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Kings Park Energy, LLC - Ruling on Motion for Stay, September 26, 2002

Ruling on Motion for Stay, September 26, 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 MOTION FOR STAY

September 26, 2002

On September 11, 2002, the Staff of the Department of Environmental Conservation ("DEC Staff") moved that the hearing on the DEC permits for the above project be stayed until the Commissioner of Environmental Conservation decides the appeals of the issues ruling and until a ruling is made on whether the record of compliance of Kings Park Energy is an adjudicable issue in the DEC permit proceeding. With respect to the first part of this motion, however, the DEC Staff's argument in support of the motion states that it would be appropriate to proceed with the one DEC issue which the issues ruling identified for adjudication.(1) The Town of Huntington ("Huntington") and Kings Park Energy, LLC (the "Applicant") submitted replies to the motion on September 16 and 18, 2002.

The DEC permit applications which are under review are for a major electric generating facility that is simultaneously being reviewed under Article X of the Public Service Law. A ruling which identified the issues to be adjudicated pursuant to Article X was made on June 12, 2002. A ruling which identified the issue to be adjudicated with regard to the DEC permits was made on June 19, 2002. Appeals were submitted by various parties with regard to each of the issues rulings. The appeals of the June 19 DEC issues ruling argued that various proposed issues, which the issues ruling had found did not require adjudication, should be added to the adjudicatory hearing and that the scope of one issue should be expanded. None of the appeals argued that issues which I had identified should be excluded.

The interlocutory appeals of the Article X issues ruling were decided by the Siting Board on August 22, 2002.(2) This order added one issue and directed that the additional issue be considered on an expedited 90 day schedule, for reasons discussed in the order. As of the date of the present ruling, there has not been a decision by the Commissioner of Environmental Conservation concerning the appeals of the original DEC issues ruling. On September 12, 2002, I made a supplemental DEC issues ruling concerning the proposed issue of the Applicant's record of compliance, an issue on which a ruling had been deferred to allow for additional correspondence by the parties. The September 12 ruling allowed for submission of documents and argument on a portion of the proposed issue but did not identify an additional issue on which testimony would be submitted. Both Townline Association, Inc. ("Townline") and the DEC Staff appealed this ruling. Townline's appeal sought to expand the scope of the issue and the DEC Staff's appeal asked that the issue not be further addressed in the DEC proceeding.

The current schedule for the hearing was transmitted to the active parties list on August 28, 2002 by the hearing examiners. (A copy of the schedule is attached with this ruling.)(3) Under this schedule, the prefiled direct testimony by the agency staff and intervenor parties is due on September 30, 2002 for the eighteen issues which were identified in the Article X issues ruling and for the issue that was identified in the June 19, 2002 DEC issues ruling. Rebuttal testimony on these issues is due on October 21, 2002. The evidentiary hearing on these issues is scheduled to begin on November 6, 2002.

DEC Staff motion

The DEC Staff's motion requested that: (a) the hearing on the DEC permits for the above project be stayed until the Commissioner of Environmental Conservation decides the appeals of the issues ruling and (b) the DEC hearing be stayed until a ruling is made on whether the record of compliance of Kings Park Energy is an adjudicable issue in the DEC permit proceeding. The DEC Staff argued that the DEC hearing process is automatically stayed due to the appeals of the issues ruling, and that the only exception to this may be the alternatives issue. The DEC Staff cited sections of the DEC permit hearing procedures (Part 624 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR Part 624") and documents from other Article X cases as supporting this position. With respect to the issue that was identified for adjudication, the DEC Staff stated that the issue was not appealed and thus could be adjudicated prior to the issuance of the Commissioner's interim decision on the appeals. The DEC Staff's arguments in support of staying the DEC hearing until after the supplemental ruling on the Record of Compliance issue were largely responses to Townline Association's September 5, 2002 letter which had argued that the supplemental ruling should be deferred until the close of the hearing.

Town of Huntington's(4) response

The Town of Huntington joined with the DEC Staff's motion, and agreed with the DEC Staff that an appeal of the issues ruling automatically stays the DEC permit proceeding.

Applicant's Response

The Applicant stated that while it supports the DEC Staff in the motion to stay the proceedings, the Applicant maintains that the schedule for the Article X and DEC hearings should continue as set forth on August 28, 2002. The Applicant supported going forward with the DEC permitting issue that was identified for adjudication, and stated that if the Commissioner's interim decision were to establish any additional issues, these could be heard in a second phase of the schedule without adjusting the overall schedule for a final determination by the Siting Board. As an example, the Applicant stated that if the interim decision were made in October, any additional issues identified by the Commissioner could be adjudicated in December or January. The Applicant expressed concern about the timing of the overall schedule, and stated that if the Siting Board's decision were made after mid-April 2003, it would impinge on the construction schedule needed to achieve an in-service date of June 1, 2004.

Discussion

The proposed project is being reviewed under Public Service Law (PSL) Article X, which applies to major electric generating facilities (those with a generating capacity of 80 megawatts or more) as provided in PSL §162. Under the Article X process, proceedings on an application shall be completed in all respects, including a final decision by the Siting Board, within 12 months from the date of a determination by the Chairman of the Board that the application complies with the requirements for applications (PSL §165.4). Article X allows for the DEC to issue permits pursuant to federally delegated or approved authority under the federal Clean Air Act,(5) and requires that the Commissioner of Environmental Conservation provide such permits to the Board prior to its determination whether or not to issue a certificate (PSL §172.1). Section 172.1 also provides that in issuing such permits, the DEC Commissioner shall follow procedures established in Article X to the extent that they are consistent with federally delegated or approved permitting authority. In reviewing applications for these permits, the Commissioner has applied the standards and procedures of 6 NYCRR Part 624 in identifying issues for adjudication.(6)

Under Part 624, various kinds of rulings by an administrative law judge (ALJ) may be appealed on an expedited basis. Among these are rulings to include or exclude any issue for adjudication, rulings on the merits of any legal issue made as part of an issues ruling, rulings affecting party status, and rulings in which an ALJ has denied a motion for recusal (6 NYCRR 624.8(d)(2)(i) through (iv)). By seeking leave to file an expedited appeal, any other ruling of an ALJ may be appealed on an expedited basis where it is demonstrated that the failure to decide such an appeal would be unduly prejudicial to one of the parties or would result in significant inefficiency in the hearing process (624.8(d)(2)(v)). Apart from expedited appeals, any ruling by an ALJ may be appealed to the Commissioner after the completion of testimony as part of a party's final brief or by motion where no final brief is provided for (624.8(d)(1)).

Contrary to the arguments presented by the DEC Staff, Part 624 does not state that an appeal of an issues ruling automatically stays the hearing. The paragraph cited by DEC Staff in support of its assertion (624.8(d)(2)) list the matters which may be appealed on an expedited basis; this paragraph does not mention a stay. The types of rulings that are listed in Paragraph 624.8(d)(2) are ones which are to be decided prior to the final decision, and which in many cases are ones for which a decision should be made prior to going forward with the adjudicatory hearing, but this question of timing is within the ALJ's discretion, to be applied case-by case. It is not an automatic nor a hard-and-fast rule. Indeed, 6 NYCRR 624.8(d)(7) states that there will be no adjournment of the hearing during appeal except by permission of the ALJ.

In DEC permit hearings on projects that do not also involve review under PSL Article X, the hearing is usually adjourned without date after the issues conference and the adjudicatory hearing is not scheduled until the appeals of the issues ruling are decided (or until the time allowed for appeals expires without any appeals being made). Even in these cases, there are situations in which an ALJ might decide to go forward with the adjudicatory hearing while an appeal of the issues ruling was pending, if there was no prejudice to any party and if going forward made sense based on reasons such as travel distances or availability of witnesses. In Article X cases, however, the timing of the hearing on the DEC permits is strongly affected by the 12-month case schedule set forth in PSL 165.4. This limitation on the schedule would support going forward with the adjudicatory hearing while appeals of the issues ruling are pending if doing so would not be unduly prejudicial to one of the parties and would not result in significant inefficiency in the hearing process.

In the present case, no party has shown that it would be prejudiced by going forward with the DEC adjudicatory hearing on the issue that was identified for adjudication in the June 19 DEC issues ruling. The DEC Staff, which made the motion, agreed with adjudicating the one issue (analysis of combined-cycle technology under 6 NYCRR 231-2.4) prior to the Commissioner's interim decision on the appeals (motion, p. 6 and 7). It is unclear what a stay of the DEC hearing would even mean in this case. It may be that the DEC Staff anticipated that a DEC permit issue would be identified involving testimony on the Applicant's record of compliance, that the DEC Staff anticipated appealing such an issue, and that the DEC Staff believed that adjudication of the issue should be postponed until after the appeal was decided. This situation has not arisen, since on September 12 (one day after the DEC Staff's motion) I made a ruling on the record of compliance issue that allowed for submission of certain documents, submission of a proposed permit condition, and argument on these, but did not provide for any testimony on the record of compliance issue. It may also be that the DEC Staff (and possibly the Applicant) were under the impression that the proposed issues that I had excluded from the adjudicatory hearing and that the intervenors had appealed would be adjudicated since they were under appeal. This is not what would happen. Unless and until the Commissioner alters the scope of the issues, the adjudicatory hearing in the DEC permit proceeding would take place pursuant to the DEC issues ruling. If the Commissioner were to expand the combined-cycle alternative issue as requested by Townline Association, additional testimony could be scheduled as outlined in the Applicant's response to the motion.

The DEC Staff also cited decisions and a scheduling memorandum in other Article X cases as supporting its argument that the DEC proceeding is automatically stayed by an appeal of the issues ruling. At least one of these citations does not appear to support the proposition for which it was cited. Some of the cited cases differ from the Kings Park Energy case in terms of whether going forward with the adjudicatory hearing would cause undue prejudice to any party.

The Commissioner's Interim Decision in the Matter of Consolidated Edison Company of New York, Inc. (East River Generating Station) (Interim Decision dated June 4, 2001) stated that if an applicant proposes or consents to adjudication of an issue it is contemporaneously challenging and a record on that issue is developed, the applicant has effectively waived its right to contest whether adjudication of that issue should occur (Interim Decision, p. 7). In situations similar to that in Consolidated Edison, there would be prejudice to the applicant if the adjudicatory hearing were not stayed while its appeal was pending, since otherwise the applicant would be forced to chose whether to waive its right to appeal or to refrain from presenting its case. That is not the situation in the Kings Park Energy hearing, however, since none of the appeals of the June 19 ruling ask that an issue should be excluded.(7)

The status of the appeals in the present case is similar to that in the KeySpan (Spagnoli Road Project) hearing, in that an intervenor appealed the issues ruling and argued that issues should be added or expanded. In that case, the DEC Administrative Law Judge stayed the DEC component of the case because an appeal was filed (Transcript, p. 1865). This decision was within the discretion of the ALJ under Part 624 (see particularly 624.8(d)(7), 624.8(b)(1)(ii) and 624.8(b)(1)(xv)) and has not been appealed. In the present case, however, I am deciding to proceed differently since no party objects to going forward with the combined-cycle issue as identified in the June 19 ruling. Also, in the present case there are already two sets of dates for prefiled testimony and evidentiary hearings due to the addition of an issue by the Siting Board. Staying the DEC proceeding in some manner would add to the complexity of the schedule unnecessarily.

The second part of the DEC Staff's motion, to stay the hearing until a ruling is made on whether the Record of Compliance issue is an adjudicable issue in the DEC permit hearing, is now moot since the supplemental issues ruling on this proposed issue was made on September 12, 2002. Under this ruling, no testimony on this issue will be heard in the context of the DEC permit proceeding.(8) As with the alternatives issue, there is no adjudication that would occur under the supplemental issues ruling and that would not occur if the appeal is granted. The only additional step which would take place pursuant to the ruling would be presentation of arguments in the briefs which are not due until December 9, 2002.

No party would be prejudiced if the DEC Staff's motion for a stay is denied and the DEC permit hearing in this case goes forward as scheduled. The second part of the motion is now moot. With regard to the first part of the motion, a stay would appear to have no practical effect in view of the willingness of the DEC Staff and the Applicant to proceed with the one issue identified for adjudication in the issues ruling.

Ruling: The motion for a stay of the DEC permit hearing is denied.

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

Dated: Albany, New York
September 26, 2002

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

1 This issue has to do with the requirements of 6 NYCRR 231-2.4(a)(2)(ii) and the analysis of the alternative of using combined-cycle technology. No party appealed the inclusion of this issue in the adjudicatory hearing, but Townline Association's appeal argued that the issue should be expanded to include an alternative pollution control technique and social costs of the project.

2 An appeal of an additional issue was not heard on an interlocutory basis since interlocutory review of a presiding examiner's decision will only be available in extraordinary circumstances, and the Secretary of the Siting Board determined that extraordinary circumstances did not exist with respect to that appeal (see August 21, 2002 letter from the Secretary of the Siting Board to the Applicant).

3 Since August 28, the schedule has been modified in that the additional public statement hearing was scheduled for October 16, 2002 and the examiners determined that the site visit would be conducted immediately following the evidentiary hearing in November. Other schedule milestones have also been added since August 28.

4 The Town of Huntington petitioned for party status in the DEC permit proceeding, but its petition was denied since the Town had not raised any adjudicable issues and since it did not appear that the Town would be participating in developing the record with regard to adjudicable issues (Issues Ruling, p. 5). The Town appealed the issues ruling, arguing that the issues it proposed should be adjudicated. The Town's appeal is pending.

5 Similar permits under the federal Clean Water Act and the federal Resource Conservation and Recovery Act may also be issued by the DEC. In the present case, a permit under the Clean Water Act would be required in addition to the air permit, but no issues were proposed regarding the application for the permit under the Clean Water Act.

6 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.

7 The New York Power Authority (Astoria Project) scheduling memorandum cited by the DEC Staff also involved appeals that sought to exclude an issue the ALJ had identified for adjudication.

8 A related issue was identified for adjudication in the Article X proceeding (June 12, 2002 Article X issues ruling, p. 14).

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