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Glen Cove Co. (Disposal Energy Recovery) - Ruling, May 10, 1995

Ruling, May 10, 1995

50 Wolf Road
Albany, New York 12233-1010

In the Matter

- of -

pursuant to an Order on Consent and Environmental Conservation Law Article 19


August 29, 1995


This is an Interim Decision of the Commissioner with respect to appeals filed by Island Recycling and Environmental Corp. ("IREC"); the Department Staff; the New York Public Interest Research Group ("NYPIRG"), the Coalition To Save Hempstead Harbor, and the Village of Sea Cliff (collectively, "the Consolidated petitioners" herein), and the City of Glen Cove ("City") in response to the May 10, 1995 Issues Ruling of Administrative Law Judge (ALJ) Edward Buhrmaster. This matter concerns objections to the Department Staff's approval of IREC's proposed compliance plan to retrofit the City of Glen Cove's municipal solid waste incinerator pursuant to a consent order entered into between the City and Department.


The existing Glen Cove Co-Disposal Energy Recovery Facility (the "CERF") was constructed in 1983. The CERF has been the subject of a consent order with several modifications between the Department and the City as a result of the facility's non-compliance with State air pollution requirements. On April 27, 1990, the City and the prior CERF operator, Montenay Glen Cove Corp., entered into an order on consent requiring the installation of an overhead cover for the tipping floor, construction of an enclosure for the ash and installation of auxiliary burners without a permit to construct. In 1991, the City completed the construction of the ash and tipping floor enclosures and the parties modified the consent order to authorize installation of the auxiliary burners without a permit to construct. Due to continued violations of air pollution regulations, the parties agreed to modify the consent order to prohibit the CERF from burning solid waste until the improvements were completed. Subsequently, the City terminated its contract with Montenay, hiring Wheelabrator Environmental Systems to operate the CERF on an emergency basis.

In 1992, the parties modified the order on consent for a third time to eliminate Montenay as a party and to require the City to submit an air emission compliance plan that would demonstrate compliance with 6 NYCRR Parts 201, 212 and 219, including the retrofit requirements of proposed Subpart 219-8 as finally promulgated. On July 20, 1992, the City retained IREC to operate the CERF and under its management agreement with the City, IREC is responsible to fund, construct and implement all improvements mandated under the order on consent. On July 22, 1993, subject to certain requirements, the Department Staff approved the air compliance plan submitted on behalf of IREC and the City by the engineering firm of Doucet and Mainka, P.C.

In May 1994, following a change in administration, the City notified the Department that it had suspended IREC's authority to act as its agent and requested that the Department suspend its review of IREC's responsiveness summary that was prepared in reply to public comment. Thereafter, in June 1994, the City submitted to the Department a supplemental submission to IREC's responsiveness summary and then a second supplemental submission on September 20, 1994, criticizing IREC's engineering.

In December 1994, in order to resolve the impasse between IREC and the City with respect to the City's engineering concerns on the compliance plan, the Staff referred the dispute to the Department's Office of Hearings to address the City's concerns expressed in its September 20, 1994 submission. In 1994, IREC petitioned Nassau County Supreme Court for an arbitration of its contract rights with respect to its agreement with the City to construct and manage the CERF. City of Glen Cove v. IREC, Index No. 14840/94 (J. Molloy). In essence, IREC argued to the court that the City was acting in bad faith in protesting the compliance plan. In response, the City argued that it was raising legitimate issues of safety and health which must be addressed prior to the construction and operation of the CERF. On behalf of DEC, the Attorney General's office participated in the proceedings before Justice Molloy. I understand that this matter remains before the court pending the conclusion of these proceedings. The Office of Hearings decided that an ALJ would analyze the information and submit an issues ruling determining what issues should be adjudicated. This appeal is in response to the ALJ's issues ruling. An adjudicatory hearing will next be held to determine the facts for the Commissioner's final decision on the approvability of the proposed compliance plan. This Interim Decision specifies the issues in contention and rules on the joinder of issues appealed by the hearing participants to the Commissioner.

The Project

The upgraded facility is designed to consist of two combustion trains operating independently of each other at a throughput of 125 tons per day. Each combustion train would incinerate a composition of wastes including 90 percent municipal solid waste and 10 percent sewage sludge containing 90 percent solids. Each combustion train would be retrofitted with auxiliary burners to augment fuel when necessary. The combustion trains would be retrofitted with air pollution control systems consisting of economizers for cooling gases, dry lime injection for acid gas removal, and baghouses for control of particulates. In addition, carbon injection would be utilized to augment control of mercury, heavy metals, and dioxin emissions. Selective non-catalytic reduction ("SNCR") would be used for the control of nitrogen oxide emissions from the facility. Each furnace train is equipped with a boiler that would generate steam for a 2.5 MW turbine/generator producing electricity for the incinerator and an adjacent municipal waste water pollution control facility. Excess power would be sold to the Long Island Lighting Company.

ALJ Rulings

The ALJ convened an issues conference in the City of Glen Cove on January 24-26, 1995. As part of the issues conference, the ALJ directed the Department Staff to present all the conditions which it sought to make part of the approved compliance plan. Because the Staff did not prepare conditions until the conference, this process required additional discussion and review among the parties and the petitioners, the City, Town of Oyster Bay and Consolidated. Consequently, the ALJ allowed additional filings by the parties and petitioners in order to provide adequate opportunity for them to address all of the issues related to the City's second supplemental submission and the Department's proposed permit conditions.

After the conclusion of the issues conference and the submission of supplemental filings by the participants, the ALJ identified six issues for adjudication:

(1) whether and how throughput can be monitored to ensure compliance with the 250 tpd limitation;

(2) whether the 250 tpd limit will cause grate fire back-up and feed chute fires and consequences for air emissions;

(3) whether the CERF will attract enough waste to operate at the 250 tpd limit and related effects on air emissions;

(4) whether the air pollution control equipment is adequate to achieve the limits set forth in the conditions for hydrogen chloride ("HCl") and sulfur dioxide ("SO2");

(5) whether the CERF will meet emission limits for total suspended particulates ("TSP"), nitrogen oxides ("NOx"), lead, cadmium, mercury, polychlorinated dibenzo dioxins ("PCDD") and polychlorinated dibenzo furans ("PCDF") and considering in some cases the expected wastes' higher heating values ("HHV"); and

(6) whether the operations as limited by compliance plan condition No. 2 would be consistent with the CERF's prevention of significant deterioration ("PSD") determination.

Based upon the identification of these issues, ALJ Buhrmaster granted party status to the City, the Town of Oyster Bay, and the Consolidated petitioners.

Summary of Appeals

In this appeal, IREC and the Department Staff contend that none of the issues identified by the ALJ are proper for adjudication. The City also appeals the ALJ's rejection of certain issues pending a determination on the ability of the CERF to be controlled to a 250 tpd throughput. The City appeals the adequacy of IREC's environmental and health risk analyses based upon IREC's reliance on throughput in excess of the 250 tpd limit, the PSD analysis, and application of New Source Performance Standards ("NSPS") and 6 NYCRR Part 231. The City also asserts that it should be a mandatory party but does not make this part of its appeal.

The Consolidated petitioners appeal from the ALJ's determination that (1) IREC, as an applicant, was not required to apply for party status; (2) IREC did not have to apply at this time for permits pursuant to 6 NYCRR Parts 201 and 360; (3) compliance with Part 360 would not be an issue in this proceeding; (4) the PSD determination was not reviewable in this context; and (5) review of the compliance plan in light of 6 NYCRR Part 231 and offset requirements is outside the scope of the proceeding. In addition, in light of their appeals, these petitioners argue that compliance plan condition Nos. 8 and 15 must be changed to reflect compliance with 6 NYCRR Parts 231 and 360, respectively.

The ALJ's rulings are affirmed with certain exceptions. Since potential issues were limited by the hearing notice to those that relate to ". . . unresolved issues identified by the City of Glen Cove in its 'Second Supplemental Submission . . .'", there is no need to adjudicate the wasteshed issue or the question of the plant's ability to meet TSP, NOx, lead, cadmium, mercury, PCDD and PCDF emission limits set forth in the compliance plan conditions. The re-configured facility will need to comply with all emission limits for all applicable pollutants and IREC, the City and Staff do not disagree that these emission limits can be attained. If the facility does not meet the applicable limits when the stack testing is performed, the CERF will not be able to operate. The compliance plan is adequate as to those issues.

Standard for Review

Substantial deference is given to the rulings of the ALJ which relate to whether an issue exists for adjudication based upon the application of the requirements set forth in 6 NYCRR 624.4(c). Where the ruling turns on an issue of law or policy, the Commissioner may give a more probing review. (In the Matter of Hyland Facility Associates [Interim Decision, August 20, 1992]).

Appeals of IREC and Department Staff

1.a. Throughput

Throughput, or the amount of waste to be processed by the facility, is central to the ability of the facility to process wastes effectively and meet emission limits. Consequently, maintaining a waste feed limit of 250 tpd or less is critical to all other issues raised in this proceeding. IREC has evaluated all emission forecasts and health risk estimates based upon a throughput limit of 250 tpd.

The City claims the incinerator is oversized and in order to meet air pollution emission limits and to function properly, the facility will need to process waste in excess of a 250 tpd limit. Based upon this assumption, the City has also raised issues relating to the safety of the incinerator and the reliability of the emission projections. Department Staff and IREC respond that it is standard industry practice to 'oversize' incineration facilities to ensure sufficient capacity; however, a permit condition provides that the CERF will be limited to burning 250 tpd of waste.

The ALJ found as an adjudicable issue whether, and, if so, how throughput can be monitored to ensure compliance with the 250 tpd limit. The volume of throughput relates to the CERF's ability to comply with the emission limits imposed through permit conditions and thus, it was proper for the ALJ to reserve this matter for hearing.

IREC and the Staff contend that their submissions adequately address the throughput issue. However, under the Department's standards for determining the existence of an adjudicable issue, it is appropriate to examine a factual dispute such as this at a hearing rather than at the issues conference. (See, Matter of Hydra-Co. Generations, Inc. [Interim Decision, April 1, 1988]).

For the first time, in its appeal, the Department Staff propose permit condition(s), accepted by IREC, that monitor the throughput limit: (1) setting a steaming rate for the facility; (2) measuring monthly tonnage averages based upon the general daily flow through the facility or; (3) the use of crane scales. The City has proposed other means of measurement such as a strain gauge or other sophisticated measuring devices. (City's Br., 3/14/95, p. 12). So that the hearing can consider these measures, I affirm the ALJ's ruling on the throughput issue. The parties are directed to submit appropriate evidence on how throughput can be measured and monitored to ensure compliance with the 250 tpd limit.

1.b. Grate Fire Back-up, Thermodynamic Downturn and Wasteshed Issues

Part of the throughput issue relates to grate fire back-up and feed chute fires which the City claims will be caused by the burning of an insufficient quantity of waste. Both IREC and the Department respond that they have presented sufficient facts to set aside the City's position. These parties argue that they are entitled to summary judgment based upon acceptance of their facts, See, IREC's and Staff's 'Responses to Remaining Issues' to the ALJ.

I find that the ALJ made a reasoned determination to evaluate the grate fire back-up and thermodynamic turndown information further in adjudication. Although the Department Staff states that other resource recovery facilities in New York have not reported problems regarding grate fire back-up and feed chute fires, the offer of proof by the City suggests a contrary result. (See, e.g., Ex. A to City's 3/15/95 brief). IREC argues that pursuant to 6 NYCRR 624.4(c)(4), it was improper for the ALJ to shift the burden to the applicant on these issues. But IREC is confusing the burden of the offer of sustaining an issue and the burden of overcoming that issue at a hearing. Once the ALJ has determined properly that a matter is appropriate for adjudication, the burden does indeed shift to the applicant. (See, 6 NYCRR 624.8[a][4]).

The ALJ also ruled that the CERF's ability to attract sufficient quantities of waste to operate at the 250 tpd limit was an issue insofar as it relates to thermodynamic turndown, potential for grate fire back-up, feed chute fires and violations of the air emission limits set forth in the compliance plan conditions. Ruling 3. IREC states that even in the event of low throughput tonnages, it has the engineering ability to operate the CERF safely and in compliance with the plan. IREC states use of either or both two train units provide the flexibility needed to sustain continued service and meet emission limitations. The Staff agrees and states in its appeals that a condition of operation would allow incineration as low as 65% of the 250 tpd permitted capacity.

While I agree with the ALJ's ruling on grate fire back-up and the air emission consequences of a thermodynamic downturn, I do not believe it is necessary or appropriate in evaluation of the compliance plan to examine the size of the wasteshed or the ability of the CERF to attract sufficient waste. Such questions are normally addressed when a new facility is being sized to accommodate an existing or proposed wasteshed, and where the facility is seeking a solid waste permit under 6 NYCRR Part 360. (See, In the Matter of Foster Wheeler-Broome County, Inc., and the Broome County Resource Recovery Agency, [Commissioner's Decision, December 18, 1991]). It need not be addressed in this proceeding.

With regard to thermodynamic downturn, adjudication of this issue is confined to one of engineering design, and not wasteshed size.

2. Adequacy of Air Pollution Control Equipment to Control Acid Gases and SO2

The ALJ found an issue as to whether the air pollution control equipment can achieve the emission limits set for HCl and SO2. This issue centers on whether the dry scrubber fabric filter in combination with the lime handling system is adequate to meet HCl and SO2 control limits. The ALJ joined this issue primarily because in his view vendor guarantees should not be relied upon in the absence of performance data to show the equipment will perform as promised. Vendor guarantees and stack tests were stressed by Department Staff to be critical factors in eliminating this as an issue.

The City claims that IREC has underestimated HCl inlet concentrations in designing the CERF's air pollution control equipment. Based upon its engineering review of the acid gas control system, the City concludes there will be insufficient control of HCl and SO2.

On appeal, Staff and IREC argue that the air pollution control vendor has guaranteed that the equipment will meet the limits set forth in the compliance plan conditions. IREC also provides data from a St. Croix, Wisconsin facility that uses the same technology to demonstrate that the stated removal efficiencies can be obtained. That facility attained an HCl control efficiency of between 99.7 - 99.9 %, in excess of the 95% limit required in this application. (See, IREC's Appeal Br., pp. 12-13). Moreover, IREC contends that regardless of whether the City and it agree on the HCl inlet concentration level, the system is capable of reducing concentrations at a much higher level than any figure cited by the City. Id.

On appeal, the Staff also state that the acid gas control system proposed is consistent with EPA's proposed Maximum Achievable Control Technology ("MACT"). Although MACT is not applicable to the CERF, it is indicative of technology used to meet emission standards for new Mixed Solid Waste facilities regulated by 40 CFR Part 60 Subpart Ea. Had Staff presented this information to the ALJ, his ruling would have taken this into account. Not doing so circumvents the major purpose of the conference and works to the disadvantage of all participants.

I will not disturb the ALJ's conclusion that the City's concerns raise a substantive and significant issue as to whether the CERF will adequately control HCl and SO2. However, at this time, I take no position on the question whether vendor guarantees may be relied upon in the absence of performance data. Moreover, I see no reason why adjudication of this issue should be time-consuming or difficult.

3. CERF's Ability to Meet Emission Limits for TSP, Nox, lead, cadmium, mercury, PCDD and PCDF

The ALJ evaluated the conflicting offers of proof on each of these pollutants and concluded that each of these should be adjudicated. IREC and Department Staff oppose inclusion of these matters as issues for adjudication since these concerns were not raised by the City and further, that there were insufficient grounds to find a dispute regarding the CERF's ability to meet applicable limits. I concur with the views of Staff and IREC on this issue.

I conclude, moreover, that these matters need not be addressed as they are beyond the scope of this proceeding. The hearing notice specifically identified the scope of the dispute as those potential issues that must relate to ". . . unresolved issues identified by the City of Glen Cove in its 'Second Supplemental Submission to the responsiveness Summary' dated September 20, 1994 . . ."

4. PSD Review, Consistency of Compliance Plan Condition No. 2 With CERF's Original PSD Determination

4.a. PSD Review

A discussion of whether the existing PSD determination should be reviewed in this proceeding follows below to provide continuity to the overall PSD issue as asserted by the City and by the Consolidated petitioners.

I concur with the ALJ that this proceeding need not address the City's position that a new PSD evaluation is necessary. The ALJ noted that IREC performed a PSD analysis as part of the compliance plan (PID, Ex. 11-D, pp. 40-44). The ALJ ruled that because the CERF was an existing facility, a new PSD determination would only be required if the retrofit is a "major modification" [40 CFR 52.21(b)(2)(i)] that would result in a significant net emissions increase of any pollutant subject to regulation under the Clean Air Act. Both the Department and EPA have confirmed IREC's analysis that there would be no significant emissions increase pursuant to 40 CFR 52.21(b) and thus the CERF was not subject to PSD. Therefore, it was appropriate for ALJ Buhrmaster to find that PSD is not an issue in this proceeding. ALJ Buhrmaster reasonably relied on the explanation by IREC and the Staff that IREC did not use emissions data from 1989 and 1990 when the CERF exceeded its emissions limits for its PSD analysis. In addition, the ALJ properly accepted the Staff's willingness to allow IREC to use data from other facilities to model its analysis where CERF stack test data was lacking.

The thrust of PSD is to ensure review of new and modified sources. If a source violates the PSD conditions of the permit, it is subject to enforcement for violating the Clean Air Act. If a PSD-affected source changes its operations, such change must be reviewed to determine if it is a major modification under 40 CFR 52.21. The City did not cite legal authority for its argument that the PSD determination is no longer valid. PSD determinations remain in effect until formally rescinded, with prior notice to the permittee, pursuant to 40 CFR 52.21(w).

4.b.Consistency of Compliance Plan Condition No. 2 With CERF's Original PSD Determination

Compliance plan condition No. 2 allows for the burning of 25 tpd of sewage sludge that has been dried to a level of 90% solids. The ALJ ruled that the consistency of compliance plan condition No. 2 with the 1979 PSD determination requires adjudication since it could lead to changes in the compliance plan condition. Ruling at p. 14. The ALJ reasoned that if the 1979 PSD determination was still valid, then the compliance plan resulting from this proceeding must be consistent with that determination. The ALJ concluded that to find otherwise would result in two sets of permit conditions which could conflict with each other. His ruling requiring this matter to be addressed would determine whether condition No. 2 is in conformance with the limits imposed by the initial PSD permit determination issued to the City on June 18, 1979.

The City and NYPIRG contend that the condition is inconsistent with the 1979 PSD which required sewage sludge of 20 percent solids as opposed to the 90 percent solids in the compliance plan. The City also states that the ALJ's ruling does not seek to revisit the PSD determination, but instead to determine whether the compliance plan condition is consistent with it.

Staff and IREC argue that the 1979 PSD determination limits emissions and consequently, using emissions as the threshold, there would be no issue since emissions will be less than those emitted under the 1979 PSD.

Regardless of the percentage of solids to be incinerated, the emissions limits must be met. Because there will be no net emissions increase, the federal PSD regulations do not require a re-examination of the PSD determination or the conditions attendant to that determination. Thus, there is no issue for adjudication.

Appeals of Consolidated Parties

IREC's Party Status

In their appeal, the Consolidated petitioners dispute the ALJ's determination that IREC was a mandatory party to this proceeding. I affirm the ALJ's finding on the basis that IREC has prepared the plan and was retained by the City to modify and operate the facility.

New Permit Applications/Hearing Procedures

Consolidated petitioners appeal the ALJ's denial of their motion to terminate the instant proceeding and convene a hearing to address all issues pertaining to applications under 6 NYCRR Parts 201 and 360. Consolidated petitioners also assert that the CERF cannot legally operate under the existing order on consent. They argue that because an approvable plan was not submitted within the time frame set forth in a prior order on consent, the facility should not operate under a compliance plan but instead, should be subject to new permit applications.

Section 201.2(b)(2) of 6 NYCRR provides that a person can proceed with construction or modification of an air contamination source without a permit so long as it is being operated pursuant to a Commissioner's order. The Department routinely allows sources to retrofit with control equipment pursuant to a consent order.

The order on consent and the three modifications made to it were instrumental in setting this proceeding in motion. The very terms of the order envision compliance with the instant air compliance plan, including a solid waste review that the Consolidated petitioners seek. However, this proceeding was limited to the air compliance plan and was not intended to entertain issues focused on solid waste. To do so would expand the adjudication far beyond what would be necessary to determine air pollution issues, i.e., the acceptability of IREC's air compliance plan. This proceeding therefore will determine the facts relative to air pollution control systems and the emissions to be authorized.

I concur in the ALJ's determination that this proceeding is not a permit proceeding under 6 NYCRR Part 360 and thus, Part 360 issues will not be addressed except as necessary to properly devise conditions for the compliance plan. Assuming that a final decision accepts the compliance plan, IREC will need to apply for a Part 360 permit subsequent to the stack testing for this facility.


This issue is discussed above.

6 NYCRR Part 231 and NSPS

I concur with the determination of the ALJ not to include the application of 6 NYCRR Part 231 to these proceedings. The consent order did not require a review of the compliance plan with respect to Part 231 requirements and thus, such review would be outside to scope of this proceeding.

Moreover, according to the Commissioner's decision in Southwest Brooklyn Incinerator, only modifications that exceed a de minimis increase in actual annual emissions of VOCs and Nox are subject to Part 231. IREC has represented that these emissions will be less than the existing facility's and therefore, no reason exists to perform this analysis.

NYPIRG argues that because the Department revised Part 231 after the decision in Southwest and due to the fact that 6 NYCRR 201.9 has been repealed by the Department, the facility must be subject to Part 231 requirements which are applicable to facilities for which the permit application was deemed complete before November 15, 1992. (See, Con. App. Br., 13). This argument is not compelling.

The CERF is an existing facility since there was never an intent to dismantle the plant and cease operations. The modifications made to the existing air pollution control equipment demonstrate the intent to continue the facility's operation. Staff asserts that the City's agreement dated July 31, 1991 provided that the any termination of operations at the CERF would not change the facility's status under State and federal air pollution regulations. (See, Department Br. in Resp. to Rem. Issues, 21).

Regarding offsets, the ALJ was correct in determining that the applicability of New Source Performance Standards ("NSPS") is not an issue here because the conclusion that the upgrade was not a modification or reconstruction under NSPS was confirmed by EPA and was not reviewable in this context. A modification is construed by EPA as one increasing emissions and a reconstruction is one where the fixed capital costs would exceed 50% of a new facility. Since neither of these criteria apply to the CERF, no issue is raised. (See, 40 CFR 60.14-.15).

Since I have denied the Consolidated petitioners' appeal, there is no reason to examine their suggested revisions to Conditions 8 and 15.

Appeals of the City of Glen Cove

Party Status - The City contests the ALJ's designation of it as a petitioner for party status, rather than as an applicant, based upon its ownership of the CERF. I find the treatment of IREC rather than the City as applicant is appropriate given it is the entity seeking to upgrade the CERF with an acceptable compliance plan. I agree with the ALJ that since IREC is the proponent of the compliance plan, it is indispensable to the adjudication of any issue about the plan's approvability.

Environmental and Health Risk Analyses

The City argues that environmental and health risk-related information needs to be adjudicated in this proceeding because the CERF has the potential to be operated in excess of its allowed capacity of 250 tpd. (See, City App. Br. at 5).

However, I have previously joined the issue of throughput monitorability. The conditions attendant to throughput are related to the reliability of the emission projections. The only way emission issues are appropriate to adjudicate in the context of this concern is if it can be shown that throughput cannot be adequately monitored. However, failure to demonstrate that the throughput cannot be effectively monitored would be grounds for denial of the compliance plan. Accordingly, no issues regarding environmental and health risk are raised.

PSD, NSPS, and Part 231 Applicability

These matters were discussed above and will not be repeated here.

Party Status

Consistent with the determinations set forth above, the City of Glen Cove is granted party status. The only remaining issues are those of the City's. Neither the Consolidated petitioners nor the Town of Oyster Bay have put forward an offer of proof that they could make a meaningful contribution on the City's issues and thus, it is not appropriate for them to be accorded party status.

Summary of Issues

Except as modified by this decision, issues No. 1, 2, 3 and 4, as identified at pages 21 and 22 of the ALJ's May 10, 1995 rulings, shall be adjudicated. All other issues are hereby excluded.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Interim Decision to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York this 29th day of August, 1995.

For the New York State Department
of Environmental Conservation

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