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OAR Box 1781 

Prepped by Ollie Stewart 

Document Number: 

55) ll-K-12 

Docket Number: 

A-90-37 

Printed 10/29/2008 10:46:20 AM Sheet 55 of 142 
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BEFORE THE ADMINISTRATOR 

U.S. ENVIRONMENTAL PROTECTION AGENCY,'% 

WASHINGTON, D.C. 

In the Matter of: 

St. Lawrence County Solid Waste 

Disposal Authority 

Applicant 

DEC Nos. 60-87-0660, 0661, 0889 

PSD Appeal No. 90-9 

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NOTICE OF DECISION TO REVIEW PERMIT 

On June 25, 1990, the New York State Department of Environmental Conservation ("DEC") issued a Prevention of Significant 

Deterioration ("PSD") permit that, upon becoming effective, would 

authorize the St. Lawrence County Solid Waste Disposal Authority 

("St. Lawrence County") to construct a resource recovery facility 

in Ogdensburg, New York. DEC made its determination pursuant to 

a delegation of authority from the U.S. Environmental Protection 

Agency ("EPA"), Region II, New York, New York. Because of the 

delegation, DEC'S authority to issue PSD permits is subject to 

the review provisions of 40 CFR §124.19 (1989), ^ and any permit 

i-t issues will be an EPA issued permit for the purposes of 

federal law. 40 CFR §124.41; 45 Fed. Reg. 33413 (May 19, 1980). 

The final permit issued by DEC to St. Lawrence County sets 

less stringent emission levels for NOx, S02, and CO than the 

emission levels prescribed for these pollutants last December in 

y

 All references to the Code of Federal Regulations ("CFR") are 

to the 1989 edition unless otherwise noted. 
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EPA's proposed New Source Performance Standards ("NSPS") for 

municipal waste combustors. See 54 Fed. Reg. 52297 (December 20, 

1989) (proposing the addition of a new Subpart Ea to 40 CFR Part 

60). If these proposed NSPS become final, they will be 

applicable to new sources (such as the St. Lawrence County 

resource recovery facility) that commence construction after 

December 20, 1989, i.e., the date of publication of the proposal 

in the Federal Register. See 40 CFR §60.1. Of more immediate 

concern, however, is the fact that EPA proposed the NSPS after 

determining preliminarily that the emission limitations in the 

proposal are currently achievable by municipal waste combustors 

with existing,' available technology. 2/ That determination means 

these limitations are presumptively achievable using currently 

, a . - i. 

available control technologies. Consequently, these limitations 

should serve as the starting point (unless more efficient 

emissions control technologies are identified) for making 

determinations of "best available control technology" (BACT) for 

municipal waste combustors under the PSD provisions of the Clean 

Air Act, 42 U.S.C. §7470 et seq. Section 169(3) of the Clean Air 

Act defines BACT, in relevant part, as an "emission limitation 

reflecting the maximum degree of reduction" that the permitting 

authority determines is "achievable" for the facility after 

27 The Agency is also aware of two proposed municipal waste combustors - (Montgomery County Resource Recovery Facility and the 

Glendon Resource Recovery Facility, both in EPA Region III) that 

have included emission limitations in their BACT determinations 

that meet the proposed limitations in the NSPS . 
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"taking into account energy, environmental, and economic impactand other costs." 42 U.S.C. §7479(3). 

Based on the information available to me, it appears that 

DEC did not give appropriate or adequate consideration to the 

determinations made in the proposed NSPS. That information was 

clearly available to DEC in making the BACT determination for 

this facility: DEC gave notice of its final permit determination 

for the facility on June 25, 1990, more than six months after the 

NSPS were published in the Federal Register. Thus, it had 

sufficient time to assess the significance of the NSPS in 

relation to the facility's BACT determination. In general, BACT 

. determinations should be made contemporaneously with the issuance 

of the final permit determination. ^ Accordingly, I conclude 

that DEC'S permit determination is clearly erroneous and should 

be reviewed pursuant to 40 CFR §124.19(b). See, e.g.. Virginia 

Power (Chesterfield Generating Station), PSD Appeal No. 88-2 

(Notice of Decision to Review Permit, Feb. 1, 1988) (review under 

§124.19(b) is available under the same circumstances as 

§124.19(a), namely, when the permit determination appears to be 

57 The close of the public comment period is an appropriate 

benchmark for closing the administrative record to receipt of new 

information. See Pennsauken County Resource Recovery Facility, 

PSD Appeal No. 88-8, page 7, n. 11 (Remand Order, Nov. 10, 

1988) . In .cases of unusual delay, however, the record may have 

to be reopened following the close of the public comment period. 

Id. This is such a case. The public comment period closed in 

March 1989 but the final determination on the matters at issue 

was not made until issuance of the final permit in June 1990. 

The NSPS for municipal waste combustors were issued during the 

intervening period. 
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clearly erroneous or involves an exercise of discretion or policy 

that is important). 

I intend to establish a briefing schedule in the near future 

and to identify more specifically the issues that DEC and the 

permit applicant should address. When this is done, DEC shall be 

responsible for giving public notice of today's decision as 

directed by 40 CFR §124.10. Until review is complete, the perait 

applicant is without an effective permit and construction cannot 

lawfully commence. 

So ordered. 

Dated :

 JUL 2 71990 ' wlllia M K : ^ ^ 

Administrator 
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CERTIFICATE OF 8ERVTCB 

I hereby certify that copies of the foregoing Notice of 

Decision to Review Permit, in the matter of St. Lawrence County 

Resource Recovery Facility, PSD Appeal No. 90-9, were sent to the 

following persons in the manner indicated: 

By 1st class mail, 

postage prepaid: 

Paul O'Connor 

St. Lawrence County Solid Waste 

Disposal Authority 

127 Water Street 

Ogdenburg, NY 13669 

Thomas C. Jorling, Commissioner 

New York State Department of 

Environmental Conservation 

50 Wolf Road 

Albany, NY 12233 

C. Randy Vaas 

Regional Permit Administrator 

Region 6 

Division of Regulatory Affairs 

New York State Department of 

Environmental Conservation 

317 Washington Street 

Watertown, NY - 13601 

Constantine Sidamon-Eristoff 

Regional Administrator 

U.S.. EPA, Region II 

Jacob K. Javitz Federal BIdg. 

26 Federal Plaza 

New York, NY 10278 

Dated: JUL 2 7 1 Wfl 

Brenda H. Selden,(JSecretary 

to the Chief Judicial Officer