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Orion Power Holdings, Inc (Astoria Generating Co.) - Public Service Law Article X and 6 NYCRR Part 624 Issues Ruling, March 21, 2002

Issues Ruling, March 21, 2002

NEW YORK STATE BOARD ON ELECTRIC GENERATION SITING AND THE ENVIRONMENT
Department of Public Service CASE 00-F-1522 - Application of Astoria Generating Company, L.P.,

for a Certificate of Environmental Compatibility and Public Need to Construct and Operate
an approximately 1816 Megawatt Facility in Astoria, Queens, New York.

AND

Department of Environmental Conservation

CASE No. 2-6301-00185/00016, 2-6301-00185/00017,

2-6301-00185/00007

In the Matter of

the Applications for: (1) a Clean Air Act (CAA) Title V permit pursuant to
Environmental Conservation Law (ECL) Article 19, 6 NYCRR Part 201 and Subparts 201-6.1 and 231-2;
(2) CAA Title IV permit pursuant to 40 Code of Federal Regulations (CFR) §76.6(a)(3);
(3) Prevention of Significant Deterioration (PSD) conditions pursuant to 40 CFR §§52.21 and 124; and,
(4) the modification of a State Pollutant Discharge Elimination System (SPDES) permit
pursuant to Article 17 of the ECL.

ARTICLE X AND DEC PART 624 ISSUES RULINGS(Issued March 20, 2002)

J. Michael Harrison, Presiding Examiner

P. Nicholas Garlick, Associate Examiner

Executive Summary

A joint issues conference was held on March 25 and 26, 2002 regarding the application by Astoria Generating Company, L.P. (Applicant) for the necessary state governmental approvals to construct and operate a 1,816 MW power plant in northwest Queens, New York.

In the issues conference before the New York State Department of Environmental Conservation (DEC), the Applicant and the Staff of DEC (DEC Staff) are parties to the proceeding by operation of law. Neither the Applicant nor DEC Staff raised any issues. Three petitions for party status were received. The first petition, filed by the Queens Borough President (Queens BP), Coalition Helping Organize a Kleaner Environment(CHOKE), the Natural Resources Defense Council (NRDC) and the New York Public Interest Research Group (NYPIRG), hereinafter Queens/CHOKE/NRDC/NYPIRG, proposed three issues for adjudication. These issues have been resolved through negotiation and are not advanced to adjudication. The second petition was filed by NYPIRG, individually, and proposed a number of issues for adjudication; however, after negotiations all but two of NYPIRG's proposed issues were withdrawn. The third petition was filed by the City of New York (NYC) and proposed one issue. The DEC Administrative Law Judge (ALJ)/Associate Examiner finds one of NYPIRG's proposed issues related to the sulfur content of the proposed back-up fuel is advanced to adjudication and NYPIRG is granted party status. No other issues are advanced and, therefore, NYC is denied party status.

At the Article X issues conference, issues were advanced by Queens/CHOKE/NRDC/NYPIRG, Staff of the Department of Public Service (DPS Staff), Consolidated Edison Company of New York (Consolidated Edison or Con Ed), the New York Power Authority (NYPA), and NYC. Some of the issues listed in the parties pre-conference submissions were withdrawn at the issues conference, or later. Several proposed issues remain, and are addressed here, below.

Negotiations among parties are expected to continue and a number of the issues advanced to adjudication in this ruling may be resolved prior to the start of the hearing on April 15, 2002.

Background

Introduction

This report addresses the joint Article X and DEC issues conference in the above captioned matter. There are two separate and distinct approvals that the Applicant needs to repower and operate its proposed power plant. The first approval is a Certificate of Environmental Compatibility and Public Need (Certificate), which must be secured from the New York State Board on Electric Generation Siting and the Environment (the Siting Board). The second approval, from DEC, constitutes permits to discharge air and water pollution. Each agency has its own administrative hearing process, which includes an opportunity to adjudicate issues. In order to promote the efficiencies of the two hearing processes without sacrificing any of the procedural protections, a hearing schedule is in effect that closely coordinates these two administrative hearing processes.

Pursuant to Public Service Law (PSL) §165(2), the Presiding Examiner must issue an order identifying the issues to be addressed at the Article X hearing. Similarly, Volume 6 of the New York Code Rules and Regulation (6 NYCRR) §624.4(b)(5) directs the Associate Examiner to rule on requests for party status and to determine which issues satisfy the requirements of adjudicable issues as set forth in 6 NYCRR §624.4(c).

To satisfy these requirements, we issue the following ruling jointly, identifying the issues that will be the subject of the adjudicatory hearing scheduled to commence on April 15, 2002, at the Offices of the Public Service Commission (PSC) in Manhattan. The DEC issues rulings are made by the Associate Examiner, and the Article X issues rulings are made by both Examiners jointly. This ruling provides a brief description of the proposed project and a summary of the proceedings related to the joint issues conference, as well as a discussion of the issues proposed for adjudication.

The Chairman's Letter

The hearing process in this matter commenced on December 28, 2001 with the release of a letter from Chairman Helmer to the Applicant. This letter also included the determination that final action by the Siting Board should be taken within six months, pursuant to PSL §165(4)(b).

Project Description

Astoria Generating Company, L.P., a wholly owned subsidiary of Orion Power Holdings, Inc., proposes to repower the existing Astoria Generating Station (AGS). The repowering includes the installation of six combustion turbines, retirement of four existing boilers and reuse of existing equipment and infrastructure including two steam turbine generators. The repowering increases AGS's electric generating capacity from 1,254 MW to 1,816 MW.

The primary fuel is natural gas with kerosene (0.04% sulfur by weight) or equivalent sulfur content member of the distillate oil facility used as back up fuel for a maximum of 750 hours per year. The Applicant proposes to install an oxidation catalyst system to reduce carbon monoxide (CO) and volatile organic compounds (VOCs), and a selective catalytic reduction system (SCR) to reduce Nitrogen Oxides (NOx). Air emissions resulting from the turbines and heat recovery steam generators (HRSG) are to be directed to six double flue 340 foot tall stacks. The repowering incorporates a closed-loop condenser cooling system using a plume abated evaporative cooling tower to cool the circulating water.

The AGS facility is located at 18-01 20th Avenue in Astoria, Queens and is located within a larger complex known as the Consolidated Edison (Con Ed) site. The Con Ed site is bounded on the north and west by the East River, the east by Luyster Creek (Steinway Creek) and 37th Street, and the south by 20th Avenue.

Public Notice

The public notice provided by the Applicant to the surrounding community significantly exceeds what is required by law. DEC regulations required the Applicant to publish the notice of hearing once, at least thirty days prior to the hearing date, in a newspaper having general circulation in the area within which the proposed project is located (6 §NYCRR 624.3). The Article X regulations require publication of notice of the application both in the newspaper designated for publication of official notices in the municipality in which the proposed facility would be located and the newspaper of largest circulation in the county where the proposed site is located (16 NYCRR §1000.6(a)). Subsequent notices may be required by the Board or the Presiding Examiner (16 NYCRR §§1000.6(e),(f),(h)).

In this case, the Applicant voluntarily took extraordinary steps to notify the community regarding the hearing process. The official DEC Announcement of Public Comment Period, and Use of Emission Reduction Credits, and Combined Notice of Complete Application, Public Hearing and Issues Conference was published in the Daily News (Queens edition), and the Queens Chronicle, Astoria Times, El Diario (Spanish), and The Herald (Greek) on January 10, 2002. It was also published in the Korea Times (Korean) on January 11, 2002.

The official DEC Notice of Determination to Issue Prevention of Significant Deterioration (PSD) Permit was published in the Daily News (Queens edition), and the Queens Chronicle, Astoria Times, El Diario (Spanish), and The Herald (Greek) on January 10, 2002. It was also published in the Korea Times (Korean) on January 11, 2002.

The official Siting Board Notice was published in the Daily News (Queens edition), and the Queens Chronicle, Astoria Times, El Diario (Spanish), The Herald (Greek), and the Korea Times (Korean) on January 17, 2002.

In addition, the Applicant voluntarily published shorter notices in larger type, in the weeks before the hearings to remind the public of the upcoming deadlines. These shorter "display ads" were published in the Daily News (Queens edition) on January 25, 2002, and the Queens Chronicle on January 24, 2002, Astoria Times on January 24, 2002, El Diario (Spanish) on January 24, 2002, The Herald (Greek) on January 24, and the Korea Times (Korean) on January 26, 2002.

Legislative/Public Statement Hearing

As provided in notices issued by the Secretary to the Siting Board and the DEC Office of Hearings and Mediation Services, and published in newspapers by the Applicant described above, joint legislative/public statement hearings were convened on February 11, 2002 at 1:00 p.m. and 7:00 p.m. at Riccardo's by the Bridge, 21-01 Twenty-fourth Avenue, Astoria, Queens.

At the first hearing, two members of the public attended and one, a staff person for Assemblyman Michael Gianaris, made a brief statement for the record. At the second, three members of the public attended and two made statements for the record.

Among the active parties, the representatives of the following attended: the Applicant, DEC Staff, and DPS Staff.

Issues Conference

The joint issues conference occurred on February 25, 2002 at 10:00 a.m. and continued on February 26, 2002, at DPS offices at One Penn Plaza, Manhattan. On February 25, DEC issues were discussed pursuant to 6 NYCRR Part 624. On February 26, the Article X issues were discussed pursuant to PSL §165(2).

Dec Issues Conference

Appearances

The Applicant and DEC Staff are parties to a DEC issues conference by operation of law (6 NYCRR §625.5(a)). The Applicant appeared through its attorneys Scott M. Turner, Esq. and Ruth H. Silman, Esq. of the law firm of Nixon Peabody, LLP., Rochester, NY. DEC Staff appeared through Mark D. Sanza, Esq., and Jennifer L. Hairie, Esq. of DEC Staff. Also present from DEC Staff were Leon Sedefian, Chris Hogan, and John Weidman.

DEC regulations allow any person, organization or combination thereof to file a petition for consideration of a request for full party status (6 NYCRR §624.5(b)). Three petitions for party status were received. A joint petition was received on behalf of Queens BP, CHOKE, NRDC, and NYPIRG. Queens BP appeared through Hugh Weinberg, Esq., Counsel to the Queens Borough President. NRDC appeared through Katherine Kennedy, Esq. NYPIRG appeared through Lisa Garcia, Esq. Also present for Queens/CHOKE/NRDC/NYPIRG was Daniel Gutman.

The second petition was received from NYPIRG, individually. NYPIRG appeared through Lisa Garcia, Esq.

The third petition was filed by NYC, which appeared through Christopher G. King, Esq. and William Plache, Esq.

Proceedings and Closure of the Record

The DEC issues conference was held on February 25, 2002 and briefly reconvened in the afternoon of February 26, 2002. At the close of the DEC issues conference, a schedule was set to allow for written submissions on issues proposed by NYPIRG and to allow parties to continue to negotiate while this Issues Ruling was being drafted. The record of the DEC issues conference closed on March 14, 2002.

The Queens/CHOKE/NRDC/NYPIRG Petition

By letter dated March 14, 2002, it was announced that the issues raised by this petition had all been resolved. This petition is deemed withdrawn.

NYPIRG's Petition

A petition for party status was timely submitted by NYPIRG and proposed a number of issues for adjudication. All but two issues were withdrawn by NYPIRG following negotiations among the parties. The remaining two issues are discussed below.

DEC Issue #1: Particulate Matter

NYPIRG proposes three sub-issues regarding particulate matter (PM). Both DEC Staff and the Applicant oppose advancing any sub-issue to adjudication.

The first sub-issue NYPIRG asserts is that the draft air permit should be amended to reduce the total amount of PM emitted from the proposed facility. The draft air permit allows 719 tons per year (tpy) of PM and NYPIRG asserts this should be reduced. NYPIRG argues the reduction in PM is required by 6 NYCRR §200.6, which reads "no person shall allow or permit any air contamination source to emit air contaminants in quantities which alone or in combination with emissions from other air contamination sources would contravene any applicable ambient air quality standard and/or cause air pollution."

In response, the Applicant asserts that NYPIRG has failed to identify any ambient air quality standard that would be violated by the emission of 719 tpy of PM, and that reliance on 6 NYCRR §200.6, is misplaced. In addition, NYPIRG has failed to identify any method (either alternative air pollution control technology or alternative fuel) that could reduce the amount of PM emitted from the facility.

This sub-issue is not substantive because NYPIRG has failed to identify (or create any doubt regarding) a statutory or regulatory standard applicable to the proposed project that the Applicant allegedly cannot meet. In addition, NYPIRG has failed to make any offer of proof regarding how a reduction in PM could be achieved.

The second sub-issue asserted by NYPIRG relates to condition 78 in the draft air permit which reads "particulate matter emissions while firing solid, liquid, or gaseous fuels shall not exceed 0.03 lbs/mmBtu." NYPIRG asserts that other permits for recently permitted power plants have had a limit of 0.01 lbs/mmBtu. NYPIRG argues that this Applicant should be forced to accept the lower emission rate that its competitors have accepted in their permits.

In response, the Applicant and DEC Staff assert that the 0.03 lbs/mmBtu limit in condition 78 is not the controlling limit because lower limits exist in other conditions within the air permit (specifically conditions 112, 113, 131 and 132) and the Prevention of Significant Deterioration (PSD) permit (specifically, pages 2 and 3 of the PSD permit). The 0.03 lbs/mmBtu limit is the new source performance standard required by federal regulation (40 C.F.R. Part 60). NYPIRG does not dispute that limits elsewhere in the air permit and in the PSD permit are actually lower than the standard sought by NYPIRG.

This sub-issue is not significant because condition 78 is not the controlling limit in the permit. Even if it is changed it does not have 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.

The third sub-issue asserted by NYPIRG relates to emissions of PM with a diameter equal to or less than 2.5 microns (PM2.5). Specifically, NYPIRG seeks to adjudicate in this DEC administrative hearing process issues regarding PM2.5 that are currently in hearing in other cases in the Article X administrative hearing process.(1) In the past both the DEC Commissioner and the Siting Board have ruled that PM2.5 is appropriately considered in the Article X administrative hearing process. I find no reason to contradict these precedents, especially since the issue of PM2.5 is being advanced to adjudication in this case in the Article X administrative hearing process (see the Article X issues rulings, below) and the issue will be thoroughly examined there.

DEC Ruling #1: None of the three sub-issues relating to PM are advanced to adjudication in the DEC administrative hearing process.

DEC Issue #2: Sulfur Content of Back-up Fuel (152-160)

The second remaining issue proposed for adjudication by NYPIRG relates to the concentration of sulfur in the backup fuel to be used by the proposed facility. Specifically, the draft permit limits the content of sulfur in the aviation grade kerosene to 0.04% by weight. NYPIRG asserts that this should be lowered to 0.033%, which was the limit in a permit issued to a neighboring proposed power plant, SCS Astoria (DEC Case No.2-6301-00647/0001). By lowering the content of sulfur in the back-up fuel, NYPIRG argues that the air emissions of sulfur oxides (SOx) could be further reduced and minimized.

Both the Applicant and DEC Staff oppose advancing this issue to adjudication. The Applicant argues that fuel containing 0.04% sulfur is commercially available and that it is appropriate for different facilities to have different limits in their permits because permitting decisions are made on a case-by-case basis. DEC Staff agrees with the Applicant, and explains that SCS Astoria blended its back-up fuel with an additive that is widely available in the New York City metropolitan area to reduce the concentration of sulfur.

There are two analyses appropriate to this proposed issue, and both lead to the conclusion that this issue should be advanced to adjudication. First, since Queens is in attainment for oxides of sulfur (SOx), the appropriate level of pollution control for this proposed project is Best Available Control Technology (BACT).(2) BACT is an emission limitation or equipment standard based upon the maximum degree of reduction of each contaminant emitted, made on a case-by-case basis, and includes consideration of factors including fuel to be used and economic costs.(3) NYPIRG has raised an issue that the proposed back-up fuel is not BACT, based upon the permit for a neighboring plant. To date, neither the Applicant nor DEC Staff have provided an adequate explanation as to why, in this case, back-up fuel with a sulfur content of 0.04% is BACT. This issue is significant because it has the potential to result in a major modification to the permit, and this issue is substantive because there is doubt about the Applicant's ability to meet the BACT standard, such that further inquiry is warranted.

The second analysis that leads to the conclusion that issue should be adjudicated is similar. Article X is the functional equivalent of SEQRA and provides for an environmental review process as stringent and thorough as the SEQRA process.(4) SEQRA is action forcing.(5) Therefore, Article X is action forcing. Article X requires that the Siting Board find and determine that the proposed facility minimizes adverse environmental impacts considering the state of available technology, the nature and economics of reasonable alternatives.(6) In this case, NYPIRG asserts that a back-up fuel with a lower sulfur content will minimize environmental impacts, and points to a neighboring proposed power plant with a lower limit. DEC Staff stated at the issues conference that the lower limit was achieved through the blending of the aviation grade kerosene with an additive that is widely available in the NYC metropolitan area.(7) In order for the Siting Board to rely upon the DEC Commissioner's decision to issue the relevant environmental permits as evidence that environmental impacts have been minimized, this issue needs further review. Again, the issue is substantive and significant.

DEC Ruling #2: The issue regarding the sulfur content in the back-up fuel is advanced to adjudication.

NYC's Petition

The petition for party status submitted by NYC was filed after the deadline for petitions for party status. NYC explained that due to the relocation of the Corporation Counsel's Offices, following September 11, 2001, that timely submission of a petition was not possible. NYC's petition contained the information necessary for a late-filed petition (6 NYCRR 624.5(c)) and no party has objected to the consideration of NYC's petition. Therefore, this late filed petition is accepted.

DEC Issue #3: Cumulative Air Impact Analysis

The only issue proposed for adjudication by NYC is that the Applicant should be required to complete a Cumulative Air Impact Analysis (CAIA). As explained in its petition, NYC asserts that the only thorough and comprehensive method for determining whether or not the proposed project will result in exceedences of the National Ambient Air Quality Standards (NAAQS) is to require the Applicant to complete a CAIA. The CAIA is a computer model, used only in NYC, to estimate whether a proposed air pollution source will result in exceedences of NAAQS. The computer models required by USEPA and DEC have been run by the Applicant and show no exceedences resulting from the construction and operation of the proposed facility. NYC is not asserting that the proposed facility will exceed any NAAQS, only that additional modeling should be completed.

Both the Applicant and DEC Staff oppose advancing this issue to adjudication. Both assert that this proposed issue fails to meet the standards for adjudication in 6 NYCRR §624. I concur.

This proposed issue is not substantive because NYC has asserted that there is significant doubt about the Applicant's ability to meet any statutory or regulatory criteria. This issue is not significant because even if the CAIA model were to predict an exceedence, which is not alleged by NYC, it would not 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. This is because the models used by DEC and USEPA predict no exceedences.

DEC Ruling #3: The proposed issue of whether a CAIA is required is not advanced to adjudication.

Appeals of DEC Issues Ruling

A ruling of the DEC Associate Examiner to include or exclude any issue for adjudication, a ruling on the merits of any legal issue made as part of an issues ruling, or a ruling affecting party status may be appealed to the DEC Commissioner on an expedited basis and should be filed with the DEC Commissioner within five days of the disputed ruling (6 NYCRR §624.8(d)(2); §624.6(e)(1).) I am allowing that any appeals must be in writing and received by the DEC Commissioner (Office of the Commissioner, NYS Department of Environmental Conservation, 625 Broadway, Albany, New York, 12233-1010) before 4:00 p.m. on March 26, 2002. Replies are authorized and must be received by the DEC Commissioner before 4:00 p.m. on April 1, 2002. Appeals should address the ALJ's ruling directly rather than merely restate a party's contentions. Parties shall serve each other by the same dates as filing is required in the Commissioner's office. This appeals schedule does not modify the schedule set forth in the established hearing schedule. Appeals and replies must be submitted to the DEC in triplicate, with two of the three copies to ALJ Garlick. No faxes or e-mail submissions will be allowed or accepted.

Article X Issues Conference

Appearances

Unlike the DEC Issues Conference, all parties have been granted party status in the Article X proceeding prior to the issues conference. The parties as well as those who appeared therefore are listed below. The Applicant appeared through its attorneys: Scott M. Turner, Esq. and Ruth H. Silman, Esq. of the law firm of Nixon Peabody, LLP., Rochester, NY. DPS Staff appeared through Jean A. McDonnell, Esq., of DPS Staff. Also present from DPS Staff was Fred Ulrich. DEC Staff appeared through Mark D. Sanza, Esq. and Jennifer L. Hairie, Esq. Also present from DEC Staff were Leon Sedefian, Chris Hogan and John Weidman. The New York State Department of Health appeared through David Quist, Esq. and Kevin Gleason. The New York Power Authority appeared through James D. Lyons, Esq.

Queens/CHOKE appeared through Hugh Weinberg, Esq., Counsel to the Queens BP. Also present for Queens/CHOKE was Daniel Gutman. NYPIRG appeared through Lisa Garcia, Esq. NRDC appeared through Katherine Kennedy, Esq. Consolidated Edison appeared through Jeffery Riback, Esq. Also attending for Con Ed were Peter Chan and Dominick Mormile. The City of New York appeared through William Plache, Esq. and Christopher G. King, Esq.

Standard for Determining Issues

The Siting Board's administrative review process differs slightly from the process used by DEC. Unlike the DEC process where a draft permit is prepared and circulated prior to the issues conference, in the Board's process the draft certificate will not be prepared until after the issues have been identified for adjudication.

Another difference between the two administrative review processes is the standard for determining whether a proposed issue should be adjudicated. As discussed above, in the DEC administrative review process the standard is "substantive and significant". DEC regulations define these terms and a considerable amount of both administrative and judicial case law has been developed over the years. In contrast, the standard used in the Board's administrative process is not precisely defined in this context. The standard to be applied to proposed issues is "material and relevant" (PSL §167(1)(a)). This term is not defined in the Public Service Law. Black's Law Dictionary defines "material" as important and going to the merits, and it defines "relevant" as applying to the matter in question. We have used these definitions in determining whether the proposed issue meets the standard for adjudication in the Board's administrative review process. We note, however, that the difference in the standards between the DEC process and the Board's process, in practical effect, is not great.

Another major difference between DEC's process and that used by the Board is the offer of proof that a party must make to take a proposed issue to adjudication. In DEC's regulations, a party proposing an issue must present an offer of proof prior to or at the issues conference that includes the witnesses to be called, the nature of the evidence to be presented, and the grounds upon which the issue is asserted for adjudication (6 NYCRR §624.5(b)). There is no similar requirement for the Board's administrative process. In the Board's process, a party need only identify an issue that is material and relevant for that issue to be advanced to adjudication. This difference stems from the fact, noted earlier, that at this stage of the proceeding there are no draft certificate conditions, analogous to the draft DEC permits, already developed and approved by the responsible government agencies.

Another important consideration in determining the issues for Article X adjudication is that, in our view, the Board's responsibilities do not encompass review of issues covered in the DEC permitting processes. As we indicated earlier, the Applicant needs two distinct approvals, one from DEC and one from the Board. The DEC approvals relate to environmental regulatory programs delegated to DEC by the U.S. EPA. Air and water pollution control permits issued under this delegation define the permissible, minimized environmental impacts covered by these programs.

Proceedings and Closure of the Record

The Article X issues conference occurred on February 26, 2002. Following the adjournment of the issues conference, the Presiding Examiner directed the parties to report by March 11, 2002 and again on March 14, 2002 regarding the progress of ongoing negotiations to resolve issues among the parties. Such reports were timely received and the issues conference record closed on March 14, 2002.

Article X Issue #1: Cooling Tower Plumes

DPS Staff has been investigating the Applicant's modeling of steam plumes from the hybrid cooling system. Assuming that the proposed cooling system is used, issues include plume impacts, drift rate, internal cleanliness, potential depositions, and land use impacts. In its latest submission, DPS Staff indicates that it may propose performance criteria and/or additional mitigation measures.

Consolidated Edison and NYPA are also addressing the potential impacts of salt deposition from steam plumes on their nearby transmission ad substation equipment. Another related issue is a New York City zoning resolution section relating to fogging and rime icing from steam plumes, from the applications of which the Applicant seeks a waiver. Both DPS Staff and NYC are pursuing this issue.

ARTICLE X RULING #1: All cooling tower plume impacts and the application of the New York City zoning resolution are included on the issues list.(8)

ARTICLE X ISSUE #2: Fine Particulates

Queens/CHOKE/NRDC/NYPIRG have proposed to have PM2.5 issues adjudicated. At the issues conference, they expressed a challenge to the Applicant's measurement of background levels of PM2.5, and asserted that the proposed facility would worsen the situation. Their consultant, Daniel Gutman, offered to show both that adverse effects obtain at concentration levels below the current EPA benchmark standards, and that the standards are exceeded by this facility in some respects.

ARTICLE X RULING #2: Although PM2.5 issues are not part of the DEC permitting analysis at the present time, these issues may be addressed in the Article X review process.(9) Accordingly, we include PM2.5, issues on the list of adjudicable issues in this proceeding.

Article X Issue 3: Comparative Impact Analysis

Queens/CHOKE/NRDC/NYPIRG also propose the issue of whether Northwest Queens is being asked to bear a disproportionate share of the environmental cost of electricity generation. As the only adverse impact, or "cost," at issue is PM2.5, this question would be a corollary of the PM2.5 demonstration Queens/CHOKE/NRDC/NYPIRG offer.(10) These parties would intend to address, if an adverse PM2.5 impact is asserted, whether there are too many power plants already in the Astoria section of Queens, and whether other areas might be more suitable, evidently from both cumulative impact and ethnic composition perspectives, for the proposed facility.

We will not include comparative demographic or ethnic composition issues in this proceeding. "Environmental justice questions per se," that is, comparison of different locations in terms of ethnic composition for purposes of a comparative acceptability analysis, are not adjudicated in Article X cases.(11) Moreover, because there is no choice made among competing sites, for facilities selected pursuant to an approved procurement process, the question for this Siting Board is whether any demonstrated adverse PM2.5 impacts warrant rejection of the application, not whether the facility would preferably be located somewhere else.

Article X Ruling 3: The proposed disproportionate impact analysis is not included as an Article X issue.

Article X Issue 4: The MAPS Analysis

Queens/CHOKE/NRDC/NYPIRG proffered an analysis of the MAPS computer model for adjudication. The computer model simulates system wide implications of running the facility, including such factors as dispatch, displacement of other facilities, market prices, environmental effects, and system reliability. The intervenors at this stage are focusing on model inputs, solely to evaluate the degree to which the facility, through displacement, will improve air quality.

ARTICLE X RULING 4: The Applicant has not relied on environmental benefits of displacement in its application. Thus, a challenge to the model's estimate of environmental improvement would not be relevant per se, and will not be adjudicated. It would be relevant, however, to consider whether the MAPS analysis shows that operating the facility would produce an indirect effect on the levels of PM2.5 in the vicinity of the proposed plant. If Queens/CHOKE/NRDC/NYPIRG identify such an effect, then MAPS issues will be adjudicated to the degree they bear on the extent of that effect. There are no other MAPS-related issues proposed for adjudication.

Article X Issue #5: New York City's Issues

Although Article X concededly preempts NYC's local permitting authority on air quality matters, NYC argues that the Board should require the Applicant to fulfill the requirements that are normally part of the NYC permitting process, irrespective of whether the pertinent air quality issues are part of the DEC permitting process. At issue in this context is NYC's request for and analysis of a cumulative air impact analysis (CAIA). Although NYC's Department of Environmental Protection (DEP) would apply the National Ambiant Air Quality Standards (NAAQS) enforced by DEC under the Clean Air Act, the standards would be applied in a different fashion, considering different receptors, and includes other planned emission sources.

The Applicant opposed NYC's position, pointing to a Siting Board determination(12) that it would not be in the public interest to authorize NYC's DEP to require KeySpan's proposed facility to obtain a NYC air permit. Underlying this decision was the finding that emission limits or other standards or requirements with which an Article X applicant could be required to comply were lacking from NYC's Air Code. Indeed, there are no rules or regulations requiring submission of a CAIA. All applicable air quality standards are addressed in the DEC permitting proceeding.

The Applicant and DEC also argue that any NYC air quality analysis should be considered in the DEC permitting process. The Siting Board in KeySpan Energy so held.(13)

ARTICLE X RULING #5: Accordingly, we must reject NYC's proposal to include its CAIA or compliance with DEP regulatory requirements as issues for Article X adjudication.

Article X Issue #6: Noise

The Applicant seeks a waiver of NYC's regulation limiting hours of construction work,(14) so that work may be performed after 6:00 p.m. on Saturdays. Although NYC indicates it has no issues with respect to the Applicant's presentation showing that it would comply with NYC's Noise Code, it is concerned that work performed after 6:00 p.m. on Saturday--the nature of which the Applicant did not specify--might raise noise concerns.

ARTICLE X RULING #6: This issues appears to be both relevant and material, and is included on the list of issues for Article X adjudication.

Appeals of Article X Rulings

A ruling of the Presiding and Associate Examiners to include or exclude any issue for adjudication or a ruling on the merits of any legal issue made as part of an issues ruling may be appealed to the Secretary of the New York State Siting Board. We are allowing that any appeals of the Article X rulings above must be in writing and received by the Secretary of the NYS Siting Board, Three Empire State Plaza, Albany, New York, before 4:00 p.m. on March 26, 2002. Replies are authorized and must be received by the Siting Board before 4:00 p.m. on April 1, 2002.

Appeals should address the Examiners' ruling directly rather than merely restate a party's contentions. Parties shall serve each other by the same dates as filing is required to the Siting Board. This appeals schedule does not modify the schedule set forth in the established hearing schedule. Appeals and replies should be submitted to the Siting Board in triplicate - no faxes or e-mail submissions will be allowed or accepted.

J. Michael Harrison
Presiding Examiner

_____________/s/_____________
P. Nicholas Garlick
Associate Examiner

1 Case Nos. 99-F-1627, 99-F-1314, 00-F-1256.

2 DEC Air Guide 12, p. 3

3 6 NYCRR §200.1(j)

4 Athens Generating Company, (Interim Decision), p. 21, June 2, 2000

5 Town of Henrietta v. DEC, 76 AD2d 215 (4th Dept. 1980)

6 Public Service Law (PSL §168(2)(c)(i).

7 Transcript, p. 159.

8 The DEC Part 201 Permit (preconstruction permit) also addresses steam plumes (condition 49). Clarification is needed as to which aspects of plume impacts are to be addressed in permit conditions, and which aspects are to be addressed in certificate conditions.

9 Case 99-F-1314, Consolidated Edison Company of New York, Inc., Order Granting Rehearing I Part (issued January 24, 2002; Case 99-F-1627, New York Power Authority, Order Concerning Interlocutory Appeals from Article X Issues Ruling (issued January 24, 2002).

10 These parties also raised a challenge to the Applicant's MAPS analyses. It appears the only context in which they would apply this challenge would be the PM2.5 impact issues/. MAPS, however, is discussed separately below.

11 Case 99-F-1314, Consolidated Edison Company of New York, Inc. Order Concerning Interlocutory Appeals (issued June 22, 2001), pp. 27-28.

12 Case 99-F-1625, Key Span Energy, Opinion and Order Granting Certificate of Environmental Compatibility and Public Need (issued September 7, 2001), pp. 14-21.

13 Ibid., pp. 19-20.

14 Administrative Code for the City of New York §24-224.

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