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Ramapo Energy, LP - Interim Decision, July 13, 2001

Interim Decision, July 13, 2001

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
- of -
The Application of Ramapo Energy Limited Partnership for Permits pursuant to the requirements of ECL Article 19 (Air Pollution Control), and 6 NYCRR Part 201 (Permits and Registrations) and 6 NYCRR Subpart 231-2 (Requirements for Emission Units), and pursuant to Environmental Conservation Law ("ECL") Article 17 (Water Pollution Control), Titles 7 and 8.

DEC # 3-3926-00377/00001

PSC Case # 98-F-1968

INTERIM DECISION

July 13, 2001

Introduction and Background

This interim decision concerns appeals from an April 17, 2001 Ruling on Issues and Party Status (the "Ruling") by Administrative Law Judge ("ALJ") Susan J. DuBois. The Ruling identifies a number of issues for adjudication in connection with an application by Ramapo Energy Limited Partnership (the "Applicant") for certain permits to construct and operate a 1100 megawatt major electric generating facility (the "Facility") in the Town of Ramapo, Rockland County. The Applicant has applied to the New York State Department of Environmental Conservation ("Department" or "DEC") for air permits for the Facility, as well as a general permit for stormwater discharges under the State Pollutant Discharge Elimination System ("SPDES").

The Applicant has also applied for a Certificate of Environmental Compatibility and Public Need, pursuant to Article X of the New York State Public Service Law ("PSL"). The Department's public hearing is being held contemporaneously and on a joint record with the Article X proceedings.

Following the public statement legislative hearing on February 15, 2001, the Department's issues conference was held on February 15 and 16, 2001, and continued on February 26, 2001. Pursuant to Section 624.5(a) of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("NYCRR"), Staff of the Department ("Staff") and the Applicant are automatically full parties to the permit hearing. Several governmental bodies and organizations requested full party status. Petitions were received from Rockland County (the "County"), the Village of Suffern ("Suffern"), the Torne Valley Preservation Association ("TVPA"), the Village of Chestnut Ridge, and the Rockland County Conservation Association and the Passaic River Coalition (initially a consolidated party ("RCCA/PRC")). The Palisades Interstate Park Commission ("PIPC") and the Town of Ramapo (hereinafter "PIPC/Ramapo") participated as a consolidated party, and also filed a joint petition for party status.

The events preceding the issuance of the ALJ's Ruling are complex. This is due in part to requests by various parties for more time to prepare, the nature of the process to allow responses, and because of the schedule established pursuant to the time frames in Article X. Under the Department's operating practice, the petition for party status and the issues conference are the place where offers of proof are made, and with leave of the ALJ, briefs may be filed. Here, several issues conference sessions were held given the public interest, supplemental petitions for party status were filed, responses to the supplemental petitions were allowed, a draft permit required certain changes by Staff, further supplemental petitions and further supplemental responses were filed, all culminating in the issuance of the ALJ's Ruling itself. As a cautionary note, care needs to be taken to ensure that the issues conference not become so iterative that it defeats its very purpose.

Summary of ALJ Rulings

The ALJ identified the following issues for hearing: four issues regarding the information used in modeling concentrations of air pollutants; the emission limit and technology associated with the lowest achievable emission rate ("LAER") for oxides of nitrogen ("NOx"); identification of the source of emission reduction credits ("ERC's"); the adequacy of proposed dust control measures to be undertaken during construction; formaldehyde emissions; the height of the stacks as that height relates to the definition of good engineering practice (GEP) stack height; certain requests by the Applicant for changes in conditions in the draft air permits; and whether the project is subject to general permits for stormwater discharges, as opposed to requiring an individual permit for these discharges.

Approximately seventeen proposed issues were excluded or resolved. The issue of the record of compliance by the Applicant's parent company was limited by the ALJ to include compliance history information from Massachusetts. The issue of evaluating 6 NYCRR 231-2 alternatives was limited to the technology alternatives to further reduce NOx.

Summary of Appeals

Staff appealed the portions of the Ruling that: (1) granted full party status to PIPC/Ramapo; (2) granted full party status to the County; (3) granted full party status to TVPA/RCC and Suffern; (4) allowed testimony with respect to topographical data; (5) allowed testimony on the data used for air modeling; (6) allowed testimony on the air source inventory; (7) allowed adjudication of the Department's LAER determination and the quantity of offsets for NOx; (8) allowed adjudication of the potential impacts of formaldehyde emissions; (9) allowed adjudication of the proposed stack height; and (10) allowed adjudication of the question of the Facility's eligibility for coverage under the general stormwater permits during construction and operation.

The Applicant appealed the same issues as Staff, in addition to the ALJ's determination that proposed dust control measures during construction was an issue for adjudication.

The County filed a motion for leave to file an expedited appeal on two issues: first, that the Ruling did not address whether the Applicant's revised draft air permit application constituted a new and/or materially revised application, such that the permit application must be re-noticed; and second, that the ALJ erred in not identifying the sufficiency of the Applicant's analysis of alternatives, pursuant to 6 NYCRR 231-2.4, as an issue for adjudication. The Applicant opposed the motion by a letter filed April 26, 2001. As discussed below, the County's motion is more properly considered an expedited appeal as of right of the ALJ's rulings, pursuant to 6 NYCRR 624.8(d)(2)(i) and (ii).

PRC appealed the portion of the Ruling that denied PRC's petition for party status and requests 'reconsideration' regarding the SPDES permit, but offered no further guidance in its appeal. Upon review of the Ruling and the PRC appeal, I affirm the ALJ's determination denying PRC party status.

Standard for Raising Adjudicable Issues

An issue is adjudicable if "it is raised by a potential party and is both substantive and significant." 6 NYCRR Section 624.4(c)(1)(iii). The terms "substantive" and "significant" are defined as follows:

(2) 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.

(3) An issue is significant if it has the potential to result in the denial of a permit, a major modification of 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) and (3).

Thus, issues are adjudicable only when 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 (In the Matter of Hydra-Co. Generations, Inc., Interim Decision, April 1, 1988), and where, in the ALJ's judgment, there is a reasonable likelihood that adjudication would result in material, amended permit conditions, a major modification to the project, or project denial. In the Matter of Jay Giardina, Interim Decision, September 21, 1990.

A substantive issue must be based on facts that can be adjudicated, not upon mere speculation. In the Matter of Athens Generating Co., LP, Interim Decision, June 2, 2000, at p. 3 (citing Matter of Concerned Citizens Against Crossgates v. Flacke, 89 A.D.2d 759 (3rd Dept., 1982), aff'd, 58 N.Y.2d 919 (1983)). "An issue is significant if the adjudicated outcome can result in permit denial, a major modification to the proposed project, or the imposition of significant conditions in addition to those proposed in the draft permit." In the Matter of Athens Generating, at 4 (citing Matter of Jay Guardina, supra). Moreover, an intervenor must identify "specific facts or omissions" in the permit application in order to establish that the issues identified are substantive and significant, and cannot simply raise "general concerns" about the permit application. Akzo Nobel Salt, Inc., Interim Decision, January 31, 1996, at p. 8. If a proposed intervenor cannot marshal any facts to raise sufficient doubt about an applicant's ability to meet statutory or regulatory criteria, no adjudicable issue exists. In the Matter of 4-C's Devel. Corp., Interim Decision, April 7, 1997.

In addition, where Staff and the Applicant agree as to the terms and conditions of the proposed permit, 6 NYCRR 624.4(c)(4) states:

(4) In situations where the department 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.

See In the Matter of the Application of Superintendent of Fish Culture, Bureau of Fisheries, Interim Decision, August 19, 1999,(prospective intervenors have burden of demonstrating that substantive and significant issues still exist where Staff and applicant have reached agreement on permit conditions).

The environmental permit information is contained in the Article X application filing, the stipulation of studies to be undertaken by the Applicant and the draft permits. This information constitutes the Applicant's prima facie case for the Department's permits. Matter of Consolidated Edison, Interim Decision, June 4, 2001.

The issues conference is analogous to a summary judgment proceeding. Matter of Hyland Facility Associates, Interim Decision, August, 20, 1992. In the Matter of Application of Bath Petroleum Storage Facility, Interim Decision, November 6, 2000.

The Department's issues conference process requires participants to make a credible offer of proof or risk rejection of their proposed adjudicable issue. In the ideal proceeding, offers of proof are clear and definitive; consequently, the resulting ALJ ruling should be equally clear and definitive.

Many issues under appeal in this case address computer air modeling issues. These issues are typically complex and entail the use of accepted air modeling protocols and other technical information. Due to the nature of the air protocols and the methodologies used in the air impact analysis, contrary offers of proof must necessarily be sufficiently developed to overcome or counter the analysis completed by the Applicant and approved by Staff. In this proceeding, some of the appeals filed by the Applicant and Staff provide further clarification or amplification on the air impact review conducted and thus eliminate the necessity of adjudicating the issue joined by the ALJ.

Expedited Appeals

At the outset, it is necessary to address the confusion among the participants regarding the distinction between expedited appeals as of right from an ALJ's issues ruling, and expedited appeals for which leave must be sought.

All ALJ rulings on issues proposed for adjudication (the ALJ's issues ruling) may be appealed as of right on an expedited basis, pursuant to the appeal schedule established by the ALJ. 6 NYCRR 624.8(d)(2) of provides for four categories of expedited appeals as of right, including:

(i) a ruling to include or exclude any issue for adjudication;

(ii) a ruling on the merits of any legal issue made as part of an issues ruling;

(iii)a ruling affecting party status; and

(iv) any ruling in which the ALJ has denied a motion for recusal.

(Emphasis added).

In contrast, 6 NYCRR 624.8(d)(2)(v) contains a provision governing motions for an expedited appeal of "any other ruling" not specified in 624.8(d)(2)(i) through (iv). These motions, which are entertained only at the Commissioner's discretion, are intended to address situations where "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." (6 NYCRR 624.8(d)(2)(v)). The purpose of this portion of the regulation (to require leave for only certain appeals) is underscored by the subsection immediately following, which states that "[a] motion for leave to file an expedited appeal must demonstrate that the ruling in question falls within one of the categories set forth in subparagraph 2(v) of this subsection." (6 NYCRR 624.8(d)(3)). Accordingly, the motion must seek leave to appeal a ruling that, if left undecided, would prejudice a party or encumber the hearing process.

Finally, at the conclusion of the adjudicatory hearing, any issue may be appealed, pursuant to 6 NYCRR 624.8(d)(1).

Accordingly, any motion for leave to file an expedited appeal of the ALJ's issues ruling is converted to an appeal as of right of the ALJ's ruling. Here, the County sought to appeal the ALJ's determination that the analysis of alternatives undertaken by the Applicant pursuant to 6 NYCRR Section 231-2.4, was adequate and not adjudicable. This constitutes an appeal of an ALJ's determination to include or exclude an issue for adjudication under 6 NYCRR 624.8(d)(2)(i).

DEC Staff and Ramapo's Appeal

1. Topographic Information Used in Applicant's Modeling

In their joint petition, PIPC/Ramapo identified as an issue alleged discrepancies in the information used in the Applicant's computer modeling to determine terrain features in the vicinity of the proposed facility. PIPC/Ramapo's consultant contended that inconsistencies and defects in the use of the Universal Transverse Mercator ("UTM") coordinate systems could have a significant effect on dispersion modeling results. This issue was not discussed at the issues conference, but was raised later, in a supplemental petition.

In its submission on appeal, Staff responds that the information in question was taken from a topographic map, and did not rely upon the coordinates referenced by PIPC/Ramapo's consultant. In addition, Staff states that the three main terrain features were manually digitized, and did not use a UTM database. The Applicant's submission asserts that PIPC/Ramapo's consultant incorrectly assumed that the coordinates used were for Stack No. 1 at the Facility, rather than a general reference for the project site. Further, the Applicant contends that PIPC/Ramapo's consultant was operating under the mistaken assumption that a particular benchmark was used in deriving Figure 2 of the Air Quality Monitoring Protocol (Appendix E-2 of the Application), when in fact the Applicant employed a different benchmark entirely.

The ALJ's ruling on this issue states:

This issue needs to be resolved through testimony and the opportunity to cross-examine the experts who have done or reviewed the work. The outcome of the issue, if the intervenors prevail, would call into question the project's compliance with regulatory criteria, including provisions regarding formaldehyde and other contaminants.

If, upon further review of the computer input files or other information, PIPC/Ramapo's consultants determine that the asserted discrepancies do not exist, this issue could be withdrawn. Given the information in the hearing record at present, however, a substantive and significant issue exists and has not been resolved nor successfully rebutted by the Applicant or the Department Staff.

The Ruling notes that if the alleged discrepancies exist, those discrepancies can have a significant impact on dispersion modeling results. I disagree and do not find sufficient reason to inquire further. In such cases where, as here, Applicant has conformed to the approved protocols and Staff's review of the data, the bar to advance an issue to adjudication is higher. Assuming the intervenors are correct, there is no showing that using the intervenors information would lead to a result significantly different than that already reached by the Applicant. If, as the Ruling suggests, further study by PIPC/Ramapo could lead intervenors to withdraw this issue, PIPC/Ramapo did not meet their burden of establishing a substantive and significant issue in the first instance. The ALJ's ruling is reversed.

2. Adequacy of Complex Terrain Modeling

The ALJ ruled that PIPC/Ramapo and Suffern raised a substantive and significant issue regarding the adequacy of the Applicant's complex terrain air modeling. PIPC/Ramapo asserted that the Applicant's air modeling for complex terrain failed to include any receptors between the highest stack height elevation (780 feet) and the 900 foot contour. According to PIPC/Ramapo, this omission was contrary to modeling protocol and was significant with regard to lateral plume impaction.

In response, Staff contend that the Applicant has identified a detailed array of receptors, ranging in elevation from 600 to 1200 feet, and that, because a plume rise is associated with stack emissions, stack heights are not a critical factor in determining maximum impacts of air pollution from the Facility. Staff notes that the three terrain features modeled have peak elevations at approximately the same height as the Facility's direct plume, and states that these locations, which are above stack height, constitute the critical areas of worst-case air contaminant effects from the facility. In any event, according to Staff, there is no dispute that the Applicant has complied with the requirements for receptor modeling as set forth in the modeling protocol.

The Applicant's submission on this appeal concedes that, if it had failed to include the receptors at those elevations, the modeling would not have complied with the protocol. However, citing to application Appendix E-3 of the Air Quality Monitoring Report, the Applicant states that the modeling was undertaken for all of the required receptor points. According to the Applicant, PIPC/Ramapo relied upon Figures 1 and 2 in the Air Quality Monitoring Report, which depicted only those receptors above 900 feet, because there were no accedences of the review thresholds at lower elevations. As a result, PIPC/Ramapo mistakenly concluded that these figures depicted the entire receptor grid.

The Ruling notes that the Applicant's response referred to computer files that were made available to Staff and to PIPC/Ramapo's consultant, but not the ALJ. The Ruling goes on to note that "the requirements of the modeling protocol, which are in dispute" between PIPC/Ramapo and Staff, "also require interpretation."

The application indicates that receptors between 780 feet and 900 feet were included in the Applicant's air modeling, thus dispensing with one of the intervenor's assertions. Moreover, PIPC/Ramapo did not satisfy the "substantive and significant" standard, because their submissions did not include an offer of proof that would bolster their assertion that data from receptors in that range would be critical in establishing maximum impact from air contaminants from the Facility. Simply, PIPC/Ramapo did not complete their analysis. Accordingly, PIPC/Ramapo failed to identify an issue appropriate for adjudication, and the ALJ's ruling must be reversed.

3. Adequacy of Meteorological Data Used for Modeling

The ALJ concluded that the Applicant's failure to use on-site meteorological data in its air quality modeling raised an adjudicable issue. PIPC/Ramapo contend that the Applicant should have been required to use on-site data, rather than the data from the Newburgh Station. The intervenors, including Suffern, also argued that the Newburgh Station data was selected arbitrarily over other sources, specifically, data from the Westchester County Airport Station.

On appeal, Staff notes that "a modeling analysis using White Plains meteorological data . . . would not change any conclusions Staff have made with respect to whether the Ramapo project will comply with ambient air quality standards," and that the Applicant had properly demonstrated compliance using worst case meteorological assumptions. According to Staff, the refined model proposed by the intervenors use actual meteorological data, rather than worst case predictions, and would, therefore, predict less impact from contaminants. Staff acknowledge that on-site meteorological data is preferred, but such data is usually not available. Consequently, the use of off-site data methodology followed by the Applicant must take into account five years of representative meteorological data from nearby National Weather Service stations. The Applicant's submission on appeal notes that the Newburgh Station data was chosen over the Westchester County Airport Station because the latter station is affected by sea breezes.

The ALJ's ruling on this proposed issue states:

[t]he question of whether and how to include the proposed meteorology issue in the future stages of the adjudicatory hearing depends on the strength of the offers of proof and responding arguments . . . PIPC/Ramapo and the Village of Suffern have both submitted reports from their consultants that reasonably would lead to further inquiry, and PIPC/Ramapo has proposed doing additional analysis and modeling. . . . [i]t is not yet clear that a substantive and significant issue exists requiring adjudication.

The issue of meteorological data remains as a potential issue for adjudication. I will allow PIPC/Ramapo to submit the results of the additional analysis by their consultant, as well as the clarifications discussed above regarding the significance of this subject in terms of the state standards in Part 257. . . [i]f the intervenors do not submit testimony on this issue or do not provide the required clarifications regarding its relation to state air quality standards, nothing further would be required from the Applicant on this issue.

Where the Staff and Applicant agree on the methodology to be employed, intervenors must show why other data is more appropriate. The ALJ's Ruling to include this as an issue does not take into account the failure to demonstrate why on-site data, or data from a weather station other than that selected by the Applicant, should be used. Moreover, the Ruling itself acknowledges that the existence of a substantive and significant issue has yet to be established and thus runs counter to the desired decisiveness required in the issues conference process. Accordingly, the Ruling on this issue is reversed.

4. Completeness of Source Inventory

Both the County and PIPC/Ramapo contend that the Applicant's inventory of sources of pollution used in the air modeling was flawed. The intervenors argue that sources that emit less than 1000 tons per year ("TPY") were omitted from the New York City inventory, and that the appropriate threshold is 100 TPY, pursuant to DEC Air Guide 36. The intervenors offered an inventory for a facility on Staten Island, and argued that a complete inventory was necessary, to accurately measure the impact of the Facility.

In response, Staff maintains its evaluation of the inventoried sources and determinations as to what sources would be considered "nearby" sources, were consistent with the approved requirements set forth in EPA's Guideline on Air Quality Models (Appendix W, 40 Code of Federal Regulations ("CFR") Part 51) and DEC Air Guide 26. Staff argue further that it made a reasoned determination to restrict the inventory for New York City sources to those with higher emissions, and that the Applicant's results were a conservative projection of expected air quality impacts from the interaction of the project with nearby sources.

On appeal, the Applicant contend that this issue relates only to Ramapo's Prevention of Significant Deterioration ("PSD") permit, and therefore there is a jurisdictional bar to its adjudication. The Applicant also asserts that Staff simply did not require it to engage in a mechanical exercise that would, in any event, have led to the same result.

The ALJ's ruling on this issue states:

This issue is similar to the meteorological data issue, in that the analyses which would be affected by the source inventory were presented in the application and discussed at the issues conference in terms of PSD requirements. If this issue were solely related to the PSD permit review, it would not be subject to adjudication. As noted above, however, there are state air quality standards as well as federal ones. PIPC/Ramapo's March 9, 2001 response to my question regarding the relevance of the inventory to PSD or Part 201 permit requirements came after the issues conference. The correspondence regarding proposed issues contains little or no discussion of how results based on a different source inventory would relate to the state standards in 6 NYCRR Part 257. As with the meteorology issue, PIPC/Ramapo proposed to do additional modeling based on a revised inventory but had not provided this as of March 30, 2001.

The issue of the source inventory also remains as a potential issue for adjudication. I will allow PIPC/Ramapo to submit the results of the additional analysis by their consultant, as well as clarification regarding the significance of this subject in terms of the state standards in Part 257, . . . [i]f the intervenors do not submit testimony on this issue or do not provide the required clarifications regarding its relation to state air quality standards, nothing further would be required from the Applicant on this issue.

As an initial matter, the Applicant's argument with respect to the PSD issue is unpersuasive. State air permit issues are appropriately considered in these proceedings and cannot be rejected because they are linked to the PSD process. While PSD matters are not adjudicable pursuant to 40 CFR Part 124, substantive and significant issues related to the Applicant's source inventory are appropriate for adjudication under the State air permits.

However, the above discussion does not alter the conclusion that the ALJ's Ruling on this issue must be reversed. The ALJ determined that the source inventory issue was "potentially" an issue for adjudication, assuming that the intervenors provided further testimony and consultant analysis, and concluded that if the intervenors did not do so, nothing further would be required of the Applicant. The Ruling gives unwarranted weight to the insubstantial and incomplete offers of proof advanced by the intervenors with respect to this issue.

5. LAER Analysis for NOx and Alternative Technologies

PIPC/Ramapo and the County challenge the Applicant's analysis of LAER for NOx, and questioned whether the NOx emissions limits in the draft DEC permits can be achieved. The ALJ determined that the intervenors had raised a substantive and significant issue, and that adjudication is warranted. Specifically, the ALJ held that it would be necessary to examine whether the Applicant could reasonably be expected to achieve the 2.0 parts per million volume dry ("ppmvd") it had agreed to meet, as opposed to the 2.5 ppmvd limit in the application, and whether other technologies should be considered in determining LAER for the project.

On appeal, Staff and the Applicant contend that LAER for this project is 2.0 ppmvd, based upon a review of permit conditions for other recently approved similar sources. The Applicant further argues that the ALJ was mistaken in finding that a telephone conversation with the vendor, in which the vendor indicated that the 2.0 ppmvd limit could be achieved, is insufficient to constitute a vendor's guarantee. Finally, Staff and the Applicant maintain that LAER's technology-forcing function would be undermined if the permit limit were to be adjudicated.

The ALJ's ruling on this issue states:

In the present case, the intervenors have made a substantive and significant offer of proof about both sub-issues concerning NOx LAER. The question of whether the 2.0 ppmvd limit can reasonably be expected to occur with the technology proposed relates to a significant permit condition, to whether the project as proposed can be expected to comply with that condition, and to the number of emission offsets which the Applicant would be required to obtain (a substantive issue by itself). The positions of the parties regarding the basis for revising the emission limit relate to identifying an omission in the application, which in this instance is a technical question that requires further inquiry through expert testimony rather than solely through briefs and reports. In addition, if one of the alternative technologies is shown to be LAER technology for NOx, it would result in a significant change to the project.

Essentially, intervenors assert that the Staff's imposition of 2.0 ppmvd permit limit is not yet achieved in practice. On appeal, Staff assert that the lower limit has been imposed on numerous other projects in the State. Staff Appeal at p. 17. Since Staff and the Applicant have agreed to the permit limit, the burden is on the intervenors to make an offer of proof that would cast doubt on Staff's determination, i.e., that a more restrictive limit should be imposed or that it cannot be achieved in practice, and therefore, is unrealistic. The offer of proof in this instance falls short of the standard. The ALJ also questions the Applicant's ability to meet the lower limit based upon a vendor guarantee. Such inquiry is misplaced. Once an Applicant commits to a lower standard, i.e., one more environmentally restrictive, that limit is incorporated into the permit and failure to achieve this limit can result in the imposition of significant penalties. The ALJ's ruling is therefore reversed.

LAER is an emission rate or limitation and not a control technology. However, technology alternatives are sometimes advanced to ratchet down emission rates. The Applicant proposes to utilize dry low NOx combustion technology and selective catalytic reduction ("SCR") to achieve LAER for NOx. Staff agrees with the Applicant's technology selection. The County advances XONON and SCONOX as alternative technologies. The ALJ held "...if one of the alternative technologies is shown to be LAER technology for NOx it would result in a significant change to the project." Ruling at p. 18. There can be no issue with respect to an alternative technology selection. XONON and SCONOX are not feasible technologies that have achieved in practice or are reasonably expected to occur in practice the LAER emission rate. See, Applicant's Response to Supplemental Petitions. Applicant's Appeal at p. 23-25. Insofar as the ALJ's Ruling would join alternative technologies for adjudication, it is reversed.

6. Quantity of Offsets for NOx

The ALJ's ruling on this issue states:

An issue has been raised in the Ramapo Energy hearing concerning the number of offsets required. In addition, the ERCs will need to be identified and the additional notice will need to be published within the time frame of the related PSL Article X proceeding. Further adjudication may be necessary, depending on the response to the additional notice.

Rockland County has already asserted that some of the offsets currently identified by the Applicant are not available. I am not making a ruling at present on whether this assertion raises a substantive and significant issue, but will consider this with any offers of proof that are submitted in response to the additional notice regarding certification of the ERC's. Rockland County may revise its offer of proof regarding whether the offsets comply with [6 NYCRR] 231-2.9 after the additional notice is published.

Applicant asserts that if LAER is not to be adjudicated then the number of offsets should not be adjudicated either. Its rationale is that one need not determine the quantity of offsets required, contrary to the ALJ's holding that "...an issue has been raised in the Ramapo Energy hearing concerning the number of [NOx] offsets required." Ruling at p. 20. That portion of the ALJ Ruling requiring adjudication of the number of offsets is reversed. The reason is because NOx emissions will be limited to 2.0 ppmvd and thus calculating the quantity of ERC's needed is an arithmetic exercise. However, that portion of the Ruling relating to the treatment of ERC's, i.e., whether they are available and verifiable, is affirmed.

7. Dust Control

The Applicant has appealed the ALJ's Ruling advancing dust control to adjudication but Staff has not. On appeal, the Applicant asserted that PIPC/Ramapo failed to make an offer of proof that would demonstrate that the measures already included in the draft permit to control dust are inadequate. Staff points out at the issues conference that additional measures are not required under state or federal law, and that such measures could be incorporated into the Article X certificate if necessary.

The ALJ's Ruling reasoned that several of PIPC/Ramapo's proposed conditions were not in the draft permit, and were "things that are commonly considered or required in the review of applications for sand and gravel mines or solid waste management facilities." The Ruling goes on to note that there is authority to include measures of this type in state facility permits under the general prohibition against air pollution found in 6 NYCRR 211.2. The ALJ also observed that the County tentatively identified this issue as one on which the County planned to present testimony.

The ALJ's Ruling states:

PIPC/Ramapo has identified additional dust control conditions, and will be allowed in the DEC hearing to present testimony why these should be added to the draft permit conditions on this issue. It appears, however, that this is an issue which could be resolved by stipulation among the parties.

This issue will not be considered for adjudication. The offer of proof is inadequate and intervenor has failed to show that the draft permit conditions already imposed are inadequate such that additional measures should be considered. The fact that additional measures appear in permits for other types of operations is not persuasive. Here, the Staff has imposed permit conditions regarding dust and the Applicant has accepted them. The record does not reveal that there is a reasonable basis to believe that the Applicant will not meet the permit conditions regarding dust or that special site specific circumstances warrant further permit conditions. The ALJ's ruling on this issue is reversed.

8. Formaldehyde Emissions

On appeal, Staff and the Applicant argue that the ALJ should not have identified impacts from formaldehyde emissions from the facility as a substantive and significant issue for adjudication. Staff contend that the expected formaldehyde emissions from the Facility are below regulatory thresholds under the federal Clean Air Act. Moreover, according to Staff, the Facility's conformance with DEC Air Guide-1 guideline concentrations is relevant only to the NYS Department of Health's review of the project, which has no bearing on the air permits.

The Applicant's submission on appeal notes that the County relied upon the information in Table 4.4 of the application, rather than the refined screening analysis in Tables 4.5C and 4.5D. As a result, the Applicant argues, the County's calculations are inaccurate. The Applicant also challenges the County's reliance on the AP-42 formaldehyde factor, rather than the factor contained in an USEPA Study entitled Study of Hazardous Air Pollutant Emissions from Electric Utility Steam Generating Units, Document No. EPA-453/R-98-004A (2/1998). Finally, the Applicant argues that even if the AP-42 factor is used, the installation of a carbon monoxide ("CO") catalyst reduces formaldehyde emissions below annual guideline concentrations ("AGCs") and short-term guideline concentrations ("SCGs").

The Ruling states that:

[t]he alleged deficiencies in the topographic information used in the Applicant's modeling and the alleged deficiencies in the Applicant's complex terrain modeling are also relevant to this proposed issue and indicate the need for further inquiry.

The Ruling goes on to find that:

The intervenors have raised a substantive and significant issue regarding formaldehyde emissions and impacts from the proposed project. This issue is also potentially an issue for adjudication in the Article X hearing under PSL 168(2)(b), even if it is not adjudicated as part of the DEC permit hearing.

I am persuaded that the use of the conflicting methodologies of AP-42 vs. the USEPA study by the intervenors and Applicant respectively, is sufficient to raise an issue under the Department's standard and may be examined further in hearing. Further, I note that the pre-application stipulations do not identify either AP-42 or the USEPA study as the appropriate methodology. See, Stipulation No. 1: Air Quality & Meteorology, p. 3-7. The technical question to be determined through adjudication relates to the amount of the non-criteria pollutant to be emitted to the atmosphere.

9. Stack Height

At the issues conference, the County asserted that the 180 foot GEP stack height and the results of the Applicant's air dispersion modeling are incorrect. The County relied upon USEPA guidance documents and material in the application to support its argument that this is an adjudicable issue. Stack height GEP is defined in the Clean Air Act as "the height necessary to insure that emissions for the stack do not result in excessive concentrations of any air pollutant in the immediate vicinity of the source as a result of atmospheric downwash, eddies and wakes which may be created by the source itself, nearby structures or nearby terrain obstacles." 42 U.S.C. Section 7423(c); 40 CFR Section 51.100(ii). The County argued that certain nearby structures, specifically, the turbine building, the cooling towers and the water tanks, were not properly considered in evaluating GEP stack height for this project.

On appeal, Staff contend that the Ruling incorrectly interprets the GEP regulations with respect to terrain features. Staff also observe that the County's concerns with respect to nearby structures were addressed at the issues conference, where reference was made to the application's detailed GEP stack height analysis in relation to the cooling tower structures. The County then raised the same issue in a subsequent revised petition, and argued further in a later petition that terrain features had not been adequately considered in arriving at GEP stack height.

The Applicant argues that terrain obstacles only come under consideration when a regulatory agency requests that a fluid modeling study be done to assess stack emissions, or when the applicant or another party, on its own initiative, undertakes such a study. The Staff did not require the Applicant to perform fluid modeling. Thus, according to the Applicant, the County cannot advance this issue for adjudication, in the absence of a study performed by the County or some factual evidence to support the County's position. Moreover, the Applicant argues that the only reason that it would perform a fluid modeling study would be to obtain regulatory relief for a facility with a taller stack height than that allowed under the federal Clean Air Act regulations. Finally, the Applicant maintains that there is no reason to believe that any downwash effect exists with respect to the proposed project.

The ALJ's ruling on this issue states:

It is not necessary that the County have done its own modeling study in order to contest how the Applicant determined GEP stack height for the proposed project. The County has provided a detailed discussion of what it asserts are defects regarding this determination, and proposes to present testimony on this issue by Arthur Fossa, P.E.. Although the Applicant disputed the County's assertions, further inquiry is required to determine which position is more valid and whether the proposed stack height meets the requirements. Several aspects of this issue involve interpretation of detailed guidance, some of which is not in the record at present, and about which the parties' experts disagree. A substantive and significant issue has been identified concerning the GEP stack height for the proposed project.

A reading of the GEP regulatory requirements applicable to the project indicate a regulatory agency can require a specific study to verify GEP stack height. 40 CFR 51.100(ii). The Applicant did not perform one and the Staff has not requested a further study based upon its review of the existing GEP data. The specific regulatory framework here requires such study be completed by the County to join the issue for adjudication. The County did not complete the required fluid modeling showing the alleged influence of nearby terrain to support its position that stack height should be increased. Accordingly, GEP stack height will not be adjudicated.

11. Issues Between the Applicant and DEC Staff Regarding Draft Permit

The ALJ's ruling on this issue states:

The Applicant's April 5, 2001 proposed changes to the draft permit are currently an issue in this hearing. It is possible, however, that some of these may be resolved if the DEC Staff confirms the agreements between the Applicant's consultant and the DEC Region 3 Office that are described in the letter. Also, the outcome of some of the comments may be resolved depending on what is required in regulations that may have been amended recently. If the differences between the DEC Staff and the Applicant are not resolved prior to the hearing, the Applicant may contest these permit conditions either through testimony or briefing, as appropriate. If the Applicant does not contest these provisions, or does not prevail in doing so, the changes proposed in the April 5, 2001 letter will not be made.

Staff, on appeal, provided a list of proposed revisions to the general new source performance standards ("NSPS") conditions in the draft air permit, as well as a list of revisions to the Draft Part 201 Preconstruction Permit and certificate to operate. Staff and the Applicant indicate that it is expected that the issues identified can be resolved without adjudication. The Ruling notes that, pursuant to 6 NYCRR 624.4(c)(1)(i), adjudicable issues can exist if there is a dispute between Staff and an applicant with respect to a substantive term or condition of a draft permit. As long as these terms and conditions remain unresolved, adjudication may be required. Therefore, the ALJ's ruling on this point will not be disturbed.

Water Discharge Issues

1. SPDES General Permits for Storm Water

At the issues conference, the County, PIPC/Ramapo and TVPA/RCCA contend, for various reasons, that the Department's stormwater general permit would not be applicable to this project, and that an individual permit would instead be required. The Department's stormwater general permits allow certain activities to be conducted under the generalized permit conditions, without the need for an individual permit. Activities that are not authorized by the general permits include discharges that "are likely to adversely affect a listed or proposed to be listed endangered or threatened species or its critical habitat." GP-93-06, § I.C.4; GP-98-03, § I.C.5. The County argue that the project's discharges would have an adverse effect on timber rattlesnakes, which are listed as a threatened species in 6 NYCRR 182.6(b)(5)(v). The County and the other proposed intervenors also contended that the general permits should not be deemed sufficient for this project, because increased runoff from the site may destabilize a neighboring closed landfill, and that the Applicant had not properly estimated the quantity of pollutants that would be found in the runoff.

In advancing this issue to adjudication, the ALJ discussed the County's argument that Appendix C of the application, which provides a table of estimated stormwater discharge characteristics for operations, should instead contain estimates of concentrations of various parameters. According to the ALJ, "[p]articularly where the County has proposed expert testimony to contest this, the information submitted by the applicant does not resolve the question or eliminate the issue." Ruling, at p. 42. The Ruling also states that the Applicant's response on this issue "only provides conflicting interpretations of the scientific and technical disputes which relate to whether or not the project is eligible for coverage under either general permit." Id.

On appeal, the Applicant contends that the County failed to support its assertions with respect to the applicability of stormwater general permits, and the impact of the proposed project on timber rattlesnake habitat. Specifically, the Applicant argues that the County offered only generalized assertions and conclusory statements to support its contentions. The Applicant asserts that the other proposed intervenors' offers of proof were similarly defective, and were based upon mere speculation.

Staff also appealed, stating that the area in question is not critical habitat for timber rattle snakes, based upon information in a herpetological report prepared for the Applicant. Staff argues further that the application is sufficiently descriptive to be appropriate for coverage under a general stormwater permit, particularly in light of the Applicant's stormwater pollution prevention plan and other pollution controls that will be built as part of the project.

The ALJ's ruling on this issue states:

Apart from Rockland County's storm water Position No. 2, the intervenors have raised a substantive and significant issue regarding whether the project is subject to either of the general permits, as opposed to needing to apply for an individual SPDES permit for storm water discharges.

For the portion of this issue which relates to timber rattlesnakes, a key question is whether the habitat is or is not critical habitat for this species, not simply whether it is habitat. In addition, to the extent that the testimony may involve any confidential habitat information which would be protected under ECL 3-0301(2)(r), as opposed to testimony about the use of various habitats by the timber rattlesnake generally, the procedures established in the February 14, 2001 procedural ruling in the Article X case (Case No. 98-F-1968) apply. The parties must abide by the procedures stated in the ruling when preparing their testimony and exhibits regarding this portion of the storm water permits issue.

As stated by the ALJ, there are a number of interrelated issues respecting this topic, in addition to the ALJ's view of the key question above. I adopt the ALJ's ruling.

The County of Rockland's Appeal

1. Permit Re-Noticing Issue

With respect to the draft air permits, the Applicant has elected to apply for a preconstruction permit and certificate to operate pursuant to 6 NYCRR Part 201. The permit would authorize the Applicant to construct and operate the proposed facility prior to obtaining a Title V permit under the federal Clean Air Act, provided that the Applicant makes a timely and complete application for a Title V facility permit within one year of commencement of operation.

The County argued that because Ramapo elected to submit a revised permit application form, and to proceed under the preconstruction permit and certificate to operate process rather than the Title V process, the revised application must be re-noticed in accordance with the Uniform Procedures set forth in 6 NYCRR Part 621. The County argues further that the ALJ's Ruling is flawed because the ALJ did not address this issue.

The County's argument is not persuasive. In its motion, the County has essentially reiterate the arguments that the ALJ considered and rejected. The Ruling properly concluded that the County failed to raise an adjudicable issue with respect to re-noticing the draft permits, and notes that

[u]se of a preconstruction permit for a major source does not omit requirements or information that would be necessary had the application be [sic] for a Title V permit. Rockland County's comparison of the requirements of Subpart 201-5 and those of Subpart 201-6 relate to what is required for state facility permits for sources which, in contrast to the present proposal, are not required to apply for a Title V permit later.

Ruling, at p. 6. The Ruling also cites to In the Matter of Mirant Bowling LLC, Ruling on Proposed Adjudicable Issues and Petitions for Party Status, March 30, 2001, at pp. 37-38, where the ALJ rejected a similar argument. Accordingly, the County's motion for re-noticing is denied and the ALJ's ruling is affirmed.

2. Analysis of Alternatives

The ALJ found no issue with respect to the alternative sites, sizes or production processes regarding the project that would require adjudication. See, 6 NYCRR 231-2.4(a)(2)(ii). See also, ALJ Ruling at p. 32. That ruling was based upon a review of the filed petition for party status submitted on February 10, 2001, where these matters were not raised, nor were they raised at the issues conference held on February 15, 16 and 26, 2001. The only mention of the alleged missing analysis was in the February 15, 2001, public comments on the DEC air permits. Subsequently, the Applicant submitted a summary of the information regarding the alternative analysis on March 7, 2001. Further, a March 17, 2001 supplemental petition by the County again asserted a lack of sufficient information regarding alternatives. Now, on appeal, the County claims the Applicant's alternative description in its application is essentially inadequate and thus, by omission, an adjudicable issue is raised. The County's assertions are rejected.

It is clear that the County failed to adequately raise this matter before the ALJ, causing the ALJ to reject this matter. Moreover, a review of the application materials belies the County's assertions. The Applicant's existing information explaining its alternative analyses was provided as part of its application in 1999. See, Volume 1, § 1.4, page 1-7. Staff reviewed the information and found it sufficient. The County has not shown the matter is substantive and significant and in need of further pursuit. Accordingly, no issue is raised.

Miscellaneous

During the course of this proceeding thus far, the correspondence between the parties and the ALJ raises a question about the ALJ's role in overseeing the PSD public comment process. I find it necessary at this time to provide guidance on this matter.

Review and consideration of all PSD public comments fall within the exclusive domain of Staff. The Department implements the federal PSD program pursuant to the delegation agreement with USEPA and it is Department Staff who has the exclusive responsibility of processing the PSD permit. It is in Staff's discretion to act with respect to the procedural and substantive determinations that need to be made.

It bears mentioning that a PSD permit cannot be subject to an evidentiary hearing. See, 40 CFR Part 124. See also, Matter of Ramapo Energy Limited Partnership, Commissioner Ruling on Motion for Leave to File and Expedited Appeal, April 4, 2001, at p.6. The limited role of the ALJ on PSD permit applications contrasts sharply with the ALJ's role where permit applications are processed under ECL Article 70, Uniform Procedures, and ECL Article 8, SEQRA and have been referred to hearing. The distinction for PSD permit applications, as outlined above, is because the PSD permit application is not subject to review under Uniform Procedures or SEQRA. Accordingly, in the context of PSD, the ALJ's role is ministerial.

All other matters raised in the appeals and not specifically recounted above, are without merit and, accordingly, are rejected.

Conclusion

This matter is remanded to the ALJ for further action consistent with this interim decision.

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

Dated: July 13, 2001

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