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Mirant Bowline, LLC - Ruling 3, August 8, 2001

Ruling 3, August 8, 2001

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Application for a State Pollutant Discharge Elimination System permit pursuant to
Environmental Conservation Law (ECL) Article 17 and Title 6 of
the Official Compilation of Codes, Rules and Regulations of
the State of New York (6 NYCRR) Parts 750 et seq., 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 -

Mirant Bowline, LLC,
formerly Southern Energy Bowline, LLC,
900 Ashwood Parkway, Suite 900
Atlanta, Georgia 30339-4780,

Applicant

RULING ON MOTION TO STRIKE

DEC No.
3-3922-0003/00015
and
SPDES No.
NY0264342

[August 8, 2001]

Introduction

The above referenced matter is being heard on a joint hearing record with the related Public Service Law Article X power plant generation siting case (99-F-1164). On June 25, 2001, the Examiners in the joint proceeding set a schedule for the adjudicatory phase of the proceeding. The parties' strict adherence to the schedule was required to assure timely adjudication of issues, as set forth in the schedule. As pertains to the present motion, pursuant to that schedule DEC permit parties were to file and serve prefiled direct testimony by July 31, 2001. Filings were due to the Examiners and other parties on the date specified. In the alternative, the Associate Examiner authorized filing and service by E-mail of a complete electronic version of the filing followed by a mailed paper copy postmarked by the scheduled filing date.

However, DEC Staff failed to follow these directions. Instead, on July 31, 2001, Staff E-mailed its testimony, without several substantial exhibits. Staff included the exhibits only in the mailed version (first class mail, not overnight delivery). Staff explained they did not have electronic versions of the exhibits. But, the directions for E-mail service required a complete filing(1). Riverkeeper did not receive Staff's mailed filing (with exhibits) until August 6, 2001(2).

Proceedings

By motion dated August 2, 2001, Riverkeeper complains of this defect in service. Riverkeeper moves to strike prefiled testimony of DEC Staff witnesses, Edward Radle and John Cianci because Staff's E-mail filing of testimony was not complete, and therefore not timely. The remedy Riverkeeper seeks is exclusion from evidence of the Staff testimony. In the alternative, Riverkeeper seeks an extension of time to prepare and file responsive prefiled testimony equal to the period afforded under the Examiners' schedule. Riverkeeper contends that such a remedy is necessary so that it will not be aggrieved by DEC Staff's delay in service of the DEC exhibits.

By E-mail response on August 2, 2001, Staff states that all referenced exhibits were mailed on July 30, 2001 and had been provided previously to Riverkeeper, or are available on the Internet at the address identified in the prefiled testimony. But, Staff's contention is that these documents were provided to Riverkeeper in other unrelated proceedings, in some instances as much as six years ago. This is unpersuasive.

In view of the above, serious consideration was given to granting the motion to strike. However, the contested DEC Staff testimony is very important in creating a complete adjudicatory record on adjudication of the Best Technology Available (BTA)/cooling tower technology issue. Granting the motion to strike would in all likelihood only result in unnecessary delay of the proceeding during an interlocutory appeal, an appeal that likely would allow the testimony due to the importance of the DEC Staff's testimony in adjudication of the BTA issue.

Ruling and Revised Hearing Schedule

Accordingly, having determined that adjournment of the adjudicatory hearing is the necessary remedy, another telephone conference was convened on August 7, 2001 to elicit the parties' comments on two possible revised schedules under consideration. As a result of that telephone conference, the parties agreed to a revised hearing schedule. Riverkeeper's alternative request for relief is granted by revising the hearing schedule as follows:

Schedule Date
Responsive and rebuttal testimony due by DEC permit parties only, concerning the July 31, 2001 submissions. August 22, 2001
Evidentiary hearings in Rockland County concerning the July 31 and August 22, 2001 submissions on DEC permitting issues. September 5 to September 7, 2001
Initial briefs to Examiner Casutto and DEC permitting parties only, due on issues adjudicated at September 5 - 7, 2001 hearing. September 20, 2001
Limited briefs replying to September 20, 2001 briefs (page limitation to be set at end of September 5 - 7, 2001 hearing) October 1, 2001

It bears repeating that all filing/service dates identified in this revised hearing schedule are receipt (in-hand) dates. Filing and service may be effected as described above, but rules for filing and service must be followed strictly so that no party is unfairly disadvantaged.

The evidentiary hearing will commence at 10:00 a.m. on September 5, 2001 at a Rockland County location to be identified at a later date.

_____________/s/_____________
By: Kevin J. Casutto
Administrative Law Judge and
PSL Article X Associate Examiner

Dated: August 8, 2001
Albany, New York

To: Bowline 3 Distribution List (Revised July 23, 2001)

1 If Staff was not able to make a complete filing by E-mail, then Staff should not have used that method of service. Staff was required to make in-hand service to the other parties by July 31, 2001 and failed to do so.

2 Subsequent to a telephone conference on August 6, 2001, at the direction of the DEC Article X Associate Examiner, Riverkeeper provided a copy of the envelope by facsimile transmission showing Riverkeeper's date-stamped receipt on August 6, 2001.

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