive emissions, site runoff and discharges ...". The proposal is untimely. Even though any consideration given to it at this time is unfair to all the other parties or prospective parties, it is noted that until demonstrated otherwise, and ECCOE has not, it is expected that the draft permits would allow only emissions that would not violate the provisions of the ECL Article 24, Freshwater Wetlands, or any other provision of the ECL.

Absent any showing that the proposed incinerator is an activity regulated by the Freshwater Wetlands Act, there is no significance, substance or materiality in the issue as proposed.

ECCOE's proposed issue 7: "Siting of the proposed action violates Part 112 of Title 10 (Health) section 112.5 granting protection of the water supply and Department policy on protection of public and private watersheds." pursuant to 6 NYCRR 617.2(l) and 617.14(f)(3) [regarding an evaluation of cumulative, short and long term and other environmental effects].

Discussion: ECCOE's discussion refers to conflicts concerning the Town's business of a proposed public water supply, proposed related watershed regulations and other matters. ECCOE finds no mention of this in the draft supplemental EIS and seeks clarification through adjudication in this proceeding.

The draft supplemental EIS, in sections V, VI & VII, contain statements and evaluations of the environment and environmental impacts pursuant to 6 NYCRR 617.2(l) and 617.14(f)(3) and would not normally be expected to report on Town business that is not germane to the applications. The existence of the Town's alleged conflicts may or may not be considered a substantial comment on the draft supplemental EIS warranting a response.

The Town's pursuit of a proposed public water supply system and proposed watershed rules is not a matter before us. There is no significance, substance or materiality in the issue as proposed. There is no issue.

ECCOE's proposed issue 8: "Siting of the proposed action violated appropriate parts of the ECL and 6 NYCRR regulating lands and forests." pursuant to ECL 9-0303(4), 6 NYCRR 190.2(b) and 190.3(c).

Discussion: ECCOE claims that the Applicant has not demonstrated how the incinerator would not contravene the above. ECCOE concludes that ECL Article 9, Lands and Forests, would be violated, in some unspecified way by some unidentified mechanism, because of the emissions as limited by the permit. The emission limits listed in the draft permit for the proposed incinerator, in compliance with the ECL Article 19, Air Pollution Control, have not been shown to be violative of any of the provisions of ECL Article 9 Lands and Forests. ECCOE's conclusion without offering of support evidence is no basis for a substantial issue.

In reply to the responses to ECCOE's proposed issue 8, ECCOE now alleges for the first time that SEQR is violated because the draft supplemental EIS does not ascertain the long term cumulative impacts of the proposed emission limits on lands and forests. The proposal is untimely. Even though any consideration given to it at this time is unfair to all the other parties, and mindful that it is the function of these rulings to, among other things, define and limit the scope of issues rather than adjudicating the issues, it is noted that the draft supplemental EIS does comply with 6 NYCRR 617.14(f)(3) with reference to reasonably related short and long term effects, cumulative effects and other environmental effects. ECCOE has not described a new issue where there is a reasonable likelihood that might lead to the denial of the application or to significant permit conditions arising from its new review of the draft supplemental EIS.

The ruling is that there is no substantial issue.

ECCOE's proposed issue 9: "Failure of the Department to consider the synergistic effect of more than 52 classes of compounds emitted simulateously (sic) from the proposed incinerator invalidates the health risk assessment." pursuant to 6 NYCRR 617.2(l), 617.14(f)(2) & (3).

Discussion: ECCOE's states that when the synergistic effects of the constituents in the emissions are considered in the health risk assessment, the health risks would be too high.

Mindful that it is the function of these rulings to, among other things, define and limit the scope of issues rather than adjudicating the issues, it is noted that the draft supplemental EIS does include sections IV,V,VI,& VII containing descriptions of the environmental setting and statements and evaluations of environmental impacts pursuant to 6 NYCRR 617.14(f)(2) & (3).

The draft supplemental EIS has been accepted by Staff in its scope, content and adequacy pursuant to 6 NYCRR 621.3(a) and 617.3(f) and indicates the substantive content in the supplemental draft EIS. The preparation and content of the supplemental draft EIS is according to 6 NYCRR 617.14(f)(2)&(3) and ECCOE has presented no issue on the substance therein. A reevaluation of a draft EIS is not a normal function of an issues conference. A new review would be for an issue arising from it where there is a reasonable likelihood that the issue might lead to the denial of the application, to a project modification or to significant permit conditions.

ECCOE makes no offering of proof based on the permitted emissions but relies on others to disprove the synergistic effects and consequences of the 52 classes of compounds in the emissions. It is ECCOE's burden to demonstrate by its proposed evidence that an emission as permitted might result in some combined form here to be an unacceptable public health or environmental risk. It is expected that ECCOE would propose to prove something that might happen (e.g. synergistically so that the health risk assessment would find a risk that is too high) as a basis for an issue. ECCOE has not. There is no substantial issue proposed. There can be no significant issue on the basis of an unidentified effect. There is no issue.

ECCOE's proposed issue 10: "The Applicant has not responsed (sic) to the cumulative impact of radiation releases from the Proposed Action." pursuant to 6 NYCRR 617.14(f)(3).

Discussion: ECCOE faults the Applicant's assessment of radiation and seeks from the Applicant or others: a thorough analysis of radioactive isotopes from medical waste streams, incinerated paper and other organics releasing C-137; identification of other radioisotopes used in the Department's Regions 5 & 6; corrections to the disposition of tritium and carbon-14; identification of radioactive contamination in the community of Ellenburg; discussions on the conversion to gas or vapor and cumulative impacts with other wastes; and identified disposal practices of radio active waste in the Department's Regions 5 & 6.

ECCOE considers the absence of this information as non-compliance with 6 NYCRR 617.14(f)(3) which states that the draft EIS shall contain a statement and evaluation of the environmental impacts of the proposed action including the reasonably related short- and long-term effects, cumulative effects and other associated environmental effects. However, the draft supplemental EIS includes a section (VI-C) titled "Preventing Entry of Radioactive Waste". ECCOE has not demonstrated that a more extensive or detailed discussion is needed. Mindful that it is the function of these rulings to, among other things, define and limit the scope of issues rather than adjudicating the issues, it is noted that the draft supplemental EIS does address radiation pursuant to 6 NYCRR 617.14(f)(3) without any identified defect by ECCOE. The draft supplemental EIS has been accepted by Staff in its scope, content and adequacy pursuant to 6 NYCRR 621.3(a) and 617.3(f) and indicates the substantive content in the supplemental draft EIS. The preparation and content of the supplemental draft EIS is according to 6 NYCRR 617.14(f)(3) and ECCOE has presented no issue on the substance therein.

As proposed, the incinerator would not accept radioactive wastes nor would it be permitted (the draft air construction permit Special Condition II-K prohibits the indiscriminate burning of radioactive wastes).

The draft supplemental EIS notes, among other things, that radioactive waste disposal is governed by the Nuclear Regulatory Commission ("NRC") under the Atomic Energy Act and the Medical Waste Tracking Act. In this proceeding, compliance with NRC regulatory criteria is expected. ECCOE's concerns do not reflect NRC administration of the disposal of radioactive wastes or the prohibition of radioactive waste by the draft air permit Special Condition. ECCOE has not described a new issue where there is a reasonable likelihood that might lead to the denial of the application or to significant permit conditions arising from its new review of the draft supplemental EIS. There is no significance to an issue of the cumulative effects of non permitted material. No issue is raised.

ECCOE's proposed issue 10a: "The draft solid waste and air permits are invalid, since they are based on an illegal transfer of the permit application." pursuant to 6 NYCRR 621.3(b)(7) [regarding substantial changes to an application to be treated as a new application and requiring new application fees].

Discussion: ECCOE claims substantial changes in revised applications that result in draft permits that have no legal standing.

The only applications before us are those that appear in the Notice of Complete Application as duly published on March 11, 1991 in the Plattsburgh Press-Republican and the ENB, identified as permits 5-0936-00019/1 et seq. for a 400 pound per hour medical waste incinerator at the Applicant's site in Ellenburg. There is no identification of substantial changes in the scope and/or nature of these applications in the context of 6 NYCRR 621.3(b)(7). The application fees have not been shown to be a significant issue for adjudication. There is no issue.

ECCOE's proposed issue 11: "Applicant and the Department have never substantiated with scientific information their use of 98% removal efficiencies in the air model, the health risk assessment, and the draft air permit." pursuant to 6 NYCRR 617.14(g)(2)&(3).

Discussion: 6 NYCRR 617.14(g) states, in part:

ECCOE has not made a presentation that the application is insufficient in complying with 617.14(g). The draft supplemental EIS section V.C.2 includes an "Air Quality Analysis" that discusses the effectiveness of removals from the flue gasses by condensation on particulates and their subsequent collection. The draft supplemental EIS includes a health risk assessment predicting foreseeable impacts and Appendix A and Appendix 6, with its reference to the engineering report and appended manufacturer's specified guarantees for particulate removals appears to fulfill the requirements for credible scientific evidence in the content of an EIS pursuant to 6 NYCRR 617.14(g).

Mindful that it is the function of these rulings to, among other things, define and limit the scope of issues rather than adjudicating the issues, it is noted that the draft supplemental EIS does include the above pursuant to 6 NYCRR 617.14(g)(2) & (3). The draft supplemental EIS has been accepted by Staff in its scope, content and adequacy pursuant to 6 NYCRR 621.3(a) and 617.3(f) and indicates the substantive content in the supplemental draft EIS. The preparation and content of the supplemental draft EIS is according to 6 NYCRR 617.14(g)(2)&(3) and ECCOE has presented no issue on the substance therein.

Furthermore, the Applicant accepts the draft air permit with emissions limits based on the 98% removal efficiencies and other emission limits to the levels proposed. It is expected that the emission limits would be attained at the expense of the quantity and/or quality of the material incinerated. As noted above at the Town's proposed issue 1: The draft air construction permit Special Condition IV-B requires emission testing at start-up not only for those contaminants based on 98% removals but for all permitted contaminants. Draft air construction permit Special Condition II-B requires that the total charging rate shall not exceed the charging rate accepted by the Commissioner upon review of stack sampling results, and/or review of a revised air quality impact analysis, and/or a review of a revised health risk assessment. Also in the draft permit, there are specific safeguards on emissions testing prior to issuance of the certificate to operate. It should be noted again that significant comments on the draft supplemental EIS would prompt responses as an exhibit to this record and as a basic part of the final EIS.

The draft air construction permit in compliance with 6 NYCRR 219-3 provides environmental protection including stack testing for actual data, and, if necessary, revisions to impact analysis and/or health risk assessments based on site specific emission data. There is no significant or substantial information essential to the Departments SEQR findings that has been identified by ECCOE as missing. ECCOE has not demonstrated that a more extensive or detailed discussion is needed. A significant and substantial issue has not been presented.

ECCOE's proposed issue 12: "The Applicant has mistakenly used pilot test data from Quebec municipal waste incinerator to assert that medical waste fabric filter baghouses remove 98-99% of the dioxin emissions." pursuant to 6 NYCRR 617.14(g).

Discussion: The draft air permit provides the required environmental protection in accordance with the ECL in the event the proposed incinerator does not meet the emission limit as intended. The draft air permit is based on the output performance of the facility at 2.52 x 10-9 pounds per hour of dioxin equivalents. The operation of the facility would have to be adjusted or limited to yield no more than the permitted emissions. Therefore there is no need to adjudicate the pilot plant test data from Quebec or the truth of the predicted emissions from the incinerator. It is not a significant proposed issue. (See the discussion at the Town's proposed issue 1 and the discussion at ECCOE's proposed issue 11 above.)

ECCOE's proposed issue 13: "Bioavailability of dioxin to the lung from soil particle enrichment was not evaluated in the health risk assessment." pursuant to 6 NYCRR 617.14(f)(4).

Discussion: ECCOE claims the health risk assessment did not consider dust contaminated with dioxin as inhaled by humans and cattle, ingested by cattle and ingested indirectly by nursing infants. ECCOE claims that this level of detail in the draft supplemental EIS is necessary. The Applicant and Staff do not.

It is not known whether the maximum estimated annual average ground level air concentrations in the health risk assessment include "recirculation of dust contaminated with dioxin". However, the health risk assessment does consider the gradual accumulation of dioxin (and furans) in the soil as noted at 7.2.1 and notes that "... indoor dust is composed of outdoor soil ..." at 7.2.2.

ECCOE's reply to the responses to their original issue now claims ingestion due to "soil particle enrichment" would be 5 to 7 times greater (ECCOE originally claimed a 33 fold greater ingestion). A 5 to 7 fold increase of dioxin in the pathways of inhalation, beef ingestion, dairy ingestion and nursing would have a finite increase in the numerical value of risk. However this has not been shown to be cause for a more restrictive emission limit.

The Applicant acknowledges dust and predicts that the dust would increase the inhalation risk by 0.4%. The Staff estimates dust to be "an extremely small contribution" to the inhalation risk and would not change the conclusions of the health risk assessment. Presumably all the impacted pathways to humans by way of beef, cattle forage, and mother's milk could have the risk factor refined. However there is nothing presented that a refined health risk assessment would be so significant or substantial leading to a project denial, modification or significant permit conditions.

The health risk assessment, in 7, identifies seven exposure pathways as: inhalation; ingestion of soil; ingestion of vegetables and fruit; ingestion of beef from cattle grazing on affected pasture; ingestion of dairy products from cows grazing on affected pastures; dermal absorption from impacted soil; and mother's milk. Mindful that it is the function of these rulings to, among other things, define and limit the scope of issues rather than adjudicating the issues, it is noted that the draft supplemental EIS, apparently complies with 6 NYCRR 617.14(f)(4) which states: "an identification and brief discussion of any adverse environmental impacts which cannot be avoided or adequately mitigated ..." The preparation and content of the supplemental draft EIS is according to 6 NYCRR 617.14(f)(4) and ECCOE has presented no issue on the substance therein. Therefore, ECCOE has no issue on this basis.

ECCOE has not shown that the draft emission limit should be more restrictive. The proposed issue raises some question of certain features of the analysis for the health risk assessment, however, the emission limit as drafted has not been sufficiently challenged to describe an issue.

ECCOE's proposed issue 14 as amended: "... the inaccuracy of the (predictive deposition) model has never been field tested." (parenthesis added) was originally; "Deposition model understates sub-micron deposition and thereby understates dioxin exposure." pursuant to 6 NYCRR 617.14(f).

Discussion: ECCOE originally claims there would be ten (10) times more dioxin than that used for the health risk assessment. ECCOE originally also faulted the deposition model used by the Applicant both as invalid for a forested region and invalid because the model was never field verified. ECCOE implies that the cancer risk would consequently be too high and the application should be denied. ECCOE claims that the cancer risk would be several orders of magnitude greater than currently predicted. In its reply to the responses to ECCOE's proposed issue, ECCOE redefines its issue as noted above.

In either the original instance or in ECCOE's reply, ECCOE has not identified an alternate analytical procedure or presented an alternate analysis used in practice to more accurately predict particulate deposits. Although ECCOE faults the available predictions, it does not propose anything to adjudicate. There is no issue.

ECCOE's proposed issue 15: "Application of the air dispersion model to a forest canopy invalidates the plume dispersion rates." pursuant to 6 NYCRR 617.14(f). This proposed issue appears to be a repeat of the above issue 14. There is no issue.

ECCOE's proposed issue 16: "Particulate size distribution is incorrect, using MSW incinerators rather than U.S. EPA medical waste incineration data." pursuant to 6 NYCRR 617.14(f).

ECCOE is concerned about the increase in dioxin on solids falling out of the emissions because there is more submicron sized solids than the Applicant predicted (56% versus ECCOE's claim of 74%). The Applicant and the Department Staff, in their responses, advise that the particle size distribution is for the purpose of determining settling velocities. They advise that the existing analysis is conservative. The Applicant further advises that the smaller sized particulates would act more like a gas than a solid and drift farther before settling. There is no particular significance to the distribution in determining settling velocities.

Furthermore, the draft permit limits emissions rates on a weight per given time period basis that is not dependent on particle size distribution. The draft air permit provides the required environmental protection in accordance with the ECL in the event the proposed incinerator does not meet the emission limit as intended. The draft permit would require testing at start-up and it is anticipated that the Applicant would comply with the permit. The draft air permit requires emission testing at start-up for, among other things, particulates, (Special Condition IV-A). There are additional safeguards in the draft air permit, e.g. the total charging rate shall not exceed the charging rate accepted by the Commissioner upon review of stack sampling results, and/or review of a revised air quality impact analysis, and/or a review of a revised health risk assessment (Special Condition II-B) and also e.g. the specific safeguards on emissions testing prior to issuance of the certificate to operate (Special Condition IV and particularly IV-F).

Therefore there is no need to adjudicate particle size distribution or the truth of the predicted emissions from the incinerator where the permits are dependent on site data. It is not a significant proposed issue.

ECCOE's proposed issue 17: (withdrawn)

ECCOE's proposed issue 18: "Dioxin contamination of the local dairy products have not been properly assessed." pursuant to 6 NYCRR 617.14(f)(3).

Discussion: The Department Staff's response to this proposed issue claims ECCOE misrepresented and mischaracterized the basis for the issue. ECCOE did not reply and appears to have withdrawn this issue.

The draft supplemental EIS Appendix B Health Risk Assessment contains, pursuant to 6 NYCRR 617.14(f)(3), statements and evaluations of environmental impacts including the reasonably related cumulative and other effects with reference to dioxin contamination of local dairy products. The health risk assessment includes a subsection titled "Ingestion of Locally Produced Dairy Products" and ECCOE's proposed issue does not fault the Applicant's analysis.

Mindful that it is the function of these rulings to, among other things, define and limit the scope of issues rather than adjudicating the issues, it is noted that the draft supplemental EIS does address ECCOE's concern pursuant to 6 NYCRR 617.14(f)(3). With satisfaction of this regulation, ECCOE has no basis for an issue. A substantial issue has not been presented.

In addition, the draft air permit limits the emission of dioxin equivalents to the Applicant's projected level of 2.52 x 10-9 pounds per hour. ECCOE makes no assertion in this issue that the emission limit would impact local dairy products. The draft air permit provides the required environmental protection in accordance with the ECL. Therefore there is no need to adjudicate the truth of the contents of predicted emissions in the draft supplemental EIS when the draft permit limits emissions that have not been faulted. It is not a significant proposed issue.

ECCOE's proposed issue 19: "On-site meteorological information must be obtained because of the complexity of the site." pursuant to 6 NYCRR 617.14(f)(2).

Discussion: ECCOE claims this should be an issue:

1. because the use of data from Plattsburgh has been publicly questioned and
2. because the Staff allegedly agreed to use alternative sources of data (but Staff has indicated otherwise).

The draft supplemental EIS includes IV.C Environmental Setting, Air Resources; V.C Significant Environmental Impacts, Air Resources; and other sections pursuant to 6 NYCRR 617.14(f)(2).

As noted at the Town's proposed issue 6 (originally "F"):

Neither ECCOE nor the Town has demonstrated any departure from the regulatory criteria of the ECL or 6 NYCRR Part 219-3. As presented by ECCOE, and after consideration of the proposed issue, the response and ECCOE's reply, there is nothing substantial to adjudicate. There is no issue.

ECCOE's proposed issue 20: "No financial and operating disclosure has been made by the Applicant or his business relationships." pursuant to 6 NYCRR 621.11, Conceptual review.

Discussion: ECCOE claims the Applicant's business history is necessary to establish competitive costs as a business enterprise and it is necessary because public funding may be involved.

This proceeding is not regulated by 6 NYCRR 621.11 as it is not a conceptual review.

The competitive costs as a business enterprise is of no demonstrated substance or significance to the applications before us.

ECCOE's reference to the Applicant's financial activities with the Environmental Facilities Corporation has not been shown to be a matter of concern for this proceeding. Any public financing by another agency would not be appropriate for adjudication in this proceeding.

There is nothing material, substantial or significant in this issue for this proceeding.

ECCOE's proposed issue 21: "Analysis of the emissions fail to account for the various oxidation states of the emitted toxics." pursuant to 6 NYCRR 617.14(f)(2) & (3).

Discussion: ECCOE seeks, among other things, a new analysis of the air emissions and a new health risk assessment based on their prediction of the oxidation states of the 52 pollutants in the proposed emissions. The draft supplemental EIS already contains descriptions of environmental settings and an evaluation of impacts pursuant to 6 NYCRR 617.14(b)(2) & (3).

There is not enough data to frame an issue or why the fate of the oxides are vital to the EIS or the health risk assessment. ECCOE has not identified any departure from the regulatory environmental criteria of the ECL or 6 NYCRR Part 219-3. There is nothing substantial or significant in the proposed issue. There is no issue.

Party Status

Had there been any one issue, ECCOE would have been ruled to be a limited party, limited to its issue or issues for adjudication. Absent any issue, ECCOE is denied party status.

Other Filings for Party Status

The Ellenburg Farmers Organization c/o Mr. Paul Colgan; Mr. Christopher Sunderland and Dr. Paul Connett (since identified as a witness) originally filed in response to the published Notice of Public Hearing but did not file proposed issues pursuant to the ALJ's memorandum #18 dated March 4, 1993. The memo ordered all parties and prospective parties to review their proposed issues in the context of the revised draft permits and submit or resubmit their proposed issues to this office by April 12, 1993. Both The Ellenburg Farmers Organization and Mr. Sunderland may be considered as having given up their pursuit of party status by not resubmitting their proposed issues. The subject matter of the filings are essentially the same as other intervenors' proposed issues as discussed above and are considered in that context.

The Ellenburg Farmers Organization
Paul Colgan, Spokesperson ("Farmers")

The Farmers filing dated September 5, 1991 opposes the proposed incinerator and originally filed in response to the published Notice of Public Hearing. The Farmers did not file proposed issues pursuant to the ALJ's memorandum #18 dated March 4, 1993. The Farmers, representing one hundred and thirty six (136) commercial dairy farms, participated at the issues conference on September 12, 1991. Their original filing took issue with the health risk assessment as:

The Farmers are also concerned with reduced property values, diminished or potential loss of mortgage monies, loss of farm income and loss of health all due to contamination.

At the issues conference the Farmer's expert, Dr. Paul Connett, further identified the draft air permit (although withdrawn at the issues conference) as defective as it relies on dioxin removal efficiencies of ninety-eight (98%) percent. Also identified as an issue leading to denial is the public dislike of the proposed incinerator.

Christopher Phillip Sunderland

Mr. Sunderland's filing was received on September 9, 1991. Mr. Sunderland did not file proposed issues pursuant to the ALJ's memorandum #18 dated March 4, 1993. He participated at the issues conference on September 12, 1991. In his filing of September 1991, Mr. Sunderland described his dairy/cattle farm livelihood and the potential loss of milk/beef sales if the incinerator was permitted. He also advises of the land owner's responsibility for contamination regardless of fault and further advises of the potential reluctance of banks to mortgage contaminated lands.

At the issue conference, Mr. Sunderland expanded his concerns to include who responds to an emergency or to a major accident and what special training or equipment would be needed to protect the public. He is also concerned about bypass operations during system malfunctions, including emergencies.

Other

The Applications are herewith deemed returned to the Department Staff for their processing towards the issuance of the requested permits.

Appeals

Please be advised that any ruling of the ALJ denying or limiting party status may be appealed in writing to the Commissioner pursuant to 6 NYCRR 624.4(f).

Please also be advised that the ruling of the ALJ setting forth the issues for the hearing may be appealed in writing to the Commissioner pursuant to 6 NYCRR 624.6(d).

In order to allow reasonable time for your consideration, appeals will be received until the close of business on October 1, 1993.

Thank you.

_____________/s/_____________
Francis W. Serbent
Administrative Law Judge

Dated: September 1, 1993
Albany NY

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