Bethlehem Energy Center - Ruling, January 3, 2002
Ruling, January 3, 2002
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the matter of
Application of PSEG Power New York, Inc. for:
(1) a Preconstruction Permit and Certificate to Operate,
pursuant to title 6 of the New York Code of Rules and Regulations (6 NYCRR)Part 201;
(2) a Clean Air Act (CAA) Title IV permit pursuant to Code of Federal Regulations (CFR) § 76.6(a)
(3), Environmental Conservation Law (ECL) Article 19, 6 NYCRR Part 201 and Subparts 201-6.1
and 231-2; and, (3) a State Pollutant Discharge Elimination System (SPDES) permit
pursuant to Article 17 of the ECL and 6 NYCRR Part 750 et seq.
RULING ON ISSUES AND PARTY STATUS
DEC Case #
PSC Case #97-F-2162
January 3, 2002
This ruling addresses two petitions for party status regarding the application of PSEG Power New York, Inc. ("Applicant") to construct the Bethlehem Energy Center ("BEC"), an approximately 750 megawatt ("MW") power plant, in the Town of Bethlehem, New York. The first was a joint petition of Riverkeeper, Scenic Hudson, Inc. and the Natural Resources Defense Council that challenged the Applicant's choice of cooling technology. Following negotiations, however, this petition was withdrawn.
The second petition was filed by Dr. Uriel Oko and alleges that the Applicant underestimated the air emissions of polychlorinated biphenyls ("PCBs") from BEC's cooling towers. The Administrative Law Judge ("ALJ") finds that this proposed issue does not meet the regulatory standard for adjudication and, therefore, denies Dr. Oko party status. Consequently, no adjudicatory hearing is necessary. This matter is remanded to the Staff of the Department of Environmental Conservation ("DEC Staff") to continue processing the permit applications.
There are two separate and distinct approvals that the Applicant must obtain to construct and operate BEC. The first approval is a Certificate of Environmental Compatibility and Public Need, which must be secured from the New York State Board on Electric Generation Siting and the Environment ("Siting Board"). The second approval, from DEC, relates to the permits necessary to discharge air pollution and water pollution. Both the Siting Board and DEC have their own administrative hearing processes which include an opportunity to adjudicate issues.
Originally, it was anticipated that the DEC issue conference would be held concurrently with the companion Article X issues conference, however, due to an error by the Applicant regarding the publication of the DEC public notice, the DEC legislative hearing and issues conference had to be rescheduled. The Article X public statement hearings and issues conference went forward on October 17, 2001 and October 23, 2001, respectively. The Article X issues ruling was issued on November 15, 2001. All Article X issues that were identified for adjudication have been resolved through negotiations among the parties; and, no adjudication is scheduled.
The Applicant proposes to construct and operate BEC, a new combined-cycle electric generating facility that will produce 750 MW. BEC will use natural gas as its primary source of fuel, with low-sulfur distillate fuel oil serving as a secondary fuel. The facility will consist of three General Electric Frame 7F series combustion turbines, three heat recovery steam generators and one steam turbine. The Applicant proposes to install an oxidation catalyst system to reduce carbon monoxide and volatile organic compounds, and a selective catalytic reduction system to reduce nitrogen oxides. The air emissions resulting from the turbines and generators will be vented through three 248-foot high exhaust stacks. Originally, the Applicant proposed to use evaporative mechanical draft cooling towers with a closed-loop circulating-water system. However, following negotiations among the parties, the Applicant has agreed to use wet/dry (hybrid) closed cycle cooling. In addition, it was agreed that 2.0 millimeter (mm) wedge wire intake screens should be installed, surrounded by a seasonally-deployed, fixed panel Gunderboom Marine Life Exclusion System.
BEC proposes to withdraw an average of 4.72 million gallons per day (mgd), with a maximum of 8.53 mgd, from the Hudson River via an intake structure located at the facility. Sanitary wastewater will be routed to a publicly owned treatment works in the Town of Bethlehem. Other wastewater, including cooling water effluent, will be treated and discharged to the Hudson River through existing outfalls.
BEC will be located on the site of an existing power generating facility, the Albany Steam Station, on State Route 144 in Glenmont, Town of Bethlehem, Albany County. The site is approximately 84 acres and is zoned for heavy industrial use. Once the new power plant commences commercial operation, the Albany Steam Station will be permanently retired.
An Announcement of Public Comment Period and Combined Notice of Complete Applications, Public Hearing and Issues Conference, dated October 17, 2001 was published in the Department's electronic Environmental Notice Bulletin on October 17, 2001. This notice was subsequently published in the Times Union (Albany) on October 23, 2001 and the Spotlight (Bethlehem) on October 24, 2001. These publications exceed what is required by law (6 NYCRR 624.3).
Legislative Hearing and Issues Conference
In addition to the two Article X public statement hearings held on October 17, 2001 (discussed in the November 15, 2001 Article X Issues Ruling), a DEC Legislative Hearing was convened on December 3, 2001 at 7:00 p.m. at the Town of Bethlehem Town Hall, 445 Delaware Avenue, Delmar, New York. At this hearing three people spoke: a representative of the Applicant; a representative of DEC Staff; and, Michael Tucker, Chairman of the Town of Bethlehem's Industrial Development Agency.
An issues conference was held on Wednesday, December 12, 2001 at 10:00 a.m. at Department of Public Service Offices, 3rd Floor, Agency Building 3, 3 Empire State Plaza, Albany, New York.
Petitions for Party Status
Two petitions for party status were timely received. The first was filed jointly by three environmental organizations, Riverkeeper, Inc., Scenic Hudson, Inc., and the Natural Resources Defense Council ("NRDC"). The second was filed by Uriel Oko, Ph.D.
DEC was represented by Franz T. Litz, Esq. Also present for DEC Staff were Leon Sedefian and Kevin Kispert.
The Applicant appeared through its attorneys: Sam M. Laniado, Esq., of the law firm of Read and Laniado, LLP., and Richard M. Cogen and Sheri Littlefield Moreno of the law firm Nixon Peabody, LLP. Also present for the Applicant was Russell Arlotta.
Riverkeeper appeared through Reed Super, Esq. Mr. Super also appeared for NRDC. Scenic Hudson appeared through Warren Reiss, Esq.
Dr. Uriel Oko appeared pro se and was joined by Dr. Robert Michaels.
Closure of the Record
The record closed on December 20, 2001 with the receipt of the transcript of the December 12, 2001 DEC issues conference. Copies of the parties' Joint Stipulations and Exhibits were received on December 31, 2001.
DEC Staff's Position
DEC Staff asserts that the project, as conditioned by the draft air and SPDES permits, complies with all applicable state and federal law.
The Applicant's Position
The Applicant concurs with DEC Staff and, as noted above, accepts all terms and conditions of the draft permits.
Riverkeeper, Scenic Hudson, and NRDC originally asserted that DEC Staff has improperly determined that dry cooling was not the Best Technology Available ("BTA"), as that term is used in §316(b) of the federal Clean Water Act. This petition was later withdrawn.
Dr. Oko asserts that the Applicant has improperly underestimated the air emissions of PCBs from BEC's cooling towers.
Standard of Review
When DEC Staff has determined that a permit application will, subject to draft permit conditions, meet all statutory and regulatory requirements, petitioners must demonstrate that an issue is substantive and significant in order for the issue to be subject to adjudication and for the petitioner to achieve party status (6 NYCRR 624.4(c)(4)). An issue is substantive if there is sufficient doubt about the applicant's ability to meet statutory or regulatory criteria such that a reasonable person would inquire further (6 NYCRR 624.4(c)(2)). An issue is significant if it has the potential to result in the denial of a permit, a major modification of the project or the imposition of significant permit conditions in addition to those already in the draft permit (6 NYCRR 624.4(c)(3)).
Merely identifying a possible error in a scientific calculation contained in an application does not automatically mean a proposed issue is adjudicable. When DEC Staff raises no issue for adjudication, the intervenor must show that the alleged error casts doubt upon an applicant's ability to meet some regulatory criteria that could result in a permit modification or denial. A mere assertion of an insignificant error cannot trigger adjudication.
The Petition of Riverkeeper, NRDC and Scenic Hudson
In late December 2001, these groups withdrew their petition and signed the "Joint Stipulations" which resolved the BTA issue. Paragraphs 6 and 7 read:
6. None of the terms or provisions of the Agreements and none of the positions taken therein by any party may be referred to, cited, or relied upon by any other party in any fashion as precedent or otherwise in any other proceeding before the Siting Board or any other regulatory agency or before any court of law for any purpose, except in furtherance of ensuring the effectuation of the purposes and results of the Agreements.
7. Riverkeeper, Scenic Hudson and NRDC contend that the Gunderboom MLES is an experimental, rather than a proven, technology and therefore is not an "available technology" capable of being relied on as a component of BTA in lieu of reducing cooling water intake capacity. In entering these Agreements and stipulating to approve the BEC Project as stated herein, Riverkeeper, Scenic Hudson and NRDC are not assenting to a position inconsistent with such contention.
Therefore, the BTA issue is not advanced to adjudication and party status is not granted to Riverkeeper, Scenic Hudson or NRDC.
The Petition of Uriel Oko, Ph.D.
This issue involves allegations that the Applicant has underestimated the potential releases of PCBs in air emissions from the proposed facility. Dr. Oko believes it would be prudent to complete additional studies before BEC is constructed to better assess the amount of PCBs that will be released. Dr. Oko does not oppose construction of BEC, nor does he advocate that the Applicant be forced to use dry cooling technology. Rather, if the additional studies show that the emissions of PCBs will present a threat to public health, that the Hudson River water drawn for cooling be filtered to remove PCBs or that an alternative source of cooling water (not containing PCBs) be used.
Dr. Oko filed a petition for party status on October 17, 2001. Originally, the DEC issues conference was scheduled to follow the Article X issues conference on October 23, 2001; however, due to an error in the publication of the DEC hearing notices by the Applicant, the DEC issues conference was rescheduled for December 12, 2001.
At the Article X issues conference in October, Dr. Oko's petition was substantively considered because the Applicant, DEC Staff, and DOH Staff asserted that Dr. Oko's proposed issue belonged in the Article X proceeding. The Examiners rejected this assertion in their Article X issues ruling (November 15, 2001), and determined that this issue was properly considered in the DEC administrative process. The Article X ruling was not appealed. The DEC and Article X administrative processes are being held on a joint record and the discussion of this proposed issue at the October Article X issues conference is relied upon here.
Following the October Article X issues conference, the Presiding Examiner granted Dr. Oko $1,690 to prepare for the DEC issues conference. This was the amount Dr. Oko had requested so that he and Dr. Robert Michaels, another expert, could prepare. Discussions between the Applicant and Dr. Oko have not resolved this issue.
At the December 12, 2001, the DEC issues conference, Dr. Oko's issue was the only issue proposed for adjudication. At the issues conference Dr. Oko and Dr. Michaels refined this issue beyond its presentation in Dr. Oko's petition. At the conclusion of issues conference, the Applicant distributed a closing brief. DEC Staff objected. The ALJ overruled the objection and the submission was accepted into the record. The ALJ then granted DEC Staff and Dr. Oko an opportunity to respond. Dr. Oko responded on December 18, 2001. No response was received from DEC Staff.
The Substance of Dr. Oko's Proposed Issue
Dr. Oko's proposed issue is that the Applicant has failed to assess adequately the potential air emissions of PCBs from BEC and that these emissions may contravene existing health standards. The emission of PCBs purportedly would occur when cooling water (containing PCBs) is drawn from the Hudson River, circulated through the proposed facility, and then released as emissions to the air through the plant's steam plume.
Dr. Oko requested $41,560 from the intervenor funds (PSL §164(6)) to conduct a study of the potential release of PCBs. Dr. Oko believes that the studies performed to date, and the Applicant's analyses contained in the Article X application, do not accurately quantify the concentrations of PCBs that will be resuspended when federally mandated dredging occurs in the Hudson River, north of the proposed plant. Dr. Oko's concerns would cease if: dredging did not occur; BEC used an alternative source of cooling water; BEC filtered its cooling water to remove PCBs; or, BEC used dry cooling technology.
Dr. Oko's proposed study would consist of two parts. First, Dr. Oko, a licensed professional engineer with nearly forty years of experience, would estimate the amount of PCBs likely to be found in BEC's Hudson River cooling water and air emissions. Then, Dr. Michaels, an expert on the health risks associated with PCBs, would quantify the risks to human health from the estimated releases.
Dr. Oko's primary assertion is that the quantity of PCBs that may be released through BEC's cooling towers is not known. He faults the Applicant's analysis which shows that the quantity of PCBs to be released is far below the regulatory levels that would require further evaluation or mitigation. Dr. Oko also challenge the expert opinion rendered by Staff of the NYS Department of Health ("DOH Staff") who reviewed and accepted the Applicant's analysis.
As explained at the Article X issues conference, the Applicant completed a "non-criteria analysis" of PCBs as directed by DOH Staff. This analysis assumed that all PCBs drawn into the plant as cooling water would be emitted to the air. Since the samples of Hudson River water collected at the plant site detected no PCBs, DOH's modeling protocol required that half the detection limit be used as an input. Using half the detection limit (32.5 nanograms per liter), the model produced results well below one percent of DOH's health based air concentration ("HBAC"), both short-term and annual.
Consistent with this analysis, the Applicant used estimates from studies of the United States Environmental Protection Agency ("USEPA") that predict that during dredging, the expected concentrations of PCB in the Hudson River near BEC would be approximately 32 nanograms per liter. Since the EPA studies produced results less than one percent of the HBAC (which are based on the calculated concentrations that would result in an incremental cancer risk of one in a million), DOH required no further analysis of this proposed issue by the Applicant.
PCBs occur in the Hudson River north of the proposed BEC because they were contained in wastes discharged by General Electric ("GE") over an approximate 30-year period that ended in 1977. While the discharges were legal at the time, given the toxicity of PCBs and the evolving legal climate, USEPA has now ordered GE to remove approximately 150,000 lbs. of PCBs by dredging (USEPA estimates that in total GE dumped between 209,000 lbs. and 1,330,000 lbs. of PCBs in the Hudson). At this time many of the specifics of the dredging program have not been finalized.
Dr. Oko believes that USEPA may have significantly underestimated the expected concentrations of PCBs in the Hudson River due to dredging activity. Since the Applicant has relied upon USEPA's estimates, Dr. Oko also questions the Applicant's analysis. Dr. Oko's concerns arise with respect to PCBs may be resuspended during normal dredging operations or by upsets (or accidents if dredged spoils on barges are spilled back into the Hudson). During dredging, Dr. Oko states that it will be impossible to stop resuspended PCBs from drifting downstream (which he likens to trying to filter milk). In the event of upsets, he is concerned that areas where contaminated sediments are offloaded to trucks for final disposal will be in closer proximity to the BEC, which could increase the concentrations of PCBs in the cooling water and air emissions.
Dr. Oko believes that, during dredging, some PCBs will be resuspended and that the assumption made by USEPA that most PCBs will settle out within ten meters of the dredge site is inaccurate. Dr. Oko states that a number of factors may cause the resuspended PCBs to travel further downstream in higher concentrations than predicted by USEPA. These factors include the depth of the Hudson, the swiftness of the current, the possibility that many PCBs may be lighter than expected, the chemical and electrical properties of PCBs, and the possibility that PCB may have bonded to other particles with larger surface areas. Dr. Oko also faults the USEPA's studies only examining the expected concentrations of suspended PCBs, not those that are dissolved or emulsified. While acknowledging that these PCBs are not the predominant fraction, Dr. Michael points out that the quantity of these PCBs is unknown.
At the DEC issues conference, based upon his experience, Dr. Oko calculated that as much as 40 grams per day (or approximately 30 lbs. per year) of PCBs may enter BEC's cooling water intakes. For the purposes of the discussion at the DEC issues conference, it was assumed that all the PCBs in the cooling water would be emitted as air pollution. Dr. Oko's calculations produced estimated air emissions of PCBs approximately 74 times higher than those estimated by the Applicant. Among Dr. Oko's assumptions are that the turbidity of the river water is about 100 parts per million (ppm.) and that the dredging would occur just north of the plant. This second assumption discounts the percentage of PCBs which will settle to the river bottom over the course of 40 miles from where most of the dredging will occur. Dr. Oko admits that his calculations are "back-of-the-envelope" but insists that they demonstrate the need for additional inquiry and study.
Both DEC Staff and the Applicant oppose advancing this issue to adjudication. DEC Staff stated that after receipt of Dr. Oko's petition that it and DOH Staff carefully reexamined this proposed issue and determined that it lacks merit. DEC Staff and the Applicant assert that Dr. Oko has not met the standard for an adjudicable issue because his assertions are speculative. Moreover, even if Dr. Oko's estimate of PCB emissions were correct, Dr. Oko has not asserted that this level of emissions would contravene any regulatory or health-based standard. The applicable regulatory standard for PCB emissions is 10 tons per year (40 C.F.R. Part 63.43). There are two applicable HBACs, short-term and annual average concentrations. Using Dr. Oko's assumed emissions of 30 lbs. a year, the concentrations of PCBs would be less than one percent of the short term HBAC and less than thirteen percent of the annual HBAC.
Dr. Oko's closing brief not only addresses the Applicant's closing brief, but also elaborates on his proposed issue and the claimed need for further study. Specifically, Dr. Oko refers to an unidentified section of the federal Clean Air Act (perhaps §112?) requiring the EPA Administrator to promulgate standards in circumstances where cancer risks exceed one in a million. The relevance of this unidentified section is unclear and perhaps could be developed further on appeal.
Dr. Oko continues his argument that the alleged errors in the PCB analysis by USEPA (and relied upon by the Applicant) warrants the funding of his proposed study and, based on the results of his study, perhaps adjudication would be necessary. Dr. Oko's assertion that allowing this project to progress without conducting additional studies, such as the one he proposes, amounts to "reckless endangerment" must be rejected. This argument is really a dispute about the legal standard for adjudication and not how the law is applied in this case.
In his final submission, Dr. Oko also includes a scenario, with different (and more speculative) assumptions than those he used at the DEC issues conference. Dr. Oko now estimates that BEC intake water could contain as much as 54 lbs./day of PCBs (19,710 lbs./year). However, in its closing brief, the Applicant pointed out that there are not enough PCBs in the Hudson to support Dr. Oko's claims. According to the Applicant's calculations, in order for BEC to emit the quantity of PCBs now estimated by Dr. Oko into the air, the amount of PCBs traveling over the Troy Dam would have to be more than 40,000,000 lbs. USEPA has estimated that GE discharged a maximum of only 1,330,000 lbs. of PCBs, in total, into the Hudson River.
In sum, Dr. Oko has not identified an adjudicable issue regarding this application. He has not carried his burden of persuasion that there is sufficient doubt regarding the Applicant's ability to meet applicable standards. Nor has he shown that his proposed issue could either result in a significant change to the draft air permit or its denial. Thus, Dr. Oko's issue is neither substantive nor significant, as those terms are defined in 6 NYCRR 624.4(c)(2) & (3).
RULING: Dr. Oko's proposed issue regarding the emissions of PCBs from the cooling towers of BEC is neither substantive nor significant and therefore is not advanced to adjudication. Dr. Oko is denied party status.
Schedule of Case
Unlike all other Article X applications that have been declared complete to date, a final decision in this case by the Siting Board must be made in six months from the date of the Chairman's letter, which was August 31, 2001. However, given the error by the Applicant in publishing the DEC notice, the DEC administrative process was delayed by almost two months (the issues conference was originally scheduled for October 23, 2001 and then rescheduled for December 12, 2001). Thus, the Applicant should not realistically expect a final Siting Board within six months. However, given the need for time for the Examiners to prepare a recommended decision, for exceptions to be filed by the parties, and for the Siting Board to meet and take final action, the schedule regarding appeals set forth below is been compressed from what normally would be granted in the DEC administrative process.
This ruling may be appealed to the Commissioner on an expedited basis (6 NYCRR 624.8(d)(2)). Ordinarily, expedited appeals must be filed with the DEC Commissioner in writing within five days of the disputed ruling (6 NYCRR 624.6(e)(1)). However, in this instance any appeals must be sent to Commissioner Erin M. Crotty and received at the Office of the Commissioner (NYSDEC, 625 Broadway, Albany, New York 12233-1010) before 5 p.m. on January 11, 2002. Any responses to any appeals must be received before 5 p.m. on January 18, 2002. The parties shall ensure that transmittal of all papers is made to me and all parties at the same time and in the same manner as transmittal is made to the Commissioner. Please send two copies of any appeal that is filed. No submissions by telecopier will be accepted. Appeals should address this ruling, rather than merely restate a party's contentions. Any request for an adjustment to the appeal schedule must be made to DEC's Chief Administrative Law Judge, Daniel E. Louis, at the Office of Hearings and Mediation Services.
By: P. Nicholas Garlick
Administrative Law Judge
Dated: Albany, New York
January 3, 2002