p.1 

OAR Box 1781 

Prepped by Ollie Stewart 

Document Number: 

61) ll-K-18 

Docket Number: 

A-90-37 

Printed 10/29/2008 10:46:20 AM Sheet 61 of 142 
P.2 

H 

m ml^ 

^ i ^ BEFORE THE -ADMINISTRATOR 

U.S. ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 

ft 

In the Matter of: 

\ 

^Brooklyn •Navy.*.Yard. Resource 

Recovery facility 

Applicant 

K~'* 

PSD Appeal No. 88-10 

(consolidating Appeal Nos. 

88-10, 90-10, 90-11, 90-12) 

REMAND ORDER " 

On September 7, 1990, EPA Region II issued to SES Brooklyn. 

Company (SES) a final prevention of significant deterioration 

(PSD) permit for the construction and operation of a new 3000-

tons-per-day municipal waste incinerator. The project will be 

located at the Brooklyn Navy Yard in Brooklyn, New York. Seven 

petitions for review have been filed challenging the permit. The 

permit has been amended three times, and some petitions challenge 

earlier versions of the permit, while others challenge the latest 

version. For the reasons stated below, review of all but one of 

these petitions is denied. The remaining petition has merit, 

however. Accordingly, the permit is remanded to Region II for 

the very limited purpose of considering the viability of a 

reasonable materials separation program for nitrogen-containing 

materials. 
P.3 

....•.•.•;.:•: ) 

I. BACKGROUND 

'iiiiiit'1' The final permit was first issued on August 26, 1988. Dr. 

Bernard Fryshman, Ph.D. and the Environmental Defense Fund (EDF) 

both petitioned for review of the Region's decision. On 

September 28, 1988, the Region formally amended the best 

available control technology (BACT) determinations in the permit 

for sulfuric acid mist, sulfur dioxide and hydrogen fluorides. 

The administrative appeal period, which had begun on August 27, 

1988 for appeals relating to the original .version of the final 

permit, was extended another 3 0 days for appeals relating to the 

amendments. Dr. Fryshman filed a second petition in response to 

these permit amendments. Later, on October 11, 1989, the Region 

issued a revised draft permit with amendments to the NOx and PM10 limitations. The Region received public comment on these 

amendments between October 23, 1989 and February 22, 1990 and 

held a public hearing on them on February 15, 1990. In its 

public notice announcing the comment period and the public 

hearing, the Region made it clear that the comment period and 

public hearing were limited to comments on the new limitations 

for NOx and PM-10. After the public comment period, the Region 

changed the control technology for NOx and the limitations for 

NOx, ammonia slip, and sulfur dioxide, without subjecting these 

changes to public comment, and on September 7, 1990, the Region 

issued a modified final/permit incorporating these latest 

changes. Dr. Fryshman, the New York Public Interest Research 

Group (NYPIRG), and Samuel Bishop all filed petitions for review 

challenging the September 7th issuance of the final permit. 

2 
P.4 

2 

t 

3 

II. DISCUSSION 

Under the rules governing this proceeding, there is ho 

appeal as of right from the permit decision. Ordinarily, a 

petition for review of a PSD permit determination is not granted 

unless it is based on a clearly erroneous finding of fact or 

conclusion of law, or involves an important matter of policy or 

exercise of discretion that warrants review. The preamble to the 

regulations states that "this power of review should be only 

sparingly exercised," and that "most permit conditions should be 

finally determined at the Regional level * * *." 45 Fed. Reg. 

33,412 (May 19, 1980). The burden of demonstrating that the 

permit conditions should be reviewed is therefore on the 

petitioner. 

A. Environmental Defense Fund's Petition 

Region II issued a final permit to SES on August 26, 1988. 

Section 124.19 of the Consolidated Rules provides that a petition 

for review must be filed within 30 days after a PSD final permit 

decision. 40 CFR §124.19 (1990). Section 124.20, governing 

computation of time, provides that "[a]ny time period scheduled 

to begin on the occurrence of an act or event shall begin on the 

day after the act or event." 40 CFR §124.20 (1990). Section 

124.20 also provides that "[w]henever a party or interested 

person has the right or is required to act within a prescribed 

period after the service of notice or other paper upon him or her 

by mail, 3 days shall be added to the prescribed time." Id. 

Thus, the period for filing a petition challenging the permit 
P.5 

''tiiliiiF began on August 27, 1988, and ended on September 28, 1988 (33 

days). The Environmental Defense Fund (EDF) filed its Petition 

for Review on September 30, 1988, two days late. Accordingly, 

the petition is untimely, and review is denied. 

B. Dr. Bernard Fryshman's Petitions 

I have carefully reviewed Dr. Fryshman's three petitions and 

the Region's responses to them. -

7 I am satisfied that the 

Region has given the petitions due consideration. There is 

nothing in those petitions that leads me to believe that the 

Region has committed clear error in its Brooklyn Navy Yard permit 

determination. Nor is there anything to suggest that the 

1 

J 

y Dr. Fryshman sent a letter to this office dated February 6, 

1991, complaining that EPA Region II had not provided a 

meaningful opportunity for public input during the permitting 

process for the proposed Brooklyn Navy Yard facility. In his 

February 6th letter, Dr. Fryshman presents his complaint about 

restrictions on public input as an another petition for review. 

He states: 

In addition to the factual items placed before you in 

my earlier briefs * * *, there is now an important 

POLICY CONSIDERATION which must be brought before the 

Administrator for review: MAY REGION II SO RESTRICT 

PUBLIC INPUT AS TO DENY CONGRESSIONAL INTENT REGARDING 

FULL PARTICIPATION BY CITIZENS?. 

s 

The deadline for filing petitions for review (September 28, 1988) 

passed well before Dr. Fryshman filed this latest petition. 

Accordingly, the petition is untimely, and review is denied. 

Even if the petition had been filed in a timely fashion, however, 

I would have denied review. By all accounts, Region II provided 

Dr. Fryshman with every opportunity to participate that he was 

entitled to under the.rules. Dr. Fryshman's real quarrel is with 

the rules governing public participation, not with the way Region 

II applied those rules. Section 124.19, which governs this 

appeal, authorizes me to review contested permit conditions, and 

is not intended to provide a forum for entertaining challenges to 

the validity of the procedural rules governing the permitting 

process. 
P.6 

''i.i.i.jiiiii' 

J. 

Region's decision involves an exercise of discretion or a public 

policy issue that should be reviewed as a discretionary matter. 

Review of the issues raised in Dr. Fryshman's petitions is 

therefore denied. 

C. Samuel Bishop's Petition 

As discussed above, the most recent public comment period in 

the Brooklyn Navy Yard permitting process was limited in scope to 

changes in the permit limitations for PM-10 and NOx. After that 

comment period, the Region made several new changes in the permit 

relating to the NOx control technology and to the permit 

limitations for NOx, ammonia slip, and sulfur dioxide. 

Accordingly, with respect to the petitions for review filed after 

September 7, 1990, this office will review only those issues 

relating to the changes that prompted the opening of the public 

comment period (i.e.. changes in the NOx and PM-10 limitations) 

or the changes that were made after the public comment period 

ended (i.e., changes in the control technology for NOx and the 

new limitations for NOx, ammonia slip, and sulfur dioxide). The 

issues in Mr. Bishop's petition relate to the air quality model 

used to determine how emissions from the proposed facility will 

affect air quality in the surrounding area. These air quality 

modeling issues are distinct from the control technology issues 

that are subject to review in this phase of the permitting 

process. See World Color Press. Inc., PSD Appeal No. 88-4, at 4 

(Dec. 13, 1990) ("[A] PSD permit applicant must demonstrate that 
P.7 

'i-ijiiiii^ 

" ) 

y 

6 

emissions from the operation of the facility will not cause or 

contribute to air pollution in excess of the national ambient air 

quality standards ("NAAQS"). 42 U.S.C. §7475(a)(3). This air 

quality requirement is independent from the technology (i.e., 

BACT) requirement.") (footnote omitted). Mr. Bishop's petition 

says absolutely nothing about the best available technology for 

controlling emissions of NOx and PM-10. The air quality modeling 

issues raised by Mr. Bishop were reasonably ascertainable in 1988 

when the final permit for Brooklyn Navy Yard was first issued and 

should have been raised then. Mr. Bishop is precluded from 

raising them now. 

; Even if Mr. Bishop could raise these modeling issues now, 

they would not warrant review. After careful and thorough 

consideration of Mr. Bishop's arguments, I am not convinced that 

the Region's modeling determinations are clearly erroneous. 

Nothing in Mr. Bishop's two briefs persuades me that the modeling 

used in this case will significantly underpredict the impact that 

emissions from the proposed facility will have on the affected 

area. 

D. NYPIRG's Petition 

NYPIRG believes that the best available control technology 

(BACT) for nitrogen oxide emissions is a combination of the 

combustion and add-on control technologies prescribed in the 

final permit plus materials separation (i.e.. removal of 

nitrogen-containing materials from the waste stream), which was 

not prescribed in the permit. NYPIRG contends that SES's BACT 
P.8 

7 

'$&&'' analysis was defective because it did not include consideration 

of materials separation. For the reasons set out below, I agree. 

The viability of a materials separation program targeted at 

nitrogen containing wastes should be considered by the permitting 

authority in the BACT analysis for the Brooklyn Navy Yard 

facility. 

1. Background 

"Best available control technology" or BACT is defined in 

the regulations as an "emissions limitation" which reflects the 

"maximum degree of reduction" of "each pollutant subject to 

regulation under [the] Act," which the Administrator determines" 

is "achievable" after "taking into account energy, environmental, 

j and economic impacts and other costs." Clean Air Act section 

169(3), 42 U.S.C. § 7479(3); 40 CFR §52.21 (b) (12) (1990). 2/ 

-' The full regulatory definition of "best available control 

technology" is as follows: 

Best available control technology means an emissions 

limitation (including a visible emission standard) 

based on the maximum degree of reduction for each 

pollutant subject to regulation under [the] Act which 

would be emitted from any proposed major stationary 

source or major modification which the Administrator, 

on a case-by-case basis, taking "into account energy, 

environmental, and economic impacts and other costs, 

determines is achievable for such source or 

modification through application of production 

processes or available methods, systems, and 

techniques, including fuel cleaning or treatment or 

innovative fuel combustion techniques for control of 

such pollutant. In no event shall application of best 

available control technology result in emissions of any 

pollutant which would exceed the emissions allowed by 

any applicable standard under 4 0 CFR parts 60 and 61. 

". If the Administrator determines that technological or 

) economic limitations on the application of measurement 

^ (continued, 
P.9 

8 

•liliP Achievement of an emission limitation may be secured "through 

application of production processes or available methods, 

systems, and techniques, including fuel cleaning or treatment or 

innovative fuel combustion techniques for control of such 

pollutant." Ld. The term "emissions limitation" is defined in 

the Clean Air Act as 

a requirement established by the State or the 

Administrator which limits the quantity, rate, or 

concentration of emissions of air pollutants on a 

continuous basis, including any requirement relating to 

the operation or maintenance of a source to assure 

continuous emission reduction. 

CAA §302, 42 U.S.C. §7602. The regulatory BACT definition 

provides that 

[i]f the Administrator determines that technological or 

economic limitations on the application of measurement 

methodology to a particular emissions unit would make 

the imposition of an emissions standard infeasible, a 

design, equipment, work practice, operational standard, 

or combination thereof, may be prescribed instead to 

satisfy the requirement for the application of the best 

available control technology. 

40 CFR §52.21(b)(12) (1990). 

-'(...continued) 

methodology to a particular emissions unit would make 

the imposition of an emissions standard infeasible, a 

design, equipment, work practice, operational standard, 

or combination thereof, may be prescribed instead to 

satisfy the requirement for the application of best 

available control technology. Such technology shall, 

to the degree possible, set forth the emissions 

reduction achievable by implementation of such design, 

equipment, work practice or operation, and shall 

provide for compliance by means which achieve 

equivalent results. 

\ 40 CFR §52.21(b)(12) (1990). 

J 
P.10 

2 

y 

9 

In this case, NYPIRG contends that SES's BACT analysis 

should have included consideration of a requirement to remove 

'nitrogen-containing waste from the waste stream combined with the 

combustion and add-on controls prescribed in the permit. NYPIRG 

argues that this combination is the most stringent available 

technology. Even if it is not the most stringent technology, 

NYPIRG believes it is nevertheless the "best" technology because 

of the environmental, energy, and economic benefits it would 

produce. 

The issue of whether materials separation should be 

considered in a BACT analysis was first addressed in Spokane 

Regional Waste-to-Energy Project. PSD Appeal No. 88-2 (June 9, 

1989). In Spokane, the petitioners requested review of a PSD 

permit for construction of an 800-ton-per-day municipal waste 

incinerator at an existing landfill west of the city of Spokane. 

The permit determination was made by the Washington State 

Department of Ecology ("Ecology"). Petitioners-contended that 

Ecology had erred in its BACT determination for control of heavy 

metal and toxic pollutant emissions by not giving in-depth 

consideration to "fuel cleaning and separation" in combination 

with the conventional, state-of-the-art pollution control 

equipment already required by the Spokane permit. I rejected 

this contention, pointing out that petitioners were unable to 

provide evidence that the addition of fuel cleaning and 

separation had resulted in better emissions reductions than those 

achieved by the highly effective conventional equipment and 
P.11 

2 

) 

10 

operating practices already required by the Spokane permit. Id. 

at 14-15. I stated that, while much was known about how and what 

to recycle to achieve waste reduction, no hard data were 

available to judge whether supplementing conventional, state-ofthe-art pollution control equipment such as baghouses and 

scrubbers with fuel cleaning and separation would cause 

reductions or increases of regulated pollutant emissions. Id. at 

14. I observed that a technology is obviously not available in 

any meaningful sense of knowledge about its effect on emissions, 

in the particular configuration in which it would be employed, is 

so incomplete as to be unusable. Id. at 17. I held, therefore, 

that petitioners had not shown that fuel cleaning and separation, 

in combination with conventional, state-of-the-art pollution 

control equipment, constitute available technologies for purposes 

of the BACT determination. In conclusion, I suggested that, as 

more communities adopt recycling in conjunction with 

incineration, more information about this combination of 

technologies will become available, and that at some point, 

future permit applicants may be required to include consideration 

of recycling in their BACT determinations. Id., at 22. That 

point has now arrived, because available information indicates 

that reducing certain constituents of the waste stream can reduce 

pollutant emissions. 

On December 20, 1989, after the Spokane decision, the Agency 

published a proposed rule setting new source performance 
P.12 

:i..i!.fiiif' 

1 1 

W standards for MWCs. -' In the proposed rule, the Agency 

proposed a materials separation requirement as a component of 

"best demonstrated technology" for MWCs. See 54 Fed. Reg. 52251 

(Dec. 20, 1989). The proposed standards would have required all 

MWCs to reduce the amount of solid waste to be processed by at 

least 25% by removing from the waste stream the ^following types 

of waste: paper and paperboard; ferrous metals; nonferrous 

metals; glass; plastic; household batteries; and yard wastes. 

Id. at 52254. The proposed standards also would have prohibited 

MWCs from burning household batteries and lead-acid vehicle 

batteries weighing more than 11 pounds. Id. at 52254-55. These 

materials separation requirements were to be satisfied by on-site 

separation, off-site community source reduction or material 3 

J 

-' New source performance standards are promulgated in 

accordance with Section 111 of the Act, which authorizes the 

Administrator to identify any category of sources that "causes, 

or contributes significantly to, air pollution which may 

reasonably be anticipated to endanger public health or welfare." 

CAA §lll(b)(1)(A), 42 U.S.C. §7411(b)(1)(A). Once this category 

has been identified, the Administrator must then set emissions 

standards for new facilities falling within the identified 

category. CAA §lll(b)(1)(B), 42 U.S.C. §7411(b)(l)(B). The 

standards must reflect the "degree of emission limitation 

achievable through the application of the best system of emission 

reduction which.(taking into account the cost of achieving such 

reduction and any nonair quality health and environmental impact 

and energy requirements) the Administrator determines has been 

adequately demonstrated [best demonstrated technology]." CAA 

§lll(a)(l), 42 U.S.C. §7411(a)(l). The "best demonstrated 

technology" in a new source performance standard for a given 

pollutant is not necessarily BACT for that pollutant. But BACT 

must always be at least as effective as the technology required 

by the new source performance standard. See CAA §169(3), 42 

U.S.C. §7479. 
P.13 

12 

separation (recycling), or a combination of the two. The Agency 

explained that 

materials separation, used in conjunction with good 

combustion practices, and add-on controls, will result 

in further reductions of emissions from MWCs. It is 

simply common sense, and the Agency's expectation, that 

reductions in the amount of pollution generating 

materials combusted in an MWC will reduce the amount of 

pollutants in its air emissions. 

Id. at 52281. The Agency noted, howeverr that while 

[t]he proposed requirements for materials separation 

would reduce * * * overall MWC emissions * * *, the 

amount of emissions reduction cannot be accurately 

predicted since there are little data relating 

materials separation to MWC emissions when materials 

separation occurs in conjunction with at-the-stack air 

pollution control. 

^*\ Id. at 52257. 

When EPA issued final source performance standards for 

MWCs, it declined at that time to require source separation on a 

national basis, and did not include the proposed materials 

separation requirements in the final rule. See 56 Fed. Reg. 5496 

(February 11, 1991). The Agency had concluded that materials 

separation, in conjunction with conventional emissions control 

technologies, was not the best demonstrated technology for MWCs 

as a source category- In reaching this conclusion, EPA did not 

alter its findings in the proposed rule regarding the potential 

for reductions in MWC emissions through the use of source 

separation. Rather, the Agency relied primarily on uncertainty 

as to whether energy, economic, and nonair quality environmental 

• J impacts would result in a net benefit on a national basis. See 
P.14 

[W 

1 

y 

13 

id. at 5496-97. Instead of adopting a uniform nationwide rule, 

EPA decided to address the source separation issue through the 

PSD process. Thus, EPA stated in the preamble to the final NSPS 

that "[t]he issue whether an emission reduction requirement based 

on a source separation is appropriate for a specific incinerator 

project may continue to be raised on a case-by-case basis in 

individual BACT determinations under CAA section 169(3)." Id. at 

5496 n.4. 

Consistent with previous determinations, the threshold 

question in this case is whether there is sufficient indication 

that a separation program would reduce emissions beyond the 

levels achieved by the conventional control technologies, already 

included in the permit. See Spokane discussion, supra. Here, 

the record indicates that the types of materials separation 

programs being proposed by the petitioner might very well bring 

about some reduction in NOx emissions. First, despite its 

failure to consider source separation as a full-fledged component 

of the BACT determination for NOx, as part of its BACT 

determination Region II did include in the permit certain 

materials separation requirements that would apply if emission 

limits for NOx, lead, and other pollutants were exceeded. See 

1990 Permit Modification, Attachment II, at 5. This 

determination shows that the permitting authority implicitly 

agrees that certain separation programs are likely to reduce NOx 

emissions. In addition, the Hahn study cited by the petitioner 

appears to confirm that there is a relationship between the 
P.15 

:i.iiii.i^ 

1 4 

amount of nitrogen-containing waste going into an incinerator and 

the amount of nitrogen oxide emissions coming out of it. (NYPIRG 

Petition, Appendix 5) .-

/ 

Based on the record of this case, I have concluded that 

Region II's failure to consider the viability of various measures 

presented by the petitioner as a means to reduce. NOx emissions 

from the Brooklyn facility is inconsistent with the case-by-case 

approach to source separation adopted by the Agency in the final 

NSPS for incinerators. Therefore, the permit is remanded for 

such consideration. In deciding to remand this matter, however, 

I take great caution to note the limited nature of the remand and 

the fundamental difference which exists between the kind of 

materials separation program petitioner seeks in this case — a 

program targeted at nitrogen-containing waste — and the more 

general new source performance standards. Accordingly, on 

remand, the inquiry should be strictly limited to measures that 

might reduce the NOx emissions from this facility, and should not 

extend to a more general analysis of materials separation 

programs not presented by the petitioner.^7 This is not meant 

y 

^ It is also noteworthy, with respect to emissions of lead, 

that Region II did include in its BACT determination an emission 

control requirement that motor vehicle batteries be separated 

from the waste prior to incineration. See 1990 Permit 

Modification, Attachment II, at 4; see also 1988 Permit, 

Attachment IV at 22; NYPIRG Petition, Attachment 4, at 9. 

^ Of course, consistent with my decision in North County 

Resource Recovery Associates. PSD Appeal No. 86-2 (Remand Order 

June 3, 1986), consideration of source separation measures for 

the purpose of reducing NOx emissions should include the 

collateral impacts of such measures on emissions of other 

(continued...) 
P.16 

:

iij 

15 

to suggest, however, that future permit applications need not 

consider potentially viable separation programs during the course 

of a BACT analysis just as any other available control method or 

practice should be considered in such an analysis. 

Although Region II must consider source separation as part 

of its BACT determination for NOx, it does not follow that the 

Region must ultimately reguire source separation in this case. 

BACT requires the "maximum degree of reduction of each pollutant 

. . . through application of production processes and available 

methods, systems and techniques, including fuel cleaning, clean 

fuels, or treatment or innovative fuel combustion techniques." 

42 U.S.C. §7479(3); see also 40 CFR §52.21(b)(12) (1990). In 

conducting the case-by-case BACT analysis required under the Act, 

the permitting authority shall take into account "energy, 

environmental and economic impacts and other costs" in 

determining the maximum reduction in emissions that is achievable 

for a particular facility. Thus, even if the methods proposed by 

petitioner can reduce NOx emissions, it does not mean that these 

requirements must be imposed as BACT in this case. Rather, 

y 

5/(.. .continued) 

pollutants. Normally, such a North County inquiry would be 

limited to consideration of impacts on emissions of pollutants 

that are unregulated for purposes of the PSD program, because the 

BACT determination for each other regulated pollutant would " 

directly consider the effects of the BACT determination for NOx. 

Due to the posture of this case, however, further plenary 

consideration of BACT for regulated pollutants other than NOx is 

foreclosed. Accordingly, in considering revisions to the BACT 

determination for NOx, Region II should evaluate the impacts of 

source separation measures directed to NOx on emissions of other 

regulated pollutants as well. 
P.17 

''•iiii 

2 

16 

consideration of energy, environmental and economic factors may 

dictate a different result. As noted in the final rule 

establishing NSPS limits for incinerators, the viability of a 

particular separation program is dependent on a number of 

critical factors. Also as noted in the final rule, the critical 

factors vary significantly from location to location. 56 Fed. 

Reg. at 5497. 

As the petitioner points out, there are a wide variety of 

wastes that contain some nitrogen. Some of these are more 

susceptible than others to cost-effective separation from the 

wastestream prior to incineration. There need not be a 

consideration of every detail of every conceivable separation and 

collection program for every individual nitrogen-containing 

component of the waste stream for the BACT analysis requirements 

to be satisfied. Rather, on remand the inquiry should look at 

readily discernible components of the waste stream that contain 

nitrogen and that, if incinerated, may contribute to NOx 

emissions — e.g. yard waste — and examine realistic separation 

programs to determine their viability in this locale. It may 

well be that the practical difficulties and the costs associated 

with implementing a separation program for nitrogen-containing 

waste in the New York City area would lead the Region to conclude 

that.these programs do not constitute BACT when the cost and 

other environmental impacts are considered.^ 

\ & Some of the needed analysis may have already been undertaken 

j by New York City when it developed its solid waste recycling 

^ (continued...) 
P.18 

w*1 17 

SES argues that NYPIRG's proposal would require SES to 

redefine the purpose of its proposed facility: 

[T]he Agency's own figures (54 Fed. Reg. 52,278) show 

that approximately 80 percent by weight of all MSW is 

made up of the paper and paperboard, yard wastes, food 

wastes, rubber, textiles and wood that NYPIRG proposes 

to have removed from the waste stream going to 

municipal waste combustors. Consequently, in the guise 

of a BACT review, NYPIRG would seek to compel the 

removal of more than three times as much material as 

the overall 25 percent reduction that [was proposed 

for] the NSPS rules. In essence, under NYPIRG's fuel 

cleaning proposal, the only things that could be burned 

at the BNYRRP would be cans, bottles and plastics and 

all three of those types of MSW will be subject to 

possible source separation under * * * Local Law 19. 

The BNYRRP cannot be redefined into a composting heap 

the size of the Fresh Kills landfill in the guise of a 

BACT review. 

(SES Memorandum in Opposition to Petitions for Review, at 31.) 

NYPIRG contends that it is merely asking SES to engage in "fuel 

cleaning," with municipal solid waste as the fuel and nitrogencontaining items as the pollution-causing impurity to be cleaned 

out of the fuel. "Fuel cleaning" is one of the control 

technologies specifically mentioned in the definition of BACT. 

CAA §169(3), 40 CFR § 52.21(b)(12). 

I do not construe NYPIRG's petition as seeking a 100 percent 

removal of nitrogen-containing wastes. See NYPIRG Supplemental 

y(...continued) 

program under Local Law 19. I encourage Region II to rely upon 

that program (and any related documents that may be available) as 

appropriate for the purposes of identifying available methods and 

levels of separation, and of identifying corresponding energy, 

environmental, an economic impacts. In addition, the Region may 

give appropriate weight to the experiences, findings and 

conclusions of the City in conducting the BACT analysis. Of 

course, the Region may not simply assume that any prior analyses 

are adequate for BACT purposes, and must exercise independent 

judgment in making its own determinations. 
P.19 

<$_& 

D 

18 

Comments, Feb. 4, 1991, at 7. In any event, NYPIRG now 

specifically concedes that it is appropriate for the permitting 

authority to determine an appropriate level of separation, if 

any, considering costs and other relevant factors. See NYPIRG 

Petition at 30. This is consistent with the normal conduct of a 

BACT analysis. Accordingly, I do not read NYPIRG's petition as 

seeking to redefine the source, nor will consideration of source 

separation render the facility nonviable. Consequently, I agree 

with NYPIRG that source separation would constitute fuel cleaning 

or treatment within the meaning of section 169(3) of the Act and 

the PSD regulations. On remand the potential separation program 

should be included as part of the BACT analysis. In this case, I 

consider the relevant cost criteria to include generally the 

factors considered by EPA in the development of the NSPS for 

municipal waste combustors. Among these are the cost of a 

separate collection program, the cost of trucks, worker wage 

rates, citizen participation rates, and other factors that affect 

the overall cost-effectiveness of separate collection. Such 

other costs would include materials processing costs, including 

materials recovery facilities or centralized composting programs 

and any administrative costs of such a program. On the other 

side of the ledger,, the permitting authority should consider the 

avoided disposal costs, and costs of avoided landfall disposal 

from any service area expansion. Also included would be the 

revenue from any projected sales of recovered materials, and the 

J avoided cost of regular trash collection that may result from a 
P.20 

um 

j£^**K 

19 

separate collection program. Other benefits could include any 

reduction in emissions from avoided landfill emissions for 

materials (from an expanded service area) that would otherwise 

have been landfilled. See generally Background Information 

Document, EPA 450/3-90-021, "Municipal Waste Combustion: 

Background Information For Materials Separation"^ (January 1991). 

As noted above, the regulatory definition of BACT provides 

that work practice standards and the like may be employed to the 

extent that technological or economic limitations on the use of 

measurement methodologies would make an emissions standard 

infeasible. It is common for PSD permits to include a 

combination of emissions standards and work practice standards in 

the emission limitation for a given pollutant. This has been 

done by Region II in this permit, for example, by specifying an 

emission limit for lead to be met through the use of a baghouse, 

as well as a requirement for separation of motor vehicle 

batteries from the waste stream prior to combustion. See supra 

note 4. In the case of NOx, while it appears that a program of 

source separation may well result in some reduction in NOx 

emissions, it also appears from the record that the amount of 

such reductions cannot be accurately predicted. Consequently, 

if, on remand, Region II determines that some program of source 

separation should be included in the "BACT determination for NOx, 
P.21 

:f<'.i!ij..i;' 

1 

) 

20 

it would be appropriate to include that requirement in a manner 

consistent with other similar requirements.-' 

III. CONCLUSION 

I have considered the seven petitions for review that have 

been filed in this proceeding. EDF's petition and one of Dr. 

Fryshman's petition were not filed within the applicable appeal 

periods. Mr. Bishop's petition and Mr. Fryshman's other three 

petitions have failed to persuade me that the Regional 

Administrator was clearly erroneous in issuing the final permit 

or that his decision involves an exercise of discretion or an 

important policy issue that should be reviewed as a discretionary 

matter. Accordingly, review of these six petitions is hereby 

-

7 As indicated above, my decision to remand this permit for 

consideration of source separation for NOx control is not 

intended to result in any reconfiguration of the Brooklyn 

facility or significant change in its planned usage. 

Controversies may remain in quantifying the efficacy of source 

separation as a means of reducing emissions of air pollutants 

from MWCs on a per-ton-burned basis. It should be noted, 

however, that consideration of source separation by those 

planning to construct MWCs in the future — as part of a BACT 

analysis or otherwise — may lead them to conclude that the best 

course would be to plan for construction of a smaller facility or 

to expand the MWC service area beyond what it might have been in 

the absence.of source separation. To the extent that 

municipalities reduce the aggregate amount of waste incineration 

by a shift in solid waste strategies towards source separation 

and recycling, it is simply common sense that there will be a 

corresponding reduction in the aggregate amount of air pollution 

emitted by MWCs as a whole. ' See 54 Fed. Reg. 52281. These 

results would not be compelled by the BACT requirement. Should 

they occur, however, such results would certainly be consistent 

with the air quality planning and pollution prevention purposes 

of the PSD program: minimizing emissions from individual new 

sources so as to conserve clean air resources and maximize 

opportunities for future economic growth. See Clean Air Act 

section 160(1), (3) and (5), 42 U.S.C. 7470(1), (3) and (5). 
P.22 

•y * 

.-./ 

21 

denied. However, NYPIRG's petition does raise an issue worthy 

of consideration in the BACT analysis. Accordingly, I am 

remanding this permit to Region II for the very limited purpose 

of considering the viability of reasonably available material 

separation programs to reduce the NOx emissions from the Brooklyn 

facility. 

So ordered. 

JIL^. 

WILLIAM K. REILLY 

Dated: •JU^ 3-8, tf?2-

J 
P.23 

CERTIFICATE OF SERVICE 

..ijjjji^ i hereby certify that copies of the foregoing Remand Order 

in the matter of Brooklyn Navy Yard Resource Recovery Facility, 

PSD Appeal Nos. 88-10, 90-10, 90-11, 90-12, were sent to the 

following persons in the manner indicated. 

First Class Mail, 

Postage Prepaid: 

Roger Anderson 

Wheelabrator Technologies, Inc. 

Liberty Lane 

Hampton, New Hampshire 03 842 

Conrad Simon,. Director . . 

Air and Waste Management Division 

EPA - Region II 

26 Federal Plaza 

New York, New York 10278 

Bernard Fryshman, Ph.D. 

1016 East Second Street 

Brooklyn,. New York 1123 0 

Samuel A. Bishop 

Bishop & Schriffen, Consultants 

440 East 20th Street 

New York, New York 10009 

Larry Shapiro 

New York Public Interest Research 

Group, Inc. 

9 Murray Street 

New York, New York 10007-2272 

Alexandra Callam 

Assistant Regional Counsel 

Office of Regional Counsel 

EPA - Region II 

26 Federal Plaza 

New York, New York 10278 

By Hand: Bessie Hammiel 

Headquarters Hearing Clerk 

Room 3708 ^A-110) 

/4^-x*- y. V^-'-A-J 

Diane L. Weeks 

Branch Secretary 

Dated: March 5, 1992 

;