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Keyspan Energy Development Corporation (Spagnoli Road Project) - Interim Decision, November 15, 2002

Interim Decision, November 15, 2002

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
625 BROADWAY
ALBANY, NEW YORK 12233-1010

In the Matter

-of-

The Application for a State Pollutant
Discharge Elimination System Permit ("SPDES")
Pursuant to Environmental Conservation
Law ("ECL") Article 17 and Title 6 of
the Compilation of Codes, Rules and
Regulations of the State of New York
("6 NYCRR") Parts 750 et seq., and Air
Pollution Control permits consisting of
a Preconstruction permit and a Certificate
to Operate, pursuant to ECL Article 19 and
6 NYCRR Parts 200 et seq.

by

Keyspan Energy Development Corporation
(Spagnoli Road Project)

DEC Case No. 1-4726-01500/00001
SPDES No. NY-0267520
(PSC Case 01-F-0761)

INTERIM DECISION

November 15, 2002

Introduction and Background

This Interim Decision relates to appeals from the Issues Ruling ("Ruling") of Administrative Law Judge ("ALJ") Kevin J. Casutto dated June 21, 2002. The ALJ's Ruling addresses various matters regarding the application before the New York State of Environmental Conservation ("Department" or "DEC") for certain environmental permits sought by Keyspan Energy Development Corporation ("Applicant" or "Keyspan"), as part of its application for a certificate of environmental compatibility and public need pursuant to Article X of the Public Service Law ("PSL").

The combined party of the South Huntington Alliance for Responsible Energy Development, Arrow Electronics, Inc., Gilbert Displays, Inc. and Marchon Eyeware, Inc., together "SHARED," filed their appeal of the DEC Part 624 Issues Ruling on July 3, 2002. Replies to such appeal were filed by the Applicant on July 9, 2002 and by Staff on July 11, 2002. A "reply" by SHARED to the responses of the Applicant and Staff was filed on July 12, 2002(1). No party other than SHARED appealed the ALJ's Ruling.

Project Description

In March 2002, Keyspan Energy Development Corporation ("Keyspan") applied for a Certificate of Environmental Compatibility and Public Need pursuant to Article X of the New York Public Service Law (PSL)(2) and Air Pollution Control and State Pollutant Discharge Elimination System (SPDES) permits pursuant to Articles 17 and 19 of the Environmental Conservation Law (ECL), to construct and operate a 250 megawatt (MW) combined-cycle electric generating facility. The facility site is located on Spagnoli Road in the Town of Huntington, Suffolk County, New York. The proposed project site is approximately 31.7 acres in area and is located on the south side of Spagnoli Road. The site is about one-half mile west of Route 110, in the southwest corner of the Town of Huntington, near the Nassau County-Suffolk County line.

The Facility would consist of a combustion turbine generator operating with a heat recovery steam generator, a steam turbine generator, an air-cooled condenser and associated balance-of-plant systems and facilities. The nominal electric generating capacity of the proposed facility will be approximately 250 megawatts (MW). The sole fuel would be natural gas. The Applicant proposes to install an oxidation catalyst system to reduce emissions of carbon monoxide (CO) and volatile organic compounds (VOCs). In addition, the Applicant proposes to use dry low-NOx combustors and Selective Catalytic Reduction (SCR) to control formation of nitrogen oxides (NOx) and associated emissions. The air emissions resulting from the turbines and generators will be vented through a single 195 foot high exhaust stack.

The facility's water supply requirements are projected to range from approximately 29 gallons per minute (gpm; 0.042 million gallons per day[mgd]) during fall, winter and spring operations, to approximately 54 gpm (0.078 mgd) during summer operations. Water supply for the facility would be provided from the South Huntington Water District (the Water District). Process and sanitary wastewater will be routed to the Bergen Point Sewage Treatment Plant. Storm water from site runoff and secondary containment areas will be discharged to a refurbished infiltration basin. The entire project area is zoned for light industrial and office use.

Standards for Adjudication

Under the Department's permit hearing procedures, an issue is adjudicable if "it is proposed by a potential party and is both substantive and significant." 6 NYCRR §624.4(c)(1)(iii) (ii). An issue is "substantive" if there is sufficient doubt about the applicant's ability to meet statutory or regulatory criteria applicable to the project, such that a reasonable person would require further inquiry. In determining whether such a demonstration has been made, the ALJ must consider the proposed issue in light of the application and related documents, the draft permit, the content of any petitions filed for party status, the record of the issues conference and any subsequent written arguments authorized by the ALJ. 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. 6 NYCRR §624.4(c)(3).

Prior decisions of the Commissioner establish that adjudication of issues occurs only where the ALJ has sufficient doubt about an applicant's ability to meet all statutory and regulatory criteria such that a reasonable person would inquire further (Matter of Hydra-Co. Generations, Inc., Interim Decision of the Commissioner, April 1, 1988) and where, in the ALJ's judgment, there is a reasonable likelihood that adjudication would result in amended permit conditions or project denial. Matter of Jay Giardina, Interim Decision of the Commissioner, September 21, 1990.

In situations where Staff has reviewed an application and finds that a component of the applicant's project, as proposed or as conditioned by the draft permit, conforms to all applicable requirements of statute and regulation, the burden of persuasion is on the potential party proposing the issue related to such component to demonstrate that the issue is both substantive and significant. 6 NYCRR §624.4(c)(4). Agreement by Staff and an applicant over the terms and conditions of the proposed permit, the permit application and the draft permit prepared by Staff constitutes prima facie evidence that a proposed project will meet all of the relevant statutory and regulatory criteria. See, Matter of Sithe/Independence Power Partners, L.P., Interim Decision of the Commissioner, November 9, 1992. The burden imposed on the intervening party in such instances was upheld by the Third Department in Matter of Citizens For Clean Air v. New York State Dep't of Envt'l Conservation, 135 A.D.2d 256 (3rd Dept. 1988). There, the court, in upholding the Commissioner's determination to exclude certain issues from adjudication, stated that the burden on the intervenors was "... to provide a clear explanation of the issues sought to be adjudicated...". Id. at 261.

While the intervenor's offer of proof at the issues conference need not be so convincing as to prevail on the merits, its offer must amount to more than mere assertions or conclusions. See,Id. "The purpose of adjudication is not simply to develop or refine information concerning the project but rather to aid in decision making." Matter of Sithe, supra. Conducting an adjudicatory hearing where "offers of proof, at best, raise uncertainties," or where such a hearing would "dissolve into an academic debate" is not the intent of the Department's hearing process. Matter of Adirondack Fish Culture Station, Interim Decision of the Commissioner, August 19, 1999, at 8, citing Matter of AKZO Nobel Salt Inc., Interim Decision of the Commissioner, January 31, 1996.

Judgments about the strength of the offer of proof must be made in the context of the application materials, the analysis by Staff, draft permits and the issues conference record. Offers of proof submitted by a prospective intervenor may be completely rebutted by reference to any of the above, alone or in combination. In such a case, it would be a disservice to the applicant and the public at large to proceed any further with time consuming and costly litigation. See,Matter of Bonded Concrete, Inc., Interim Decision of the Commissioner, June 4, 1990.

Accordingly, the environmental permit information contained in the application for the various permits it seeks, the draft permits and attendant information required by the Department, constitutes the applicant's prima facie case for issuance of the Department's permits. See, Matter of Athens Generating Company LP., Interim Decision, June 2, 2000, p. 4, citing Sithe, supra. See, also, Matter of 4'Cs Development Corporation, ALJ Ruling, February 27, 1996; Matter of Waste Management of NY, LLC., Interim Decision, May 15, 2000. The application materials are available at the issues conference to assist the DEC ALJ in determining if there are issues requiring an adjudicatory hearing.

ALJ Ruling and Appeals

Cumulative Impact Assessments under 6 NYCRR §211.2

SHARED has maintained that 6 NYCRR §211.2 requires the Applicant to perform a detailed cumulative impact analysis of its proposed air emissions and has appealed that part of the ALJ's Ruling holding that this regulation is a "nuisance" abatement rule and was not intended to create an additional standards compliance determination, and does not require a cumulative analysis. 6 NYCRR §211.2 provides:

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.

The ALJ also held that the Department's interpretation of this regulation as a nuisance provision should be afforded deference under Howard v.Wyman, 28 NY2d, 434, 435 (1971)

On appeal SHARED argues that where the language of a regulation is unambiguous, deference to the Department's interpretation is unnecessary. SHARED further contends that the past practice of the Department with regard to its interpretation of a regulation is not relevant, particularly where SHARED's interpretation of 6 NYCRR §211.2 is consistent (or at least not inconsistent) with its express language. Furthermore, SHARED maintains that the Department's past use of this regulation as an enforcement tool to regulate existing nuisances should not deter the Department from using this regulation proactively to prevent the creation of new nuisances.

SHARED also argues that the clause in 6 NYCRR §211.2 "either alone or in combination with others," requires the Applicant to analyze emissions from its proposed facility in combination with emissions from other sources in the vicinity to determine their cumulative impact. Moreover, SHARED contends that the "cumulative" analysis contained in the Article X Application is flawed because it only includes emissions from Title V permitted sources located within one mile of the proposed site and does not include emissions from other potential sources.

The Applicant and Staff each maintain that 6 NYCRR §211.2 does not by its terms require a cumulative analysis. Staff states that it has been regarded by the Department as a "nuisance" provision promulgated as an enforcement tool and that it should not be construed as another standards compliance determination for criteria pollutants. Staff points out that a cumulative analysis was performed by the Applicant pursuant to §168(2)(b) of the Public Service Law and that SHARED has offered insufficient reasons to suggest that a second cumulative analysis be performed.

I am persuaded by the arguments of Staff and the contentions of the Applicant that the Department has broad authority under Article 19 of the Environmental Conservation Law to promulgate regulations preventing, controlling or prohibiting air pollution. In light of this authority and SHARED's offer of proof, it is not necessary to adopt the strained interpretation of 6 NYCRR §211.2 offered by SHARED. Accordingly, the ALJ's determination with respect to the issue of cumulative impacts analysis under 6 NYCRR §211.2 is affirmed.

Cumulative Impact Analysis of Fine Particulate Matter (PM2.5) Emissions

SHARED has maintained that 6 NYCRR §211.2 requires a cumulative impact analysis of PM2.5 emissions, as well as other emissions. The ALJ ruled that the review of fine particulates (PM2.5)was not a DEC adjudicable issue and that PM2.5would be adjudicated in the Public Service Law Article X proceeding.

In its appeal of this ruling, SHARED acknowledges that it had no objection to this issue being adjudicated in the Article X proceeding but was concerned that the Applicant had moved for elimination of any issues for adjudication regarding PM2.5 in the Article X proceeding and was objecting to an adjudication of PM2.5 in the DEC proceeding. In effect, according to SHARED, the Applicant seeks to eliminate adjudication from any aspect of the proceeding. This adjudication should satisfy SHARED's concerns with respect to this issue and it is not necessary to give this matter further consideration in this decision except to comment that this issue would be otherwise subsumed in my discussion herein of cumulative impact assessments under 6 NYCRR §211.2. Accordingly, the ruling of the ALJ not to adjudicate PM2.5 in this proceeding is hereby affirmed.

Alternatives Analysis under 6 NYCRR Part 231

An analysis of project alternatives is required by the Department pursuant to 6 NYCRR Part 231.(3) This requirement is set forth in 6 NYCRR 231-2.4(a) (2) (ii) as follows:

[a]s part of a permit application for a proposed source project or proposed major facility subject to this Subpart, the applicant shall... (ii) submit an analysis of alternative sites, sizes, production processes, and environmental control techniques which demonstrates that the 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....

This provision is similar to the requirements set forth in Part D, §173(a)(5) of the Clear Air Act ("CAA"), "Plan Requirements for Nonattainment Areas", 42 USC §7501, et seq. Part 231 was included as part of New York's 1994 State Implementation Plan submission to the United States Environmental Protection Agency ("USEPA") in order to comply with CAA directives related to the administration of the Department's permitting responsibilities under the CAA.

Although there is no guidance which addresses or further describes the content of the alternatives analysis required, there are several federal cases which have discussed this requirement.(4) The ALJ relied on the analysis set forth in one of these cases in his ruling on this issue. He found that the Applicant's Article X application materials "do not clearly satisfy the alternative sites requirements of 6 NYCRR 231-2.4(a) (2) (ii), under the Borden-Con Ed East River three prong test...."(5) The three prong test was described by the ALJ as follows:

First, the applicant must show whether the potential and real adverse environmental effects of the proposed project have been avoided to the maximum extent possible. Second, the applicant must show whether a cost benefit analysis of the environmental impact costs balanced against the social and economic benefits of the project demonstrate that the latter outweigh the former. Lastly, the applicant must show whether there are alternative projects or alternative sites or mitigating measures which would offer more protection to the environment than the proposed project without unduly curtailing non-environmental benefits to the extent applicable. Ruling at 11.

The ALJ ruled that "...the issue of the Applicant's compliance with the three prong

Borden/Con Ed test regarding site alternatives requires adjudication. He further indicated that the alternative sites to be considered are limited to sites owned or under the control of the Applicant, and further limited in this case to the four alternative sites identified by the Applicant (Shoreham, Wading River, Port Jefferson and E.F. Barrett)." Ruling at 12-13. The ALJ also ruled that the application was sufficient with respect to the "no-action" alternative, and therefore the no-action alternative did not require adjudication.

SHARED's appeal of this ruling was limited to the direction by the ALJ concerning the four alternative sites and therefore the Part 231 alternatives issue pending before me is narrowed to the question of whether the ALJ erred in limiting the sites for consideration to sites owned or under the control of the Applicant. No party appealed the ruling of the ALJ that the alternative sites analysis would be adjudicated and therefore the issue of adequacy of the alternative sites analysis is not before me. Accordingly, the adequacy of the Applicant's site analysis is to be adjudicated as recommended by the ALJ. Moreover, since the ruling of the ALJ requiring adjudication was limited to alternative sites, the adjudication shall be confined to solely that issue and will not include other possible subjects of alternative analysis such as size, production processes or environmental control techniques.

With respect to that part of the ruling that was appealed by SHARED, I find no reason to disturb the determination of the ALJ. The ALJ's decision that the adjudication of this issue should be limited to the sites set forth in that ruling is reasonable in view of the failure of SHARED to meet its burden of proof to demonstrate that the sites analyzed by the Applicant did not meet the requirements of Part 231 or that there were other sites that were available to the Applicant that would fulfill the requirements of Part 231. See,Matter of Sithe/Independence Power Partners, L.P., Interim Decision of the Commissioner, November 9, 1992. As such, the ruling of the ALJ with respect to alternative sites is affirmed and the adjudication of this issue will be limited to the four sites specified therein and Applicant's Northport site(6).

Finally, I reject SHARED's appeal with respect to the ALJ's decision that the resolution of this issue should take place in the context of the adjudication of this issue. The proposed process outlined by the ALJ is consistent with the 6 NYCRR Part 624 regulations and will allow SHARED significant opportunities to challenge whether the Applicant has met its burden of proof to demonstrate that its proposed project complies with the alternative analysis requirements of 6 NYCRR 231-2.4(a)(2)(ii).

Obsolescence of Air Emissions Data

SHARED argues that as a result of a 1997 Generation Purchase Right Agreement ("GPRA"), the Long Island Power Authority ("LIPA") holds an option to purchase electric generating plants acquired by a subsidiary of the Applicant. The net effect of this option is, SHARED maintains, that the Applicant will be delayed in the commencement of operation of its proposed facility until late 2006 or early 2007, some year and a half after its projected operational date of the summer of 2004. This delay, claims SHARED, will render the Applicant's analysis of air quality impacts flawed because the data upon which it is based is outdated and will not reflect air quality conditions in existence at the time of commencement of operations.

ALJ Casutto ruled that the data relied upon by the Applicant in support of its application is the most recent data available and complies with the requirements of DEC. Accordingly, the ALJ ruled that the issue was not adjudicable.

In its appeal of this ruling, SHARED argues, as summarized above, that because of the anticipated delay in the operational date of the proposed facility, the Applicant's air quality impacts analysis is flawed. The Applicant replies that the GPRA will not result in a delay in construction of the proposed facility and that in any event 6 NYCRR 231-2.4(e) provides that an air permit would expire if construction of a permitted facility is not commenced within eighteen months of the issuance of the permit.

SHARED's contentions with respect to this issue are based entirely on its interpretation of a private contract to which it is not a party and which is not before me. It would be inappropriate for me to attempt to interpret the provisions of such a private contract, even if it were before me, and to attempt to determine whether SHARED's predictions of delay of completion of construction of the proposed facility were reasonable.

Instead, I rely on Staff's analysis that Air Guide 26(7) requires permit applicants to use the latest available three years of data to establish baseline conditions in a project area to which the project impacts might be added to demonstrate compliance with applicable air quality standards. In the case of this proposed project, Staff states that the Applicant used air quality data observed at DEC monitoring sites for the years 1998 to 2000 to represent existing air quality levels and to determine the attainment status of the project's surroundings. Based on the foregoing, I conclude that the ALJ was correct in determining that the proposed issue of the use of purported obsolescent air emissions data is neither substantive nor significant and I affirm his ruling that this issue is not adjudicable.

SPDES General Permit for Storm Water Discharges from Construction Activities

The Applicant applied for an individual industrial SPDES permit for storm water discharges to cover discharges of storm water to an infiltration basin. SHARED maintained at the issues conference that this permit would not cover the discharge of storm water during the construction phase of the project and that a separate permit, a SPDES General Permit for Storm Water Discharges from Construction Activities ("General permit") (Permit No. GP-93-06) would be required. The discharge of storm water to an infiltration basin would involve a discharge to groundwater and, according to SHARED, groundwater discharges to the waters of the state (8)require a SPDES permit under ECL Article 17.

The ALJ ruled that a construction permit was not required as the storm water discharges would be adequately regulated under the provisions of the draft industrial SPDES permit. Accordingly, the ALJ determined that the issue raised by SHARED was not a substantive and significant and therefore was not adjudicable.

The ALJ's ruling is affirmed, however, on different grounds. I accept the "clarification" by Staff in its Reply Brief, pp. 18-19, that the draft industrial SPDES permit prepared for this proposed facility applies only to discharges that occur during the operation of the facility and would therefore not apply to discharges occurring during the construction phase. However, the "General permit" only applies to discharges to surface water which, according to the record before me, is not the case here.

The authority for the Department's issuance of the General permit became effective on October 15, 1992 as a result of an amendment to the National Pollutant Discharge Elimination (NPDES) Memorandum of Agreement ("MOA"). The MOA between the Department and the EPA originally came into effect on October 28, 1975 and provided, inter alia, for the approval by the USEPA of the Department's administration of the provisions of the NPDES program within New York State. The NPDES program deals with compliance with the provisions of the Clean Water Act (CWA), §402 of which provides for delegation of program authority to the states. CWA §402 also provides for the issuance of permits for discharges into "navigable" or surface waters only and does not apply to discharges to groundwater.

The General permit was developed in 1993 as part of the administration of the federal NPDES program. The General permit provides in the Preface thereof as follows:

The Clean Water Act ("CWA") provides that storm water discharges associated with industrial activity from a point source...to waters of the United States are unlawful, unless authorized by a National Pollutant Discharge Elimination System ("NPDES") Permit. In New York which is a NPDES-delegated state, this is accomplished through the administration of the state Pollutant Discharge Elimination System ("SPDES") program.

By footnote 3 to the foregoing provision of the Preface to the General permit, the "waters of the United States" are defined and such definition does not include "ground water."

It is clear that the General permit relates to the provisions of the Clean Water Act and only to surface waters and that discharges to groundwater are not governed by the permit. (9) The record before me indicates that the Applicant's proposed discharge is to groundwater and that the nearest surface water to the project site is approximately 2.5 miles away. There is nothing in the record to indicate that the infiltration basin is hydraulically connected to any surface water. Accordingly, for the reasons stated herein, I determine that the issue is neither substantive nor significant and is therefore not adjudicable.

pH Range for Storm Water Discharges

SHARED maintained at the issues conference that the Applicant was remiss in not identifying the classification of the groundwater at the site and suggested that the classification was likely GA (best use potable water supply-6 NYCRR 701.15) (10) and that the discharges thereto would be governed by the provisions of 6 NYCRR §703.6. SHARED argued that §703.6 imposed a range of limits for pH between 6.5 and 8.5 and that the pH levels of the storm water discharges indicated in the application materials would not be in compliance with such limitations. SHARED indicated that the solution would be for the Applicant to install a pH neutralization system.

ALJ Casutto ruled that the issue was not adjudicable because the pH range identified for storm water reflected the prevailing pH for acid rain precipitation in the northeast. The ALJ also commented that DEC Staff would monitor the acidity of discharges and retains the authority to impose remedial measures.

On its appeal, SHARED reiterated that the pH range for discharges under 6 NYCRR §703.6 was 6.5 to 8.5 and stated that the application reveals that the groundwater in the South Huntington Water District to be "generally greater than 5.5 pH and in the range of 5.3 to 6.8, consistently above the proposed lower limit of 5.0." (emphasis added). SHARED's point is that the discharge of waters with a pH as low as 5.0 would violate the parameters set forth in §703.6 but also lower the existing pH of the groundwaters at the site. SHARED does not provide any insights as to where a lower limit of 5.0 is proposed , however Staff suggests that SHARED has misread the draft SPDES permit and that the draft permit provides only for monitoring and does not impose a lower limit of 5.0 for pH. A review of the application for such permit by the Applicant does show probable parameters for storm water pH as between 5.0 to 8.0, but such parameters were never incorporated into the draft industrial SPDES permit and are therefore not to be regarded as enforceable limits.

The draft SPDES permit does not impose pH levels. Moreover, as Staff has observed, §703.6 does not describe upper and lower limitations in absolute terms but rather specifies that the pH shall not be lower than 6.5 or the pH of natural groundwater, whichever is lower, nor shall be greater than 8.5 of the pH of natural groundwater, whichever is greater. Finally, I approve of the position of Staff that the pH of storm water that is rainfall dependent is beyond the control of the Applicant and, without diminishing the authority of the Department to impose remedial measures in the future as a result of continuing monitoring, the Department will not require the Applicant to remedy at this point this condition principally caused by acid rain. For these reasons, I determine that this issue not adjudicable.

Other Matters

Except as otherwise provided in this Interim Decision, I have reviewed the remaining arguments relating to the Ruling and find them to be without merit and, accordingly, none of them warrant overturning the rulings of the ALJ. Moreover, I have reviewed the contentions of the Applicant and Staff regarding the "reply" brief of SHARED referred to in footnote 1 of this decision and I determine that the same was unauthorized and filed in violation of the ALJ's Ruling. Therefore, the same has not been read by me in support of SHARED's position and is stricken from the record.

Conclusion

For the reasons stated above, I remand this matter to the ALJ for further proceedings consistent with this Interim Decision.

For the New York State Department
of Environmental Conservation

/s/
By: Erin M. Crotty, Commissioner

Albany, New York
November 15, 2002

1 By letters to me dated July 12, 2002 from Jennifer L. Hairie, Esq., Staff attorney, and Andrew S. Ratzkin, Applicant's attorney, Staff and Applicant each characterized the filing of SHARED's "reply" brief as unauthorized and in violation of the ALJ's Ruling. Staff and Applicant each requested that such "reply" brief be stricken and not read by me in support of SHARED's position.

2 See Department of Public Service Case No. 01-F-0761, Application by Keyspan Energy Development Corporation for a Certificate of Environmental Compatibility and Public Need to Construct and Operate a Nominal 250 Megawatt Combined Cycle Combustion Turbine Electric Generating Facility in the Town of Huntington, Suffolk County, New York.

3 Alternatives are also to be addressed pursuant to PSL §164(1)(b). Evidentiary hearings, including hearings on alternatives, were held as part of the Article X proceeding between August 12 and August 22, 2002.

4 Two of the more prominent federal cases discussing this requirement are Matter of Operating Permit, Formaldehyde Plant, Borden Chemical, Inc., Case No. 6-01-1, Order of the Administrator (December 22, 2000) and In re Campo Landfill Project, NSR Appeals No. 95-1, U.S.EPA Environmental Appeals Board (June 19, 1996).

5 The ALJ also relied on language in a Commissioner decision which adopted without further comment the ALJ's findings and conclusions with respect to the sufficiency of a Part 231 alternatives analysis. See Matter of Consolidated Edison Company of New York, Inc., Case No. 2-6206-00012, Decision of the Commissioner (August 16, 2001).

6 Although not included in Applicant's discussion of alternative sites in the "alternative sites" section of the application (16.3), at the issues conference on May 10, 2002 Applicant's attorney made reference as a possible site to Applicant's Northport campus where it operates an existing facility (IC, p. 333). Also, a discussion of Northport was included in section 4 of the application under the subject "Land Use and Local Laws." I direct that in addition to the four sites referred to in the Ruling that the Northport site be included in Applicant's analysis.

7 See, Air Guide 26, NYSDEC Guidelines on Modeling Procedures for Source Impact Analysis (Revised 12/9/96).

8 See definition of 'waters of the state" in ECL §17-0105 (2).

9 It should be noted that this determination does not deprive the Department of means to deal with contaminated storm water discharges as the Department has general enforcement authority under ECL 17-0501 to prohibit discharges in contravention of standards adopted by the Department.

10 This classification was confirmed by Staff at the issues conference, May 10, 2002, p. 396.

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