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Kings Park Energy, LLC - Issues Ruling, June 19, 2002

Issues Ruling, June 19, 2002

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Application of Kings Park Energy, LLC for Permits from the Department of Environmental Conservation

DEC Application No. 1-4734-00333/00003

RULING ON ISSUES
AND PARTY STATUS

June 19, 2002

Table of Contents

Summary

Background

Party status

Standards for identifying issues for adjudication

Draft State Facility (Air) Permit

Proposed issues regarding air permit application

Fugitive dust impacts during construction

Turbulence associated with Huntington landfill and on-site structures

Ammonia releases

Applicant's record of compliance

Conditions under which distillate oil would be burned

Documentation of emission rates used by Applicant

Comparison of Applicant's emission rates with published rates

Meteorological data

Terrain heights used in screening analysis

Refined air quality modeling and EPA's regulatory default option

Modeling of non-criteria pollutants

Ambient air quality data

State Facility Permit as compared with Title V permit

Conditions regarding loads between 0% and 50%

Data regarding performance of air pollution control equipment

Alternative of a combined cycle facility

BACT and LAER analyses

PM2.5

State Pollutant Discharge Elimination System

Appeals

Summary

This ruling identifies the issues for adjudication regarding the air and water permit applications which are under review by the New York State Department of Environmental Conservation as part of the review of a proposed major electric generating facility. The ruling also identifies the parties which may participate in the adjudicatory hearing having to do with these permits. The Applicant and the DEC Staff are parties to the hearing under the DEC permit hearing procedures. In addition, party status is granted to Townline Association, Inc. The Town of Huntington's petition for party status is denied, since none of the issues it proposed are being identified as issues for adjudication. Suffolk County withdrew its petition for party status.

One factual issue is identified for adjudication in the hearing: comparison of air quality impacts of a combined-cycle facility versus a simple-cycle facility. In addition, one legal issue is identified concerning permit conditions for operation at loads between zero and 50 percent. A ruling is reserved on the proposed issue of the Applicant's record of compliance, since the Applicant has not responded to the DEC Staff's interrogatories on this subject and consequently Townline's opportunity to supplement its petition on this subject is still open. The remaining proposed issues will not be adjudicated. Clarification is required regarding a change the Applicant has proposed to the draft air permit.

The project is also being reviewed under Public Service Law Article X (Case No. 00-F-1356). A ruling which identified Article X issues is this case was made on June 12, 2002.

Background

Kings Park Energy, LLC, 11350 Random Hills Road, Suite 400, Fairfax, Virginia 22030 (the "Applicant") proposes to construct and operate a gas-fired simple cycle electric power generation facility consisting of six General Electric (GE) LM6000 combustion turbine generators (CTGs) and associated balance-of-plant systems and facilities. The fuel will be natural gas with low-sulfur distillate oil (0.05 percent) backup. The nominal electric generating capacity of the proposed facility will be approximately 300 megawatts (MW). The project site is on Town Line Road, south of Old Northport Road, in the Town of Smithtown, Suffolk County.

The Applicant proposes to install an oxidation catalyst system to reduce emissions of carbon monoxide (CO) and volatile organic compounds (VOCs), and proposes to use water injection and Selective Catalytic Reduction (SCR) to control formation of nitrogen oxides (NOx) and associated emissions. The air emissions resulting from the turbines will be vented through three 110 feet high exhaust stacks. Suffolk County Water Authority, a public water supply company, will provide the 0.30 million gallons per day (MGD) on average required for the project. Sanitary wastewater will be discharged to two onsite subsurface disposal systems. Stormwater runoff will be directed to onsite recharge basins and leaching pools/pits. Process wastewater will be discharged to a holding tank and trucked off-site for proper disposal at a wastewater treatment facility.

Pursuant to Part 201 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR Part 201"), the Applicant has opted to apply for a preconstruction permit and certificate to operate. This would authorize construction and operation of the proposed facility, pursuant to 6 NYCRR 201-6.1 prior to the Applicant's obtaining a Title V permit under the federal Clean Air Act.

The project is not subject to the Prevention of Significant Deterioration ("PSD") regulations(1) and no PSD permit application was required. Despite this, the application contains a control technology review and an air quality impacts analysis, and the Applicant has stated that it will voluntarily use Best Available Control Technology ("BACT") for certain pollutants.(2) Pursuant to the Phase II requirements of Title IV of the Clean Air Act and 40 CFR §72.6(a)(3), DEC Staff has also reviewed Kings Park Energy LLC's acid rain permit application included in the Air State Facility application, and has found it approvable.

The project site, which is located in Suffolk County, is within a severe non-attainment area for ozone. The project is subject to Lowest Achievable Emission Rates (LAER) for VOC and NOx, which are precursors of ozone. Suffolk County is designated as an "unclassifiable" or "attainment" area for all criteria pollutants except ozone(3).

Kings Park Energy LLC is required to obtain emissions offsets in the form of emission reduction credits (ERCs). Pursuant to 6 NYCRR Subpart 231-2, Kings Park Energy LLC will be providing a list of emission offset sources which will be subsequently noticed for a separate public comment in accordance with §231-2.10.

Pursuant to Environmental Conservation Law (ECL) §17-0823, the Applicant has filed an application with the DEC for a State Pollutant Discharge Elimination System ("SPDES") wastewater discharge permit and a request for certification that its discharges will comply with the applicable requirements of the Federal Clean Water Act. The Applicant seeks approval to discharge storm water runoff to onsite drainage areas during the construction and operation of the proposed facility.

In addition to the air and water permits which are administered by DEC, the project requires a Certificate of Environmental Compatibility and Public Need pursuant to Article X of the New York State Public Service Law ("PSL"). The DEC public hearing is being held contemporaneously and on a joint record with the related PSL Article X proceedings (Article X Case No. 00-F-1356). The portion of the hearing which concerns the air permit under Part 201 and the SPDES permits is being conducted pursuant to the procedures of 6 NYCRR Part 624 (the Department of Environmental Conservation's permit hearing procedures).

The DEC Staff has determined that the proposal is a Type II action under the regulations implementing the State Environmental Quality Review Act ("SEQRA," ECL Article 8, 6 NYCRR Part 617). Type II actions are those actions listed in 6 NYCRR Part 617 as not being subject to review under the SEQRA procedures. Actions requiring a certificate of environmental compatibility and public need under Article X of the Public Service Law, and the consideration of, granting or denial of any such certificate, are among the Type II actions (6 NYCRR 617.5(c)(35)).

The DEC Staff prepared a draft Part 201 permit and a draft SPDES permit. The Department issued an Announcement of Public Comment Period, and Combined Notice of Complete Application and Public Hearing on March 22, 2002.

The notice was published in the April 10, 2002 issue of the Department's Environmental Notice Bulletin, which is published on the Internet. The notice was also published in the Smithtown and Huntington regional editions of Newsday on April 13 and 14, 2002, in Suffolk Life on April 24, 2002, and in the Smithtown News, The Observer, the Commack News, the Times of St. James, and the Smithtown Messenger on April 18, 2002. The notice was also mailed to the chief executive officers and clerks of the town and county in which the project is located, and to other persons known or believed to have an interest in the project including those on the service list for the related Article X proceeding.

A joint Article X and DEC public statement hearing took place on April 29, 2002 at the Kings Park High School, Kings Park. The issues conference took place at the H. Lee Dennison Building (Suffolk County office building) in Hauppauge on May 13 and 14, 2002, with the Article X issues primarily being discussed on May 13 and the DEC issues primarily being discussed on May 14, 2002.

Several organizations and governmental bodies submitted petitions for party status in the hearing on the air and water permits (see 6 NYCRR 624.4 and 624.5). These petitions were from Suffolk County, the Town of Huntington ("Huntington"), and Townline Association, Inc. ("Townline"). Suffolk County withdrew its petition for party status on May 14, 2002 since the issues proposed in its petition would be incorporated into its Article X issues statement (Transcript (Tr.) pp. 691 - 692).

The DEC Staff and the Applicant are automatically full parties to a permit hearing (6 NYCRR 624.5(a)).

The Applicant is represented in this hearing by Richard M. Cogen, Esq, and Andrew M. Gansberg, Esq. of the firm of Nixon Peabody, LLP, Albany. The DEC Staff is represented by Meghan Purvee, Esq. and Franz Litz, Esq., DEC Division of Legal Affairs, Albany. The Town of Huntington is represented by Joseph E. Macy, Esq., of Berkman, Henoch, Peterson & Peddy, Garden City, New York. Townline Association, Inc. is represented by Frederick Eisenbud, Esq., Commack, New York.

Rulings on Party Status

As stated above, the DEC Staff and the Applicant are automatically full parties to a permit hearing under 6 NYCRR 624.5(a).

Full party status in the adjudicatory hearing is granted to Townline Association, Inc. Townline has identified the required environmental interest in the proceeding, has identified an issue for adjudication which meets the criteria of 6 NYCRR 624.4(c), and filed an acceptable petition as required in 6 NYCRR 624.5(b). The Town of Huntington's petition for party status is denied since none of the issues it proposed for adjudication were found to be substantive and significant, and it does not appear that Huntington would be participating in developing the record with regard to the issues that are or may be identified for adjudication. Suffolk County submitted a petition for party status but withdrew the petition at the issues conference since its proposed issue would be incorporated into its Article X issues statement instead.

This ruling does not affect the status of Townline, Huntington, or Suffolk County as active parties in the Article X proceeding.

Issues for Adjudication

Standards for identifying issues for adjudication

6 NYCRR Section 624.4(c) specifies the standards for adjudicable issues in a DEC permit hearing. An issue is adjudicable if it relates to a dispute between the DEC Staff and an applicant over a substantive term or condition of the draft permit (624.4(c)(1)(i)). When the Department Staff has determined that a permit application, conditioned by a draft permit, will meet all statutory and regulatory requirements, the potential party proposing an issue has the burden of persuasion to demonstrate that the proposed issue is substantive and significant (624.4(c)(1)(iii)).

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 (624.4(c)(2)). An issue is significant if it has the potential to result in the denial of a permit, a major modification to the proposed project or the imposition of significant permit conditions in addition to those proposed in the draft permit (624.4(c)(3)).

In order to establish that adjudicable issues exist, "an intervenor must demonstrate to the satisfaction of the Administrative Law Judge that the Applicant's presentation of facts in support of its application do not meet the requirements of the statute or regulations. The offer of proof can take the form of proposed testimony, usually that of an expert, or the identification of some defect or omission in the application. Where the proposed testimony is competent and runs counter to the Applicant's assertions an issue is raised. Where the intervenor proposes to demonstrate a defect in the application through cross-examination of the Applicant's witnesses, an intervenor must make a credible showing that such a defect is present and likely to affect permit issuance in a substantial way. In all such instances a conclusory statement without a factual foundation is not sufficient to raise issues." (In the Matter of Halfmoon Water Improvement Area, Decision of the Commissioner dated April 2, 1982). Subsequent decisions of the Commissioner have provided additional interpretation of this standard.

The process for identifying adjudicable issues under the DEC permit hearing procedures differs from that under PSL Article X. Recent interim decisions of the Commissioner regarding appeals of DEC issues rulings made in hearings on projects also being reviewed under PSL Article X have applied the Part 624 "substantive and significant" standard with respect to DEC permit issues.(4)

Draft State Facility (Air) Permit

The DEC Staff and the Applicant identified no issues as being in dispute between them regarding any substantial term or condition of the draft air permit. The Applicant accepted the conditions proposed in the draft permit, but noted that it had submitted some drafting comments which were not any material changes (Tr. 693).

On May 20, 2002, the Applicant distributed a copy of the draft permit with its proposed changes noted. The annotated copy of the draft permit had been sent to the DEC Staff on May 6, 2002. The suggested changes do not appear on the version of the draft permit which I had at the time of the issues conference. These changes include several conditions for which the Applicant proposes adding the phrase "for all six turbines" to various emission limits. I am requesting that the Applicant clarify the intent of this proposed change, and that the DEC Staff state whether they agree with this proposed change.

There are no issues in dispute between the DEC Staff and the Applicant regarding the air permit. The clarification above will need to be provided for the record, but there is no indication that it raises an issue for adjudication.

Proposed Issues for Adjudication

The Town of Huntington and Townline Association, Inc. proposed various issues concerning the air permit administered by DEC. No issues were proposed regarding the State Pollutant Discharge Elimination System permit application. The rulings which follow discuss the proposed issues and the arguments related to them issue-by-issue, and may discuss arguments and offers of proof made by more than one party on the particular issue.

A ruling specifying Article X issues was issued on June 12, 2002 by Presiding Examiner Gerald L. Lynch and Associate Examiner Susan J. DuBois. The present ruling regarding DEC permit issues is being issued by the Associate Examiner.

During both days of the issues conference, there was extensive discussion of whether certain proposed issues (or parts of them) were under the purview of Article X or the DEC permit program under the Clean Air Act, with the next question being whether the issue should be identified for adjudication in whichever part of the hearing was appropriate to the subject matter. For some proposed issues, these questions are discussed in both the June 12 Article X issues ruling and the present ruling. Huntington proposed the same three issues in both its petition for party status regarding the DEC permits and in its Article X issues list.

Fugitive dust impacts during construction

Huntington argued that fugitive dust impacts during construction of the project would be significant, that a more detailed analysis of the impacts was warranted, and that details of dust control measures should be specified by the Applicant(5). Huntington proposed this issue in both its DEC petition for party status and its list of Article X issues. The Applicant disagreed with Huntington's position but agreed that the issue was adjudicable as an Article X issue; the Applicant stated that it would not be an issue for the DEC permit hearing in a case where no PSD permit was required (Tr. 532; May 10 letter p. 14-15). The DEC Staff asserted, however, that it could be a DEC permit issue since the draft permit contains a general condition regarding the prohibition against air pollution that would govern construction dust, and that this subject area could be under either the purview of DEC or the Siting Board (Tr. 533, 537).

The Article X permit application contains a discussion of fugitive dust impacts during both construction and operation of the project, and compares these to the fugitive dust emissions from the existing sand and gravel operation which is on the site (Application, pp. 5.16 - 5.20). The DEC permit application (included as Appendix 5.1-2 of the Article X application, see p. 7-29) contains only one paragraph regarding construction emission impacts, including construction vehicle emissions. This paragraph specifies only one of the fugitive dust control measures that are cited in the main body of the Article X application, and omits measures such as covering stock piles and posting speed limits. The Article X application also notes that PM10 fugitive dust emissions associated with construction are not subject to the new source review air permitting regulations (Application, p. 5.1-19, apparently referring to 6 NYCRR 201-3.3(c)(46)).

Huntington's petition also cited the results of an air modeling exercise that Huntington had conducted to compare construction dust emissions impacts with PM10 ambient air quality standards and significant impact levels (levels used in determining whether further analysis is necessary). The predicted impact was less than the standard. Huntington's comparison of the impact to the significant impact level appears to be inapplicable here, although this question was not discussed at the issues conference since the parties were considering the issue as an Article X issue or a nuisance issue under 6 NYCRR 211.2 or both. Huntington asserted that the application did not describe how the fugitive dust emissions during construction had been calculated and had not taken wind erosion into account. Huntington's assertion that the Applicant had not provided details on control measures is true with regard to the air permit application, but a variety of proposed and additional control measures were identified in the Article X application (p. 5.1-17).

In the Ramapo Energy hearing,(6) which was discussed by the parties at the issues conference, construction dust was identified as an issue in the April 17, 2001 issues ruling regarding the DEC permits, which noted that it was also within the purview of Article X (ruling, p. 23). In that case, in which a PSD permit is required, conditions regarding dust control such as limiting truck speed and using dust suppression systems are in the draft PSD permit and an intervenor had argued that additional conditions were necessary. The ruling noted that, "[A]lthough the existing condition is in the draft PSD permit, authority also exists to include conditions such as these in a state facility permit under the general prohibition against air pollution in 6 NYCRR 211.2." On appeal, the Commissioner excluded the issue from the DEC permit issues not for jurisdictional reasons but on the basis that the offer of proof was inadequate, and that the intervenor had failed to show that the draft permit conditions already proposed are inadequate such that additional measures should be considered (Ramapo Energy Interim Decision, July 13, 2001, pp. 15-16).

In the Ramapo Energy hearing, the Article X issues ruling identified as an issue "Construction activity impacts and related dust control measures, apart from those required by the conditions in the draft PSD permit" (April 30, 2001 ruling, page 6). Although other air-related issues were appealed in an interlocutory appeal to the Ramapo Energy Siting Board, this issue was not appealed by any party (Order Concerning Interlocutory Appeals from Article X issues ruling, July 25, 2001, p. 8).

In the present case, there is no application for a PSD permit nor a draft PSD permit. The draft state facility permit condition cited by DEC Staff re-states the general prohibition against air pollution that is contained in 6 NYCRR 211.2(7). This is a very general condition, specifying no particular measures that the permittee will undertake in order to prevent construction dust impacts from the permitted activity.

The subject area of fugitive dust control could be within the purview of both the DEC permit process and Article X, and here the Applicant has agreed that it may be adjudicated under Article X. In contrast with the Ramapo Energy case, no specific construction dust control measures are required by the draft air permit for Kings Park Energy and only one such measure (periodic wetting of disturbed areas) is even identified in the DEC air permit application (as distinct from the main body of the Article X application).

Due to the Applicant's agreement to adjudicate this issue under Article X, there was little or no discussion of whether the proposed issue is substantive and significant as those terms are defined for the DEC hearing process, other than counsel for DEC Staff stating without elaboration that DEC Staff disagreed with Huntington's modeling (Tr. 537).

Ruling: Measures for control of fugitive dust during construction could be an issue for adjudication in the DEC permit hearing or under Article X. In the present case, however, fugitive dust during construction is only mentioned briefly in the DEC permit application and is addressed in a very general manner in the DEC draft permit. The details are presented in the Article X application. The Applicant has consented to adjudicate this issue as an Article X issue. In the present case, the issue will be adjudicated as an Article X issue(8).

Turbulence associated with Huntington landfill and onsite structures

Huntington's petition for party status stated that "The applicant chose not to evaluate the interactive effects of turbulence caused by the Huntington Landfill and various onsite structures on plume dispersion." The Huntington landfill is located northwest of the project site, on the other side of Townline Road, and has the shape of a hill. Huntington presented the results of mathematical dispersion modeling conducted by its consultant using an additional model that calculated the dimensions of a structure intended to be a surrogate for the landfill. Huntington stated that its analyses indicated that a factor of a ten times increase from the Applicant's predicted values is probable, and that there must be a more complete and realistic evaluation of the air quality impacts. Huntington's petition suggested that use of a wind tunnel physical model would be appropriate to use in doing this, and at the issues conference Huntington also suggested alternative mathematical models.

Townline proposed a related issue entitled "The Article X and Air Permit Applications are Deficient Because the Results of the Applicant's Air Dispersion Modeling Do Not Consider the Effect of Nearby Terrain Obstacles." This proposed issue also included arguments regarding the definition of Good Engineering Practice (GEP) stack height which is found in 40 CFR 51.100(ii)(9). These proposed issues are discussed together in this ruling.

The Applicant opposed adjudication of both of these issues, arguing that it had conducted the analyses required by the air monitoring protocol for the project and had found no excessive concentrations, or even concentrations greater than the significant impact levels (levels which would lead to requirements for additional analyses). The Applicant argued that the ISC-PRIME model, which had been used by Huntington to examine this issue, was not approved for use in New York State for such purposes. The Applicant argued that the distance from the landfill to the stacks, in relation to the difference in height between the landfill and the stack tops, was such that the landfill was not close enough to the project to create downwash conditions (Tr. 706 - 710; May 21, 2002 letter). The Applicant argued that because it is not seeking credit for a stack height greater than the GEP formula height, and because there is no indication that "excessive concentrations" as these are defined in 40 CFR 51.100(kk) will occur, consideration of terrain-induced downwash effects is not necessary (May 10 letter, pp. 19-20)(10). The Applicant also requested a copy of the electronic files for the emission modeling summarized in Huntington's petition, which was provided by Huntington's consultant on May 16, 2002.

DEC Staff stated that the Applicant had complied with, and met, the applicable standards. DEC Staff stated that they had not determined that the terrain height would have a consequence to the extent that the intervenors had claimed, and had not required a fluid modeling exercise. They stated that rounded-edged structures (such as the landfill) do not have the same influence as do rigid edged structures such as buildings, that attempting to apply the ISC-PRIME model to a terrain feature would not make technical sense, and that one of the developers of this model had confirmed that it had only been evaluated for sharp-edged, rectangular buildings, not for terrain downwash (Tr. 711 - 721; May 22, 2002 letter).

On May 24, the Applicant submitted comments on the modeling information which Huntington had provided on May 16, stating that Huntington's consultant had used an incorrect base elevation for the landfill, causing the computer program to treat the landfill as though it were nearly twice its actual height. Huntington responded on May 31, acknowledging the elevation error but also presenting the results of a repeat of its modeling with the correct elevation. With the corrected elevation, Huntington's use of the ISCST3 model with the landfill dimensions added into it now produced results which were the same as or similar to those obtained by the Applicant using the ISCST3 model without the landfill dimensions (May 31 electronic mail transmission of consultant's response). With the corrected elevation, however, Huntington's use of the ISC-PRIME model still produced the same results as those it had obtained with the incorrect elevation and had presented as Table 3 of its petition. In the May 31 response, Huntington's consultant interpreted the results in Table 3 as indicating that the turbine building, not the landfill, was affecting the predicted turbulence and impacts. Huntington also stated that the building turbulence effects were about 7 times less if the plant structure was input as three separate buildings instead of one building.

Thus, even by Huntington's own analysis, inclusion of dimensions for the landfill into either of the models did not cause an increase in the predicted concentrations of air pollutants.

Huntington's May 31 correspondence cited changes in the direction of the flow streamlines as a possible additional unanalyzed impact, distinct from turbulence. The modeling that was done in preparation for the petition for party status (which Huntington described in its April 10 e-mail note as "computer modeling of flow pattern and turbulence created by the Huntington landfill") may have included this aspect of the air flow in its calculations, although this is unclear. Huntington did not describe such an effect, and the results of its own model, even with the corrected elevations, do not show an effect of the landfill on the dispersion of pollutants from the project.

Apart from effects of the landfill topography, Huntington now contends that its results in Table 3, which were higher than the impacts predicted by the Applicant, are due to effects of the turbine building on dispersion. Table 3 was produced using in the ISC-PRIME model, a model whose use was disputed by both the Applicant and the DEC Staff. One of the Applicant's bases for disputing use of the model was that it was not approved for use in NYS and was not an approved model under the EPA guidelines (Tr. 708 - 709; June 11 letter from Applicant; June 12 letter from DEC Staff). Huntington's May 31 correspondence also conceded that the ISC-PRIME program may have a problem defining impacts for long, low structures such as the turbine building.

The Applicant argued that since DEC had approved use of ISCST3 in the air modeling protocol, testimony about the results of other models would be merely "an academic dispute among experts," citing the Commissioner's January 31, 1996 Interim Decision in the Matter of Akzo Nobel Salt, Inc. The Akzo case is actually beside the point here, however, due to the highly structured nature of the EPA and DEC air program which determines the outcome of the question regarding whether the ISC-PRIME model is appropriate for use in this case.

Appendix W of 40 CFR 51, entitled "Guideline on Air Quality Models," provides a formal process by which EPA specifies air quality models for regulatory purposes, provides guidance for their use, and periodically updates such guidance. (See Appendix W, preface and sections 1 through 3 in particular). The guidance in Appendix W applies to state agency air programs.(11) Appendix W of 40 CFR 51 has three further appendices, identified as A through C. Appendix A to Appendix W summarizes preferred air quality models. Appendix B to Appendix W summarizes alternative air quality models. There are procedures by which EPA can approve use of an alternative model on a case-by-case basis.(12)

While few references to the specific sections of this guidance were provided by the parties with regard to this question, a review of Appendix W indicates that both of the models used by the Applicant (13) are models specified by the Guideline. The model used by Huntington does not appear in Appendix W, even as an alternative model. (14) Unlike the earlier arguments about what models can be used for studies for which EPA has provided no guidance, the EPA-approved models used by the Applicant apparently take into account the effects of the turbine building itself(15). Huntington has not demonstrated that use of ISC-PRIME complies with the current EPA guidance on modeling, nor that Huntington has either a basis or a procedural avenue for challenging whether a model other than the ones used by the Applicant should be used here.

Thus, Huntington's new arguments regarding its re-interpretation of its ISC-PRIME modeling results do not raise any substantive issue.

Huntington's initial description of the turbulence issue mentioned potential effects of the rectangular shape of the proposed stacks, which it argued would create intense turbulent eddies that could impact stack plume dispersion. At the issues conference, DEC Staff stated that the modeling done by the applicant had accounted for the stack configuration (Tr. 719) and the Applicant confirmed this (Tr. 722)(16). Huntington has not contradicted this statement.

Townline's proposed issue regarding air dispersion modeling and nearby terrain obstacles focused on the definition of GEP stack height and the analyses that Townline argued need to be carried out if an applicant is proposing a stack height less than the GEP formula height. Townline concluded that wind tunnel tests with a scale model should be carried out if called for by the analysis which Huntington's consultant was performing at the time (the analysis which incorporated dimensions for the landfill, as discussed above). Townline argued that the effects of terrain-induced downwash should be included in dispersion modeling especially if such downwash has the potential of causing a violation of any air quality standard such as the National Ambient Air Quality Standards or acceptable levels of non-criteria pollutants.

In the Ramapo Energy case, the DEC issues ruling had identified an issue for adjudication regarding GEP stack height. The Commissioner's July 13, 2001 Interim Decision regarding appeals of the ruling, in excluding this issue, held that a regulatory agency can require a specific study to verify GEP stack height under 40 CFR 51.100(ii), and that where the applicant did not perform such a study and DEC Staff did not request one, the study would need to be completed by the intervenor in order to join the issue for adjudication. In the present case, the study anticipated by Townline was done; Huntington's study, following correction of the elevation error, did not show an effect due to the terrain obstacle.

Townline cited a Connecticut Siting Council decision in which the Council denied an application for a power plant based in part upon terrain induced downwash (Tr. 734)(17). DEC Staff disagreed with Townline's characterization of the case and asked for an opportunity to submit a letter providing more detail. I allowed an opportunity for comment on the New Milford case. A copy of the decision was provided by Townline.

The New Milford decision does not lead to a conclusion that terrain-induced downwash should be adjudicated in Kings Park Energy case. The site-specific conditions differ significantly between the New Milford case and the present case. In New Milford, the proposed stack location was near a mountain 433 feet higher than the proposed stack top and within five times the terrain height of the mountain, close enough to cause downwash effects under the EPA's modeling procedures. This is in contrast to the maximum landfill elevation being 27 feet higher than the proposed stack top elevation in the present case, and the lack of effect shown in Huntington's modeling that included the landfill.

Ruling: For the reasons stated above, Huntington's proposed issue regarding turbulence associated with the landfill and onsite structures, and Townline's related proposed issue regarding dispersion modeling and nearby terrain obstacles, are not substantive and I am not identifying them for adjudication.

Ammonia releases

The applicant proposes to use water injection and selective catalytic reduction (SCR)as thee control technologies for oxides of nitrogen (NOx). SCR involves use of ammonia (NH3),which reacts with NOx in the exhaust gas to form nitrogen gas and water (Application, pp. 5.1-26 - 5.1-30). As stated in the application at p. 5.1-29, "A slight excess of NH3 is required to carry out the reduction of NOx that results in excess NH3 in the flue gas sent to the stack. This excess NH3 is known as ammonia slip." In addition to the ammonia slip emission from the stacks, the application considered consequences of accidental releases of ammonia stored on site (Vol. I, page 5.1-91).

Huntington asserted that the ammonia emissions from the stack which would be allowable under the draft permit would cause the odor threshold for ammonia to be exceeded under certain atmospheric stability conditions, even if one were to accept the Applicant's dispersion modeling. Huntington argued that if the downwash effects it contended would occur due to the landfill and onsite structures were taken into consideration, the impacts might exceed the odor threshold by many times. Huntington also questioned the basis for the Applicant's assertions about control of accidental releases of ammonia from the storage facility. This issue was proposed both in Huntington's DEC petition for party status and its Article X issues list.

Townline also proposed an issue regarding risk management and ammonia storage, arguing that applicability of the "general duty" clause of the Clean Air Act(18) is at issue, that the Article X application did not address the hazard identification, prevention and response measures required by EPA guidance, and that the application's off-site consequence analysis regarding accidental release of ammonia is inadequate.(19)

Townline requested until one week after the issues conference to submit studies it was obtaining which might show respiratory health effects of ammonia at levels below the odor threshold. DEC Staff objected to submission of this information as raising a new issue. The Applicant objected to the information as taking issue with the health-based guideline concentrations which had been approved by the New York State Department of Health (Tr. 757 - 764). I allowed one week for Townline to submit this information and to request that an issue be added, if it wished to do so following its review of the studies. I also allowed one week for responses, if Townline proposed to add this issue (Tr. 1002 - 1005). On May 21, 2002, Townline submitted a package of information regarding ammonia, among other air contaminants. Townline cited two of the documents as identifying a lower odor threshold for ammonia than the odor threshold identified in the application, and one of these documents as describing eye, nose and throat irritation at concentrations above this lower threshold. Townline made additional arguments regarding the Applicant's analysis of accidental ammonia releases and in support of pollution control technology that does not involve use of ammonia(20) but did not propose any additional issue regarding the appropriateness of the health-risk based criteria cited in the application (pp. 5.1 - 79 and 80; see also Appendix 5.1-2, pp. 7-29 and 7-31).

At the issues conference, the Applicant made several statements regarding how ammonia-related issues should be addressed, stating that it agreed to adjudicate certain ones of these as Article X issues, but that the issues should be limited to odor impacts and accidental releases of ammonia (Tr. 535, 648, 746)(21). The Applicant also stated that cumulative impacts of ammonia emissions from the project's stacks plus the Huntington Resource Recovery Facility were analyzed, but that this is within the scope of the DEC permit review (Tr. 550 - 551). The DEC permit process does not, however, appear to be the context for this analysis, since cumulative ammonia impacts with the Huntington RRF were only included in the application pursuant to Stipulation No. 1.3(c)(2), as part of the Article X review.

The DEC Staff stated that odor impacts of ammonia emissions could be within the scope of both Article X and DEC permitting (Tr. 533). The DEC provisions regarding this would be the requirement for compliance with 6 NYCRR 211.2 (the general prohibition against air pollution), plus the ammonia emission limit and monitoring contained in the draft permit (Condition No. 11). It is unclear whether the basis for the ammonia emission limit in the permit relates to health impacts, odor impacts or other reasons. The applicable federal regulation cited in this condition is 40 CFR 52.21(j).

DEC Staff asserted that Clean Air Act section 112(r) does not apply to this project, since the ammonia which the Applicant proposes to use would be less concentrated than that in the list of regulated substances under CAA 112(r) (19% for the proposed project, versus 20%) (Tr. 645, 928; see also 40 CFR 68.130 regarding the list). The DEC Staff further stated that even if the Applicant were proposing to use ammonia at a concentration to which CAA 112(r) would apply, this requirement has not been delegated to DEC by the EPA and a risk management plan under this section would be submitted to the EPA (Tr. 928).

The Applicant described accidental ammonia releases as part of a safety issue under Article X and not a question of compliance with the Clean Air Act (Tr. 648 - 649).

Ruling: No issue has been raised requiring adjudication in the context of the DEC permit, on the subjects of ammonia emissions or accidental releases of ammonia. The June 12 Article X issues ruling for this case discusses adjudication of an ammonia issue under Article X.(22) Townline's arguments in favor of a different NOx control technology are discussed below under BACT/LAER analysis.

Applicant's record of compliance

The DEC's Record of Compliance Policy (Commissioner Policy DEE-16, issued on August 8, 1991 and revised March 5, 1993) establishes the policies and procedures by which the DEC is to ensure that persons who are unsuitable to carry out responsibilities under DEC permits are not authorized to do so.

Townline cited this policy in support of its argument that the Applicant should be required to provide information about the operating experience of Kings Park Energy and its parent companies with regard to fires, explosions, spills, environmental violations, occupational health and safety violations, and similar information. Towline argued that the burden should be on the Applicant to provide this information, but noted that Townline had obtained information showing that the Applicant's parent company was in the process of remediating polychlorinated biphenyl contamination at various sites (May 3 petition, pp. 6-9).

At the issues conference, there was a lengthy discussion of what information would be requested and provided regarding this subject (Tr. 768 - 807). I directed the Applicant to complete and provide the record of compliance form used under the Record of Compliance Policy, which the Applicant did on May 24, 2002. The DEC Staff stated they would be making a discovery request of the Applicant, which they subsequently made on May 17, 2002.

I allowed Townline to supplement its petition with regard to this proposed issue, with the supplement due one week from receipt of the Applicant's response to DEC's discovery request. (This deadline is contained in my electronic mail message of June 3 to the persons on the active parties list, and amends the deadline as I stated it at the issues conference, for reasons discussed in the June 3 message.)

As of June 7, the Applicant had not responded to the DEC Staff's interrogatories on record of compliance questions, and I have not been notified of any such response as of the date of this issues ruling. Consequently, Townline's opportunity to supplement its petition on this proposed issue still remains. I am reserving ruling on whether or not there is an issue, in the DEC permit proceeding, under the Record of Compliance Policy until after the time allowed for the petition supplement is over. I intend to rule on this proposed issue as a supplemental ruling, if necessary.

Ruling: A ruling is reserved regarding the Applicant's record of compliance. The DEC's Record of Compliance Policy (Commissioner Policy DEE-16, issued on August 8, 1991 and revised March 5, 1993) establishes the policies and procedures by which the DEC is to ensure that persons who are unsuitable to carry out responsibilities under DEC permits are not authorized to do so.

Townline cited this policy in support of its argument that the Applicant should be required to provide information about the operating experience of Kings Park Energy and its parent companies with regard to fires, explosions, spills, environmental violations, occupational health and safety violations, and similar information. Towline argued that the burden should be on the Applicant to provide this information, but noted that Townline had obtained information showing that the Applicant's parent company was in the process of remediating polychlorinated biphenyl contamination at various sites (May 3 petition, pp. 6-9).

At the issues conference, there was a lengthy discussion of what information would be requested and provided regarding this subject (Tr. 768 - 807). I directed the Applicant to complete and provide the record of compliance form used under the Record of Compliance Policy, which the Applicant did on May 24, 2002. The DEC Staff stated they would be making a discovery request of the Applicant, which they subsequently made on May 17, 2002.

I allowed Townline to supplement its petition with regard to this proposed issue, with the supplement due one week from receipt of the Applicant's response to DEC's discovery request. (This deadline is contained in my electronic mail message of June 3 to the persons on the active parties list, and amends the deadline as I stated it at the issues conference, for reasons discussed in the June 3 message.)

As of June 7, the Applicant had not responded to the DEC Staff's interrogatories on record of compliance questions, and I have not been notified of any such response as of the date of this issues ruling. Consequently, Townline's opportunity to supplement its petition on this proposed issue still remains. I am reserving ruling on whether or not there is an issue, in the DEC permit proceeding, under the Record of Compliance Policy until after the time allowed for the petition supplement is over. I intend to rule on this proposed issue as a supplemental ruling, if necessary.

Ruling: A ruling is reserved regarding the Applicant's record of compliance.

Conditions under which distillate oil would be burned

Townline stated that it is opposed to allowing distillate oil as a backup fuel, but that if this is allowed, the DEC air permit should contain enforceable conditions that will assure that the 100 hour per year limit on use of distillate oil is not exceeded. The petition asserted that the draft permit does not clearly set out how this limitation will be enforced (May 3 petition, page 6). At the issues conference, I asked the DEC Staff to identify where this is addressed in the draft permit and they identified three permit conditions. Townline has not challenged the adequacy of these conditions further, following an opportunity to review them.

Ruling: No issue has been raised in the DEC permit proceeding regarding the enforceability of the draft permit's limitations on using distillate oil as a backup fuel.

Documentation of emission rates used in Applicant's analyses

Townline argued that the Applicant had not provided adequate documentation of the turbine emission rates that it used to project ambient air quality impacts and to determine whether the project was subject to the PSD permit program. Townline noted that certain tables in the air permit application cited "vendor's data" as the basis for emissions information, but that an earlier version of these tables had cited "manufacturer's guarantee." Townline stated that further documentation was not included. Townline also questioned whether the data was generic for the LM6000 turbines or specific to their application at this particular location, since the specific emissions could be influenced by both ambient air quality and process water quality.

Although Townline asserted that the Article X application does not describe how the process water will be purified or whether chemicals will be used, this assertion does not appear to be accurate. The Water Resources section of the application contains information on this (see pages 5.8-6, 5.8-10 through 5.8-17 and 5.8-20 through 5.8-21). With regard to ambient air quality, Townline provided no indication of the possible magnitude of this effect on emissions of any pollutant and whether it could have any effect on the applicability of the PSD program.

The DEC Staff cited the information they had reviewed in considering the emission rates, which included the air permit application, the Applicant's August 31, 2001 response to DEC Staff's request for supplemental information (included as part of Appendix 5.1-2 of the application), the application's discussion of Best Available Control Technology and Lowest Achievable Emission Rates, and DEC Staff's comparison of the emission rates with the range of emission rates from other Article X projects. The DEC Staff also cited a March 26, 2002 letter from the Applicant's consultant which provided further information regarding emission rates of VOC and PM10 (Tr. 808 - 810). During discussion of a subsequent issue, Townline's consultant stated that he had not reviewed the March 26 letter in detail. His comments on this and other proposed issues do not appear to have taken this letter into account, although it was sent to the parties on the active parties list, which included Townline at that time (Tr. 978 - 979). The March 26 letter discusses both the PM10 and VOC emission rates for the proposed project and compares them to emission rate limits for other combustion turbines in New York State.

The Applicant's consultant stated that the change in terminology from "manufacturer's guarantee" to "vendor's data" reflected that the later information included emission control information provided by the vendor of the control equipment, in addition to that provided by the turbine manufacturer (Tr. 821).

Ruling: Townline has not identified a substantive and significant issue regarding the documentation of emission rates. Townline did not take into account information related to this that was in the application or was made available to the parties. Its criticisms related to this issue do not raise sufficient doubt about the Applicant's ability to meet criteria applicable to the project that further inquiry would be inquired, nor do they indicate that the proposed issue might result in denial of the permit, major modifications to the project or significant permit conditions.

Comparison of emission rates use by Applicant with published rates

Townline argued the comparison of the emission rates specified in the application with emission rates published by EPA uncovered discrepancies requiring further explanation. Townline's consultant included in his May 2 letter a table comparing the emission factors stated in the application with those for stationary gas turbines as reported in EPA's reference document AP-42. Townline noted that the manufacturers emission factors for various pollutants were higher than those given by the EPA publication. Townline questioned the reasons for the differences between the two sets of values, and argued that the higher values in the Applicant's tables supported use of a NOx control technology other than that proposed by the Applicant.

I inquired about the regulatory significance of the different values with regard to whether the project would comply with the standards for an air permit, and whether the Applicant's use of higher emission values than those in the EPA reference suggested that the Applicant's analysis was a conservative estimate of the plant's impacts. Townline's consultant agreed that the Applicant's values would produce a conservative estimate of impacts, but questioned the basis for the values used by the Applicant and whether this basis was adequately explained (Tr. 823 - 828).

The Applicant stated that Townline's comparison had failed to take into account the effect of using an oxidation catalyst (May 10 letter, p. 14; Tr. 828 - 832). The Applicant also noted that EPA's values in AP-42 represent an average of a range of emission rates (Tr. 832). The DEC Staff noted that two pollutants for which the application had not reported values (carbon dioxide and methane, omissions questioned by Townline) are not regulated pollutants, and that the introduction to AP-42 states that the emission factors it lists should not be used in place of manufacturer's guarantees (Tr. 833 - 835).

Ruling: No issue is raised regarding the comparison of emission rates which was presented in Townline's petition. The Applicant and the DEC Staff adequately explained the reasons for the differences in the two sets of values, and Townline's criticisms did not raise a doubt regarding the Applicant's ability to meet the applicable requirements.

Meteorological data

The Applicant used meteorological data from MacArthur Airport in Islip, New York in conducting its single source refined modeling analysis with regard to criteria pollutants. This data was specified in the Air Modeling Protocol for the project (see application, App. 5.1-1, pp. 20, 29). This modeling produced results that were then compared to the significant impact levels. The results were below the significant impact levels (SILs) (Air Permit Application (App. 5.1-2 of the Article X application), pp. 7-23 and tables following that page).(23) Additional studies (multi-source modeling) would have been necessary if the SILs had been exceeded (Modeling Protocol, p. 32).

Townline's petition argued that the MacArthur Airport data may not be representative of meteorological conditions at the site, and may not be appropriate for use in this modeling. Townline noted its earlier, unsuccessful efforts at trying to get the Applicant to collect on-site meteorological data and to use these instead of the airport data. Townline noted that the site and the airport differ in that the site is closer to Long Island Sound(24) and would experience Sound breeze circulation more often, and that the exposure at the site differs from that at the airport due to the presence of the Huntington landfill which is northwest of the site and has elevations higher than those of the proposed stacks. Townline argued that the landfill has the potential for affecting local wind patterns, posing an obstruction to the wind when it is from the northwest and thereby causing downwash, and that an increased persistence in some wind directions is likely to increase the predicted 24-hour and annual average concentrations of pollutants.

The Applicant argued that DEC had approved use of the airport data, and that this data had also been used for many other air permit applications on Long Island in recent years. The Applicant cited EPA's Guideline on Air Quality Models(25) as allowing use of five years of representative meteorological data collected either on-site or at the nearest National Weather Service Station. The Applicant stated that under the Guideline, if one year or more of site specific data is available, and this data has been subjected to certain quality assurance procedures, such data are preferred for use in air quality analyses, but no such data is available here (Applicant's May 10 letter, pp. 14-16). Townline noted that it had requested intervenor funding in order to collect on-site meteorological data, but that funding had been provided instead to prepare the initial comments on the application that were included in Townline's petition (Tr. 843 - 844).

The Applicant also argued that Townline had not even alleged that the use of on-site data would result in anexceedencee of any applicable air quality standard, nor any exceedence of a SIL. The Applicant's consultant cited the results of the modeling in question and stated that in order for there to be a need for further study (i.e., due to a SIL being exceeded), the on-site data would need to produce an almost five-fold increase (Tr. 850 - 852). He cited the highest predicted particulate matter annual impact shown by the Applicant's modeling (0.239 micrograms per cubic meter, as shown on Table 7-10 of the air permit application), which compares with a SIL of 1.0 micrograms per cubic meter.

The DEC Staff stated that Sound breezes also occur at Islip, and that the winds there are frequently out of the north and northwest (Tr. 839; Air Modeling Protocol Fig. 4-1). The DEC Staff also stated that when considering the effects of the terrain on the wind, one must also consider not just the height of the stack but also the plume rise, and that if this is taken into account the plume will be at heights where the winds are more similar to the general meteorology (Tr. 846). Huntington's consultant stated that the Sound breeze flows from the north would not be enough to affect the impacts, although he noted Huntington's contentions about changes in the wind when it was coming over the landfill (Tr. 849 -850).

The key question here, in terms of whether there is any issue requiring adjudication, is whether the use of on-site data could either lead to a need for further analysis before a decision was made on the application (i.e., due to exceedence of a SIL) or indicate that the project will not comply with an applicable standard for issuance of the requested permit. Although Townline has cited various studies as indicating that the wind and dispersion patterns at Islip will differ on many days from those at the site, and that there may be a Sound breeze effect particularly during the mornings of days when large-scale winds do not predominate, Townline has not alleged that this effect is large enough or frequent enough to affect either the outcome of the application nor how its review would be conducted. Townline also did not contest the information presented by the Applicant that indicates that such a large effect is unlikely.

Ruling: There is no issue for adjudication regarding use of the MacArthur Airport meteorological data as opposed to on-site data. The possibility that the results of using on-site data would differ from those obtained by the Applicant does not by itself create an adjudicable issue. The proposed issue would need to raise sufficient doubt about the Applicant's ability to meet the applicable criteria that further inquiry would be required, which is not the situation here.

Terrain heights used in screening analyses

The air quality screening analysis uses, among other information, the highest terrain elevations at various distances from the source. Townline's consultant compared these receptor elevations, as used in the Applicant's analysis, with the elevations shown on an as-built topographic map of the Huntington landfill, and stated that the elevations which should have been used were from zero to 10 meters higher than those used by the Applicant. Townline argued that the screening analysis should be re-done to take these higher elevations into account.

At the issues conference, the Applicant's consultant stated that the as-built topography of the landfill had been taken into account in the Applicant's screening analysis. There was discussion by the consultants of how the receptor elevations had been assigned, and the Applicant's consultant described some further refinements of the elevations which he said had produced a negligible effect on the results (Tr. 866 - 871). Apart from these questions, however, the DEC Staff had taken the elevations proposed by Townline's consultant and had re-run the screening model using them, and had found that they made no difference in the conclusions of the application (Tr. 875 -876).

Ruling: No issue has been raised for adjudication regarding the terrain heights used in the screening analysis. The additional analysis proposed by Townline was done by the DEC Staff and the results indicate no substantive change in the conclusions of the air impact analysis if Townline's elevation values are used.

Refined air quality impact modeling and EPA's regulatory default option

Townline argued that section 4.4 of the Air Modeling Protocol (Appendix 5.1-1 of the application, at page 29) stated that, "Single source modeling will be conducted using EPA's ISCST3 model, run it its regulatory default mode per the EPA's 'Guideline on Air Quality Models.'" Townline argued that the application (at page 5.1-48) stated that the model had been run in the "simple terrain only" mode, which was not the regulatory default option, in determining whether any air pollutant exceeded the significant impact levels.

The Applicant stated that the quote of section 4.4 was correct, but that Townline had neglected to cite section 4.4.3 of the Air Modeling Protocol, which states that for the significant impact analysis the model would be run as described on page 5.1-48. Leon Sedefian, of the DEC Staff, confirmed that this modeling had been done in accordance with the Air Monitoring Protocol. Paul Eisen, Townline's consultant, questioned whether the model is always run in this manner. A discussion ensued regarding when and why various options would be used, but the outcome with regard to the present application is that the Applicant followed the modeling protocol for this application.

Ruling: Townline's proposed issue does not accurately reflect what was required in the modeling protocol, and the issue is not identified for adjudication.

Modeling of non-criteria pollutants

Citing the air permit application, Townline argued that the emission data which the Applicant used to calculate impacts of toxic (non-criteria) pollutants in comparison with the annual guideline concentrations and short-term guideline concentrations did not include emissions from other nearby significant industrial sources and thus was inconsistent with the procedures in DEC's DAR-1 Guideline.(26) Townline asserted that the applicant failed to include emissions from the Huntington Resource Recovery Facility (RRF) and the Northport Power Plant, citing particularly the emissions of ammonia from the RRF, plus fugitive releases of ammonia from deliveries and equipment leaks at the proposed project. Townline proposed that an emissions inventory of nearby source emissions of non-criteria pollutants be assembled.

DEC Staff, citing 6 NYCRR 212.1(b)(7), stated that this issue is not under the DEC regulations that govern the project, since emission sources from combustion sources are not addressed by the Air Guide 1 procedures. DEC Staff also stated that the EPA's Maximum Achievable Control Technology (MACT) rule did not apply either, since the project's emissions of hazardous air pollutants would be below the emission thresholds for that requirement (Tr. 899-900).(27)

The Applicant pointed out that a cumulative air analysis of non-criteria pollutant emissions from the project and the Huntington RRF had been done (Application, pp. 5.1-79 through 5.1-80, and Tables 5.1-43 and 5.1-44). This analysis was conducted under Stipulation 1.3(c) of the Article X stipulations for this case.

No issue has been identified regarding compliance with any DEC air permit standard. In addition, Townline's suggestion that the Applicant failed to consider emissions of Huntington RRF in its analysis is inaccurate. Although these were not included in the table cited by Townline, they were considered in the Article X application (pp. 5.1-79 through 5.1-80). To the extent that any issue may exist regarding cumulative effects of the Northport Power Plant or other sources, this would relate to the adequacy of the analysis conducted under the Article X stipulations (see particularly Stipulation 1.3(c)).

Ruling: There is no issue for adjudication, in the DEC permit hearing, regarding modeling of non-criteria pollutants. An issue regarding the non-criteria pollutant analysis under Stipulation 1.3(c) was identified in the June 12 Article X issues ruling as Issue No. 13 (pp. 17 and 18 of Article X issues ruling).

Ambient air quality data

Townline argued that the site is usually close to other major sources of air pollution (such as the Northport Power Plant), and that the Applicant's use of ambient air quality data from three monitoring sites located at Babylon, Greenpoint Avenue, and Eisenhower Park would not account for contributions of nearby sources to background air quality. Townline acknowledged that the Article X application includes cumulative air impact modeling of the project and the Huntington Resource Recovery Facility(28), but argued that this was inadequate and that an emissions inventory would be necessary to demonstrate that background ambient air quality concentrations have been properly estimated. Townline's arguments regarding this proposed issue concerned the impacts associated with criteria pollutants and with PM2.5(29) (including ammonium as a precursor of PM2.5).

Cumulative impact analysis of criteria pollutants is required under the air permit review process if the impacts of the proposed emission source exceed concentrations which are referred to as significant impact levels ("SILs"). The SILs are a small percentage of the National Ambient Air Quality Standards for the respective pollutants. The analytical method cited by Townline's consultant at the issues conference (Tr. 909) would only be used if there were a significant impact area(30) (Tr. 910, see also the March 25, 2002 DEC fact sheet, particularly the attached March 2002 review by the Impact Assessment and Meteorology Section, p. 2). In such situations, the significant impact area would be defined and an inventory of sources within it would be developed.

In the present case, the applicant evaluated air quality impacts of the project with regard to the criteria pollutants PM10, CO, SO2 and NO2, under a variety of load conditions and emission scenarios, and all results were below the significant impact levels. Although Townline and Huntington argued that the significant impact levels might be exceeded if downwash effects of the landfill were taken into account (Tr. 700 - 704; 909), Huntington's corrected modeling did not indicate that such an effect would occur and, as discussed above, no issue exists regarding further evaluation of this suggested effect. Since the significant impact levels were not exceeded for the criteria pollutants which were evaluated, a cumulative source impact analysis was not required for any of these pollutants (Application, pp. 5.1-39 through 5.1-57; see Stipulation 1.2(j)).

The Stipulations did require a study of the cumulative air impacts of criteria pollutants from the proposed power plant and the Huntington Resource Recovery Facility (Stipulation 1.2(l)). This study was identified in the stipulation as being intended to address a requirement in Article X (PSL 168.2(b)). The applicant conducted this study and found that the impacts of the two projects showed no exceedences of the PSD increments or the New York State or federal ambient air quality standards.

Under the currently existing regulatory framework, PM2.5 impacts may be identified as issues within the purview of PSL Article X.(31) An issue concerning PM2.5 is identified and discussed in the June 12, 2002 Article X issues ruling in the present case, as Issue No. 17 (pp. 29 through 31).

Ruling: The proposed issue of whether the ambient air quality data used in the application is representative is not identified for adjudication in the DEC permit hearing, for the reasons stated above.

State Facility Permit as compared with Title V Permit

Townline proposed an issue regarding whether a State Facility Permit under 6 NYCRR Part 201, and the proposed permit conditions, provide the same degree of compliance assurance that a Title V operating permit would eventually be expected to provide. This proposed issue also included an argument that one-time testing requirements which are contained in the draft permit are insufficient.

Proposed issues regarding whether Title V permits should be required for other power plants were rejected in both the Bowline and Ramapo cases.(32) As stated in the Ramapo issues ruling, and upheld in the Commissioner's Interim Decision in that case, "Use of a preconstruction permit for a major source does not omit requirements or information that would be necessary had the application be [sic] for a Title V permit." Under 6 NYCRR Subpart 201-6, the Applicant may apply initially for a State Facility Permit.

With regard to testing requirements, the DEC Staff stated that the draft permit includes continuous emission monitoring for NOx and ammonia, and that one-time testing applies only to VOC, SO2 and PM10, for which very low emissions are anticipated.(33) The DEC Staff stated that this is consistent with Title V permits and agreed to by EPA (Tr. 911-913). DEC Staff also stated that semi-annual reporting or certification requirements would be part of the Title V permit (Tr. 915). Townline has not made a substantive offer of proof contesting the adequacy of this testing.

Ruling: No issue has been raised regarding the fact that the application is for a State Facility Permit rather than a Title V permit, for the reasons stated above.

Emission rates and permit conditions for loads between 0% and 50%

Townline argued that the draft permit needs to address emission rate and permit restrictions during periods when the turbines are operating at loads between zero and 50 percent. Townline stated that there are numerous instances in the draft permit where emission limits are specified to apply only when a combustion turbine is operating at 50 to 100 percent, and cited an EPA policy from 1993 as requiring that start-up and shut-down should be accounted for in implementing operating procedures. Townline argued that the draft permit should include emission rate limits and time restrictions that apply to these circumstances.

The DEC Staff argued that the limits that apply at loads between 50 and 100 percent also apply at all times, and that there is no "automatic excuse" provision The DEC Staff stated that the EPA memo in question is actually from 1999 (Tr. 917 - 918, 926). The DEC Staff cited Condition 37 of the draft permit as recognizing the Commissioner's discretion to excuse violations, but not as granting an automatic excuse. The DEC Staff did not cite any permit condition in support of their statement that the limits apply at all times.

The Applicant cited Condition 43.2 as prohibiting operation of each turbine below 50 percent load, except during start up and shut down, and General Obligation B as prohibiting contraventions of any applicable ambient air quality standard. The Applicant argued that the emissions calculations done for the start-up and shut-down phases indicate that there would not be violations during those times (Tr. 921 - 923). (The emission calculations cited by the Applicant assume that the turbines and the air pollution control equipment are working as predicted, however, and do not examine emissions or impacts in situations involving malfunctions or poor maintenance, when the enforceability of permit conditions would be particularly important.)

The arguments presented on this subject do not indicate the existence of a factual dispute whose resolution will require testimony, but they do indicate the existence of a legal dispute about the draft permit conditions and whether they will be adequate to ensure compliance with air quality standards, with respect to operation at loads between zero and 50 percent. At an appropriate point in the hearing schedule, briefs from the parties will be included in the record regarding whether the draft permit conditions need to be changed in response to this argument, and if so, how. Townline will need to provide a copy of the 1993 EPA memo it cited, and the DEC Staff will need to provide of the 1999 memo if it is different from the one cited by Townline. The parties' arguments will also need to be precise in use of the term "units," since this is a term of art as used in the draft permit although it was used more loosely by the parties and the ALJ at the issues conference, with regard to 50 percent of the load of a turbine or 50 percent of the load of the whole facility. The Applicant's requested change in the draft permit, regarding the phrase "for all six turbines," may have a bearing upon this as well.

Ruling: No testimony or evidence is necessary regarding this issue. It is a legal issue regarding enforceability of the draft permit conditions. For the reasons stated above, however, briefs on this issue will be scheduled at an appropriate time in the hearing schedule.

Data regarding performance of air pollution control equipment

Townline's petition stated that the application's information about performance of the air pollution control equipment which would be used at the facility is incomplete and unsubstantiated. Townline quoted the application as saying that the final design, manufacturer make and model number of the add-on equipment were not available, and questioned whether the facility could meet the limits in the draft permit. (Townline made no offer of proof, however, that the equipment as identified thus far might not meet the limits.) Townline also questioned whether frequent start-up and shut-down, as is contemplated for this project, would affect the performance of the equipment over the long term. The equipment in question appears to be the selective catalytic reduction system and the oxidation catalyst.

The DEC Staff stated that the draft permit requires continuous emission monitoring for NOx and CO, and that degradation of the control equipment would be detected by this monitoring (Tr. 933). With regard to how such equipment has operated elsewhere in situations involving frequent start-up and shut-down, the DEC Staff said they had reviewed the performance of cogeneration facilities and, more recently, the New York Power Authority "sub-Article X" facilities(34) which use the same type of turbines as would the Kings Park Energy project. They stated that at times the control equipment has to be replaced, but that when this is necessary it occurs (Tr. 937 -938).

The Applicant's consultant cited his March 26, 2002 letter as providing additional information regarding the control equipment, including information from the catalyst manufacturer (Engelhard) regarding the catalyst's effectiveness at various temperatures (Tr. 950 - 951). As noted above, Townline apparently did not take this letter into account in developing its proposed issues. The Applicant argued that the omissions alleged by Townline did not relate to any standard that was not being met (Tr. 939).

On May 26, 2002, Townline requested an opportunity to submit information, by June 3, in response to a recent news report regarding NYPA's reports to the EPA on emissions from these turbines. No party objected to this request, and I allowed this submission. Townlindid notot submit any further information on this, however.

Ruling: Townline's assertions about the adequacy of information on this subject do not raise an issue for adjudication. The conditions in the draft permit provide for monitoring which could detect any degradation of the equipment. Townline did not propose to contradict the information which is available at this stage of the review process, nor to provide evidence that the equipment would unlikely to meet the proposed limits.

Alternative of a combined cycle facility

Section 5.2 of the air permit application(35) presents an analysis of alternatives, in response to 6 NYCRR 231-2.4(a)(2)(ii).(36) This provision is part of the DEC regulation regarding new source review in non-attainment areas and ozone transport regions, and it provides that applicants subject to Subpart 231-2 shall: "submit an analysis of alternative sites, sizes, production processes, and environmental control techniques which demonstrates that benefits of the proposed source project or proposed major facility significantly outweigh the environmental and social costs imposed as a result of its location, construction, or modification within New York State."

Townline asserted that although it does not believe that the proposed site is appropriate for any type of electric generating facility, if the Siting Board were to disagree with this position the application should be rejected until a comprehensive discussion of the alternative of a combined-cycle facility is presented for review. The Applicant proposes to use simple-cycle units. Townline's DEC petition stated that the air permit application's discussion of alternatives does not comprehensively compare the overall benefits of each of these alternatives to their social and environmental costs. Townline stated that the application only notes, without quantification, that simple-cycle technology is more flexible and emits less pollution during start-ups and load changes than would an equivalent combined-cycle facility. Townline presented what it described as a preliminary comparison of emissions of the Kings Park Energy project with those of a combined-cycle facility, the latter calculated from emissions of the proposed Spagnoli Road project (Case No. 01-F-0761) adjusted to the size and operating hours of the Kings Park Energy project. Townline cited this comparison as showing higher NOx and VOC emissions on an annual basis using simple-cycle technology.(37)

In its Article X issues list, Townline also proposed adjudication regarding the alternative of a combined cycle facility based upon determinations which would need to be made by the Siting Board under Article X.

The Applicant argued that there is no substantive and significant issue since Section 231-2.4(a)(2)(ii) simply requires that an applicant include an analysis of alternatives in its application. The Applicant cited certain DEC permit cases as indicating that this is all that is required.(38) The Applicant stated that its analysis had concluded that combined-cycle technology would not be well suited for the intended purpose of the plant. The Applicant stated that Townline's comparison with the Spagnoli Road project leaves out the start-up and shut-down emissions of a combined-cycle facility and that if these were included the combined-cycle emissions would be comparable for NOx and higher for VOC (Tr. 953 - 957).

The DEC Staff agreed with the Applicant, and also argued that since the air permit application's analysis of alternatives is in the context of Part 231, which applies to non-attainment pollutants (the ozone precursors VOC and NOx in this case), any consideration of alternatives has to take place within that framework.(39) The DEC Staff stated that operating a combined-cycle facility as a peaker unit would result in greater emissions of ozone precursors. DEC Staff stated that they have no role in determining if the plant should be operated as a peak or base load plant and cited the EPA Environmental Appeals Board case in the matter of Campo Landfill(40) as precluding consideration of alternatives that do not serve the purpose of the project.

The plain language of 6 NYCRR 231-2.4(a)(2)(ii) conflicts with the Applicant's assertion that all that this provision requires is that an application include an analysis of alternative sites, sizes, production processes and control techniques, and the Applicant's further suggestion that if such an analysis has been included it cannot be challenged in a hearing. 6 NYCRR 231-2.4(a)(2)(ii) requires that an applicant submit an analysis of these subjects "which demonstrates that" the balancing test in that provision has been met. Whether an analysis presented by an applicant actually demonstrates what it claims to demonstrate is a valid question under this provision, and is not answered solely by the fact that an applicant has discussed the subjects identified in this provision.

The DEC permit cases cited by the Applicant and the DEC Staff also do not support the Applicant's position. In the KeySpan (Ravenswood), Astoria Energy and NYPA Astoria (Poletti) cases, the intervenors in those cases had not presented adequate offers of proof specifying how the respective applicants' analyses were defective, had not indicated a basis upon which they were challenging the applicants' analyses, and/or had not specified the nature of the evidence they expected to present. In other words, the issue was excluded since the offers of proof were inadequate, not since inclusion of the analyses in the applications was all that is required. While the Astoria Energy and NYPA Astoria issues rulings stated, respectively, that the EPA has not provided guidance or regulations(41) interpreting this provision, neither the rulings nor the Commissioner's Interim Decisions in these cases held that this makes 231-2.4(a)(2)(ii) solely a requirement for a statement.

The Wawayanda issues ruling, at DEC issue #11 of that case, states that the intervenor made a passing reference to 231-2.4(a)(2)(ii) but made no offer of proof regarding this issue. In the St. Lawrence Cement hearing, an intervenor had argued that St. Lawrence Cement's Part 231 analysis was insufficient because it was not contained in the air permit application, and that the analysis was conclusory and did not provide sufficient information to permit an adequate comparison. The issues ruling stated that St. Lawrence Cement had performed such an analysis, in the DEIS and also in its air application, and that the fact that the Part 231 alternatives analysis was not labeled specifically as such was of no consequence. The issues ruling rejected the intervenor's argument about the analysis being conclusory since there are no "express requirements concerning the particular contents of the ...analysis" (citing Campo Landfill).(42)

In contrast to these cases, in the present case Townline has not only contested the thoroughness of the Applicant's Part 231 analysis but has also contested a conclusion of that analysis regarding the relative air quality impacts of the two production processes that are being compared. Townline presented its consultant's comparison of predicted emissions under the two alternatives, and contended that the alternative chosen by the Applicant would produce higher emissions of NOx and VOC. While the Applicant and the DEC staff disagree with this analysis, that disagreement underlines, rather than refutes, the conclusion that there is a substantive dispute. The outcome of this dispute has the potential to result in a major modification of the project.

An issue regarding compliance with 6 NYCRR 231-2.4(a)(2)(ii) was adjudicated regarding the application of Consolidated Edison Company of New York, Inc. for DEC permits and an Article X certificate for repowering the East River Generating Station.(43) The June 28, 2001 Recommended Decision in that matter contains a discussion of what is required under Part 231, which considers both the Campo Landfill EPA Environmental Appeals Board decision and a more recent EPA Administrator ruling in the matter of Borden Chemical, Inc.(44) As described in the Consolidated Edison Recommended Decision, "[I]n Borden, the EPA Administrator found that a three part test developed by the Louisiana Department of Environmental Quality was consistent with the alternative assessment required by §173(a)(5)." The Recommended Decision goes on to describe the three elements of this test, which I interpret as being substantive questions rather than simply requiring a statement. The Recommended Decision agrees with Consolidated Edison's assertion that neither the Clean Air Act nor Part 231 require or otherwise incorporate the three part test in Borden, but the Recommended Decision states that nevertheless, Borden provides useful guidance in interpreting 231-2.4(a)(2)(ii). The Consolidated Edison Recommended Decision evaluates whether the proposed alternatives would be consistent with the purpose of the project and whether the potential benefits of the project significantly outweigh its potential environmental and social costs.(45)

Returning to the present case, in addition to the issue proposed in its DEC petition for party status, Townline identified issues regarding the combined cycle alternative in its Article X issues list based upon determinations which the Siting Board would make under Article X. Issue number 3 identified for adjudication in the June 12 Article X issues ruling is, "Would the proposed simple-cycle generation facility minimize adverse environmental impacts (excluding air and wastewater discharge impacts) considering the state, nature, and economics of combined-cycle technology?" (June 12 issues ruling, p. 8). The Applicant consented to adjudication of this issue under Article X, although it opposed adjudication of the related issue proposed under Part 231 in the DEC permit proceeding.

It is possible that the outcome of the Siting Board's review could be that the combined-cycle alternative is preferable for reasons related to determinations which the Siting Board would make, on subjects other than air and wastewater discharge impacts. DEC Staff and the Applicant argued, however, that in their view a combined cycle facility would have comparable or higher emissions of ozone precursors if it were operated to follow the demand in the electric system as the Applicant intends (Tr. 956 - 957, 959).(46) The Applicant did not object to adjudication regarding a combined-cycle alternative under Article X, and it is not yet possible to conclude that a combined-cycle facility would be inconsistent with the purposes of the project. A change in this aspect of project resulting from the Siting Board's decision on the issues arising under Article X would represent a major modification to the project.

As stated above, there is a substantive dispute regarding the comparative impacts of the two production processes on air pollutant emissions, particularly ozone precursors. The outcome of this dispute in the context of the DEC permit proceeding could result in a major modification to the project. An additional consideration in this case is the separate review of the simple-cycle proposal and combined-cycle technology under Article X. Further development of the record regarding the air quality impacts of the two technologies as applied in this project would allow for a more informed decision to be made in both the DEC permit context and the Article X context, with evidence on the full range of impacts (including air quality) of the alternatives.

Ruling: A substantive and significant issue exists and is identified for adjudication regarding whether the Applicant's analysis of the alternative of combined-cycle technology demonstrates that the balancing test in 6 NYCRR 231-2.4(a)(2)(ii) has been met. This issue is limited to comparison of the air quality impacts of the production process (i.e., combined-cycle versus simple-cycle), not alternative sites, sizes and environmental control techniques, nor social costs, since the offer of proof is limited to this aspect of alternatives.(47)

BACT and LAER analyses

Under the Prevention of Significant Deterioration ("PSD") program, a project whose potential to emit is above the applicable threshold triggering PSD review is required to use Best Available Control Technology (BACT) for those pollutants subject to PSD review. This review applies to the criteria pollutants for which the project's location is in attainment of the National Ambient Air Quality Standards. In areas designated as non-attainment areas for particular pollutants, emissions of these pollutants above a threshold value are subject to Lowest Achievable Emission Rates (LAER) under the New Source Review process.

The project site is located in a severe non-attainment area for ozone, and its emissions of the ozone precursors NOx and VOC would be subject to LAER if they are above an annual emission rate of 25 tons per year. At the time of the notice of hearing, LAER applied to the NOx and VOC emissions of the project. The Applicant subsequently agreed to a permit condition limiting VOC emissions to 22.46 tons per year. Suffolk County, where the project is located, is designated as an "unclassifiable" or "attainment" area for the criteria pollutants other than ozone.

Although the project is not subject to PSD review, the application states that the project will voluntarily utilize BACT for CO, SO2, PM/PM10 and sulfuric acid. A discussion of the regulatory status of the project with respect to BACT and LAER, and BACT or LAER analyses and proposals for the project are at pp. 5.1-20 through 5.1-33 of the application.

Townline's petition proposed an issue, consisting of several sub-issues, regarding BACT or LAER for various emissions from the project. The sections of the proposed issue that concern BACT do not raise substantive and significant issues in this hearing since no PSD permit is required. The proposed issue regarding the VOC LAER analysis does not take into account the Applicant's agreement to the draft permit's limitation on VOC emissions, which would require these emissions to be below the 25 tons per year threshold (Tr. 968 - 970, 973 - 981). In addition, Townline's comparison of the project's VOC emissions with those published by EPA for stationary gas turbines does not take into account use of an oxidation catalyst, which would be used here (Tr. 828 - 832).

The remaining section of this proposed issue concerns whether the Applicant's proposal for NOx control (water injection with selective catalytic reduction) is LAER. The application's LAER analysis for NOx (pp. 5.1-26 through 5.1-30) considered the SCONOx system but rejected it as infeasible for the project, due to the limits of its operating temperature range in comparison with the exhaust temperature of the proposed turbines, and its incompatibility with use of oil as a backup fuel. Townline's consultant stated that he had contacted a vendor of SCONOx technology, and that this company had stated that SCONOx was feasible for the project (Petition, page 27 - 29). SCONOx does not involve use of ammonia, thereby eliminating ammonia slip (Application, p. 5.1-27, Petition p. 27).

The Applicant stated that SCONOx had been considered with regard to LAER for NOx in the review of several recent Article X cases, and had been rejected as an issue for adjudication. The Applicant also cited the Consolidated Edison (East River) case, in which use of SCONOx had been adjudicated, and noted that the Commissioner's August 16, 2001 Decision in that case found that SCONOx "had not been achieved in practice."(48) The Applicant stated that Townline's petition contained only questions, which were insufficient to establish an issue, regarding an additional NOx control process known as the dry Pahlman process, and that this other process had never been tested on a gas turbine (Tr. 970 - 972).

Townline's consultant argued that SCONOx might have been improved since the date of the earlier decisions. The Applicant's consultant stated that the SCONOx vendor's internet web site still identified the temperature limitation that would exclude its use for this project, and that he had not been able to get in contact with the vendor directly to inquire further (Tr. 982 - 985). I allowed Townline, the Applicant and the DEC Staff one week to submit additional information from the vendor regarding whether the use of SCONOx has been achieved in practice for a plant comparable to the proposed project (Tr. 1001 - 1002).

Townline submitted additional arguments regarding why use of SCONOx would be preferable in place of a technology involving ammonia, and how the project might be modified to reduce the exhaust gas temperature, plus a list of projects (all of which are combined-cycle facilities) at which SCONOx systems are in use. Townline also submitted information from the vendor regarding the SCONOx system (under the name EMx Catalytic Absorption System) but this did not address its use at facilities comparable to the proposed facility. The vendor's information also cites the same upper temperature limit as that identified in the application (see May 20, 2002 letter from Mr. Eisenbud; application p. 5.1-29). The Applicant submitted a letter dated May 21, 2002 stating that its research had confirmed that SCONOx had not been demonstrated to be feasible for a project comparable to that proposed. The Applicant also noted that the information from the vendor identified a higher NOx emission rate with SCONOx than the rate incorporated into the draft permit, and that the SCONOx system would not be capable of achieving an emission limit more stringent than that in the draft permit. DEC Staff's May 22, 2002 letter made a similar comparison regarding the emission rates.

Thus, there is no indication that SCONOx technology may now represent LAER for NOx for this project, nor that anything regarding this proposed issue has changed since the Commissioner's August 16, 2001 Decision in the Consolidated Edison case.

Ruling: For the reasons stated above, there are no issues for adjudication regarding the application's BACT and LAER analyses and proposals.

PM2.5

Townline's petition for party status and its Article X issues list both included proposed issues regarding PM2.5. As stated above, under the currently existing regulatory framework, PM2.5 impacts may be identified as issues within the purview of PSL Article X. Issues concerning PM2.5 is identified as issue 17 in the Article X issues ruling for this project.

Ruling: The proposed PM2.5 issue will not be adjudicated in the DEC permit proceeding regarding this project.

State Pollutant Discharge Elimination System Permit ("SPDES")

The DEC Staff prepared a draft SPDES permit and the Applicant accepted the conditions in the draft permit (Tr. 693). In a letter dated May 6, 2002, the Applicant provided a minor editorial change to the draft permit to make its address consistent with that in the draft air permit. This letter also stated that two references in the draft SPDES permit to disposal of certain wastewater from holding tanks should be changed to specify disposal at a properly permitted off-site wastewater treatment facility, rather than a Suffolk County wastewater treatment facility.

None of the intervenors proposed issues regarding the SPDES permit application in the DEC permit proceeding, and there are no issues in dispute between the Applicant and the DEC Staff regarding this permit. Thus, there are no issues for adjudication regarding the SPDES permit application.

Appeals

Pursuant to 6 NYCRR Subdivisions 624.6(e) and (g), and 624.8(d), these rulings on party status and issues may be appealed in writing to the Commissioner.

Any appeals must be received at the office of the Commissioner no later than 4:00 P.M. on July 1, 2002, at the following address: Commissioner Erin M. Crotty, NYS Department of Environmental Conservation, 625 Broadway, Albany, New York 12233-1010. The Commissioner's e-mail copy should be sent in care of my e-mail address (sjdubois@gw.dec.state.ny.us).

Any replies must be received at the same address no later than 4:00 P.M. on Wednesday, July 10, 2002. Appeals and replies which are transmitted by electronic mail must also be sent by first class mail, postmarked on or before the deadline. The parties are to transmit copies of any appeals and replies to all persons on the active parties list for the Article X proceeding (most recently updated on May 2, 2002) at the same time and in the same manner as they are sent to the Commissioner. Appeals must be sent by both first class mail and electronic mail to the addresses on the active parties list. Service by fax is not authorized.

Any requests for adjustment to the appeal schedule must be made to Chief Administrative Law Judge Daniel E. Louis, at the Office of Hearings and Mediation Services address.

Appeals should address these rulings directly, rather than merely restating a party's contentions.

_____________/s/_____________
Susan J. DuBois
Administrative Law Judge

Dated: Albany, New York
June 19, 2002

TO: All persons on May 2, 2002 Active Parties List

1 Title 40 of the Code of Federal Regulations ("40 CFR") Section 52.21

2 Application, pp. 5.1-20 to 5.1-26

3 Application, p. 5.1-21

4 See, for example, In the Matter of Athens Generating Company, LP, Interim Decision dated June 2, 2000, In the Matter of Mirant Bowline LLC, Interim Decision dated June 20, 2001, In the Matter of Ramapo Energy LP, Interim Decision dated July 13, 2001, and In the Matter of New York Power Authority (Charles Poletti Power Project), Interim Decision dated November 26, 2001.

5 Huntington did not contest the Applicant's assertion that fugitive dust impacts during operation of the project would be less than those of the existing land use.

6 In the Matter of Ramapo Energy Limited Partnership, Article X Case No. 98-F-1968 and DEC Application No. 3-3926-00377/00001.

7 Condition No. 39. 6 NYCRR 211.2 provides that, "No person shall cause or allow emissions of air contaminants to the outdoor atmosphere of such quantity, characteristic or duration which are injurious to human, plant or animal life or to property, or which unreasonably interfere with the comfortable enjoyment of life or property. Notwithstanding the existence of specific air quality standards or emission limits, this prohibition applies, but is not limited to, any particulate, fume, gas, mist, odor, smoke, vapor, pollen, toxic or deleterious emission, either alone or in combination with others."

8 See also June 12, 2002 Ruling Specifying Article X Issues and Establishing Schedule Milestones ("Article X issues ruling"), pp. 14 - 15, Issue No. 10.

9 See also 42 United States Code ("USC") 7423(c), which defines GEP stack height as "the height necessary to ensure that emissions from the stack do not result in excessive concentrations of any air pollutant in the immediate vicinity of the source as a result of atmospheric downwash, eddies and wakes which may be created by the source itself, nearby structures or nearby terrain obstacles (as determined by the Administrator)."

10 The GEP formula stack height for this project would be 125 feet above grade. The stack height proposed by the Applicant is 110 feet above grade (Application, pp. 5.1-34 - 5.1-36).

11 Appendix W, section 1.0.e

12 Appendix W, section 3, particularly 3.2; and Appendix B to Appendix W, section B.0; and possibly other sections

13 ISCST3 (cited at App. W, App. A, section A.5 under "Availability") and SCREEN3 (cited at App W, section 4.2.1.a)

14 The model was referred to as ISC-PRIME by Huntington, who also proposed use of an additional model know as AERMOD. At the issues conference, Leon Sedefian of the DEC Staff described these two models as now being identical (Tr. 737); both Huntington and the Applicant disputed whether this is exactly so, but in any event AERMOD also does not appear as either a preferred or an alternative model, and appears on EPA's web site as being under development. ISC-PRIME is also listed on the web site as being in development.

15 Application, pp. 5.1-36 to 5.1-37

16 See also 40 CFR 51, Appendix W, Appendix A, section A.5.g.

17 Application by New Milford Energy LLC, Docket No. 193, Connecticut Siting Council, December 15, 1999.

18 CAA section 112(r), 42 USC 7412(r)

19 An argument regarding cumulative effects of ammonia emissions from the Huntington Resource Recovery Facility, in combination with those from the Kings Park Energy project, was included in Townline's proposed issue regarding non-criteria pollutants, which is discussed below.

20 See proposed issue regarding BACT and LAER analyses, below.

21 Flammability of ammonia at some concentrations in the presence of oil was proposed as an Article X issue, and is identified as part of issue No. 11 in the June 12 Article X issues ruling, at pp. 15 to 16.

22 Issue No. 11, pp. 15 -16. Ammonia is also among the non-criteria pollutants, and a issues involving these are identified in the Article X issues ruling at pp. 16 through 18.

23 These results, when combined with background levels of the respective pollutants, were also below the National Ambient Air Quality Standards for these pollutants.

24 The site is approximately 5 kilometers, or approximately 3 miles, from the Sound (see Fig. 5.1-12 and other maps in application).

25 40 CFR Part 51, App. W, section 9.3.1.2

26 DEC Program Policy DAR-1, also known as Air Guide 1, dated November 12, 1997.

27 See application, p. 5.1-9, and 40 CFR 63 Subpart B, particularly 40 CFR 63.40 and 63.41

28 The analysis discussed at pp. 5.1-59 through 5.1-60, which is with regard to criteria pollutants, is a separate study from the consideration of non-criteria pollutants from the project plus the RRF which was noted in the previous section of these rulings.

29 The term PM2.5 refers to particles with an aerodynamic diameter of 2.5 microns or less.

30 The significant impact area, for each pollutant, would be the area defined as a circle centered on the project site with a radius equal to the greatest distance at which the predicted concentration exceeds the SIL (application, p. 5.1-47)

31 See, for example, Case No. 99-F-1314, Consolidated Edison Company of New York, Inc. (East River Generating Station), Order Granting Rehearing in Part (issued January 24, 2002). In the Kings Park Energy case, Chairman Helmer's March 22, 2002 compliance letter directed that certain information regarding PM2.5 impacts be submitted by the Applicant.

32 In the Matter of Mirant Bowline LLC, Issues Ruling dated March 30, 2001 and Interim Decision dated June 20, 2001; In the Matter of Ramapo Energy LP, Issues Ruling dated April 17, 2001 and Interim Decision dated July 13, 2001.

33 As acknowledged in the petition, the draft permit also includes continuous emission monitoring for carbon monoxide, at Condition No. 13.

34 Electric generating facilities with a generating capacity less than 80 MW, and not subject to Article X review.

35 Application pp. 5-2 through 5-6

36 An additional analysis of alternatives appears in the Article X application, Volume I, pp. 8-7 through 8-13.

37 At the issues conference, the Applicant noted that although the VOC emission numbers in the petition were correct based upon the application, they did not reflect the lower emission rate required by the draft permit. Even taking this into account, however, the annual emissions which Townline projected for the combined-cycle alternative would be less than those for the simple-cycle proposal.

38 The cases cited by the Applicant are New York Power Authority (Astoria, Charles Poletti Power Project), Issues Ruling dated July 19, 2001 and Interim Decision dated November 26, 2001; St. Lawrence Cement Co., LLC, Issues Ruling dated December 7, 2001, at pp. 23-24; KeySpan Energy (Ravenswood), Issues Ruling dated April 18, 2001; and Wawayanda Energy Center LLC, Issues Ruling dated January 11, 2002. The DEC Staff cited an additional case in support of this position, Astoria Energy LLC, Issues Ruling dated May 24, 2001 and Interim Decision dated July 17, 2001.

39 The DEC Staff appeared to be suggesting that no other environmental impacts (or air pollutants for that matter) could be considered in the analysis of alternatives under Part 231, but did not specifically state this (Tr. 958 - 959).

40 In Re: Campo Landfill Project, Campo Band Indian Reservation, NSR Appeal No. 95-1, June 19, 1996 (1996 WL 344522 (EPA))

41 6 NYCRR 231-2.4(a)(2)(ii), a New York State regulation, requires the same analysis as Clean Air Act 173(a)(5) (42 USC 7503(a)(5)). Although the EPA may not have adopted a regulation setting forth more detail about this requirement, the New York State Department of Environmental Conservation has adopted a regulation (i.e., 231-2.4(a)(2)(ii)) on the subject, apparently without finding the need to include further detail about its implementation in the DEC regulations.

42 Appeals of St. Lawrence Cement issues ruling are pending, and there has not been an interim decision at the time of the present issues ruling regarding Kings Park Energy.

43 Case No. 99-F-1314, Issues ruling and procedural ruling dated March 15, 2001, p. 37

44 Matter of Operating Permit, Formaldehyde Plant, Borden Chemical, Inc., Case No. 6-01-1, Administrator's Ruling, December 12, 2000

45 Recommended Decision, pp. 54 - 68. The DEC Commissioner's June 4, 2001 Interim Decision in that case concluded that Consolidated Edison had waived its right to appeal identification of this issue, but also stated that the Commissioner found no basis to disrupt the adjudication of the issues identified by the ALJ. The Commissioner's August 16, 2001 Decision adopted the findings and conclusions of the Recommended Decision with regard to this issue (Decision, p. 11).

46 The DEC Staff characterized the proposed operation as being during peak times (Tr. 962) or as a peaker unit (Tr. 960). The Executive Summary of the application, however, describes the facility as being designed to operate during peak and mid-level load periods (p. ES-1). The discussion of alternatives in the main body of the Article X application, at page 8-7, describes the design goals as including a "peak/intermediate load plant with high efficiency."

47 An alternative environmental control technique (SCONOx) was proposed as part of an issue involving the Lowest Achievable Emission Rate analyses, but as discussed below this is not an issue for adjudication.

48 6 NYCRR 200.1(am) defines LAER as: "The most stringent emission limitation achieved in practice, or which can reasonably be expected to occur in practice for a category of emission sources taking into consideration each air contaminant which must be controlled. In no event shall the application of this term permit a proposed new source or modification to emit any air contaminant in excess of the amount permitted under any applicable emission standard established under 6 NYCRR or 40 CFR."

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