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Kings Park Energy, LLC - Supplemental Ruling, September 12, 2002

Supplemental Ruling, September 12, 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

SUPPLEMENTAL RULING ON ISSUES

DEC Application No. 1-4734-00333/00003

September 12, 2002

Background

This ruling supplements the ruling on issues and party status that was made on June 19, 2002 regarding the above hearing. As discussed below, I had reserved making a ruling whether the Applicant's record of compliance would be an issue for adjudication.

The project under review is a major electric generating facility proposed by Kings Park Energy, LLC (the "Applicant"). The project is being reviewed under Public Service Law Article X. The project would require permits under the Clean Air Act and the Clean Water Act, and the applications for these permits are the subject of the present Department of Environmental Conservation ("DEC") permit hearing. The hearing on the DEC permit applications is being held in conjunction with the Article X hearing and on a common record. The proposed project and the procedural background of the hearing are described in the June 19 rulings on party status and issues with respect to the DEC permit proceeding.

The issue on which a ruling was reserved was proposed by Townline Association, Inc. ("Townline") and concerns whether the past compliance of the Applicant, or of related companies, with environmental requirements would support denial of the requested permits or imposition of significant additional permit conditions. In the DEC permit hearing on this project, the proposed issue is being considered in the context of the DEC Record of Compliance Policy (Commissioner Policy DEE-16, issued on August 8, 1991 and revised on March 5, 1993).(1) This policy describes, among other subjects, the procedure by which the DEC will consider events that may be a basis for the DEC to exercise its discretion in denying a permit application, and identifies the categories of crimes, violations and problems that should be considered. The proposed issue includes not only the record of compliance of the Applicant itself, but of its parent company and the parent company's subsidiaries. Kings Park Energy, LLC is a subsidiary of PPL Global, LLC, which in turn is a subsidiary of PPL Corporation (Article X Application, p. 1-3).(2)

A related issue was identified in the Ruling Identifying Article X Issues and Establishing Schedule Milestones ("Article X issues ruling"), which was issued by Presiding Examiner Gerald L. Lynch and Associate Examiner Susan J. DuBois on June 12, 2002 (see p. 14 of the ruling, Issue No. 9). The Applicant appealed this portion of the Article X issues ruling on June 27, 2002. Townline opposed the appeal, in correspondence dated July 5, 2002. On August 21, 2002, the Secretary of the Siting Board wrote to the Applicant stating that the Siting Board's regulations provide that interlocutory review of a presiding examiner's decision will be available only in extraordinary circumstances (16 NYCRR 4.7(a)), and that such circumstances do not exist for the Applicant's appeal. Consequently, the appeal was not heard on an interlocutory basis by the Siting Board. The issue as identified in the Article X issues ruling remains as an issue for adjudication in the Article X proceeding.

In the DEC permit proceeding, Townline's May 3, 2002 petition for party status argued that Townline had repeatedly sought to have the Applicant provide information regarding its record of compliance, as provided in the DEC Record of Compliance Policy. Townline argued that the DEC permits should not be issued without ascertaining the Applicant's ability to safely operate the proposed facility.

At the issues conference on May 14, 2002, the parties discussed a request for additional information which the DEC Staff stated they would be making. I allowed Townline to supplement its petition with regard to this proposed issue. The deadline for this supplement, as amended in my electronic mail message of June 3, 2002 to the persons on the active parties list, was one week from receipt of the Applicant's response to the DEC Staff's discovery request.

The DEC Staff made a discovery request of the Applicant regarding this subject on May 17, 2002 (Interrogatories DEC-1 through DEC-3). The Applicant provided a completed Record of Compliance form on May 24, 2002. As of June 19, 2002, the date of the DEC Issues Ruling, the Applicant had not responded to DEC-1 and DEC-2.(3) In the DEC Issues Ruling, I reserved ruling on this proposed issue until after the time allowed for the petition supplement was over (ruling, p. 17).

On July 8, 2002, the Applicant responded to DEC-1, to most of DEC-2, and to a revised wording of question DEC-2(iii). On July 19, 2002, the DEC Staff sent the Applicant an additional set of interrogatories on this subject area (DEC-4 through DEC-7), which among other things requested information on the record of compliance of PPL Generation, LLC and its subsidiaries. PPL Generation owns and operates power plants in Pennsylvania, Montana and Maine (Article X Application, p. 1-4).

Townline sent the Applicant an interrogatory on this subject on July 3, 2002 (TAI-9, questions 142 through 146). As of July 17, 2002, the Applicant had not responded to these interrogatories. Townline sent a letter to the Examiners on July 17 citing the lack of a response by the Applicant and by DEC Staff to various interrogatories and requesting that the Article X hearing schedule be changed to later dates. A conference call took place on July 29, 2002, as discussed in the August 5, 2002 Fifth Ruling on Intervenor Funding and Ruling on Discovery Dispute and Schedule, and included consideration of the Applicant's objections to parts of TAI-9-146. The Applicant's responses to DEC-4 through DEC-7, and to the remainder of TAI-9, were provided on August 9, 2002.

Townline submitted its supplemental petition regarding the record of compliance issue on July 11, 2002, within the one week time period after receipt of the Applicant's response to the DEC Staff's initial discovery request. Townline's supplement made reference to Townline's May 29, 2002 letter that had also addressed this subject.

The Applicant replied to the supplemental petition on July 19, 2002, opposing adjudication of the issue which Townline had proposed. The DEC Staff also replied to the supplemental petition on the same date, stating that based on their review of the information provided as of that time, there was no issue requiring adjudication. The DEC Staff did, however, note their additional discovery request of the same date and ask for additional time to review the answers to this and to Townline's discovery that was pending at the time. I granted this request. On August 28, 2002, the DEC Staff submitted further comment. Townline requested and was granted time to reply to the DEC Staff's comments, and submitted its reply on September 5, 2002. The correspondence is now complete concerning whether this proposed issue should be adjudicated with regard to the DEC permit applications.

Positions of the parties

Townline Association, Inc.

Townline argued that the wording of both the Record of Compliance form and the initial DEC Staff discovery request had allowed the Applicant to avoid responding with information concerning PPL Corporation, the parent of the Applicant's parent company, or concerning the entities in the corporate family that own power plants in the United States. Townline objected to the procedure followed in identifying issues in DEC permit hearings, citing the arguments in its appeal of the July 19 DEC Issues Ruling, and argued that the Applicant's "stone-walling" gave the Applicant an advantage under the DEC hearing procedures.

Townline stated that its prior correspondence on the record of compliance issue, including its May 29, 2002 letter, provided examples of events that support requiring information on the record of compliance of all of PPL Corporation's subsidiaries and adjudicating the issue of whether the past conduct of PPL Corporation's subsidiaries would warrant denial of the permit or the imposition of special conditions. The events cited in Townline's correspondence include remediation of polychlorinated biphenyl ("PCB") contamination by "PPL," air quality violations at a power generating facility in Martin's Creek, Pennsylvania which is owned by a PPL Corporation subsidiary, allegations of price fixing by a PPL Corporation subsidiary in Pennsylvania, newspaper articles about high electric prices in Montana associated with power plants owned by a PPL Corporation subsidiary, a United States Occupational Safety and Health Administration ("OSHA") citation and proposed penalty regarding a coal dust explosion in Montana, and an allegation of construction without a local permit at the Martin's Creek facility.

Townline's September 5 correspondence asked that I defer ruling on the proposed DEC permit issue until the close of the hearing, after the related Article X issue has been heard, since Townline was still gathering information to prepare its prefiled testimony on the Article X issue.

Applicant

The Applicant stated that Townline's offer of proof is wholly insufficient to establish a record of compliance issue for adjudication. The Applicant argued that it had not engaged in any of the conduct specified in the Record of Compliance ("ROC") Policy, nor had any high managerial agent or substantial owner of the Applicant. The Applicant noted that there are no other entities in which it (i.e., Kings Park Energy) is a high managerial agent or substantial owner. Thus, the Applicant concluded that none of the individuals or companies to which the ROC Policy applies have engaged in any of the covered conduct, and the inquiry should end there.

The Applicant argued that Townline was seeking to have the DEC inquire beyond the boundaries of the ROC Policy in looking at the compliance history of entities that are neither the Applicant nor high managerial agents or substantial owners of the Applicant. The Applicant stated that no agency involved in defining the scope of the application had required this. (This statement was in the Applicant's correspondence sent on July 19, 2002. On the same date, the DEC Staff transmitted to the Applicant interrogatories DEC-4 and DEC-5, which did ask about certain other PPL Corporation entities.) The Applicant argued that even if DEC could inquire about other entities, Townline's offer of proof would be insufficient to raise an issue since much of the offer of proof is based upon newspaper articles related to allegations, rather than reliable documentation that violations had been found, and since incidents involving other subsidiaries or large corporations in states outside of New York have limited probative value in determining whether an applicant will comply with its permit in New York State. The Applicant also provided responses regarding specific events cited by Townline.

DEC Staff

In response to Townline's July 11, 2002 supplemental submission, the DEC Staff initially stated that there was no indication that the allegations of price fixing also included any allegations of filing a false instrument or making a false statement, nor any indication that the alleged activities constitute fraud or deceit (categories of actions that are identified in the ROC Policy). Similarly, the DEC Staff stated that Townline's submission did not indicate that the PCB remediation resulted from a violation. The DEC Staff stated that they would review the Martin's Creek air quality violation in connection with the additional information they were requesting from the Applicant.

The DEC Staff's August 28, 2002 comments concluded that there is no requirement under the ROC Policy to conduct an analysis of the compliance history of PPL Corporation and PPL Generation and their subsidiaries because there is no commonality of managers and officers with the Applicant and because neither the Applicant nor PPL Corporation nor PPL Generation have a substantial interest in each other which could influence the operation of the proposed facility. The DEC Staff noted that despite the fact that DEC was not required to conduct a ROC Policy analysis, they did so and found that there were no violations or penalties that rose to the level of creating a doubt about the Applicant's suitability to comply with the draft air permit, and that there were numerous mitigating factors. The DEC Staff also noted that the only facilities owned by PPL Generation in New York State are currently under construction, and to date, PPL has complied with all DEC permit requirements.

Discussion

The DEC Record of Compliance Policy establishes procedures by which the DEC is to ensure that persons who are unsuitable to carry out responsibilities under DEC permits are not authorized to carry out such responsibilities. Following review of applicants' "records of compliance," those applicants who have violated the Environmental Conservation Law or similar laws in the past may be denied permits or may be issued permits with strict reporting or monitoring conditions. The DEC may also conclude that a prior violator can demonstrate that it has re-established a reasonable record of compliance and can now carry out activities in a responsible manner. The policy focuses on violations of environmental laws and on conduct that may indicate a lack of truthfulness. Categories of such events are identified in section IV of the policy. The DEC's review of an applicant's record of compliance is not limited to the record of the immediate entity applying for a permit, but extends to other entities in which the applicant holds or has held a substantial interest or in which it has acted as a high managerial agent or director, and to any entity which holds a substantial interest or the position of high managerial agent or director in the applicant. In considering matters which occurred in other states, or federal matters, the DEC's review focuses primarily on those which resulted in relatively serious penalties (ROC Policy, Section IV). Evidence of a violation that has been adjudicated or admitted by the violator should enter the record principally through the document which reflects the result of the adjudication or admission. Circumstances that would constitute a violation over which DEC has administrative jurisdiction, and that have not yet been adjudicated, may be adjudicated in the permit hearing but this procedure is not available where the violation is one that could not be handled by the DEC administratively (In the Matter of A-1 Recycling and Salvage, Interim Decision, March 19, 1992).

In situations involving large companies with related entities in other states, the analysis of an applicant's compliance history focuses initially and chiefly on the applicant's compliance record within New York State, but the compliance histories of entities related to the applicant (including sister companies) may be considered as well, if appropriate in view of the relationship between the entities (In the Matter of Waste Management of New York, LLC, Interim Decision dated May 15, 2000; In the Matter of Republic Environmental Systems (New York), Inc. Interim Decision and Order dated December 29, 1993).

Most of the situations cited by Townline are outside of the matters which would be considered under the DEC Record of Compliance Policy. Allegations regarding high electricity prices are not matters governed by the Environmental Conservation Law, nor by similar provisions in laws of other states or federal law. Most of the situations cited by Townline involve allegations, not final determinations by the appropriate authorities. Some of these events are documented only by newspaper articles, or in one case by what appears to be a letter to the editor, which are not sufficiently reliable by themselves to raise an adjudicable issue (In the Matter of Athens Generating Company, LP, Interim Decision dated June 2, 2000). With regard to allegations of environmental law violations, none of the allegations concern violations that could be heard in a DEC administrative enforcement hearing since the allegations involve actions which occurred outside of New York State.

There is no indication that the PCB contamination which PPL is remediating in Pennsylvania was caused by a violation of the law. Townline's offer of proof on this subject stated that, "The Pennsylvania Bulletin, which is available on-line, shows that in the year 2000, PPL was in the process of remediating PCB contamination at the site of 65 distribution poles, and 7 substations or former substations." Townline did not provide any more specific citation nor any claim that the PCB contamination was due to a violation of law by PPL. A search of the Pennsylvania Bulletin internet site (www.pabulletin.com) showed numerous issues of that publication that contain notices under the Pennsylvania Land Recycling and Environmental Remediation Standards Act which state that PPL had submitted notices of intent to remediate, had submitted reports concerning soil remediation, or had received approval of final reports on soil remediation (see, for example, 30 Pa.B. 3087, 30 Pa.B. 6223). Townline's offer of proof, and the notices to which it refers, indicate work to remediate soils found or suspected to have been contaminated but do not indicate any violation of environmental laws by PPL Corporation or any of its subsidiaries. The Pennsylvania DEP correspondence and Consent Order provided by the Applicant as part of its response to interrogatory TAI-9-146(4) also support the interpretation that this work involved remedial action rather than violations. The consent order does not attribute the cause of the contamination to violations of law by PPL.

The OSHA citations and proposed penalties against PPL Montana, LLC have to do with events that are not under laws similar to the Environmental Conservation Law. In addition, the OSHA press release submitted by Townline states that PPL Montana had an opportunity to contest the citations and the proposed penalties before the Occupational Safety and Health Review Commission, and the Applicant stated in its response that PPL Montana had contested the citations.

Townline also stated that in June, 2002, the Pennsylvania Public Utility Commission ("PUC") had found evidence that PPL Utilities unfairly manipulated wholesale electricity markets in early 2001, and that the Pennsylvania PUC had referred the case to the U.S. Department of Justice, the Federal Energy Regulatory Commission and the Pennsylvania Attorney General. Townline's offer of proof on this situation cited a January 17, 2002 Associated Press article and quoted briefly from it, and also noted the month in which the Pennsylvania PUC had announced the results of its investigation. The Applicant's response to this portion of the offer of proof was very brief, stating only that the claims do not relate to any conduct that, even if determined to be unlawful, would be within the scope of the Record of Compliance Policy. The DEC Staff stated that there is no indication that the allegations of price fixing also include the allegation of the filing of a false instrument or making a false statement, or that it indicates fraud or deceit.

The situation as described by Townline does not involve any violation of a provision of laws similar to the Environmental Conservation Law, denial of a permit for activities substantially similar to the proposed project, exceeding the scope of a permitted project, nor any criminal conviction. Thus, the only category of events identified in the Record of Compliance Policy under which this situation might be considered is, "Whether the applicant or permittee has engaged in conduct that constitutes fraud or deceit or has made materially false or inaccurate statements in the permit application or supporting papers or in the conduct of the permitted activity" (ROC Policy, section IV.d.). This category of events relates to the truthfulness of applicants, which is important both in the permitting process and in permittees' ongoing compliance with various DEC permit programs which rely, in part, on information provided by the permittees (In the Matter of Al Turi Landfill, Decision dated April 15, 1999; In the Matter of Ferdinand DeCaprio, Jr., et al., Decision and Order dated January 24, 1996).

Information regarding the Pennsylvania PUC's investigation is posted on the Pennsylvania PUC's internet site. This information includes an investigation report dated June 13, 2002, in the matter of the Investigation Upon the Commission's Own Motion With Regard to PJM Installed Capacity Credit Markets (Docket No. I-00010090). In the absence of any more specific citation by any party, this document is apparently the June, 2002 findings referred to in Townline's July 11, 2002 letter.

The matters described in Townline's offer of proof and in the investigation report are not within the scope of section IV.d of the Record of Compliance Policy, and would not be part of a record of compliance issue with regard to the present application for DEC permits. This ruling draws no conclusions about the significance of the Pennsylvania investigation with regard to Issue No. 9 in the Article X case concerning this project.

Of the events cited by Townline, the only events that are within the categories of events to be considered under the Record of Compliance Policy are the air quality violations by PPL Martins Creek, LLC.

The Martins Creek orders on consent were final determinations by the Pennsylvania Department of Environmental Protection, which resulted in civil penalties of $62,100 and $30,300 for violations of air quality regulations similar to those under the New York State Environmental Conservation Law. The violations involved the opacity of emissions from the Martins Creek power generating facility, which was operated by Pennsylvania Power & Light Company at the time of the November 4, 1996 Consent Order and Agreement and by PPL Martins Creek, LLC at the time of the October 3, 2001 Consent Order and Agreement. Pennsylvania Power & Light agreed that the findings concerning violations were correct in the 1996 order(5), and PPL Martins Creek, LLC agreed that some of the findings concerning exceedence of opacity standards were correct in the 2001 order(6).

The next question, in considering whether these violations are relevant to the present application, is whether violations by PPL Martins Creek, LLC and by its predecessor prior to restructuring of the companies should be considered in reviewing an application by Kings Park Energy, LLC. The answer to this question depends on the relationship between PPL Martins Creek and Kings Park Energy. The two branches of the PPL Corporation structure that are most relevant to the question are PPL Global, LLC (of which Kings Park Energy is a subsidiary) and PPL Generation, LLC (of which PPL Martins Creek is a subsidiary).

As described in the application for the present project, PPL Global develops and acquires power generation and distribution facilities worldwide. PPL Generation operates domestic electric generation facilities. The application predicts that PPL Generation's base of generation assets will continue to increase through development and acquisition activities of PPL Global (Article X Application, pp. 1-3 through 1-4). This relationship between PPL Global and PPL Generation is also described in PPL Corporation's 2000 CERES Report, which was submitted by the Applicant on July 8, 2002. This report states that, "PPL Global develops domestic generation projects for PPL Generation" (Report, p. 9). This relationship appears to exist for the two PPL "sub-Article X" facilities recently developed on Long Island. PPL Global, LLC was identified as the applicant in the notices of hearing for both the Edgewood Electric Generating Facility and the Shoreham Electric Generating Facility (notices dated November 14, 2001), but the attachments with the Applicant's August 9, 2002 response to interrogatory DEC-4 show both PPL Shoreham Energy LLC and PPL Edgewood Energy LLC as subsidiaries of PPL Generation, LLC.

The Applicant's response to DEC-4 states that both PPL Global, LLC and PPL Generation, LLC share the same corporate parents and "both have identical directors ('managers')." The response states that Kings Park Energy, LLC and PPL Generation, LLC share no common directors, and that PPL Generation and PPL Global share only two common officers, who are not involved in management of operations or construction. The listings of officers and managers of PPL Generation and of PPL Global(7) show, however, that the President of PPL Generation (James H. Miller) is a manager of PPL Global, and the President of PPL Global (Roger L. Petersen) is a manager of PPL Generation. Mr. Petersen is also President of Kings Park Energy, LLC.(8) Mr. Miller is also President of PPL Martins Creek, LLC.(9)

The relationship among the four above PPL entities, both functionally and in terms of the managers and directors, is such that the compliance history of the Martins Creek facility should be considered in reviewing the present application by Kings Park Energy. This does not require adjudication, however, other than to enter into the record the Martins Creek Consent Orders and the discovery responses regarding the relationships among the entities involved and to allow the parties to argue how the Martins Creek events should be taken into account by the Commissioner in her decision on the present application for DEC permits. This is similar to the procedure followed in the DEC permit hearing regarding Ramapo Energy LP (Ruling on Issues and Party Status dated April 17, 2001; the ruling on the record of compliance issue in that case was not appealed.) In view of the number of facilities operated by PPL Generation and the limited scope of this issue (violations at one facility), it does not appear that this issue has the potential to result in denial of the permit. It may, however, result in changed or additional permit conditions, and the parties will be afforded an opportunity to argue whether any specific conditions should be added to the air permit if this is granted for the Kings Park Energy facility. Townline is directed to notify me by September 23, 2002, with copies to the parties and the presiding examiner, of the specific changes or additions to the draft air permit which it believes would be necessary in response to this issue. Arguments regarding these changes or additions may be presented by the parties in their briefs.

Townline also stated that as a result of computer dispersion modeling of the effects of the Martins Creek station on ambient air quality in New Jersey, the Environmental Protection Agency ("EPA") redesignated Warren County, New Jersey to non-attainment status for sulfur dioxide, effective February, 1988. The Applicant did not respond specifically to this assertion. The DEC Staff stated, based upon discussions with EPA and the New Jersey Department of Environmental Protection, that the modeling work was followed by actual emission monitoring which indicated no violations of the sulfur dioxide standards. According to the DEC Staff, "EPA/PA DEP" found that there needed to be a slight reduction in PPL's sulfur dioxide emissions based upon the calibrated model, and PPL reduced its emissions accordingly. The DEC Staff stated that New Jersey did not agree that the modeling had been done appropriately, and is pursuing this issue in appealing the issuance of a final permit to a new combined cycle facility at Martins Creek, which matter is still pending. Based upon the information submitted by Townline and the DEC Staff, this is a matter that does not involve a final determination that a company related to the Applicant violated an environmental law, nor that it engaged in conduct that would call into question the ability of the Applicant to comply with a DEC permit.

In addition to arguing that the record of compliance issue should be adjudicated, Townline's July 11, 2002 supplement to its petition for party status argued that the Applicant should be required to provide information concerning the record of compliance of all of PPL Corporation's subsidiaries. This argument is now moot, due to the additional discovery which occurred after July 11, 2002.

Townline's supplement to its petition again objected to the process for identifying issues in DEC permit hearings, but as stated in the June 19, 2002 DEC issues ruling in this case, recent interim decisions of the Commissioner in other Article X cases have applied the DEC permit hearing procedures (6 NYCRR Part 624) with respect to DEC permit issues in these cases (ruling, p. 6).

On August 31, 2002, Townline requested an opportunity to reply to the DEC Staff's August 28 letter. I granted this request. On September 5, 2002, Townline provided a letter which did not respond to the DEC Staff's letter but instead stated that Townline was still gathering information from other states where PPL subsidiaries operate, in preparation for submitting prefiled testimony on the related Article X issue. Townline stated that it was not in a position to say whether there was material new information. Townline argued that if it were required to respond substantively to the DEC Staff's letter now, it would in effect be required to provide its prefiled testimony earlier than the scheduled date of September 30, 2002. Townline asked that I defer ruling on the DEC Record of Compliance issue until the close of the hearing.

Townline's September 5 request is in effect an additional argument that procedures other than those described in Part 624 should be used in identifying issues concerning DEC permits in this case. Under Part 624, petitions for full party status are to include offers of proof regarding proposed issues (6 NYCRR 624.5((b)(2)). The hearing is then held to consider the issues that have been found to be substantive and significant. In the present case, the petitions were due on May 6, 2002. I already allowed Townline to supplement its petition with respect to the Record of Compliance issue as it relates to DEC permitting. At the issues conference on May 14, 2002, I allowed for the supplemental petition to include information Townline had obtained on its own, but had not included in its original petition, and did not limit the supplemental petition to comments on the information which the Applicant was going to provide (Transcript, pp. 790-791, 805-807, 1000-1001; June 3, 2002 electronic mail message). Due to a delay in the Applicant's response to interrogatories DEC-1 through DEC-3, Townline's supplemental petition was not due until July 15, 2002. Townline also had until September 6 to reply to the DEC Staff's position on this issue. There has been ample time for Townline to assemble information in support of its proposed issue. The ruling on the proposed issue will not be deferred until the close of the hearing.

Ruling: The only matters raised by Townline which need to be considered under the DEC Record of Compliance Policy are the air quality violations by the Martins Creek facility. Documentation and argument regarding the significance of these events may be placed in the record as discussed above. Townline's proposed changes or additions to the draft air permit are to be provided by September 23, 2002. This DEC supplemental issues ruling makes no findings or conclusions regarding Issue 9 in the Article X proceeding about this project, nor regarding whether the project meets the public interest standard of Public Service Law Section 168.

Appeals

Pursuant to 6 NYCRR Subdivisions 624.6(e) and (g), and 624.8(d), this ruling 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 September 23, 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 October 3, 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 August 14, 2002) in such a manner that they are received by the parties on the same day that they are received by the Commissioner. Service by fax is not authorized.

Appeals should address this ruling directly, rather than merely restating a party's contentions.

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

Dated: Albany, New York
September 12, 2002

TO: All persons on August 14, 2002 Active Parties List

1 The policy is on DEC's internet site at www.dec.state.ny.us/website/ogc/egm/roc.html

2 The organizational chart provided by the Applicant in response to interrogatory DEC-2 shows two additional companies in the entire chain of corporate "parents" between PPL Corporation and PPL Global: according to the chart, PPL Global, LLC is a subsidiary of PPL Energy Supply, LLC which is a subsidiary of PPL Energy Funding Corporation which is a subsidiary of PPL Corporation.

3 Discovery request DEC-3 asked for a completed DEC Record of Compliance form. The Applicant had provided this on May 24, 2002, and also included it in its July 8, 2002 response to DEC-1 through DEC-3.

4 Attachment TAI-9-146(4), letters from the Pennsylvania DEP to Pennsylvania Power & Light Company and to other PPL entities; Attachment TAI-9-146(2), January 11, 2002 Amended Consent Order and Agreement between PPL Electric Utilities Corporation, PPL Generation, LLC and the Pennsylvania DEP.

5 1996 Consent Order and Agreement, p. 5.

6 2001 Consent Order and Agreement, p. 5

7 Provided by the Applicant as part of Attachment DEC-4(B) and Attachment DEC-1-2, in response to the DEC Staff's discovery requests.

8 Attachment DEC-1-2.

9 Attachment DEC-4(C).

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