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Heritage Power LLC - Ruling, October 4, 2000

Ruling, October 4, 2000

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

of

Applications for: (1) a State Pollutant Discharge Elimination System (SPDES) permit
pursuant to Environmental Conservation Law (ECL) Article 17 and Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York
(6 NYCRR) Parts 750 et seq.,
(2) a pre-construction air emissions permit pursuant to ECL Article 19, and 6 NYCRR
Part 201 and Subpart 231-2, and
(3) a Prevention of Significant Deterioration (PSD) permit pursuant to 40 CFR §52.21

- by -

Heritage Power, LLC
59 Independence Way
Oswego, New York 13126

APPLICANT

October 4, 2000

Summary of Rulings on Proposed Issues for Adjudication and Petitions for Party Status

DEC No.: 7-3556-00097

SPDES No.: NY-0261718

Introduction

In February 2000, Heritage Power LLC (the Applicant or Heritage), applied for a Certificate of Environmental Compatibility and Public Need pursuant to Article X of the NYS Public Service Law (PSL)(1) to construct and operate an 800-megawatt (MW) combined cycle electric generating facility (the Facility or Heritage Station). The Facility would consist of two General Electric Steam and Gas (STAG) 107H system combustion turbine generators (CTG), two heat recovery steam generators (HRSG), two steam turbine generators (STG) with associated balance-of-plant systems and facilities. The primary fuel would be natural gas.

The Facility would be located on land that is part of the existing Independence Station electric generating facility. The Site is on County Route 1A, east of the City of Oswego, in the Town of Scriba, Oswego County.

Proceedings

Heritage's application for a PSL Article X certificate also included requests to the NYS Department of Environmental Conservation for a State Pollutant Discharge Elimination System (SPDES) permit, a pre-construction air emissions permit, and a Prevention of Significant Deterioration (PSD) permit. The proposed facility would use process water from the local municipality for cooling purposes. A portion of the cooling water would evaporate into the atmosphere. The balance of the process water would be discharged to an on-site holding pond and then to Lake Ontario via an existing outfall pipe currently used by the Independence Station. The Staff from the NYS Department of Environmental Conservation (the "DEC Staff") reviewed the Applicant's SPDES permit application, and subsequently developed a draft SPDES permit and a fact sheet.

Air emissions will result from the turbines and generators, and will be vented through 225-foot high exhaust stacks (one for each unit), a wet cooling tower, and an emergency diesel generator with a 170-foot high exhaust stack. After reviewing the Applicant's pre-construction air emissions permit application, the DEC Staff prepared draft permit conditions that would authorize Heritage to construct and operate the proposed facility in accordance with applicable state and federal air pollution regulations and requirements. In addition, the DEC Staff made a tentative determination that the proposed facility is subject to, and satisfies, the requirements outlined in the federal Clean Air Act for the Prevention of Significant Deterioration (PSD).(2)

An Announcement of Public Comment Period, and Combined Notice of Complete Application, Public Hearing and Issues Conference (the Announcement and Notice), dated August 4, 2000, and a Notice of Determination to Issue Prevention of Significant Deterioration (PSD) Permit (the PSD Notice) appeared in the Department's Environmental Notice Bulletin on August 9, 2000. The Applicant duly published the Announcement and Notice, and the PSD Notice as legal notices in the Palladium Times (Oswego) on August 9, 2000 and in the Post Standard (Syracuse) on August 10, 2000. In addition, copies of the Announcement and Notice, and the PSD Notice were sent to the parties to the related PSL Article X proceeding, as well as to the required government officials and to any individual who had expressed an interest in the proposed facility.

The Announcement and Notice, and the PSD Notice included descriptions of the proposed electric generating facility, in generally, as well as the nature of the point sources for the anticipated waste water discharges and air emissions, in particular. In addition, the Announcement and Notice provided for a 30 day comment period, as well as the schedule for legislative hearing sessions and the Issues Conference. The public comment period in the PSD notice extended until September 27, 2000.

Legislative hearing sessions were held on September 26, 2000 at 1:00 p.m. and 7:00 p.m. at the Scriba Town Hall, 42 Creamery Road, Scriba, NY. The legislative hearing sessions were held concurrently with public statement sessions pursuant to a Notice dated August 4, 2000 issued by the Secretary to the Siting Board.

About 20 people attended the afternoon legislative hearing session where 6 people presented oral statements. Between 35 and 40 people attended the evening legislative hearing session where 4 people presented oral statements. All speakers support the proposed facility. Written comments were also filed by the Applicant in letters dated September 7 and 26, 2000, and from US EPA Region 2 by letter dated September 27, 2000.

On October 2, 2000, a joint DEC Issues Conference and PSL Article X Pre-Hearing Conference convened at 12:00 p.m. at the Oswego City Hall (Common Counsel Chamber), 13 West Oneida Street, Oswego, NY to consider requests for party status and proposed issues for adjudication with respect to the draft permits identified above. No one filed any petitions for full party status or amicus status. Consequently, the only parties to the Issues Conference were the DEC Staff and the Applicant.(3) The DEC Staff were represented by Meghan A. Purvee, Esq. and Gregory Allen, Esq. John A. DeTore, Esq. and Rebecca Tepper, Esq. from Rubin and Rudman, LLP, Boston, Massachusetts appeared for Heritage.

As of the date of this summary ruling, receipt of the stenographic record from the legislative hearing sessions and the Issues Conference is pending.

Summary of Rulings and Order of Disposition

When, as here, there are no petitions for party status and the only parties to the Issues Conference are the Applicant and the DEC Staff, an issue is adjudicable if it relates to a dispute between the DEC Staff and the Applicant over a substantial term or condition of the draft permits.(4) At the Issues Conference, counsel for the DEC Staff and the Applicant stated there were no disputes between them over any substantial term or condition of the draft permits. Both parties acknowledged that some of the draft permit conditions would be modified slightly, but both parties agreed that these changes were minor and mutually acceptable. The modifications were outlined on the record during the Issues Conference.

Accordingly, I ruled at the Issues Conference, and re-state here, that there are no issues for adjudication with respect to the draft permit conditions prepared by the DEC Staff. Accordingly, an adjudicatory hearing concerning any of the terms and conditions of the draft permits is not necessary, and is hereby canceled. As required by §624.4(c)(5), I direct the DEC Staff to complete the processing of the applications, as may be required by applicable statutes or regulations, and to issue the requested environmental permits.

At the Issues Conference, the parties explained that copies of the final DEC permits would be attached to the stipulated agreement concerning the related PSL Article X proceedings.

_____________/s/_____________
Daniel P. O'Connell
Administrative Law Judge
Albany, New York

Dated: October 4, 2000

To:
Attached Service List dated August 4, 2000

1 See Department of Public Service Case No. 99-F-0588 in the Matter of an Application of Heritage Power, LLC, for a Certificate of Environmental Compatibility and Public Need to construct and operation a 800-megawatt natural gas-fired combined cycle electric generating plant in the Town of Scriba, Oswego County.

2 See 40 CFR §52.21.

3 6 NYCRR §624.5.

4 6 NYCRR §624.4(c)(1)(i).

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