Nassau County Department of Public Works - Ruling, September 25, 1992
Ruling, September 25, 1992
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter of the Applications of NASSAU COUNTY DEPARTMENT OF PUBLIC WORKS the for Air Emission and Solid Waste Permits for the Construction and Operation of Two Sludge Heat Drying and Pelletization Facilities at the Cedar Creek Water Pollution Control Plant in Wantagh, and the Bay Park Sewage Treatment Plant in East Rockaway, both in the Town of Hempstead, Nassau County, New York.
Project Numbers: 1-2820-00652/000139 and
1-2820-00653/00018-9
RULINGS OF ADMINISTRATIVE LAW JUDGE
Introduction and Background
On July 26, 1989 the County of Nassau and its Department of Public Works (the "Applicant" or the "County"), as defendants, executed a Consent Decree and Enforcement Agreement with the plaintiffs, the United States of America and the State of New York (represented respectively by the United States Environmental Protection Agency, the "EPA," and the New York State Department of Environmental Conservation, the "Department"). In the Consent Decree the County agreed to cease dumping its sewage sludge into the ocean as required by the Marine Protection, Research and Sanctuaries Act, 33 U.S.C. 1401 et seq., as amended by the Ocean Dumping Ban Act of 1988, Title I of Pub. L. 100-688. The Consent Decree requires the County to implement a long-term land-based alternative sludge management plan according to a schedule of milestone and deadline dates for making the transition from ocean dumping. The final long-term plan must be implemented and operational by December 31, 1994.
The County has completed the initial phases of the transition from ocean dumping to land-based management or disposal of its sewage sludge, and is currently following its interim plan. Ocean dumping has ceased. The County has constructed and is operating sludge dewatering facilities at the Cedar Creek Water Pollution Control Plant ("Cedar Creek WPCP") and at the Bay Park Sewage Treatment Plant ("Bay Park STP"). The dewatered sludge cake is presently being transported off Long Island for disposal in authorized landfills.
The County has now applied to the regional and central office program and regulatory staff of the New York State Department of Environmental Conservation (the "Department Staff") for the permits necessary to implement its selected long-term sludge management plan: the construction and operation of two sludge heat-drying and pelletization facilities at the Bay Park and Cedar Creek plant sites (the "Project"). These facilities would produce a dried sludge pellet product which can be marketed as a commercial soil fertilizer. Each facility requires construction and operation permits for air contaminant emission sources and for a solid waste management facility.
The applicable statute governing air emission permits is the Environmental Conservation Law ("ECL") Article 19 and regulations at Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 201 et seq. Solid waste management facility permitting is governed by the ECL Article 27, Title 7 and 6 NYCRR Part 360. Pursuant to the permit processing procedures in 6 NYCRR Part 621, the permit applications were determined complete by the Department Staff on July 10, 1992.
SEQRA Review
The long-term plan was selected as a result of the County's review of the various alternative technologies and sites under the State Environmental Quality Review Act ("SEQRA," ECL Article 8, 6 NYCRR Part 617). The Nassau County Board of Supervisors was declared the lead agency and delegated the responsibility to oversee the SEQRA process to the Nassau County Planning Commission (for convenience, all Nassau County agencies will generally be referred to as the "County"). The County rendered a positive determination of significance on September 14, 1989, finding that the implementation of a long-term sludge disposal alternative may have a significant environmental impact, and requiring the preparation of the appropriate environmental impact statements ("EIS's").
The County prepared Draft Generic EIS on the Evaluation of Long-Term Sludge Disposal Alternatives in March 1990. After receiving public comment, holding public hearings, and incorporating a responsiveness summary, the County issued a Final Generic EIS, Evaluation of Long-Term Sludge Disposal Alternatives, in April 1990. The County Board of Supervisors issued a positive SEQRA findings statement accepting the FGEIS on May 14, 1990.
In December 1990 the County issued two site-specific Draft EIS's for the proposed pelletization facilities at Bay Park and Cedar Creek. After receiving public comment and holding hearings in regard to both DEIS's, the County issued two Final EIS's for each facility in February 1991. On March 25, 1991 the County Board of Supervisors as lead agency issued a findings statement adopting the recommendations in the FEIS's that the County proceed to authorize funding for the design and construction of the proposed pelletization facilities.
Several citizens' organizations and individuals residing in the vicinity of the proposed Project instituted an Article 78 proceeding challenging the procedural and substantive compliance of the County's SEQRA review of this Project. In a decision dated November 25, 1991, the United States District Court for the Eastern District of New York, Judge Mishler, found that the County had fully complied with the provisions of SEQRA and ordered dismissal of the Article 78 petitions. This decision and order was affirmed by the U.S. Court of Appeals for the Second Circuit in an order dated April 22, 1992.
Project Description
The two proposed sludge heat-drying and pelletization facilities at the Bay Park STP and Cedar Creek WPCP are essentially identical. The heat drying and pelletization processes will take place in the main enclosed building of about 30,000 square feet. The other structure to be built is a silo storage area of about 12,000 square feet at Bay Park and 16,000 square feet at Cedar Creek. An enclosed conveyor system at Bay Park and a pumping system at Cedar Creek will transport dewatered sludge from the dewatering facilities at each plant to the heat-drying and pelletization building.
The facilities will each consist of two independent process trains, each having the capacity to process approximately 40 dry tons per day of dewatered sludge. Only one process train will be operated at a time, 24 hours per day, 7 days per week at full capacity. The second process train will serve as a backup. Each process train will consist of a direct rotary drying system, a materials handling system, and an air pollution control system.
The process relies on high temperature thermal drying technology to remove moisture from the sludge. The direct rotary drying system will process sludge with an average 20% solids content into a pellet-like material with an average mean diameter of two to three millimeters with an approximate 95% solids content. Pellets are produced by the interaction of hot gases produced by the furnace and the rotary action of the drum, without the use of additives or external mechanical equipment.
The materials handling system returns most of the pelletized product to a storage bin for use as "recycle." The recycle is mixed with dewatered sludge to increase the proportion of solids in the infeed mixture entering the rotary dryer. Mixing to obtain an infeed mixture of approximately 70% solids is necessary in order to produce pellets of the desired 2-3 mm diameter size. The pelletized product will be transported by an enclosed pneumatic conveyance system at each plant to the silo storage area.
The Project's pelletization facilities will emit air contaminants into the atmosphere through a single 100-foot high stack. The pollutants of concern are particulate matter, trace metals, and volatile organic compounds. Other criteria pollutants generated from the combustion of the natural gas fuel, as well as by the sludge drying process, include nitrogen oxides, carbon monoxide, and sulfur dioxide. The air in the process equipment room is expected to contain hydrogen sulfide, an odorous gas.
These air contaminant emissions will be controlled by several simultaneously operating technologies. The exhaust stream will be treated by a high efficiency multiple cyclone system followed by a wet venturi scrubber to remove particulates and trace metals. A regenerative thermal oxidizer, or afterburner, will be installed to control volatile organics. The building will be under negative pressure, and a wet chemical scrubber will be installed to control odor emissions from the ventilation air. The Applicant conducted site-specific multiple source ambient air quality dispersion modelling of the projected emissions from the two Project pelletization facilities. The results of the modelling indicated that impacts due to emissions from the Project facilities will meet all applicable State and federal air quality standards and fall well below all ambient air guideline concentrations of State-regulated air toxics.
The Project facilities will also include other features to prevent or mitigate possible adverse environmental impacts. One risk characteristic of sludge pelletization plants is the potential for fire or explosion due to the ignition of dried material or dust, or the buildup of heat in the stored pellets. This risk will be mitigated by a number of features including temperature monitors, fugitive dust collection systems, pellet coolers, bin vent filters, spark detectors, extensive sprinkler systems throughout the plants, and other design features. The Project also includes measures to mitigate other identified adverse impacts on the surrounding communities related to traffic and visual effects.
The heat drying and pelletization facility at Bay Park is proposed to be located at the existing Bay Park STP which occupies a 44-acre site in the East Rockaway or Bay Park section of the Town of Hempstead, Nassau County, New York. The Bay Park STP, operated by the Nassau County Department of Public Works, serves Nassau County Sewage Disposal District No. 2, providing full secondary treatment of 55 million gallons per day. The Bay Park site is bounded by Hewlett Bay and tributary channels to the south and east, and residential areas to the north and west. The nearest residences border the plant site on the north. Vehicle access is via 4th Avenue on the north. The pelletization facility will be constructed in the southeast corner of the site. The Bay Park pelletization facility will process dewatered sludge generated at the Bay Park STP, as well as from the West Long Beach, Inwood, and Belgrave sewage treatment plants.
The heat drying and pelletization facility at Cedar Creek is proposed to be located at the existing Cedar Creek WPCP which occupies a 75-acre site in Wantagh, Nassau County. The Cedar Creek WPCP, also operated by the Nassau County DPW, serves Nassau County Sewer District No. 3. It provides secondary treatment of an average of 55 million gallons per day. The Cedar Creek site is bounded by the Wantagh State Parkway on the west, by Cedar Creek Park, a municipal recreation facility, immediately on the east, and by channels and islands of Great South Bay on the south. Access is from Merrick Road, on the north, through Cedar Creek Park. The nearest residences, and two elementary schools, are about 1500 feet from the site boundaries, to the east and west. The pelletization facility will be constructed in the southern portion of the Cedar Creek site. The facility will process dewatered sludge generated at the Cedar Creek WPCP.
Department Proceedings
The County's applications for air emission and solid waste management facility permits for the two proposed pelletization facilities at Bay Park and Cedar Creek (the "Project") were determined complete by the Department Staff on July 10, 1992. The application documents consist of the application forms and supporting reports, data and analyses. For each facility, the application itself consists of seven volumes dated January 1992, two for the air emission permit applications, and five for the solid waste management facility permit applications. The applications also include the FGEIS and the two site-specific FEIS's prepared by the County in its SEQRA review. The County also prepared an Environmental Summary Report dated May 1992 for each proposed facility, which specifically addresses the environmental impacts listed in ECL 27-0707(2-b) (discussed below in these rulings) and contains an index indicating where these impacts are addressed in more detail in the other application documents.
The Department's Division of Regulatory Affairs referred these applications to the Department's Office of Hearings for hearing pursuant to the procedures in 6 NYCRR Part 621 on June 29, 1992. Pursuant to the permit hearing procedures in 6 NYCRR Part 624, the Notice of Public Hearing in this matter was first published in the Department's Environmental Notice Bulletin on July 15, 1992, and in the New York Times and Long Island Newsday on July 20 and 23, 1992. The original hearing dates were then adjourned, and an amended notice indicating the new dates was duly published in the ENB on August 12, 1992, and in the Times and Newsday on August 10 and 13, 1992.
Pursuant to the Notice of Hearing, a legislative or public statement hearing convened before Administrative Law Judge ("ALJ") Andrew S. Pearlstein at 7:00 P.M. on September 9, 1992 in the Garden City Hotel, Garden City, New York. The legislative hearing continued at the same location at 7:00 P.M. the next evening, September 10, 1992. Approximately 250 persons attended on September 9 session and 200 persons on September 10. A total of 55 persons spoke at the two hearing sessions, and a number of additional written statements were received for the record by persons who did not speak orally.
The great majority of speakers opposed building the proposed pelletization facilities for many reasons, encompassing those discussed below in the rulings on proposed issues for adjudication. In general, the opponents cited the proximity of the facilities to residential neighborhoods, and their belief that the pelletization plants would cause adverse environmental impacts to the community including odors, air emissions, noise, and the risk for fire or explosion. Several speakers representing labor organizations favored the Project on the grounds that it would provide needed jobs for workers in Nassau County.
The issues conference convened at 10:00 A.M. on September 12, 1992 at the same location, the Garden City Hotel. Following is a listing of each party who was represented at the issues conference and/or who filed a written filing for party status pursuant to the Notice of Hearing.
The Nassau County Department of Public Works (the "County," "DPW," or the "Applicant") was represented by Stephen L. Gordon, Esq. and Sy Gruza, Esq., of the firm of Beveridge & Diamond, P.C., New York City.
The Department Staff was represented by Mitchell Goroski, Esq., Central Office, Albany.
The New York State Consumer Protection Board and its Executive Director, Richard Kessel, who is also the Governor's ombudsman on pelletization, were represented by Lynn Fitzgerald, Deputy Executive Director, Albany.
The organization Stop Cedar Creek and Recover our Environment ("SCARE"), comprised of citizens residing or working in the vicinity of the Cedar Creek WPCP, was represented by David W. Dennenberg, Esq., Merrick, and Christine L. Seibold, Seaford.
The organization Homeowners Opposed to Polluting the Environment ("HOPE"), comprised of citizens residing or working in the vicinity of the Bay Park STP, was represented by Andrew Lauri, Esq., of the firm of Conway & Ceriello, Melville, and by Ronald Ross, East Rockaway.
The Nassau/Suffolk Neighborhood Network, Inc. was represented by Neal Lewis, Esq., Massapequa.
The Cedar Creek Health Risk Assessment Committee was represented by Frank Romano, Chairman, Wantagh.
The Bellmore Union Free School District was represented by Robert Ricken, Interim Superintendent of Schools, Bellmore.
Richard Noto, M.D., Bellmore, represented himself.
The Seaford Union Free School District and Wantagh Board of Education sent letters requesting party status, but did not appear at the issues conference.
Several parties had additional consultants or associates present who also participated on the record of the issues conference.
At the issues conference, the ALJ ruled that all parties who were present had sufficient interest in the Project to meet the threshold requirement for party status under 6 NYCRR 624.4(b)(1). The discussion therefore focused on the second requirement to maintain party status -- whether the parties presented issues appropriate for adjudication.
In general, the intervening parties took the position that various issues should be certified for resolution through an adjudicatory hearing. The Applicant and Department Staff both took the position that no issues presented by the intervenors were sufficiently substantive or significant to merit adjudication under 6 NYCRR Part 624. The specific proposed issues will be discussed in detail below in these rulings.
DISCUSSION OF PROPOSED ISSUES
Standards for Raising an Issue for Adjudication
It is axiomatic that the ALJ's determination of the issues appropriate for adjudication "shall be based upon whether the issues raised are substantive and significant, and resolution of such issues may result in permit denial, require major modification to the project or the imposition of significant permit conditions." (6 NYCRR 624.6[c]). "Substantive" means that the issue is not based on mere speculation, but on facts that can be subjected to adjudication. "Significant" means that resolution of the issue could lead to permit denial or the imposition of significant permit conditions. These principles, further summarized in the following paragraph, are articulated in the following Interim Decisions of the Commissioner, among others: Matter of Halfmoon Water Improvement District No. 1, April 2, 1982; Matter of Hydra-Co. Generations, Inc., April 1, 1988; Matter of Bonded Concrete, Inc., June 4, 1990; and Matter of Jay Giardina, September 21, 1990.
In cases where the Department Staff and the Applicant agree that the project, with appropriate mitigation as proposed in a draft permit, will comply with all applicable standards, the intervenors bear the burden of persuasion that a substantive and significant issue exists. In order to meet that burden, the intervenors, in their filings for party status and at the issues conference (or in subsequent written submissions if allowed by the ALJ) must present an offer of proof with factual support, generally in the form of proposed expert testimony, counter to the applicant's presentation of facts in support of the project. The applicant and Department Staff may rebut the intervenors' offer of proof with reference to the application documents, draft permit, and further factual analysis. An adjudicable issue is raised only where, in consideration of all offers of proof and referenced submittals, there remain sufficient doubts about an applicant's ability to satisfy applicable statutory and regulatory criteria such that reasonable minds would inquire further.
Some additional considerations pertain when the Department is not the lead agency under SEQRA. Since SEQRA does not change jurisdiction among agencies, this Department will generally concern itself in a permit proceeding only with issues directly related to the statutory or regulatory standards in the ECL or 6 NYCRR with which the Project must comply. The Department will generally defer to the lead agency in other matters, including those primarily within the expertise of the lead agency and those which constitute entrepreneurial or policy decisions by the applicant (where the lead agency is also the applicant). (See Matter of Development Authority of the North Country, Interim Decision of the Commissioner, July 24, 1990).
In this case, the County as the lead agency and Applicant has already issued a positive findings statement in support of the proposed Project's two sludge heat drying and pelletization facilities. As stated at the issues conference, this Department will not now review the choice of this technology or these sites for this Project among the various alternatives considered by the County. Therefore, alternative technologies or sites are excluded as issues inappropriate for adjudication in this Department permit proceeding, which may properly only focus on the environmental impacts of this proposed Project as relevant to this Department's permitting jurisdiction.
Effect of ECL 27-0707(2-b)
ECL 27-0707(2-b), also known as the Weisenberg Amendment after its sponsor in the State Assembly, Assemblyman Harvey Weisenberg, was passed by the State Legislature and signed into law effective July 26, 1991 (L. 1991, c. 660, 1). The statute, which amends ECL 27-0707, entitled "Permits for new solid waste management facilities," reads as follows:
"The department of environmental conservation shall not issue a permit to construct or operate a facility in Nassau County to process sewage sludge into a pellet-like product unless and until a full environmental review of the proposed facility has been conducted, including but not limited to full consideration of the impacts such facility may have upon the proximity of schools, churches, hospitals, residences, commercial districts to such facility; ambient air quality, traffic, community character, growth patterns, local aesthetics and economics, and public health and safety in the vicinity of such facility; and unless and until all relevant adverse impacts identified through the review process have been addressed by the applicant and avoided as necessary to protect the public health and safety of residents and others residing and/or working in the vicinity of any such facility. The department shall conduct a minimum of one public hearing in Nassau County, as a part of such full environmental review of the proposed facility."
The effect of this statute was discussed by the parties and ALJ at the issues conference. The County and Department Staff generally took the position that ECL 27-0707(2-b) is essentially duplicative of SEQRA, both procedurally and substantively. They contended that since the SEQRA process for this Project was already upheld by the courts, after the effective date of the Weisenberg amendment, the decision in that litigation also established the Project's compliance with ECL 27-0707(2-b).
The ALJ agreed that the provisions of the Weisenberg amendment are largely duplicative of SEQRA's procedural and substantive requirements, but noted that the statute is specifically directed toward this Department's permitting jurisdiction, rather than the lead agency's SEQRA review of the Project. The Department of Environmental Conservation must render its own SEQRA findings as an involved agency in addition to issuing permits. In addition, the substantive component of ECL 27-0707(2-b) requires the mitigation of adverse impacts as necessary to protect public health and safety. This may not be identical with the SEQRA findings or standards requiring mitigation of standards in ECL 8-0109(8) and 6 NYCRR 617.9.
The federal court, which did not mention the Weisenberg amendment in its decision, followed the established "hard look" standard in reviewing the County's SEQRA compliance. The fact that the County fully complied with SEQRA does not necessarily preclude the intervenors from seeking to raise substantive and significant issues for adjudication in this proceeding, either on the basis of ECL 27-0707(2-b) or other applicable laws or regulations. As stated by the ALJ at the issues conference, that is the basis on which the issues conference proceeded.
Proposed Issues for Adjudication
The intervenors proposed several issues they contended were sufficiently substantive and significant to merit adjudication in this proceeding. The main proposed issues related to the risk of fire, odors, noise, air contaminant emissions, and the Applicant's record of compliance. Other proposed issues raised at the issues by the intervenors related to community evacuation plans, visual impacts, public health effects, marketability of the pellets, and coastal zone policy compliance. The Applicant and Department Staff contended that none of the proposed issues were sufficiently substantive or significant to merit adjudication. For the reasons stated below in relation to each specific proposed issue, no issue presented is appropriate for adjudication in this proceeding. Therefore, these rulings conclude by recommending that the Department Staff proceed with issuance of the necessary permits to the County for this Project to proceed.
- Risk of Fire and Resulting Odors
The New York State Consumer Protection Board was the only intervenor to indicate with any specificity the nature of the testimony and evidence it would present. Its proposed expert witness, David Standley, P.E., appeared on behalf of the Consumer Protection Board and participated actively in the issues conference. Mr. Standley was a consultant to the City of Quincy, Massachusetts, the home of the Fore River pelletization facility, which was one of the models used for the design of the two facilities in this Project. He is fully familiar with the design and operation of sludge pelletization plants, conversant with the problems experienced at the Quincy plant, and undoubtedly highly qualified as an expert witness on these issues. Mr. Standley's comments were primarily directed toward raising two issues for adjudication based on ECL 27-0707(2-b): the risk of fire and resulting odors (also arguably based on 6 NYCRR 211.2 concerning nuisance odors), and noise. The risk of explosion was not raised as a potential issue by Mr. Standley or any other party.
Mr. Standley's proposed testimony, however, when closely analyzed, does not support the overall position taken by the Consumer Protection Board -- that the permits for the two Project pelletization facilities should be denied, or even that additional significant conditions should be imposed. Thus, while to some degree, his profferred testimony may be substantive in that it addresses technical or factual design aspects of the Project, it was not shown to be significant. Even with respect to its substantiveness, Mr. Standley does not appear to take direct issue with any specific factual presentation in the application.
Mr. Standley described the smoldering fires which occurred in the silos at the Quincy plant, necessitating removal of the overheated pellets. The gases from the fires and the temporary outside storage of the pellets created an odor problem. Mr. Standley recognized that the Nassau plants will have concrete silos, rather than the steel silos used at Quincy, and questions whether the concrete silos proposed for this Project will prevent this occurrence. Mr. Standley did not address the projected effectiveness in preventing fires of additional features not present in Quincy which are included in the design for this Project: the carbon dioxide inerting system, pressure relief valves, and the pellet water-cooling system used before storage in the silos. In light of these additional mitigation measures included in the proposed Nassau facilities, the experience at Quincy was not shown to be sufficiently relevant to raise a significant issue for adjudication. These systems, along with the extensive monitoring, detection, and extinguishing systems in the Project design will mitigate the risk of fire and attendant odors to the greatest practicable extent.
The Consumer Protection Board's representative, Ms. Fitzgerald also alleged that the odors resulting from smoldering fires at Quincy caused health problems up to 1500 feet from the facility. However, this vague statement was not supported by a substantive offer of proof and therefore does not contribute to raising any issue for adjudication.
The Consumer Protection Board's profferred testimony thus in effect only identifies a potential problem which has already been adequately addressed by the Applicant in its application documents. Mr. Standley himself never stated that the Project should be denied on this basis. The risk of fire and attendant odors was thus not shown to be a substantive or signficant issue appropriate for adjudication in this proceeding.
- Noise
Mr. Standley, on behalf of the Consumer Protection Board, also addressed the potential of noise impacts from the proposed facility. He described the noise problem which occurred at the Quincy plant, which was attributed to the pressure drop across the centrifugal drying fans, and which caused a penetrating, low-frequency tone detectable up to a mile distant. Mr. Standley's comments in effect only serve to direct attention to a potential fine-tuning detail rather than raise a substantive or significant issue that could lead to permit denial or significant modification.
As the Applicant pointed out, the design specifications of the fans proposed for the Nassau County facilities are different than those in Quincy. The Project facilities will also enclose all noise generating equipment in the new building and will shield them with acoustical wall and ceiling tile designed to control noise levels as required by 6 NYCRR 360-1.14(p). Noise generation can be further mitigated by adjusting the rotation frequencies of the fans during start-up of the facility. Neither the Consumer Protection Board nor any other party alleged that the Project facilities would violate the applicable noise regulation. The application indicates that noise impacts will be mitigated to the greatest practicable extent. Therefore the potential noise impacts of the Project is not an issue appropriate for adjudication in this proceeding.
- Odors
The potential for odors caused by smoldering fires was addressed above. SCARE also alleged that process emissions of hydrogen sulfide ("H2S") would, in conjunction with odors currently generated by the Cedar Creek WPCP, cause nuisance odors in violation of 6 NYCRR 211.2 which prohibits air emissions "of such quantity, characteristic or duration . . . which unreasonably interfere with the comfortable enjoyment of life or property." SCARE concedes that the emissions of H2S will not exceed the applicable standard set in 6 NYCRR 257-10.3, but claims that any emission of H2S will cause objectionable odors in the community.
Although SCARE named a consulting firm and witness who would appear to address this issue, the offer of proof is too vague and conclusory to be considered sufficiently substantive to raise an issue for adjudication. The profferred testimony by SCARE does not even address the detailed modelling and analysis presented in the application with respect to odorous emissions. SCARE also does not attempt to dispute the efficacy of the air pollution and odor control systems which will be installed, or the Department Staff's draft permit conditions relating to odor control and monitoring. These materials demonstrate that odor emissions will be mitigated to the greatest practicable extent. No attempt was made by the intervenors to quantify or describe the magnitude of any increase in odors from the plant with respect they could constitute non-compliance with 6 NYCRR 211.2. Thus process odors from the proposed facilities caused by H2S or any other odorous emissions is therefore not an appropriate issue for adjudication.
In addition, as stated at the issues conference, whatever odors are currently being emitted by the existing sewage treatment plants must be treated as a separate matter. They are regulated by separate and distinct permits. The existing odor emissions from the sewage treatment plants cannot create an issue for adjudication in this proceeding. The existing odor emissions are also discussed below in the context of the Applicant's record of compliance.
- Air Contaminant Emissions
SCARE also stated at the issues conference that it would present an expert witness who would dispute some of the assumptions and input data used in the air emissions modelling conducted by the Applicant. SCARE contended that the projected emissions of H2S, ammonia, and arsenic were erroneous as a result. However, SCARE wholly failed to support these contentions with any coherent or substantive offer of proof.
The County's application sets forth in detail the ambient air quality analyses, dispersion modelling, sources of data, and calculations which were done for this Project. The selection of the Industrial Source Complex model and of the appropriate input data was based on guidance from the USEPA and the Department Staff. The results established that the emissions from the sludge pelletization facilities will meet all applicable air quality standards and will not cause any significant increase in the concentration of any air pollutant. The Applicant and Department Staff explained the bases for the inputs for arsenic (the Cedar Creek STP sludge arsenic content) and for meteorological conditions (the nearest available airport weather data). These were unrebutted by SCARE, as were the modelling techniques which resulted in the other emission impact projections.
In addition, it is notable that Mr. Standley, the only expert on sludge pelletization facilities present at the issues conference on behalf of an intervenor, did not attempt to raise any issue with regard to the air emissions modelling results (or process odors) for this Project. SCARE's offer of proof failed to raise any substantive or significant issue for adjudication with respect to air contaminant emissions from the Project facilities.
- Public Health Effects
The air emission modelling conducted by the Applicant and described above indicated that emissions of all toxic contaminants from the Project facilities will be below 1% of the applicable short-term and annual guideline concentrations. Based on these results, under the Department's air program guidelines, it was determined that a formal health risk assessment was not required to support the Project's air emission permit applications. The County, however, in order to satisfy public concern over health effects, as referenced in ECL 27-0707(2-b), is proceeding with a full health risk assessment of toxic emissions. This study, currently in progress, is being conducted outside the permitting process. Results are not yet available.
Dr. Noto and the Cedar Creek Health Risk Assessment Committee (the "Committee") sought to raise the issue of public health effects for adjudication. They alleged that cumulative air emissions from the Project facilities in addition to those from existing sources would have adverse effects. Dr. Noto and the Committee did not, however, present a substantive offer of proof to support their allegations. Also, existing health problems in the community, even if known substantively and related to existing sources of air contaminant emissions, are not sufficiently relevant to the pending applications to be the subject of adjudication in this proceeding. The proper scope of potential issues must be limited to the impacts of this Project, not already existing facilities or impacts.
The Committee also sought to delay the issuance of the permits for this Project until the County's health risk assessment is completed. However, as discussed above, there is no legal basis for such delay of this proceeding. Hence no issue was raised concerning alleged public health impacts from air emissions of the proposed pelletization facilities.
SCARE submitted reports by the Nassau County Department of Health on air emissions from the Cedar Creek plant and on symptoms in schoolchildren attending school in the vicinity of the plant. These studies, done in 1983 to 1985, confirmed the occurrence of odor episodes at that time and a higher incidence of complaints in schoolchildren nearest the plant, but concluded there were no significant health effects. In any event, these alleged effects due to the existing sewage treatment plant are not relevant to the issue of whether the proposed sludge pelletization Project will have any such effects.
- Evacuation Plans
The Consumer Protection Board, SCARE, and HOPE asserted that the applications are defective in that they do not include an evacuation plan for residents and schools in the vicinity of the proposed pelletization facilities. However, the intervenors did not cite any applicable law or regulation requiring the Applicant to have such an evacuation plan, because there is none. There is no dispute that the applications include a sufficient contingency plan as required for solid waste management facilities pursuant to 6 NYCRR 360-1.9(h). The intervenors have not demonstrated that any fire or other emergency at the proposed plants would have offsite effects that could necessitate any evacuation of residents or others in the surrounding communities. Hence, no issue for adjudication is raised concerning evacuation plans.
- Visual Impacts
In response to a statement by SCARE, the ALJ ruled at the issues conference that the visual impacts of the proposed Project facilities are not sufficiently significant to merit adjudication. Also, there is no substantive dispute over those impacts that could be resolved through adjudication. The application analyzes the visual impacts and describes the mitigation measures which will be taken to reduce the visual impacts of the stacks and buildings. No party has offered to present any evidence to contradict the information in the application or to support additional mitigation measures. Thus, no issue for adjudication is raised concerning the visual impacts of this Project.
- Alternatives
As stated above and at the issues conference, the Applicant's consideration of alternatives, undertaken through its SEQRA review, will not be an issue for adjudication. The County selected the sludge pelletization technology at the Cedar Creek and Bay Park sites after a complete SEQRA review which was upheld by the courts. This Department can properly only now review the Project as proposed with respect to its potential environmental impacts as related to applicable portions of the ECL and 6 NYCRR. The Department will not adjudicate in this permit hearing the choice of this Project from among the various alternatives which was made by the lead agency and Applicant, the County, in its role as Project sponsor (see Matter of Development Authority of the North Country, Interim Decision of the Commissioner, July 24, 1990).
- Marketability of Pellets
The Consumer Protection Board sought to raise an issue with regard to the marketability of the proposed facilities' pellet product. The Board alleged that if the pellets could not be marketed in sufficient quantity, the excess storage could lead to an increased risk of fire at the plants. This does not, however, create a proper issue for adjudication. The marketability of the pellets was fully considered by the Applicant as part of the SEQRA process in the consideration of alternative technologies. Even if the County does experience problems marketing the pellets, it must still comply with the storage limits set in the permits. If necessary, as provided in the contingency plan, excess pellets could be landfilled (as the dewatered sludge is now) or possibly incinerated. Hence no issue for adjudication is raised regarding the marketability of the pellets produced by the proposed Project.
- Coastal Zone Policy Compliance
HOPE and SCARE alleged the County failed to demonstrate consistency with the State's coastal zone policies as required by 6 NYCRR 617.9(e). The coastal zone policies are set forth in Article 42 of the Executive Law, implemented by 19 NYCRR 600.5. The intervenors, however, failed to specify any coastal zone policy with which the Project would be inconsistent. The application contains a discussion of the Project's consistency with all the coastal zone policies, which was not challenged by any offer of proof by the intervenors. Hence no issue for adjudication was raised regarding consistency with the State's coastal zone policies.
- Applicant's Record of Compliance
The Commissioner has promulgated Enforcement Guidance Memorandum No. II.24, entitled Record of Compliance, dated July 15, 1991. This purpose of the record of compliance policy ("ROC") established in this memorandum is "to ensure that persons who are unsuitable to carry out responsibilities under Department permits, certificates, licenses or grants, are not authorized to do so." (ROC, page 1). The policy is underpinned by the inherent legal authority granted the Department in its permitting jurisdiction by ECL 1-0101 and 3-0301. The ROC requires the Department Staff to consider an applicant's compliance history as part of the permit processing procedure. Past violations of the law related to the activity for which the permit is sought may form the basis for denying a permit application or imposing additional reporting or monitoring conditions on a permit. Allegations of such violations may also be included and proven in administrative permit proceedings as one of the issues for adjudication (ROC, page 5; see Matter of American Transfer Company, Interim Decision of the Commissioner, February 4, 1991).
In this case the intervenors, primarily SCARE and the Neighborhood Network, have alleged that the Applicant, the Nassau County DPW, has persistently committed SPDES violations and caused the generation of nuisance odors at primarily the Cedar Creek WPCP, and to a lesser degree at the Bay Park STP, the sites of the proposed sludge pelletization facilities. The operation of the sewage treatment plants is arguably closely enough related to the proposed construction and operation of the sludge pelletization facilities to potentially raise an issue for adjudication.
SCARE has submitted voluminous records consisting mainly of the Cedar Creek WPCP's self-monitoring reports and correspondence sent to the Department's regional Division of Water staff. SCARE also submitted reports of air quality monitoring conducted by the Nassau County Department of Health in 1983 to 1985. The intervenors contend that this record of numerous apparent violations by the County DPW of its SPDES permits, as well as odor emissions, constitute a sufficiently poor record of compliance to deny the Applicant the permits for the sludge pelletization facilities, or raise enough doubt as to the Applicant's fitness to create an issue for adjudication.
The Department Staff and the Applicant concede that the Cedar Creek plant experienced problems in the mid-1980's due to receiving sewage flows in excess of its capacity, but assert that improvements throughout the sewage district and to the plant itself have greatly improved operations since. They further state that the County DPW has always cooperated fully with the Department Staff in a good faith effort to improve operations and reduce incidences of SPDES exceedences or odor episodes. That is the reason no formal enforcement action has been taken by the Department Staff. Even the intervenors admit the County has been sensitive to community complaints, although they disagree that the problems have largely been eliminated. The Applicant and Staff maintain that the overall record of the County in the context of the complexity of the operations and its effective efforts to ameliorate conditions at the sewage treatment plants does not merit denial of the applications for this Project or give rise to an issue for adjudication.
A review of the documentary evidence submitted by SCARE concerning the SPDES exceedences generally supports the Staff's and Applicant's position that operations have improved over the years. The completion of another sewage treatment plant and reductions of infiltration and inflow to the system have eliminated many problems after 1985. The only problem apparently persisting in recent years is in fecal coliform concentrations in the effluent, possibly attributed to sampling problems. Even this has typically exceeded the permit limits only two or three days per month. SCARE's statement that the Cedar Creek plant violated its SPDES permits in 58 of 94 months, or almost 60% of the time, from March 1984 to February 1992 is highly misleading. Within most of those months there are only a few violations of daily limits. Thus the plant was actually in compliance far more than 60% of the time, although the concept of relative of time of compliance is essentially meaningless anyway.
All sewage treatment plants experience occasional exceedences of their permit limits due to the constant nature of the operation. The plants operate multiple complex treatment systems 24 hours per day, 7 days per week. The pattern demonstrated here at the Cedar Creek plant (no comparable records were submitted for Bay Park) in recent years is well within the norm. There has been no enforcement action against the County, and the allegations of violations are not substantial enough to raise an issue for adjudication concerning the County's record of compliance in the operation of its sewage treatment plants.
Similarly, all sewage treatment plants occasionally emit noxious odors. The intervenors have alleged there have been hundreds of odor complaints about the Cedar Creek and Bay Park plants over an unspecified multi-year period. The documentary material submitted does confirm the occurrence of a number of odor episodes at Cedar Creek, mainly from the 1983 to 1985 period, but also some more recently. All parties agree that the DPW has responded in good faith to remedy odor complaints at both plants. The intervenors have not made a substantial offer of proof connecting the odor problems sufficiently to the Applicant's record of compliance to raise an issue for adjudication.
Conclusion
A representative of one of the intervenors made the point at the issues conference that we are only dealing with a hypothetical Project that may look good on paper, but that there were no guarantees the Project would be constructed and operated perfectly according to the plans. In the real world, that is, perhaps unfortunately, true. Problems may arise during the construction and operation of these facilities. That, however, is not a valid reason to deny the applications for this Project. There is no applicable law or regulation that requires a guarantee of perfection in the execution of a project -- not even in the case of a nuclear power plant, or toxic waste incinerator, or some other facility that has a far greater potential to cause adverse impacts than these sludge pelletization facilities. All that is required is that the Applicant demonstrate, on the basis of the application documents, that the Project will comply with all applicable laws and regulations. If the Applicant makes that demonstration, we can reasonably predict that the execution of the Project will cause no significant unmitigated adverse environmental impacts.
The data, analyses, and materials submitted in support of these applications are extensive and complete in demonstrating compliance with all applicable standards and mitigation of all relevant impacts. In their offers of proof, the intervenors, to a large degree, have basically ignored the application materials submitted by the Applicant, which have been available for an ample period of time. While the intervenors have described existing problems in their communities and pointed out potential problems in the construction and operation of these proposed facilities, they have not presented an offer of substantive and significant testimony or evidence, running counter to the presentation of facts by the Applicant and Department Staff, that could show how this Project may not comply with any applicable law or regulation.
As explained in the discussion above of each proposed issue, none of the intervening parties to this proceeding have presented any substantive and significant issues for adjudication. Any other attempt to raise an issue for adjudication not expressly addressed above has been considered and found to be without merit. Therefore I recommend that these applications for the two sludge pelletization facilities at Bay Park and Cedar Creek be remanded to the Department Staff for issuance of the requested air emission and solid waste management facility permits in accord with the Draft Permits submitted by the Department Staff.
Appeals
These rulings may be appealed to the Commissioner pursuant to 6 NYCRR 624.6(d). The time for filing any such appeals is extended to October 8, 1992, 10 days from receipt of these rulings, which are being sent by overnight mail and should be received by September 28, 1992. Appeals must be received in the office of the Commissioner, the Office of Hearings, and by all other parties no later than October 8, 1992. Transmission by fax, overnight mail, hand delivery, regular mail, or any other means is sufficient so long as it is received by that date.
Parties may submit responses to any appeals to be received at the office of the Commissioner and the Office of Hearings no later than October 14, 1992. Copies of all submittals must be sent to all parties on the attached distribution list, which includes telephone and fax numbers where known.
/s/
Andrew S. Pearlstein
Administrative Law Judge
Dated: September 25, 1992
Albany, New York
