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Danskammer Electric Generating Plant - Commissioner's Ruling, October 1, 2002

Commissioner's Ruling, October 1, 2002

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
625 Broadway
Albany, New York 12233-1010

In the Matter

- of -

Riverkeeper, Inc.'s Petition For a Prompt Adjudicatory Public Hearing on the 1992 Application for
Renewal of the SPDES Permit for Danskammer Electric Generating Plant and Request for Full Party Status

RULING OF THE COMMISSIONER

October 1, 2002

Ruling of the Commissioner

By letter dated February 5, 2001, Riverkeeper, Inc. ("Riverkeeper") filed a petition for a prompt adjudicatory public hearing on the Danskammer Electric Generating Plant's 1992 State Pollutant Discharge Elimination System ("SPDES") renewal application, and a request for full party status. On February 15, 2001, the Chief Administrative Law Judge ("ALJ") requested that other parties file a response to the petition by March 12, 2001. Upon request of Dynegy Northeast Generation ("Dynegy"), the Chief ALJ extended the time to respond by thirty days, to April 12, 2001. Dynegy filed a response on that date, as did Staff for the New York State Department of Environmental Conservation ("Staff").

On April 16, 2001, Riverkeeper wrote to the Chief ALJ, requesting the opportunity to respond to Staff's and Dynegy's submissions. By letter dated April 17, 2001, counsel for Dynegy objected. Upon consideration of Riverkeeper's request and Dynegy's response, I am denying Riverkeeper's request to make a further submission. By this ruling, I am also denying Riverkeeper's request for an adjudicatory public hearing and request for full party status.

Background

Dynegy is the successor-in-interest to the former Central Hudson Gas & Electric ("CHG&E") Danskammer Electric Power Generating Plant ("Danskammer" or the "Plant"). The Plant is located on the Hudson River in the Town of Newburgh, Orange County, New York. In 1987, the Plant was issued a SPDES permit, and, in May of 1992, CHG&E filed an application to renew that permit. Since 1992, the Department has authorized modifications to the SPDES permit with respect to selenium discharge limitations and zebra mussel control. The Department has reviewed the renewal application, but has not yet found the application to be complete.

ECL Article 70, and its companion regulations at Part 621 of Title 6 of the New York State Codes, Rules and Regulations ("NYCRR"), contain the general provisions applicable to permit applications and permit renewals. All applicants for a permit, permit renewal, or modification are required to submit a "complete" application to Staff for Staff's technical review. ECL Section 70-0105(2) defines a complete application to be an application for a permit "which is in approved form and is determined by the department to be complete for the purpose of commencing review of the application." If Staff determines that the application is incomplete, that determination "can extend indefinitely until such time as suitable information is submitted to Staff." See In the Matter of Bath Petroleum, Interim Decision of the Deputy Comm'r., at 3 (Nov. 6, 2000).

In its petition, Riverkeeper contends that the Department has unreasonably delayed its consideration of the Plant's permit, and therefore must issue a notice of complete application on the Danskammer renewal, and begin the process of reviewing that application. In addition, Riverkeeper argues that the Department has failed in its non-discretionary duty to conduct a review of all existing SPDES permits at least once every five years.

The Department's response includes a discussion of the relationship of the on-going negotiations surrounding the Hudson River Settlement Agreement ("HRSA") to the SPDES renewals pending for four other generating plants in the vicinity of the Danskammer Plant, namely, Indian Point Units 1 and 2, Bowline, and Roseton. Since March of 1992, Staff, Riverkeeper, and the owners and operators of the plants in question have been attempting to resolve, rather than adjudicate, the SPDES issues at the four facilities. Staff's position is that, following a collective resolution of these issues, Danskammer's permit renewal would be evaluated in the context of the HRSA, as Riverkeeper, counsel for then-owner CHG&E, and counsel for the Department agreed to do in June of 1993. According to Staff, any perceived delay must be evaluated in light of this background.

In its response, Dynegy contends that Riverkeeper lacks standing to pursue the relief it seeks, and that, even if Riverkeeper's standing were not in question, Riverkeeper's position is not supported by the statute and regulations. Finally, Dynegy argues that Riverkeeper's petition fails to raise substantive and significant issues that would require an adjudicatory hearing.

Discussion

Riverkeeper argues that, because Staff failed to notify CHG&E that its permit application was complete, the application is deemed complete pursuant to ECL Section 70-0109(1)(b). Riverkeeper's argument fails because the statutory authority and judicial precedent it cites in support are inapposite, given the factual background of this matter.

ECL Section 70-0109(3)(b) enables an applicant to force a decision on a permit application in situations where Staff has failed to take action on a permit within the statutory timeframe. ECL Section 70-0109(6) allows a permit applicant and Staff to agree to waive or extend the time periods in Article 70. The statute makes no provision for interested parties to accelerate, waive or extend those timeframes.

The legislative history of ECL Article 70 and case law considering the statute indicate that the legislature was concerned with addressing delays affecting applicants, not third parties. See P. Weinberg, Pr. Commentaries, McKinney's Cons. Laws of New York, Book 17 ½, ECL § 70-0101, at 538 (legislation intended to "assure that the regulatory processes fulfill their objectives without costly delays"), quoting McKinney's 1977 Session Laws, p. 2523 (1997); Atlantic Cement Co., Inc. v. Williams, 129 A.D.2d 84, 89 (3rd Dept. 1987) (statute intended to balance protection of environment against encouraging mining; applicants should not be unduly burdened).

The statute, therefore, does not establish Riverkeeper's right to relief - only the applicant's. Because the statute does not confer standing, Riverkeeper must establish its right to compel Staff to act based upon the general principles of standing as articulated in the case law. Riverkeeper cannot satisfy this test, because it cannot show that the injury in fact of which it complains falls within the zone of interests the statute is intended to protect. Society of Plastics Indus., Inc. v. Cty. of Suffolk, 77 N.Y.2d 761, 773 (1991). As set forth above, the statute allows applicants to expedite the permit application process, but not an interested party. Furthermore, ECL Section 70-0115(2), which governs permit renewals, does not impose specific deadlines on the permit renewal process, nor does that provision provide a mechanism for third parties to insert themselves into the renewal process, a process which has been extended in this case under the State Administrative Procedure Act ("SAPA").

Section 401(2) of SAPA provides that

[w]hen a licensee has made timely and sufficient application for the renewal of a license or a new license with reference to any activity of a continuing nature, the existing license does not expire until the application has been finally determine by the agency, and, in case the application is denied or the terms of the new license limited, until the last day for seeking review of the agency order or a later date fixed by order of the reviewing court, provided that this subdivision shall not affect any valid agency action then in effect summarily suspending such license.

Section 621.13(i) of 6 NYCRR specifically incorporates SAPA 402(2) into the State's Uniform Procedures. It is undisputed that Danskammer's SPDES permit renewal was timely, and that Staff has not yet made a final determination with respect to Danskammer's permit. While the length of time the renewal application has been pending may merit further inquiry, the Department has discretion to extend the renewal process in this matter.

Riverkeeper cites to two cases to support its argument that the action it seeks to compel is mandatory, not discretionary, but both decisions rely upon facts that differ from this petition. In Heimbach v. Williams, 136 Misc.2d 1 (Sup. Ct., Albany Cty., 1987), it was the applicant, not an interested party, that sought to compel Department action on a landfill expansion permit. The court in New York Pub. Interest Research Group, Inc. v. New York State Dept. of Envtl. Conservation granted mandamus in an Article 78 action that sought to compel the Department to act upon pending Title V permits. 184 Misc.2d 564, 568 (Sup. Ct., Albany Cty. 2000). The court determined that mandamus would lie because the act to be compelled was "ministerial, non-discretionary, and non-judgmental, and . . . premised upon specific statutory authority mandating performance in a specific manner." Id. at 566. In reviewing the statute in question, the court concluded that the plain language of the provision foreclosed any argument that the Department had discretion in delaying the permit review. In this case, however, Staff has appropriately exercised its discretion to expand the review period for the Danskammer SPDES permit, based upon the applicable statutes and upon Danskammer's link to four other generating facilities that share common permitting issues.

The unique circumstances surrounding the Danskammer permit renewal mirror, to a significant degree, matters related to the HRSA. As set forth in Staff's submission, the parties, including Riverkeeper, have been engaged since the early 1990s in gathering and reviewing data relating to Danskammer's neighboring facilities, and in negotiations pursuant to the March 1992 consent order known as the HRSA. Under the circumstances, some

of the relief Riverkeeper seeks is premature, and may be rendered moot if the parties reach a global resolution of the issues surrounding the plants.

Riverkeeper demands that the Department conduct a five-year review of the Plant's SPDES permit, pursuant to ECL Section 17-0817(3). There is nothing in the record before me to indicate that Staff notified Danskammer or any other party that it had performed the requisite five-year review. It would appear that some review has taken place as a result of the SPDES permit renewal application in 1992, as well as in the context of the HRSA negotiations and studies of neighboring facilities. Moreover, it is undisputed that certain modifications have been made to the Plant's SPDES permit with respect to selenium discharge limitations and schedule of compliance, and zebra mussel control, which provides some evidence of Staff's oversight of the pending SPDES renewal. Nevertheless, this record does not indicate that Staff conducted the five-year review, nor did Staff provide notification that it had done so. Accordingly, if it has not already done so, Staff must expeditiously review the permit as the statute mandates.

Conclusion

Riverkeeper's requests for an adjudicatory public hearing and for full party status are denied. Staff is directed to promptly complete the five-year review of the Danskammer SPDES permit required under Section 17-0817(3) of the ECL, if it has not already done so.

_____________/s/_____________
Erin M. Crotty, Commissioner

Dated:Albany, New York
October 1, 2002

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