p.1 

OAR Box 1781 

Prepped by Ollie Stewart 

Document Number: 

51) ll-K-8 

Docket Number: 

A-90-37 

Printed 10/29/2008 10:46:20 AM Sheet 51 of 142 
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BEFORE THE ADMINISTRATOR 

U.S. ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 

In the Matter of: 

Huntington Mass-Burn Incinerator 

Applicant 

PSD Appeal No. 89-2 

ORDER DENYING REVIEW 

By letter dated July 9, 1989, Citizens for a Livable 

Environment and Recycling, Inc. requested review of an amended 

Prevention of Significant Deterioration (PSD) permit that authorizes construction of a mass-burn municipal waste incinerator for 

the Town of Huntington, New York. The New York State Department 

of Environmental Conservation (DEC) issued the amended permit on 

June 9, 1989, pursuant to a delegation of authority from EPA 

Region II, New York, New York. Because of the delegation, DEC'S 

permit determination is subject to the review provisions of 40 

CFR §124.19, and any permit it issues will be an EPA-issued 

permit for purposes of federal law. 40 CFR §124.41; 45 Fed. Reg. 

33,413 (May 19, 1980). 

Petitioner objects to the issuance of the permit because it 

believes the permit is deficient in several respects. Petitioner 

claims, inter alia, that the permit will allow the facility to 

emit excessive quantities of NOx; that it fails to require the 

facility to use the best available control technology (BACT) for 

control of NOx emissions; and that the BACT analysis is deficient 
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because it does not contain a comparative analysis of recycling 

and mass-burn incineration. 

Under the rules governing this proceeding, there is no 

appeal as of right from the permit determination. 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 [state] 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. Petitioner has not met its burden. 

Petitioner's claims with respect to N0X emissions are 

groundless and are based on a misunderstanding of the applicable 

legal requirements. In claiming that predicted emissions of NOx 

(565 tons per year, according to petitioner) will exceed federal 

requirements, petitioner has confused the actual requirements 

(for which there are no specific tonnage limitations) with a "de 

minimis" emissions rate — 40 tons per year — which determines 

whether a facility's NOx emissions are "significant" and therefore subject to BACT and other PSD requirements. See 40 CFR 

§§52.21(b)(23)(i) and 52.21(j)(2). Because the facility's 

predicted NOx emissions will exceed that threshold rate, a BACT 

analysis was performed for the proposed facility, with DEC 
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determining BACT to be "selective noncatalytic reduction." DEC'S 

BACT determination is reflected in the permit, and petitioner has 

not shown it to be erroneous in any respect. With respect to 

recycling, Petitioner's assertions that the BACT analysis is 

deficient are unconvincing because petitioner has not shown, as 

it must, that recycling is an "available" technology, which ~ in 

combination with emission control equipment already proposed for 

the facility — will demonstrably reduce emissions of regulated 

pollutants such as NOx or will otherwise represent BACT. without 

such a showing, the petition fails to establish grounds for 

including recycling in the BACT analysis. See Spokane Regional 

Waste-to-Energv Proiect. PSD Appeal No. 88-12 at 22 (EPA June 9, 

1989). Accordingly, review of DEC'S permit determination is 

denied. 

So ordered. 

Dat e d : AUG 2 1989, MJdPjL • 

William K. Reill 

Administrator 
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CERTIFICATE OF SERVICE 

I hereby certify that copies of the foregoing Order Denying 

Review, PSD Appeal No. 89-2, were mailed to the following in the 

manner indicated. 

First Class Mail 

Postage Prepaid: 

William J. Muszynski 

Acting Regional Administrator 

U.S. EPA, Region II 

26 Federal Plaza 

New York, NY 10278 

Steve Riva 

U.S. EPA, Region II 

26 Federal Plaza 

New York, NY 10278 

Conrad Simon, Director 

Air & Waste Management Division 

U.S. EPA, Region II 

26 Federal Plaza . 

New York, NY 10278 

David DeRidder 

Deputy Regional Permit Admin. 

Newark State Department of 

Environmental Conservation 

Building 40 - SUNY 

Stony Brook, NY 11794 

Dorothy Gibson, President 

CLEAR 

21 Piatt Place, 

Huntington, NY 11743-3527 

Gordon Gibson, Executive Director 

CLEAR 

21 Piatt Place, 

Huntington, NY 11743-3527 

Mike Levin 

Nixon, Hargrave, Devans & Doyle 

1 Thomas Circle, NW 

Suite 800 

Washington, DC 20005 

Dated: fljg _2 |989 

Brenda H. Selden, Secretary 

to the Chief Judicia l Officer