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Ramapo Energy, LP - Commissioner Ruling, April 4, 2001

Commissioner Ruling, April 4, 2001

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
- of -
the Application of Ramapo Energy Limited Partnership for permits from the Department of Environmental Conservation

RULING ON MOTION FOR LEAVE TO FILE AN EXPEDITED APPEAL

DEC Application No. 3-3926-00377/00001

April 4, 2001

Introduction

This decision relates to a motion by the County of Rockland ("County") for leave to file an expedited appeal of a ruling by Administrative Law Judge ("ALJ") Susan J. DuBois issued February 22, 2001. The ALJ's ruling relates to the application of Ramapo Energy Limited Partnership ("applicant" or "RELP") for certain permits from the New York State Department of Environmental Conservation ("Department" or "DEC") needed for construction and operation of a major electric generating facility in the Town of Ramapo, Rockland County. The County filed its motion for leave to appeal on or about March 5, 2001. In a letter dated March 9, 2001, the applicant responded that the motion should be denied, but reserved its right to file a response if the instant motion was granted. Department staff submitted a letter on or about March 22, 2001 opposing the County's motion. A letter dated March 19, 2001 was also submitted on behalf of the Torne Valley Preservation Association ("TVPA") and the Rockland County Conservation Association ("RCCA") supporting the County's motion.

Background

The February 22, 2001 ruling memorializes a ruling made February 16, 2001 by the ALJ on the record during the issues conference on RELP's application for a preconstruction permit and certificate to operate pursuant to 6 NYCRR § 201-6.1. During the issues conference, the County requested that the hearing be re-noticed to include all environmental issues, that the hearing be conducted in conjunction with the Article X hearing, and that the air permit application not be considered complete until the functional equivalent of the State Environmental Quality Review Act ("SEQRA", ECL Article 8) has been achieved.

The ALJ found that re-noticing was unnecessary "unless and until the applicable requirements change from those stated in the December 26, 2000 Announcement of Public Comment Period and Combined Notice of Complete Application, Public Hearing, and Issues Conference." The ALJ also stated that the hearing schedules for permits to be issued by the Department would be "coordinated to the greatest extent possible" with matters to be considered under Public Service Law ("PSL") Article X. See Ruling at 1. The ALJ stated further that the Department was not prohibited from conducting review of air and water permit applications prior to completion of the Article X process noting that an Article X application is analogous to or "the functional equivalent of a Draft EIS." Ruling at 2; see also 6 NYCRR § 621.3(a)(6)(iii). The ALJ also rejected the County's reliance on ECL § 70-0109(4) to support its arguments, noting that the cited provision concerns deadlines for DEC to act on permit applications.

Discussion

6 NYCRR § 624.8(d) sets forth the rules for appealing an ALJ ruling to the commissioner on an expedited basis. 6 NYCRR §624.8(d)(2)(v) states that the person seeking the expedited appeal must demonstrate that the failure to decide such an appeal would be unduly prejudicial to one of the parties or would result in significant inefficiency in the hearing process. Notably, the rule states further that "in all such cases, the commissioner's determination to entertain the appeal is discretionary." 6 NYCRR § 624.8(d)(2)(v).

Upon a review of the County's motion and the ALJ's ruling dated February 22, 2001, the motion for leave to file an expedited appeal is denied and the ALJ's ruling is affirmed as explained below. Granting the County's motion is not justified as the issues proposed by the County have either been resolved by prior Department hearings or are points of law that have no legal basis. At the same time, however, given the current onset of PSL Article X cases, I find that the matters addressed by the ALJ's ruling warrant further elucidation.

Preliminarily, a few fundamental principles inherent in a consideration of PSL Article X review and Department environmental permitting for major electric generating facilities bear mention. First, it is undisputed that Article X requires a thorough and extensive environmental review for proposed major electric generating facilities. See PSL § 163 (pre-application requirements), § 164 (application content requirements), § 167 (conduct of hearing and examiner responsibilities), § 168 (Board findings requirements); Letter from the Office of the Attorney General to Commissioner Cahill dated May 31, 2000; Letter from Commissioner Cahill to EPA Regional Administrator Fox dated February 25, 2000. In fact, the environmental review provided for under PSL Article X is as rigorous and thorough, and in some instances even more stringent, than a SEQRA review. For example, whether or not an Article X project will have a "significant" adverse impact on the environment is presumed under Article X and the functional equivalent of an EIS must be prepared in every case.(1) See PSL § 164; Letter from Commissioner Cahill dated February 25, 2000, supra.

Second, 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.(2) See L.1992, c. 519, as amended by L.1999, c. 636, §§ 2, 9, 11, 12. The clarification was consistent with existing federal delegation agreements between the United States Environmental Protection Agency ("USEPA") and the Department and conforms with Department's past practice in issuing environmental permits for such facilities. The bill plainly removed any purported state law jurisdictional bar to DEC's issuance of environmental permits for Article X facilities. See Bill Jacket L. 1999, c. 636 (A. 9039/S.6143), DEC Legislative Counsel Memorandum dated October 28, 1999. Moreover, USEPA has formally approved the procedures to be utilized by the Department for issuing State Pollutant Discharge Elimination System ("SPDES") permits for major electric generating facilities as a non-substantial revision to the federally delegated and approved DEC National Pollutant Discharge Elimination System ("NPDES") permitting program. See Letter from USEPA Regional Administrator Fox to Commissioner Cahill dated September 29, 2000.

No re-noticing of the DEC hearing for this application is warranted. The December 26, 2000 notice is precise, detailed and unambiguous. Moreover, the notice properly and accurately describes the integration of DEC permitting into the Article X process. The notice clearly describes the draft air and SPDES permits proposed for issuance by the Department. The notice also correctly explains the nexus between the DEC hearings and the Article X hearing record; specifically, that the DEC hearings record on the proposed permits will be incorporated into the whole Article X record. This intertwining of the Department permitting processes into the process for issuance of an Article X certificate is reasoned and patently consistent with the 1999 Article X amendments.

Moreover, there is no prohibition against the commencement of public and, if necessary, adjudicatory hearings on air and water permits prior to holding Article X hearings . The Department's primary responsibilities in the Article X realmare the consideration and issuance of federally delegated air and water permits, (as well as providing testimony on subjects within its expertise), and the commissioner is compelled to follow Article X procedures "to the extent that they are consistent with federally delegated or approved environmental permitting authority." See PSL § 172. To that end, 6 NYCRR Parts 621 (Uniform Procedures Regulations) and 624 (Permit Hearing Procedures) or applicable federal regulations must be followed in lieu of Siting Board procedures in instances where the latter would be inconsistent with federally approved or delegated permitting programs.

Here, the Department provided notice of a complete application and draft permits with special permit conditions on December 26, 2000. The Department had previously found the application incomplete on two occasions. The December 26, 2000 notice properly commenced the public comment period, public hearings and issues conference process necessary for consideration of the environmental permits at issue. The ALJ's comment that for application completeness purposes the "Article X application (rather than the Siting Board's decision) could be considered the functional equivalent of a Draft EIS" is not unreasonable given that a completed Article X application contains information equivalent to the information included in a Draft EIS. Compare PSL §§ 164 with ECL § 8-0109(2), 6 NYCRR §617.9.(3)

The December 26, 2000 notice provides further that the DEC public hearings "are being held contemporaneously and on a joint record with the related PSL Article X proceedings." Hence, whether a DEC public hearing and issues conference process begins before an Article X hearing, or vice versa, is irrelevant because the records are joined. The fact that the DEC permit hearings may start before an Article X issues hearing is inconsequential where, as here, the administrative record for this proposed facility will ultimately be a joint DEC and Article X record containing an evaluation of all environmental impacts which will be available to the commissioner in deciding whether permits should issue and available to the Siting Board to consider in determining whether a certificate of environmental compatibility and public need may issue.(4) See PSL § 167(1)(a).

The County's request for a new notice to encompass all "environmental issues" and insistence that the Department conduct a review pursuant to SEQRA contravenes the settled principles that SEQRA does not apply to PSL Article X facilities and that the comprehensive environmental review for major electric generating facilities set forth in PSL Article X supplants the environmental review performed under SEQRA. See In the Matter of Athens Generating Company, LP, Interim Decision of the Commissioner, June 2, 2000; see also ECL § 8-0111(5)(b); 6 NYCRR § 617.5(c)(35). The Department did not err by determining that the proposal to construct and operate a major electric generating facility is a Type II action exempt from SEQRA.(5)

The County contends that the statutory exclusion under ECL § 8-0109(2) is limited only to EIS preparation thereby rendering applicable the other SEQRA requirements, and that 6 NYCRR 617.5(c)(35) exceeds the scope of the implementing statute. These arguments are wholly without merit, as the Commissioner recently held in Athens Generating Company, LP:

I disagree with the ALJ's conclusion that the exemption of PSL Article X actions from SEQRA (as being"type II" actions under 6 NYCRR §617.5(c)(35)) exceeds the scope of the statute. ECL §8-0111(5)expressly excludes Article X actions from the requirement to prepare environmental impact statements(EIS). It is clear that the purpose of this exclusion is to prevent Article X projects from being subjected to redundant environmental review. By exempting Article X actions from the EIS requirement, ECL §8-0111(5) effectively exempts such actions from all the steps precedent to the preparation of an EIS including scoping, the determination of lead agency, the determination of project significance, findings statement, etc. Since the EIS is the heart of SEQRA, to attempt to limit the SEQRA exemption as being applicable only to the EIS requirement serves no legitimate purpose. Once the EIS requirement is removed from the SEQRA process, there is little to be gained from attempting to salvage miscellaneous components of the SEQRA process. This is especially so where the Legislature has provided for an extensive environmental review process under Article X. Therefore, pursuant to ECL §8-0111(5), the Part 617 regulations properly define Article X projects as "type II" actions which are wholly exempt from SEQRA review. Interim Decision at 20.

Miscellaneous

I also disagree with the assertion by TVPA and RCCA that an evidentiary or adjudicatory hearing on a PSD permit is permissible. See Letter with attachment from TVPA and RCCA to the Commissioner dated March 19, 2001. At the outset, it bears mention that the Department possesses explicit authority to implement the Prevention of Significant Deterioration ("PSD") permit review delegated to it by USEPA, and a Notice to Issue such a permit for this proposed facility was also published December 26, 2000. See 40 C.F.R. § 52.1689; PSD Delegation Agreement dated April 19, 1982, revised March 21, 1991; see also Letter from USEPA Regional Administrator to the Siting Board dated 2/11/99 (stating that 1991 PSD delegation agreement is "currently in effect" and that PSD delegation "involves empowering a State agency to implement the Federal PSD regulations at 40 CFR §52.21 on behalf of EPA and requires that the State agency apply the permitting procedures at 40 CFR Part 124. The PSD program remains a Federal program governed by Federal law and does not become State law when delegated. The PSD program is not delegated to the state but to a specific agency within the state, in this case, NYSDEC").

In my view, a letter from the Massachusetts Department of Environmental Protection to a Massachusetts project applicant seeking, inter alia, a PSD permit for a facility in Massachusetts is not controlling as to whether an evidentiary or adjudicatory hearing on a PSD permit is applicable in New York. As noted earlier, the PSD program is a Federal program implemented by a designated State agency. In New York, the PSD delegation agreement is between USEPA Region 2 and DEC, and the terms and conditions of a PSD delegation agreement between Massachusetts and USEPA Region 1, which oversees Massachusetts, is not binding in New York. In any event, the repeal of 40 CFR §§ 124.71-124.91 effective July 1, 2000, which included the specific provision that "PSD permits may never be subject to an evidentiary hearing ... ." (see former 40 CFR § 124.71(c)) does not connote the inference that such hearings must now occur. Specifically, when viewed in light of the contemporaneous repeal of evidentiary hearings in the course of a federal regulatory streamlining initiative for USEPA-issued NPDES and RCRA permits, it does not reasonably follow that USEPA would reverse course and now impose or require PSD permit hearings. See 65 Fed. Reg. 30886, 30896-30901 (2000).

Conclusion

For the above stated reasons, the County's motion for leave to file an expedited appeal of the February 22 ruling by ALJ DuBois is denied.

_____________/s/_____________
Erin M. Crotty,
Commissioner
Albany, New York

Dated: April 4, 2001

1 Projects subject to Article X are exempt from SEQRA. See pages 5-6 of this Ruling, infra; see also ECL § 8-0111(5)(b), 6 NYCRR § 617.5(c)(35). References herein to SEQRA are to illustrate the similarity of environmental review and are only for comparison purposes.

2 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).

3 The County's assertion that the Article X application was not complete as of December 26, 2000, the date the application was noticed, because the letter informing the applicant of compliance with PSL § 164 was dated January 2, 2001, a three business day difference, is a distinction without a difference. Any possible prejudice arising from this gap to interested persons seeking to obtain party status has been eliminated by additional time for supplementing petitions for party status granted by the hearing examiners. See March 19, 2001 Procedural Ruling.

4 The hearing record developed by the associate hearing examiner related to the applicable environmental permits will likely serve as the principal basis for the commissioner's decision whether or not to issue such permits. See PSL § 167(1)(a). However, adoption and use of an already developed factual record is "consistent with Department practice to avail itself to existing information in making a decision. 6 NYCRR § 624.4(c)(2)." Matter of Athens Generating Company, LP, supra at 7. In fact, the Commissioner's interim decision in that SPDES proceeding relies on references to the Article X record, exhibits and remand as well as to the transcript and exhibits from the SPDES permit proceeding and issues conference. Id. at 9-17.

5 Significantly, USEPA and the Office of the New York Attorney General also share the view that major electric generating facilities are not subject to SEQRA and its implementing regulations at 6 NYCRR Part 617. See Letter from Office of the Attorney General, supra at n.1; Letter from USEPA Regional Administrator Fox to Commissioner Cahill dated November 10, 1999, n.2.

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