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Onondaga County Resource Recovery Agency - Interim Decision, May 4, 1992

Interim Decision, May 4, 1992


In the Matter

- of the -

for permits to construct and operate a proposed mass burn solid waste incinerator
in the Town of Onondaga, Onondaga, New York

DEC Application No.7-3142-0028/00002-0


May 4, 1992

Interim Decision of the Commissioner

This Interim Decision is in relation to appeals filed in the captioned matter to the December 11, 1991 rulings of Administrative Law Judge ("ALJ") Frank Montecalvo regarding the application of Ogden Martin Systems of Onondaga, Inc. ("Ogden Martin") and the Onondaga County Resource Recovery Agency (the "Agency") , collectively ref erred to as the Co-Applicants, to construct a mass burn solid waste incinerator in the Town of Onondaga. The Interim Decision also addresses potential issues arising out of the classification of Onondaga County as a non-attainment area for carbon monoxide ("CO") by the U. S. Environmental Protection Agency ("EPA#').

The Interim Decision will address the two broad areas of concern, air quality and solid waste management, topically. The ALJ's rulings and the accompanying rationale are hereby adopted by reference for any issue that is not covered explicitly herein.

Air Quality Issues

Best Available Control Technology ("BACT")

Both federal and state law require that the proposed facility employ BACT for controlling mercury emissions. Drs. Tinelli and Weiskopf as well as the Environmental Coalition ("EC") argue that the dry scrubber/fabric filter used in conjunction with a carbon injection system is not BACT for mercury. They also argue that the carbon injection system will fail to perform as expected and will not permanently capture mercury. I find that these contentions are not supported by an offer of proof that is sufficiently substantive to require adjudication.

To support their contentions Drs. Tinelli and Weiskopf have only been able to report verbal conversations with unnamed "experts." DEC has identified an expert but has not given reasonable assurances that he would be available to testify nor have they made clear the scientific basis of their contentions.

By contrast, the staff of both the Department and EPA have found the proposed air pollution control technology to be BACT, which conclusion was also confirmed after extensive adjudication in the recent hearing involving the proposed resource recovery facility for Broome County (In the Matter of Foster Wheeler and the Broome County Resource Recovery Agency, Decision of the Commissioner, December 18, 1991). Similarly, the potential offgassing of mercury was reviewed by the staffs of both agencies and they have concluded that mercury will be permanently captured on the carbon.

A determination to adjudicate any issue must be made by judging the strength of the offers of proof in the context of the application and any rebuttal provided by the staff and the applicant (In the Matter of Bonded Concrete, Inc., Interim Decision of the Commissioner, June 4, 1990). In this instance, the submittals of the intervenors are superficial - and wholly unpersuasive. When viewed in the context of the rest of the record, it is apparent that there is no realistic chance that the intervenors would prevail. No adjudication is required.

Health Risk Assessment ("HRA")

Separate and apart from requiring the use of BACT, the Department requires that applicants for resource recovery facilities prepare an HRA to assess the magnitude of the risk posed by various pollutants. Drs. Tinelli and Weiskopf argue that the HRA does not take into account certain information regarding the hazards of mercury and Ms. Baker argues that other pollutants, namely PAHS, radon and lead, were either inadequately considered or not considered at all.' Separate and apart from these concerns, Mr. Johnson argues that his medical condition which involves special sensitivities to pollutants should be addressed.

By way of an offer of proof, Drs. Tineiii and Weiskopf only provide an account of. preliminary results from recent studies. Even if-their account is accurate, such preliminary results would not be adequate to raise an issue requiring adjudication. Besides the preliminary nature of the studies, there is no demonstration that the studies indicate that the emission of mercury at the permitted rate would present a significant health or environmental problem.

Ms. Baker's submittals only rise to the level of concerns. Her submittal fails to provide any basis on which the strength of those concerns can be judged. While she correctly points out that not every conceivable risk was analyzed in the HRA, the purpose of the HRA is to analyze the most significant risks and to provide insight as to whether they are within acceptable limits. Nothing in Ms. Baker's submittal seriously undermines the HRA conclusions that the project poses no significant health risk.

Finally regarding Mr. Johnson's claims, I concur with ALJ Montecalvo who concluded that, while he may have private right of action, he raises no issues that can be addressed in a proceeding such as this one.

No adjudication is required on any issue related to the HRA.

Non-Attainment Classification for Co

Intervenors Baker and EC argue that the proposed facility should be judged by the standards contained in the so-called 1980 version of 6 NYCRR Part 231: New Source Review In Nonattainment Areas (the "1980 regulations") rather than by the standards contained in the current version. The Co-Applicants argue that those regulations cannot be applied as they were repealed and replaced in 1984. I find it unnecessary to determine whether the 1980 version can legally be applied since the record supports a finding that the proposed facility will meet the standards it contains.

Compliance with the 1980 regulations is established through a demonstration that the facility would not cause an increase in ambient concentration of the pollutant of concern (CO) exceeding the amounts in Table 2 of that regulation. Co-Applicants' March 11, 1992 submission made such a showing to the satisfaction of Department Staff. Nothing in the intervenors' filing leaves any doubt about that result, especially when considered in light of the April 24 rebuttals filed by the Co-Applicants and the Staff. It is clear, as well, that the 1980 regulations also exempted resource recovery facilities from obtaining offsets.

The intervenors also point out a recent decision of the EPA. Administrator which accepts source separation as part of the air quality analysis f or BACT (In the Matter of Brooklyn Navy Yard Resource Recovery Facility, PSD Appeal No. 88-10, February 28, 1992). They ask that the proceeding be stayed to further consider this issue or that, in the alternative, this question be made an issue for adjudication.

It is unclear whether the intervenors are arguing that such a further analysis is required here in the context of NOx or CO emissions. In either event, however, I f ind that a stay of the proceeding is not warranted and that no issue for adjudication has been raised.

In the case of NOX emissions, the Administrator held that source separation of nitrogen rich wastes had to be considered because a relationship between such fuel cleaning and No. emissions had been established (cf., In the Matter of Spokane Regional Waste to Energy Facility, PSD Appeal No. 88-2, June 9, 1989). A further analysis of such source separation opportunities-in this case is not necessary since the permit. already prohibits the wastes identified by the Administrator as high in nitrogen (i.e., yard wastes) and requires their source separation and composting.

In the Brooklyn Navy Yard decision, the Administrator indicated that the threshold question is whether there is a sufficient indication that a separation program would reduce emissions beyond the levels achieved by the conventional control technologies already included in the permit. The Department already requires the source separation of many waste streams based solely on solid waste management concerns, irrespective of the impact on air emissions. Therefore, in order to raise an issue for adjudication, an intervenor would need to show that the source separation of a waste stream or a portion of a waste stream not already subject to such a requirement could result in further reduction of emissions. In the case of Co, factual foundation has been provided by the intervenors f or considering the source separation of any such waste steam.

Solid Waste Management Issues

Economic Analysis

As stated in my Broome County Interim Decision of September 19, 1990, the Department must ensure "... full and acaccurate disclosuref plant costs." However, judgments as to whether any given scenario is economically feasible must be made by the affected service area and not the State.

The Co-Applicants have supplied adequate information to assess the costs of project scenarios where the amount of solid waste that will be processed at the facility is projected to be as low as 250,000 tons per year. As stated below, there is no realistic possibility that a lesser amount of waste would require processing at the facility. Moreover, there is no offer of proof from EC that would undermine the accuracy of the information and analysis provided by the Co-Applicants. Therefore I conclude-that the Department has fulfilled its role and no adjudication is necessary.


My review of the sizing analysis by the EC reveals several significant errors in the assumptions it used to estimate the total quantity of waste that the facility would handle. Significantly, the analysis does not properly account for the quantities of-yard wastes and construction and demolition ("C&D"). wastes. In both cases, the baseline figures provided by the Co-Applicants and used by EC already considered reductions that occur outside of the County's landfill system. The further reductions used in the EC calculations cannot be justified and they result in significantly understating the size of the waste stream. The EC also fails to ,account for a significant portion of the. C&D waste that would qualify to be managed at the proposed facility.

However, given the potential for conflict between an oversized plant and waste reduction and recycling efforts, I have undertaken ray own analysis in order to determine whether this issue needs to be adjudicated. The analysis follows the Method of Analysis set forth in my Broome County decision.

Since this issue should be adjudicated if 'there is any substantial question about whether the facility is inappropriately oversized, I have used the most conservative estimates for the type and quantity of wastes, i.e., least favorable to the project sponsors, that can be judged realistic based on the information now available. I recognize that these estimates would be improved and refined through an adjudicatory process. They are used below, however, merely to determine whether there is any realistic possibility that the operations of the proposed plant would compete with waste reduction and recycling efforts.

The Staff reports that the solid waste in the service area decreased from 445,448 tons in the calendar year 1990 to 409,991 tons in the twelve month period from December 1990 to November 1991. The latter number is the more conservative one and, absent any indication of the reason for the significant drop, it should be selected as the baseline for further analysis.

Extrapolating for projected population increases in the service area Staff forecast 416,058 tons of solid waste in-1997. The Co-Applicants' assumption that this should be further increased by an amount corresponding to -a per capita increase in waste generation cannot be accepted. Underlying the Co-Applicants' assumption is their assertion that prior trends in per capita waste generation are representative of future trends. In light of the many waste reduction initiatives in both the public and private sectors, this assertion cannot stand up to scrutiny. Moreover, as long as capacity is provided to manage wastes that need not be generated, we erode incentives for waste reduction. Therefore, for planning purposes, it is appropriate to assume no increase in per capita waste generation rates.

The next step in the analysis is to reduce -the total waste stream by the amount of non-prprocessableastes. The only estimate of non-prprocessabletreams that is broken down into component parts is the Staff estimate, appearing as Scenario B to their January 22, 1992 filing. That document estimates that 48,703 tons will be non-processable, leaving 367,355 tons of processable waste.

Co-Applicants' Comprehensive Recycling Analysis ("CRA") only projects a recycling rate of 37.7% for the processable waste stream. As set forth in my September 19, 1990 Interim Decision in Broome County, an applicant for a resource recovery project must demonstrate that it is capable of recycling 40% of the processable waste stream or alternatively show why such rate is unachievable. The Co-Applicants have not demonstrated that the 40% goal is unachievable and therefore, the 40% rate should be used for purposes of the sizing analysis.

Reducing the processable waste stream by 40% leaves only 220,413 tons that would need to be managed through incineration. This amount should be supplemented by the non-prprocessablehat the Co-Applicants demonstrate can be appropriately handled at the facility. These wastes would also be included at a post-recycling amount. In this case, the Co-Applicants have justified the inclusion of an additional 34,707 tons representing the portion of construction and demolition debris that is suitable for incineration and nonhazardous car shredder fluff.

With this additional non-processable waste stream, it is projected that the proposed facility would handle 255,120 tons of waste. My interim decision in Broome County recognized the opportunity to identify factors that would justify sizing a facility in excess of the size warranted by its current waste shed. The Co-Applicants here contend that the facility should not be sized solely on the basis of average annual flow because the facility will experience seasonal peaks. However, they have not adequately documented the existence of seasonal differences in their analysis. Therefore, for purposes of this Interim Decision, no allowance is made for additional facility capacity to handle seasonal peaks.

Therefore, without any significant doubt, it can be concluded that the need for a facility which can handle 255,.120 tons per year is established. As indicated in my Broome County decision, oversizing a facility by up to 15% is acceptable in order to take into account the uncertainties related to the use of estimates in deriving capacity needs. Taking this factor ininto accountI am prepared to approve a facility that would handle up to 295,000 tons per year of solid waste.

Resource recovery facilities are sized thermodynamically. The facility that is being proposed is capable of managing an amount of wastes significantly in excess of this amount. The record indicates that the rated capacity of the proposed plant,assuming the Btu/ton value of the waste fuel is approximately 6000, would be 361,000 tons per year.

However, this figure does not reflect the downtime of the plant, i.e. the time that part or all of the boilers will be unusable due to breakdowns or equipment maintenance and repairs. As I indicated in the Broome County decision, modern well run plants, especially those that have planned f or maintenance by including a third train, should experience only 10% or less of downtime.. Assuming 10% downtime, the plant could handle approximately 325,000 tons per year and even assuming the 14% downtime used by the Co-Applicants and the Staff, the plant could still handle almost 311,000 tons per year.

If the Btu/ton value of the waste fuel is reduced to 5700, the value which resulted from the adjudication in ' Broome County, the amount of waste that the plant could process is yet higher. The rated capacity would increase to 380,000 tons per year and the capacity at 10% and 14% downtime would be 342,000 and 327,000 tons per year respectively.

Therefore absent some adjustment, the application cannot be approved without further adjudication concerning the size of this facility. An acceptable adjustment would be a permit condition limiting the amount of waste accepted at the facility to 295,000 tons per year.

In Broome county I rejected a similar condition involving throughput limits principally because, by the project sponsors' own admission, the facility could not be operated economically at a level that would avoid interference with recycling goals. In this case, the Co-Applicants' economic analysis adequately documents the project costs at that level of service and it is contended that the facility would be economical even if the annual throughput were as low as 250, 000 tons per year. Moreover, unlike Broome County, demographic trends in Onondaga County indicate that the waste shed is experiencing population growth which, under the no per capita growth assumption, would still demonstrate a need for additional capacity beyond 1997.

In summary, there would be an issue for adjudication if the project is not modified to address the potential for the facility's size to interfere with waste reduction and recycling programs. Under the circumstances of this case, a condition that limits the throughput of the facility would be sufficient to overcome these concerns. The condition should also include provisions that would permit the Department to monitor compliance with it.

Comprehensive Recycling Analysis

EC argues that the CRA, even taken together with the draft permit conditions, does not provide reasonable assurances that the Co-Applicants will achieve a 40% recycling rate for the processable portion of the waste stream. It is undisputed that the CRA only projects a 37.7% recycling rate for the processable portion of the waste stream. It is also undisputed that the Co-Applicants do not seek to show that there are circumstances peculiar to their situation that prevent reaching the 40% goal. Therefore, the question is the adequacy of the Staff's revised permit condition which requires the Co-Applicants to submit a revised CRA which demonstrates how the 40% goal will be reached but does not provide any further details that can be reviewed now.

Generally, the demonstration that the 40% goal will be achieved or alternatively a demonstration of why it cannot be achieved should be made within the context of the permit review process. In this instance, I am willing to accept the Staff Is permit condition as adequate because the additional amount of recycling that would have to be achieved is quite small, just over 2% of the processable waste stream, and because the condition which will restrict the throughput to the facility should also act to ensure that the 40% goal will be achieved.

Enforceability of Recycling Conditions

EC argues that the draft permit does not provide adequate mechanisms to enforce the conditions related to recycling. it questions the arrangement whewhere undernicipalities in the waste shed are responsible for implementing recycling programs and are held responsible to the Agency pursuant to contractual arrangements. EC also argues that, in order to ensure compliance with the conditions, all such municipalities should be required to become co-permittees.

From the enforcement perspective, I do not f ind such an arrangement necessary. The Agency will be directly responsible to the Department if the permit conditions are not complied with. The contractual arrangements with the Agency will not in any, way diminish its accountability to the Department and should provide it with a practical way to implement the conditions. If a municipality fails to implement the program, the Agency may do so and, in fact, will have to do so if in order to avoid subjecting itself to an enforcement action.

Summary and Conclusion

If the Co-Applicants accept an additional condition which will limit the waste accepted at the facility to 295,000 tons per year,, I find that there is no issue that would require adjudication. In such a case, the matter is remanded to Staff to make the findings that are necessary under SEQRA and other sections of applicable law. Subsequently, the permits for the facility may be issued with the throughput limitation.

If the Co-Applicants do not accept the condition, this matter is remanded back to the ALJ on the issue of facility size and on the CRA's compliance with the 40% goal for the processable portion of the waste stream. The Co-Applicants are directed to advise the Department within two weeks of the date of this Interim Decision as to the acceptability of the additional permit condition set forth above.

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 4th day of May, 1992.


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