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ENB - Statewide Notices 7/29/2009

Public Notice

Pursuant to the Environmental Conservation Law section 11-0303 and 11-0907 the New York State Department of Environmental Conservation (NYS DEC) hereby gives notice of the following:

Notice of Proposed Rule Making to amend 6 NYCRR section 1.22 pertaining to muzzleloading firearm deer seasons in the northern zone. This notice will be published in issue 30 of the State Register, dated July 29, 2009.

For further information please contact:

Gordon R. Batcheller
NYS DEC - Division of Fish, Wildlife and Marine Resources
625 Broadway
Albany, NY 12233-4754
Phone: (518) 402-8885
E-mail: grbatche@gw.dec.state.ny.us

Data Solicitation for 2010 Federal Clean Water Act (CWA) Section 303(d) List

Section 303(d) of the Federal Clean Water Act requires States to compile periodically (every two years) a list of impaired waters that do not meet water quality standards and where designated uses are not fully supported and where a Total Maximum Daily Load (TMDL) plan is necessary to address the impairment. States are scheduled to submit their next Section 303(d) Lists to USEPA by April 1, 2010. To support the development of the Section 303(d) Lists, States are also required to assemble and evaluate existing and readily available water quality related data and information. New York State is currently soliciting and accepting water quality data and information that may be useful in compiling the 2010 Section 303(d) List.

Background: The water quality assessment of New York State's waters is a continuous process. Every year waters in two or three of the 17 drainage basins in the state are scheduled to be re-assessed. This rotating basin approach allows for a re-assessment of water quality of the entire state every five years. The assessment of these waters is a public process and participation and input from a wide range of state, federal and local agencies and non-governmental water quality partners (watershed groups, lake associations, academic researchers, etc.) is encouraged. New York State Department of Environmental Conservation (NYS DEC) is able to effectively manage the statewide assessment process by focusing the effort on a limited number of specific drainage basins each year. Concentrating on a few basins each year allows NYS DEC to provide ample opportunity for the extensive list of interested groups to provide input and allows for a thorough evaluation of all available data.

However every two years, corresponding to the development of New York State's Section 303(d) List, the public is solicited to provide water quality data and information for any waterbody (any basin). This allows for a more comprehensive updating of the List. Some of the solicited data and information may result in changes to the List; other data, it may be determined, will have no impact on the List, but will be used during the subsequent water quality assessment for the corresponding basin during the reassessment cycle. Some of the data and information received during the solicitation may not be sufficiently conclusive to make a definitive impairment determination and will also be deferred until the more complete assessment of the corresponding basin is conducted.

In order to maintain an effective and comprehensive review of solicited data and information and insure the timely submittal of the List, it is necessary to establish a cut-off date for the receipt of water quality data and information. Therefore, in order to be included for full consideration in the compiling of the 2010 CWA Section 303(d) List, data and information must be received by September 30, 2009. It is not the intent of this cut-off date to exclude additional information. Rather the date is necessary in order to provide adequate time to review data and information, complete water quality assessments, receive and respond to public comment on the assessments, compile a draft Section 303(d) List, public notice the List, and submit a List to the United State Environmental Protection Agency (USEPA) by April 1, 2010.

In order to facilitate the review and inclusion of water quality data and information to be considered in the compiling of the 2010 Section 303(d) List, such submissions should be accompanied by a completed Waterbody Inventory/Priority Waterbodies List (WI/PWL) Assessment Worksheet. This worksheet allows for the capture of water quality information based on available data, or based on general observation of conditions and/or local knowledge of designated use support/non-support of a waterbody absent specific (numeric) monitoring data. Information regarding the Waterbody Inventory/Priority Waterbodies List, including the WI/PWL worksheet and instructions for completing the worksheet, can found on the NYS DEC website at: www.dec.ny.gov/docs/water_pdf/pwlwrksht.pdf (PDF, 243 Kb). Worksheet information can also be obtained by contacting the NYS DEC - Division of Water, Bureau of Watershed Assessment and Management by mail at 625 Broadway, 4th Floor, Albany, NY 12233-3502, or by phone at: (518) 402-8179. Completed WI/PWL worksheets and supporting water quality monitoring data should be sent to the address above, or forwarded via email to: 4pwlinfo@dec.ny.gov. Water quality data and information should also include a copy of the corresponding Quality Assurance/Quality Control Plan, QA/QC results summary and description of measures used in the collection of the data.

Guidance regarding the use of water quality data and information to conduct assessment and make listing decisions is outlined in the New York State Consolidated Assessment and Listing Methodology. These methodologies are available for review and NYS DEC will accept public comment on these documents throughout the 2010 Section 303(d) List development process. Additional information regarding Section 303(d) List development, including the Consolidated Assessment and Listing

Methodology can be found on the NYS DEC website at: www.dec.ny.gov/chemical/31290.html. Additional information regarding the NYS DEC Water Quality Assessment Program, including the Waterbody Inventory/Priority Waterbodies List assessments and Section 305(b) water quality reporting can be found on the NYS DEC website.

Contact: Jeff Myers, NYS DEC -Division of Water, Bureau of Water Assessment and Management, Water Quality Assessment Section, 625 Broadway, 4th Floor, Albany, NY 12233-3502, Phone: (518) 402-8179, Fax: (518) 402-9029, E-mail: jamyers@gw.dec.state.ny.us.

Notice of Petitions for a Declaratory Ruling

The General Counsel of New York State Department of Environmental Conservation (General Counsel) has received petitions from Bayswater Peaking Facility, LLC (Bayswater) and Calpine Operating Services Company, Inc. (Calpine) for a declaratory ruling (collectively the Petitions), pursuant to 6 NYCRR Part 619, primarily regarding the interpretation of the Long Term Contract (LTC) Set-Aside provision of the CO2 Budget Trading Program, 6 NYCRR § 242-5.3(d) (subdivision 5.3(d)). The General Counsel is combining the Petitions for consideration as one proceeding, and will ultimately issue only one combined declaratory ruling, if any, on the Petitions. The General Counsel finds that it is in the public interest to solicit public comments on the Petitions pursuant to 6 NYCRR § 619.1(e)(1). Public comments on the Petitions will be accepted for thirty (30) business days, through September 10, 2009.

Background: The LTC Set-Aside provision allocates 1.5 million CO2 allowances annually from the CO2 Budget Trading Program annual base budget to the long term contract set-aside account. These CO2 allowances may then be allocated, pursuant to the provisions of subdivision 5.3(d), to LTC applicants that the New York State Department of Environmental Conservation (Department or NYS DEC) determines meet the requirements of that subdivision. The Department is currently reviewing applications for CO2 allowances from the LTC Set-Aside for the 2009 allocation year. Both Bayswater and Calpine are applicants for CO2 allowances for the 2009 allocation year from the LTC Set-Aside.

Bayswater (FPL Energy) owns and operates a simple cycle combustion turbine electric generating facility (the Bayswater Facility) that supplies electricity to the Long Island Power Authority under an LTC. Bayswater has requested 325,371 CO2 allowances from the LTC Set-Aside for the Bayswater Facility.

Calpine has requested 93,833 CO2 Allowances from the LTC Set-Aside for the KIAC Partners facility, which is located at the John F. Kennedy International Airport and supplies electric and thermal energy to the Port Authority of the State of New York under an LTC. Calpine has also requested 105,329 CO2 allowances from the LTC Set-Aside for the Nissequogue Cogen Partners facility, which supplies electric and thermal energy to the State University of New York's Stony Brook campus under an LTC. Both of Calpine's requests represent only those CO2 emissions from each facility attributable to the respective facility's thermal energy production.

Petitions: Copies of the Petitions are available on the Department's website at: http://www.dec.ny.gov/regulations/29357.html.

The Petitions make several requests regarding the CO2 Budget Trading Program, primarily regarding the interpretation of subdivision 5.3(d). In particular, the Petitions request the General Counsel to interpret the CO2 Budget Trading Program and subdivision 5.3(d) so that: (1) the CO2 emissions attributable to the production of thermal energy from certain cogeneration units are not subject to the CO2 Budget Trading Program (i.e., such cogeneration units would only be required to obtain CO2 allowances for emissions attributable to the production of electric power); and (2) the LTC financial hardship demonstration required in 6 NYCRR § 242-5.3(d)(3) is satisfied by documentation that an LTC applicant is unable to pass on the cost of CO2 allowances to the purchasing party.

The Petitions also make a number of requests related to the administrative implementation of subdivision 5.3(d). These include requests related to the definition of certain terms within subdivision 5.3(d), the formula used to determine the number of CO2 allowances allocated to a successful LTC applicant, and the procedure for distributing CO2 allowances. Finally, the Petitions also request clarification regarding LTCs that tie pricing under the contract to a tariff rate, whether an LTC applicant may receive an award of CO2 allowances from the LTC Set-Aside if it is able to pass on a portion of its CO2 allowance costs to the purchasing party, and whether LTC applications will be evaluated on an annual basis.

Public Comment: The General Counsel seeks public comment on the Petitions from all interested parties, including but not limited to other LTC applicants.

In particular, the Department seeks public comment regarding the following issues: (1) whether the CO2 Budget Trading Program allows for the creation of a thermal exemption for certain cogeneration units through an interpretation by the General Counsel; (2) if the General Counsel were to grant the request for a thermal exemption for certain cogeneration units, how cogenerators would distinguish between CO2 emissions attributable to the production of electric power and CO2 emissions attributable to the production of thermal energy, and what information and data would be used to document this distinction; and (3) if the General Counsel were to grant the request for a thermal exemption for certain cogeneration units, the specific units and number of tons of CO2 to which the exemption would apply.

Public comments on the Petitions must be received by the Department no later than September 10, 2009. Comments should be directed to:

Jonathan Binder
NYS DEC - Office of General Counsel
625 Broadway, 14th Floor
Albany, NY 12233-1500
Phone: (518) 402-9188
Fax: (518) 402-9019
E-mail: 242rggi@gw.dec.state.ny.us

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