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New York Power Authority (Astoria) - Interim Decision, November 26, 2001

Interim Decision, November 26, 2001

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

New York Power Authority
(Charles Poletti Power Project)

Case No. 2-6301-00084/00016
SPDES No. 0267503
PSC Case 99-F-1627

INTERIM DECISION

November 26, 2001

INTERIM DECISION

Introduction and Background

This Interim Decision relates to appeals from the Issues Ruling ("Ruling") of Administrative Law Judge ("ALJ") Kevin J. Casutto dated July 19, 2001. 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 the New York Power Authority ("Applicant" or "NYPA") as part of its application for a certificate of environmental compatibility and public need pursuant to Article X of the Public Service Law ("PSL"). ALJ Casutto's Ruling was part of a Joint Ruling on issues prepared by him as the Associate Examiner, in conjunction with Presiding Examiner William Bouteiller.(1)

The combined party of the Queens Borough President (Queens) and Coalition Helping Organize a Kleaner Environment (CHOKE; together, "Queens/CHOKE") filed their appeal of the Hearing Examiner's Article X and DEC Part 624 Issues Ruling on July 30, 2001. The New York Public Interest Research Group, Inc., ("NYPIRG") filed its appeal on the Article X and DEC Part 624 Issues Ruling on July 30, 2001. The City of New York ("City") appealed to the Siting Board. The Department Staff ("Staff") and NYPA filed appeals to the Siting Board and separately to the Commissioner. Replies were filed on August 6, 2001, by several parties. The Natural Resources Defense Council ("NRDC") did not appeal or otherwise respond to the Ruling.

Project Description

In August 2000, NYPA applied for a Certificate of Environmental Compatibility and Public Need pursuant to PSL Article X to construct and operate a combined cycle electric generation facility ("NYPA Combined Cycle Astoria Project" or "NYPA Astoria Project"). The project would consist of two General Electric 7-FA combustion turbine generators, two heat recovery steam generators, one steam turbine generator, two diesel engines for emergency equipment and associated balance-of-plant systems and facilities. The primary fuel will be natural gas. Kerosene (with low 0.04% sulfur content) will be used for back up, not to exceed 30 days per year. The nominal electric generating capacity of the proposed facility will be approximately 500 megawatts (MW).

The Applicant proposes to install a carbon monoxide (CO) catalyst to reduce CO and volatile organic compounds (VOCs), and a dry low oxides of nitrogen (NOx) burner with Selective Catalytic Reduction (SCR) technology to reduce NOx. Air emissions will result from the turbines and generators. The emissions will be vented through two co-located, 250-foot high, Good Engineering Practice (GEP) exhaust stacks. The facility will not require the intake of cooling water from the East River since it will use an air-cooled condenser.

The NYPA Astoria Project would be located on a seven-acre undeveloped parcel of land next to NYPA's existing Charles Poletti Power Project, 31-03 20th Avenue, Astoria, Queens County, New York, on part of an approximately 47-acre parcel owned by the Applicant. The entire project area is zoned for heavy industrial use (M3-1). NYPA's 47-acre property is part of a 291-acre parcel formerly shared with Consolidated Edison. The property has been used since 1905 for the generation of electricity. The existing Charles Poletti Power Project began commercial operation in 1977, burning fuel oil or natural gas.

Federally Delegated Permits(2)

Some of the appeals in this case are jointly addressed to the Commissioner and the Siting Board, while others are addressed separately to the Commissioner or the Siting Board. Where the appeals jointly address matters under appeal to both jurisdictions, care is taken to address only that portion of the appeal that is properly before the Commissioner. See, Matter of Ramapo Energy LP, Order Concerning Interlocutory Appeals from Article X Issues Ruling, July 25, 2001, at 7. See, also, Matter of Consolidated Edison, Decision, August 16, 2001, at 2, 8.

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)(i) (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)(2),(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 the 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 Article X application filing, 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 Rulings, Appeals and Discussion

ALJ Ruling on the PM 10 Emission Limit in the Draft Permit

The ALJ ruled that Queens/CHOKE raised an adjudicable issue with respect to the emission limit in NYPA's draft permit for particulate matter 10 microns in diameter or less ("PM 10"). In Ruling 5 the ALJ stated that:

"Queens/CHOKE have identified a substantive and significant issue requiring adjudication regarding the PM 10 emission limitation in the draft permit. Even accepting DEC Staff's contention that a reasonable BACT determination for a particular facility is a range of emission limits, when two similar facilities are proposed in the same community, as here, consistency requires that the lower limitation of the BACT analysis range of emission limits applies as the limitation for both facilities. I make this ruling based upon the apparent difference in emission rates, i.e., 0.015 lb/mmbtu compared to 0.010 lb/mmbtu. The issues conference record does not contain an explanation of these apparently inconsistent particulate emission rates or their significance within the context of this project compared to other similarly configured and located Article X projects, or more broadly as compared generally to future Article X projects." Ruling at 16.

NYPA and DEC Appeal

NYPA, in appealing this Ruling, argues that Queens/CHOKE's offer of proof is insufficient since it merely identifies one facility with a proposed particulate matter emissions limit lower than what is proposed for the NYPA facility.(4) NYPA distinguished that facility and rate by indicating that, unlike NYPA's facility, the Astoria SCS facility does not have a guaranteed emissions limit and this limit does not include contributions from other equipment. NYPA further argues that Queens/CHOKE's failure to dispute the Best Available Control Technology ("BACT") analysis performed by DEC and Queens/CHOKE's claim that other emission limits are artificially inflated also do not raise issues justifying further review. Finally, NYPA proposes that this issue should not be reviewed since Queens/CHOKE has not even alleged that the draft permit does not meet all statutory requirements or that there is any modification that could be made to the permit.

Staff also appeal the ALJ's holding regarding the PM 10 emission rate. Staff argue that since the limit in the NYPA draft permit is derived from analysis required under the federal Prevention of Significant Deterioration ("PSD") program, the limit is not adjudicable. Staff further contend that the Clean Air Compliance of 1993 ("CACA") precludes emission or control standards more stringent than established by the US Environmental Protection Agency ("USEPA") unless such standards are authorized by state rules or regulations, and in this case, no such laws apply. Additionally, Staff assert that the ALJ misinterpreted the Decision of the Commissioner in Matter of Mirant Bowline, LLC, Interim Decision, June 20, 2001 in finding NYPA's PM 10 limit was subject to adjudication. Staff argue that in order to present an adjudicable issue, Queens/CHOKE would need to show a state law allowing for the imposition of a more stringent emissions limit and would need to do more than simply make a reference to other facilities with lower limits.

Discussion

Upon my review of this matter, I find that there is an insufficient offer of proof to join this issue for adjudication, and therefore the Ruling must be reversed. In my decision in Bowline, I stated that adjudication of the PM 10 rate in a state air permit was not barred by the fact that such rate was determined in accordance with PSD program requirements and was in a PSD permit. Bowline at 4. Similarly, in Matter of Ramapo Energy LP, Interim Decision, July 13, 2001, I stated that review of an applicant's source inventory was appropriate under state law even where the inventory is initially derived in accordance with the PSD Program. Ramapo at 8. In both cases it is clear that, as a matter of public policy, the establishment of a link between state permit and PSD issues cannot provide an absolute bar to adjudication of valid state air permit concerns.(5)

Although state adjudication of such provisions is possible, review may only be allowed where the intervenor has met its burden of proof as required by 6 NYCRR 624.4(c)(1)(iii). See, Ramapo, supra, at 8, "...substantive and significant issues... are appropriate for adjudication...". In Bowline, I set forth the conditions required for an adjudicatory examination of the emission rate as follows:

"...[b]ased upon an adequate offer of proof the Department may examine why the subject facility should not be required to meet a lower PM 10 emission rate if it is shown that comparable facilities are obtaining such lower rates." Bowline, supra, at 4.

In the Bowline decision, as in the present case, I had before me an appeal of an ALJ ruling that the PM 10 rate in a draft air permit was adjudicable. In that case I overruled the ALJ, finding that mere assertions that the PM 10 rate in the subject permit was an underestimate, compared to other facilities, was insufficient to raise an adjudicable issue. In so finding, I stated that "vague and speculative" assertions and a lack of "specific information" were insufficient to require further inquiry. Id. at 5.

In the present case, a lack of specific information in the offer of proof made by Queens/CHOKE is inadequate to require adjudication. Queens/CHOKE, in their June 21, 2001 letter submittal, indicated that its offer of proof consisted of "the draft permits and emission limits proposed for SCS Astoria Energy, Con Edison and NYPA GE Frame 7FA combustion turbines". No further explanation or specific information was offered, as required. See, Matter of Citizens For Clean Air v. New York State Dep't of Envt'l Conservation, supra, where the court upheld Commissioner's determination to exclude certain issues from adjudication, stating that the burden requires "a clear explanation of the issues sought to be adjudicated".

Additionally, in the hearing and in its appeal, Queens/CHOKE spent considerable time alleging that rates for various facilities, including the proposed NYPA plant, were overinflated. As in Bowline, these assertions do not amount to an offer of proof and fall short of demonstrating that comparable facilities are actually obtaining lower emission rates. Accordingly, no issue is presented, and the ALJ Ruling is overruled.

ALJ Rulings on Air Quality Issues Relating to the Draft Permit

The ALJ made several Rulings on air quality issues raised by Queens/CHOKE and NYPIRG in seeking party status. These Rulings all found that no adjudicable issues were raised. In response to the ALJ's Rulings, both Queens/CHOKE and NYPIRG filed appeals to the Siting Board. NYPIRG also appealed several of these issues to me. I will review these Rulings and the corresponding appeals in accordance with my jurisdiction to review air quality issues.(6)

ALJ Rulings

ALJ Rulings 6, 7 and 8 deal with specific issues raised by Queens/CHOKE and NYPIRG in relation to air quality impacts of the proposed NYPA facility.

The ALJ, in Ruling 6, found that no adjudicable issue was raised with respect to a variety of issues related to "air quality impact analyses, pollutant emissions analyses and selection of emissions control technologies". Ruling at 16-17. Also found to be non-adjudicable were issues raised with respect to "local adverse health effects of non-criteria pollutants" Id. at 17, and "alternative air pollution control technologies". Id. at 18. Additionally, this Ruling states that it was premature to evaluate the impacts of emissions of fine particles less than 2.5 microns in diameter ("PM 2.5").

In Ruling 7, the ALJ found that there was no adjudicable issue regarding the cumulative impacts of the proposed facility.

Finally, the ALJ's Ruling 8 states that the issue of neighborhood impacts under an environmental justice analysis was not subject to adjudication.

Appeals

Queens/CHOKE appeals each of the above Rulings to the Siting Board.(7) NYPIRG appeals Rulings 7 (including PM 2.5 impacts) and 8 to DEC and review of air quality impacts, in general, to the Siting Board.

Discussion

The appeals filed on the foregoing Rulings specifically regard impacts related to ozone, social aspects of public health impacts or environmental justice, cumulative public health impacts, and PM 2.5. Each of the above items have been responded to by NYPA and most have also been responded to by Staff. The extent of the rebuttal will not be repeated here. I will address the appeals of the parties and the Rulings in the context of the specific air quality impacts issues raised.

Ozone

Queens/CHOKE's appeal concerns their request to examine the public health impacts of ozone due to emissions from the proposed facility. Although there is some question as to whether Queens/CHOKE properly raised this issue for review, in addressing the merits, I find that no party made an offer of proof that would require adjudication or any further review with respect to this issue. The NYPA facility is located in a severe nonattainment area for ozone. As such, NYPA was required to meet the Lowest Achievable Emission Rate ("LAER"). Volume II, App. 5B, Sections 4.7 and 4.8. Compliance with LAER by NYPA means that the best demonstrated technology available will be implemented as part of this project with respect to emissions of NOx and VOCs which are precursors to ozone formation. There is no dispute that LAER will be met. Additionally, NYPA is required to obtain offsetting emission reductions of NOx and VOCs pursuant to the New Source Review requirements contained in 6 NYCRR Part 231. Volume II, App. 5B, Section 5. Since NYPA is required to obtain offsets at a ratio of 1.3 times the projected amount of these emissions, these offsets ensure that the operation of this plant will result in a net air quality benefit. Given the fact that this project will be employing the best technology available and will result in a net decrease in the ozone precursors emitted in the project area, the health impacts related to ozone were properly addressed in the permitting process.

Environmental Justice

Queens/CHOKE appeal the denial of the examination of the impacts of the project on a neighboring community proposed to be composed disproportionately of low-income and minority citizens. In accordance with the requirements of the PSD program, NYPA was required to undertake an environmental justice analysis. NYPA's considerable analysis related to environmental justice is contained in Volume II, App. 5B of NYPA's Article X Application. The results of NYPA's analysis indicate that the impact of the project cannot be considered adverse since modeling demonstrates that air quality impacts do not exceed USEPA Significant Impact Concentrations. Volume II, App. 5B, App. G at 2. Additionally, NYPA's analysis addressed the concerns raised by Queens/CHOKE and demonstrated that the "proposed project would not have an adverse or disproportionate effect on a minority or low-income population." Id. Since neither Queens/CHOKE or NYPIRG presented any information to dispute the findings made by NYPA or to challenge the inadequacy of the analysis done, there is no issue requiring adjudication.

Cumulative Impacts

Queens/CHOKE appeal the ALJ finding that cumulative impacts was not adjudicable. NYPIRG also appeals, arguing that cumulative impacts should be analyzed by DEC and as set forth in New York City's Air Code. However, based upon a review of the record, it is clear that NYPA was required to complete many cumulative impact analyses as part of its application for this project. Pursuant to the PSD program, NYPA was required to model cumulative impacts. 40 CFR 52.21(k). For example, as part of its PSD requirements, NYPA conducted a cumulative impact analysis to meet its environmental justice obligations. Volume II, App. 5B, App. G. Further, at the request of DEC and the NYS Department of Health, NYPA conducted additional modeling of cumulative impacts of criteria and non-criteria pollutants related to this project, as well as the other existing and proposed projects in the area. See, Volume I, Section 5. Each of these analyses indicate that emissions from the project meet health based standards and limits. Neither of these appeals dispute the extensive cumulative impact analyses conducted by NYPA as part of its application. Queens/CHOKE takes note of the numerous analyses conducted by NYPA, but did not raise any concerns with respect to such analysis.(8) Additionally, NYPIRG provides no authority that would require that NYPA conduct additional cumulative impact analyses. In light of the foregoing, there is no adjudicable issue with respect to cumulative impacts of the project.

PM 2.5

Both Queens/CHOKE and NYPIRG argues to adjudicate the public health impacts of PM 2.5 with respect to NYPA's project, citing to In RE Matter of UPROSE et al., v. New York Power Authority et al., AD2d, (2nd Dept. July 23, 2001). The adjudicability of issues relating to PM 2.5 have been addressed in two previous decisions of the Commissioner.

In the Matter of American Marine Rail, LLC.,Interim Decision, February 14, 2001, the Commissioner, in overruling a finding of adjudicability of PM 2.5 issues, set forth in detail the considerable effort necessary to develop a protocol and standard to evaluate the impacts of PM 2.5. The decision in AMR also established that the USEPA approved and accepted process for protecting public health during this interim period would be to use established and proven methodologies for PM 10. AMR, supra, at 10.

In the Matter of Consolidated Edison, Decision, August 16, 2001, I overruled an ALJ determination of adjudicability of PM 2.5 impacts in the context of an Article X proceeding. In Con Edison, I re-examined the Department's position with respect to the adjudicability of PM 2.5 issues in light of the decision in UPROSE. In so doing, I noted the procedural distinctions between the level of environmental review undertaken in UPROSE versus what is required for an Article X application. Additionally, after exhaustive review of the record before me, I found that since the public health impacts of particulate matter had been considered and the project demonstrated conformity to all appropriate standards, regulations and guidance advanced for the protection of public health, adjudication of PM 2.5 impacts would not be allowed.

As was the case with the intervening parties in Con Edison, Queens/CHOKE and NYPIRG merely rely on UPROSE to require the adjudication of PM 2.5 impacts. Neither have alleged any factual issue regarding PM 2.5 or NYPA's particulate matter analysis that could result in any substantive change to the project or a denial of the air permit. Moreover, the technical constraints with respect to the regulation and analysis of PM 2.5 which drove the rationale in the AMR and Con Edison decisions have not changed. As previously set forth in detail in AMR, the USEPA has projects underway which will lead to the implementation of a proposed NAAQS for PM 2.5. Although the Department has made considerable progress in gathering the data necessary to regulate PM 2.5, we are presently in the early stages of the process necessary to implement the PM 2.5 NAAQS. It will not be until 2002 that areas will be designated as attainment or non-attainment, and up to three years after that before plans are developed and submitted to USEPA for attaining the new standards.

Additionally, based upon my review of the record, I am satisfied that the project, as proposed is consistent with laws and guidance established for the protection of public health. In particular, there is sufficient information about particulate matter to conclude that particulate matter impacts have been comprehensively analyzed by NYPA and have been appropriately addressed in the draft permit.

Significantly, it is clear that NYPA's air analyses, including those analyses examining particulate matter, were conducted in accordance with all USEPA and DEC guidance, as well as in accordance with comments received from DEC and Department of Public Service staff. See, Application Volume II, App. 5A, Section 7 and Volume I, ES-9. It is also evident, based upon a review of the application, that NYPA conducted comprehensive and numerous analyses of the potential particulate matter impacts of the proposed project. For example, in addition to a National Ambient Air Quality Standards ("NAAQS") assessment, the project was subject to PSD review for PM 10 which includes a BACT analysis, an environmental justice analysis, atmospheric dispersion modeling, and additional impact analyses such as a growth analysis, a soil and vegetation analysis, and a visual analysis. Volume I, Section 5. Additionally, as referenced above, NYPA conducted a number of cumulative impact analyses that included the examination of the impacts of PM 10.

The undisputed results of these comprehensive analyses conclusively establishes that the proposed project meets or exceeds all applicable requirements established for the protection of public health. First, the project application materials demonstrate that the NAAQS and New York Ambient Air Quality Standards ("NYAAQS") will not be exceeded for PM 10 or any other pollutant. See, Volume II, App. 5B.(9) Additionally, the project will not consume any PSD increments with respect to PM, and there are no PM impacts to soils, vegetation, growth and visibility. Id. Further, the project will employ BACT for PM since Queens County is in attainment for PM. Id. at 1-4,3-4. (Modeling also shows that the project will result in insignificant PM impacts in New York County, see Volume II, App. 5B, Section 7.5.) Accordingly, it is reasonable to conclude that the public health is adequately protected.

In summary, the record clearly indicates that the air quality impacts for this project have been minimized. The air quality modeling analysis contained in the NYPA application demonstrates that the proposed project will not cause or contribute to a violation of NAAQS for any pollutant, will not exceed any PSD increments and will meet all air pollution control technology requirements. Health based analyses conducted in accordance with NYS Department of Health requirements show no evidence of impacts requiring modification of the project as proposed. Volume I, Section 5.5. The proposed project is projected to result in a permanent reduction in the operation of the adjacent existing NYPA Charles Poletti Power Project, thereby further reducing air impacts. Moreover, the NYPA Astoria Project is projected to result in reduced air emissions through operational displacement of older, less efficient electrical generating facilities, particularly in northwest Queens. Accordingly, since the proposed project will be consistent with standards designed for the protection of public health, ALJ Rulings 6, 7 and 8 are affirmed.

ALJ Ruling on Alternatives

The ALJ, in Ruling 1, held that Queens/CHOKE failed to raise an adjudicable issue with respect to NYPA's alternatives analysis pursuant to 6 NYCRR Part 231, finding that Queens/CHOKE failed to provide any specifics as to the failing of NYPA's analysis.

Appeal and Discussion

Queens/CHOKE appeal the ALJ Ruling.(10) NYPIRG also appears to appeal this Ruling as well, although the basis for the appeal is not specifically addressed by NYPIRG in its appeal. However, as was the case with respect to NYPA's cumulative impact analysis, Queens/CHOKE acknowledge that NYPA's application contains "an extensive discussion of alternative project designs and sizes". Queens/CHOKE Appeals Brief at 7. See, e.g., Volume I, Section 15 and Volume II App. 5B for examples of NYPA's extensive alternatives analyses. Queens/CHOKE did not present any specific information which would indicate a basis upon which to challenge NYPA's alternative analyses. In the absence of any proposed concerns with NYPA's analysis of alternatives, ALJ Ruling 1 is affirmed.

ALJ Ruling on Monitoring and Testing Requirements

In Ruling 4, the ALJ stated that since NYPIRG's concerns regarding monitoring and testing have been resolved, there is no adjudicable issue presented. The Ruling did not address the concerns with respect to the frequency of testing to ensure that the PM 10 emission limit is met that were raised in Queens/CHOKE's June 21, 2001 letter submittal.

Appeal and Discussion

Both Queens/CHOKE and NYPIRG appeal the ALJ's Ruling. Neither party, however, has raised any concerns which could result in denial of the permit or significant changes to the permit. 6 NYCRR 624.4 (c)2),(3). In the absence of any offer of proof on these issues, the ALJ's Ruling is affirmed.

ALJ Rulings on Non-Compliance by NYPA and Bi-furcation of ERCs Review

In Ruling 2, the ALJ held that NYPIRG failed to raise a substantive or significant issue with respect to NYPA's compliance history, and, in Ruling 3, the ALJ found that NYPIRG's concerns with respect to the process by which emission reduction credits ("ERCs") would be obtained was not adjudicable.

Appeal and Discussion

NYPIRG appeals each of these Rulings. However, NYPIRG's appeal merely restates its initial arguments before the ALJ and fails to explain why the ALJ's Rulings should be reversed. With respect to the issue of bifurcating the review of the ERCs, I find that NYPIRG's right to comment on the ERCs and propose issues for adjudication prior to the time a permit is issued by the Department, makes this issue premature for review. 6 NYCRR 231 -2.10. The issue proposed with respect to non-compliance by NYPA also fails to meet any standards required for adjudication, since NYPIRG failed to present any evidence of ongoing unresolved violations by NYPA. As such, I am satisfied that the concerns raised by NYPIRG do not require further inquiry, and I affirm the ALJ's Rulings on these matters.

Conclusion

Upon review of all other matters not specifically addressed above, I find them to be without merit. I affirm the ALJ Rulings, excluding, the Ruling finding the PM 10 rate to be adjudicable, as discussed above. Accordingly, the application is remanded to Staff to continue processing consistent with this Interim Decision.

For the New York State Department of Environmental Conservation

/s/
By: Erin M. Crotty, Commissioner
Albany, New York
November 26, 2001

1 PSL Article X directs the presiding examiner to issue an order identifying the issues to be addressed at the PSL Article X hearing. Similarly, 6 NYCRR 624.4(b)(5) instructs the DEC associate examiner to rule on requests for full party status and to determine which issues satisfy the requirements for adjudication of issues as set forth in 6 NYCRR 624.4(c).

2 Amendments to Article X and the ECL in 1999 clarified that the DEC Commissioner has express authority to issue environmental permits for PSL Article X major electric generating facilities pursuant to federally delegated or approved authority under the federal Clean Water Act, the federal Clean Air Act and the federal Resource Conservation and Recovery Act.(3)

3 Article X specifically references permitting programs for permits issued pursuant to federally delegated or approved authority under the federal Clean Water Act, the federal Clean Air Act and the federal Resource Conservation and Recovery Act. PSL §§ 164(1)(f), 167(1)(a), 168(3), 172(1). §§

4 Queens/CHOKE identified the proposed Astoria SCS project as the facility referred to by NYPA. Not referred to in NYPA's brief is the Con Edison and NYPA plant referred to in Queens/CHOKE's June 21, 2001 submittal.

5 Staff's reliance on Ramapo (both the July 13, 2001 Interim Decision, supra, and Matter of Ramapo LP, Ruling of Commissioner, April 4, 2001) for support in foreclosing review of PSD related issues in a state air permit is misplaced. While PSD permit provisions are not adjudicable as part of the state permitting process, state permit provisions remain adjudicable, regardless of the existence of a similar provision in a PSD permit.

6 The Siting Board, in a number of decisions made in response to interlocutory appeals, has consistently held that certain air quality issues are the exclusive domain of DEC. See, Consolidated Edison East River, Case 99-F-1314 (June 22, 2001); Mirant Bowline, Case 99-F-1164 (June 21, 2001); and Ramapo Energy Limited Partnership, Case 98-F-1968 (July 25, 2001).

7 Queens/CHOKE's cumulative health impacts appeal included references to ozone and PM 2.5, each of which will be treated separately.

8 See Queens/CHOKE Appeals Brief at 6.

9 The NAAQS and the NYAAQS, as health based standards, implicitly provide an adequate margin of safety to protect public health.

10 Queens/CHOKE appeal was to the Siting Board, based upon a Ruling of the DPS ALJ that alternatives would not be examined by the Siting Board since "review of an air pollution control issue by the Siting Board is foreclosed". Ruling at 23-24. However, Queens/CHOKE raised issues with respect to NYPA's alternatives analysis pursuant to New York law (6 NYCRR Part 231) at the Issues Conference. In accordance with my authority to review air permit related issues, I will analyze whether Queens/CHOKE has raised an issue warranting further review.

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