Ramapo Energy, LP - Order Specifying Public Service Law Article X Issues, April 30, 2001
Order Specifying Public Service Law Article X Issues, April 30, 2001
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter
New York State Board on Electric Generation Siting and the Environment CASE 98-F-1968 - Application filed by Ramapo Energy Limited Partnership for a Certificate of Environmental Compatibility and Public Need to Construct and Operate a 1,100 megawatt generating facility in the Town of Ramapo, Rockland County.
ORDER SPECIFYING ARTICLE X ISSUES
(Issued April 30, 2001)
ROBERT R. GARLIN, Presiding Examiner, and
SUSAN J. DuBOIS, Associate Examiner:
Pursuant to our decision at the February 26, 2001 prehearing conference(1) and our Procedural Ruling of March 19, 2001, the parties to this proceeding were directed to submit, by April 16, written statements of the issues they intended to litigate in this proceeding. The parties were given until
April 19 to submit comments on the statements of issues. As noted at the conference and in the ruling, the purpose of the written submissions is to fix the maximum number of issues that would be litigated through the submission of direct testimony and exhibits; additional issues may not be litigated unless good cause is shown for adding them.
Written statements of issues to be litigated have been submitted by the New York State Department of Public Service (DPS) Staff, the New York State Department of Environmental Conservation (DEC) Staff, the New Jersey Department of Environmental Protection (NJDEP), Rockland County (Rockland), the Palisades Interstate Park Commission and the Town of Ramapo (PIPC/Ramapo), the Village of Suffern (Suffern), Torne Valley Preservation Association and Rockland County Conservation Association (TVPA/RCCA), Passaic River Coalition (PRC), Appalachian Mountain Club (AMC), PJM Interconnection LLC, jointly with Public Service Electric and Gas Company (PJM), and the New York State Laborers' Employers Cooperation and Education Trust Fund (LECETF). Comments on the issues statements were submitted by Ramapo Energy Limited Partnership (Ramapo ELP or the applicant), DEC Staff, and the New York State Department of Health (DOH) Staff.
This order specifies the Article X issues that may be litigated in this proceeding.(2) Issues to be adjudicated with respect to the air and water permits sought from the Department of Environmental Conservation (DEC) will also be addressed at the evidentiary hearings scheduled by the March 19 ruling. The scope of those issues has been established by a separate Issues Ruling of the associate examiner issued on April 17, 2001.
DECISIONS ON PROPOSED ISSUES
The issues statements of the agency and intervenor parties have identified a broad range of relevant and material issues, and many of those parties have proposed to litigate the same or similar issues. The examiners' decision about the Article X issues that may be litigated in this proceeding is reflected in the list of issues set forth in Attachment A to this order. Certain proposed issues are discussed in greater detail in the next part of this section. Where the allowed issues in Attachment A are framed differently from proposed issues and are not discussed in particular below, the examiners' framing of the issues reflects one or more of the following general considerations:
- This case is a facility-specific licensing proceeding whose focus is on the application in this proceeding and the existing and known future setting of the proposed facility. This is not a planning proceeding in which hypothetical scenarios incorporating a variety of assumptions are to be analyzed. Accordingly, proposed issues whose consideration would require the examiners to presume the outcome of other Article X or utility regulatory proceedings have either not been accepted or have been re-framed.(3)
- Similarly, the range of "alternatives" to be considered as Article X issues does not include any that are not relevant under PSL §164(1)(b) and 16 NYCRR §1001.2(d).
- Many proposed issues were framed in terms of whether the application adequately addressed specific topics. Some of those issues have been accepted as proposed. Other issues have been re-framed to focus on the underlying topics, and the parties contending that those topics should be addressed further will be expected to submit the additional evidence pertaining to those topics that they believe is relevant and material to the findings required by PSL §168.(4)
- Some topics identified as "issues" in the parties' statements are not included in Attachment A because they were framed in terms of underlying topics that are not, in and of themselves, Article X issues ( e.g. , TVPA/RCCA issue 21). Such issues were not stated in a way that specifically connected them to the proposed facility. Their exclusion from Attachment A does not imply that parties may not introduce evidence about such topics to support their positions on Article X issues.
- The range of issues proposed in timely-filed issues statements, which was already considerable, has not been expanded to include issues as framed in the late-filed statements of PRC and LECETF.(5)
1. Air Quality
The Commissioner of Environmental Conservation would decide whether or not to issue permits for the proposed project pursuant to federally delegated or approved authority under the federal Clean Air Act and the federal Clean Water Act. Review of the applications for these permits is subject to the procedures established in PSL Article X to the extent that those procedures are consistent with federally delegated or approved environmental permitting authority.(6) For Ramapo ELP, the air quality permits required would be a pre-construction permit and certificate to operate under 6 NYCRR Part 201 and a Prevention of Significant Deterioration (PSD) permit under 40 CFR 52.21.
On April 17, 2001, the associate examiner issued a ruling that identified the issues for adjudication regarding the federally delegated air and water permits, and identified the parties who would participate in the adjudicatory hearing regarding these issues ("DEC issues ruling"). Appeals from that ruling were to be filed with the Commissioner of Environmental Conservation on or before April 27, 2001.(7)
The DEC issues ruling identified certain issues as requiring adjudication with regard to the air quality permit applications, and excluded other issues proposed by the parties. Some of the written statements of proposed Article X issues identified the same or similar issues as were proposed by those parties in the DEC permits stage of this proceeding. DEC permit issues may not be re-litigated in this proceeding as Article X issues, regardless of whether they were or were not held to be adjudicable as DEC permit issues in the April 17, 2001 DEC issues ruling.
Article X air quality issues must be litigated by their proponents taking into account, among other provisions, PSL §168(2)(b), which requires the Siting Board to evaluate "the predictable adverse and beneficial impacts on the environment and ecology, public health and safety . . ." and PSL §168(2)(c)(i), which requires the Siting Board to determine whether the facility "minimizes adverse environmental impacts, considering the state of available technology . . ." (emphasis supplied). This applies to all of the issues listed below.
The air quality issues that were identified by the parties as issues they would litigate, and which are within the purview of the Siting Board under Article X, are as follows:
- Non-criteria pollutants: (a) adequacy of consideration of non-criteria pollutant impacts as required by the stipulations; (b) whether there is a need for a cumulative air quality analysis for non-criteria pollutants; and (3) whether there is a need for a multi-path risk assessment for non-criteria pollutants.
- Construction activity impacts and related dust control measures, apart from those required by the conditions in the draft PSD permit.
- Fine particulates (PM2.5). In order to be relevant and material, presentations by the proponents of this issue must address the considerations set forth in EPA's rulemaking preamble [62 Fed. Reg. 38651 (July 18, 1997)], the Presidential Documents regarding Implementation of Revised Air Quality Standards [62 Fed. Reg. 38421 (July 18, 1997)], and the Interim Decision of the Commissioner of Environmental Conservation in American Marine Rail, LLC [DEC Project No. 2-6007-00251/00001]. Also pertinent is the October 12, 2000 opinion of Justice Parness (Supreme Court, New York County) in Spitzer v. Farrell [Index No. 400365/00].
- Cumulative depositional impacts on parklands and hiking trails.
- Whether recreational opportunities in summer camps and the Harriman State Park will be limited because increased NOx and VOC emissions from the facility will result in an increased number of ozone action days in the local community.
Suffern and TVPA/RCCA both proposed issues regarding PM2.5, including quantifying and controlling emissions of fine particles. The DEC issues ruling excluded PM2.5 from the issues that may be adjudicated with regard to the air permits for the proposed project, but left for this ruling the question of whether and how this issue might be addressed as an Article X issue.
At the outset, it must be emphasized that the applicant was under no obligation established by law or policy to provide any analysis or testimony regarding PM2.5, and any proposed Article X issue that was framed to suggest otherwise has been rejected. Intervenors may, however, present facility-specific testimony and evidence regarding predictable adverse impacts of the facility on public health. Proponents of any regulatory requirement ( i.e. , an Article X certificate condition) more stringent than those under the existing air permit standards must identify facility-specific impacts, demonstrate that such impacts would predictably be caused by the facility, and propose certificate conditions to mitigate those impacts considering the state of available technology. The applicant would then have the opportunity to submit rebuttal testimony.
This procedure takes into account the evolving situation with regard to regulation of fine particulates, recent court and administrative decisions on the subject, and the function of Article X as the framework for the comprehensive environmental review of this project. It places the burden of going forward on the intervenors, but allows them to develop the record on this subject in the context of the findings the Siting Board will need to make.
In the American Marine Rail hearing, the DEC Administrative Law Judge had required the applicant in that case to analyze PM2.5 as part of an environmental impact statement under the State Environmental Quality Review Act (SEQRA) or, alternatively, as a supplement to its application. The Commissioner of Environmental Conservation, in response to appeals of the Judge's ruling, found that such an analysis need not be required. Spitzer v. Farrell was a CPLR Article 78 proceeding, decided on October 12, 2000, challenging the New York City Department of Sanitation's SEQRA review of a waste export plan. The Court found that it was unreasonable to require the Department of Sanitation (DOS) to conduct a PM2.5 analysis following the environmental study that DOS completed in 1999, in view of the lack of background monitoring data and the lack of a model for calculating PM2.5. In both of those cases, contentions had been raised that an applicant and/or a reviewing agency must conduct a study of PM2.5; both decisions refused to impose such requirements. In the present case, the applicant is not being required to provide an analysis of PM2.5 emissions, impacts or controls. It remains to be seen if the state of the art allows the intervenors to present information on this subject sufficient to affect the findings required under Article X.
Both the Spitzer v. Farrell decision and the American Marine Rail interim decision were issued after the Court of Appeals for the District of Columbia had vacated the 1997 PM2.5 standard set by the federal Environmental Protection Agency (EPA), and prior to the recent U.S. Supreme Court decision confirming EPA's authority to promulgate the standard. The legal status of regulation of PM2.5 has changed between the date the application in this proceeding was set down for hearings and now. The regulatory program is not yet in place. The implementation program states that non-attainment areas would be designated beginning in 2002, followed by up to three years for development of pollution control plans. Although additional research on health effects is part of the implementation plan, EPA found in 1997 that the health impacts of fine particulates required establishment of the PM2.5 standard. It is reasonable to expect that at some point early in the operation of the proposed facility it might be required to comply with the then-existing PM2.5 regulatory program, although the requirements that would be applicable are not known at present.
Article X sets forth the procedure for the comprehensive environmental review of this project, and that procedure functions as a substitute for a SEQRA review. Under SEQRA, the environmental impact statement serves as "an environmental 'alarm bell' whose purpose is to alert responsible public officials to environmental changes before they have reached ecological points of no return."(8) In this proceeding, the Article X review would serve this function (to the extent that relevant information is available at the time of this review), and it should allow for consideration of conditions that would need to be imposed to assure that the facility would not be unable to comply with PM2.5 controls should this become necessary. Essentially, the question for proponents of an Article X issue regarding PM2.5 is: Given the current state of knowledge and the current regulatory status of the standard, what specifically would need to be done differently from what is proposed in the application and the draft certificate?
6. Water Discharges
The Commissioner of Environmental Conservation would decide whether to issue a permit for the proposed project pursuant to federally delegated or approved authority under the Clean Water Act.(9) This would be a permit under the State Pollutant Discharge Elimination System (SPDES).(10) DEC Staff determined that the proposed facility is subject to the SPDES general permits for storm water discharges (which would run off into brooks on or near the site), but that no individual SPDES permit is required since the applicant proposes to discharge waste water to a public sewer system. Several intervenors contested the applicability of the general permits to this project. The issue of whether or not the project is subject to either the general permit for construction activities or the general permit for industrial activities, as opposed to needing to apply for an individual SPDES permit for storm water discharges for either set of activities, was identified as an issue for adjudication in DEC issues ruling.
An additional question regarding the federally delegated authority under the Clean Water Act has to do with whether or not the project actually will be able to discharge its waste water to a public sewer system. This question was raised by intervenors in the public statement hearing and in the
Article X issues statements. This is not an issue that can be resolved solely by a certificate condition requiring necessary waste water discharge approvals. If these approvals are not granted, and the applicant needs to discharge waste water into waters of the state, a SPDES permit for the discharge would be necessary. The decision on this SPDES permit application would need to be made prior to the Siting Board's determination whether or not to issue a certificate.(11)
A number of parties have proposed to litigate issues concerning the scope and impact of blasting during the construction of the proposed facility. Because blasting is such a significant aspect of the proposed facility's construction, it should be addressed as a certification issue ( i.e. , whether construction would be in the public interest) instead of a compliance issue. Accordingly, the applicant will be required to submit a detailed proposed blasting plan before the hearings, so that other parties will be able to submit comments on the plan in evidentiary submissions. The blasting plan should be submitted on the due date for agency and intervenor direct cases (which, as discussed below, is being postponed from May 15, 2001 to May 18), and interested parties will be permitted to submit comments in testimony due on June 8 (the new due date for rebuttal testimony).
8. Water Supply
Ramapo ELP objects to proposed issues that it characterizes as pertaining to "the adequacy of [United Water New York, Inc.'s] entire water supply system," but then goes on to recognize that "[t]he arguments raised relating to the UWNY appear to focus almost exclusively on the impacts that potentially could occur during drought conditions." Ramapo ELP appears to argue that litigation of water supply issues is unnecessary, because (1) the applicant is willing to accept, as certificate conditions, restrictions on taking water from UWNY's system or replenishing water stored on-site during Stage II water emergencies; (2) the transfer of water between the Ramapo River and Hudson River basins (resulting from water being taken in from UWNY and discharged to a public sewer system) "presumably has been approved by DEC"; and (3) "[i]f UWNY fails to meet its obligations, then either DEC or PSC can take appropriate action." Ramapo ELP argues in the alternative any water supply issue should be "narrowly tailor[ed] . . . to focus adjudication on the Project's connection to the UWNY system under the conditions under which the Project will operate . . . ." The applicant also notes that it has entered into an agreement with UWNY that "commits Ramapo Energy to provide funding for specific projects that UWNY intends to undertake to enhance its water supply."
The issues statements of the parties--as well as many speakers at the public statement hearings--have properly raised the fact that, under expected electricity market conditions, the need for, and profitability of, sales by the applicant (or an entity marketing the proposed facility's production) would be greatest during the very summer seasons when the adequacy of UWNY's ability to meet water system demands is most tenuous. The impact of a proposed project on the existing community services, including the water supply system, and, in turn, the ability of those services to support the project when demands on the project are greatest, is a proper area of environmental assessment. The applicant's contention that water system improvements UWNY "intends" to make--improvements that would require regulatory approvals in other proceedings--should obviate inquiry into this area is unconvincing.
9. Electric System
PJM's proposed inquiry into the cumulative impacts of the proposed facility and two other electric generating plants planned for Rockland County on the electric transmission system operated by PJM has not been accepted, because, as discussed generally, this is a facility-specific licensing proceeding that should not be affected by speculation about the outcomes of other licensing proceedings. The fitness and ability of other project sponsors to complete their proposals will not be explored in this case, and the applicant is entitled to an assessment of the system impact of adding only its proposed facility.
Ramapo ELP contends that "it is inappropriate to litigate the issue of whether the application adequately describes the nature of the probable economic impact of the Facility on wholesale electric prices," as proposed by DPS Staff. The basis for the applicant's objection appears to be that the underlying simulation analysis it believes would be performed by DPS Staff (MAPS or PROMOD) "was not a requirement set forth in the negotiated stipulations for the Ramapo Energy Project."
The applicant's objection is vitiated by the fact that DPS Staff has proposed a companion issue, namely, whether the application adequately describes the potential contribution of the proposed facility to competitive electricity markets. Questions or doubts the applicant might have about the capability of MAPS or PROMOD to simulate conditions in wholesale electricity markets when prices are not closely cost-based, or even to identify all relevant product and geographical markets for electricity, can reasonably be raised in addressing the latter issue.
EXHIBIT EXCHANGE LIST
The March 19 Procedural Ruling provided that the initial exhibit exchange list would be limited to the staffs of the permanent member agencies of the Siting Board, the Office of Parks, Recreation, and Historic Preservation, the applicant, and other parties who have proposed to submit direct testimony and exhibits. The ruling provided as well that two of the local libraries on which the application was served will be included on the exhibit exchange list. The exhibit exchange list is set forth in Attachment B to this order.
EVIDENTIARY PRESENTATIONS AND TRIAL BRIEFS
The issues statements submitted by the agency and intervenor parties suggest that certain issues will be the focus of considerable attention at the evidentiary hearings in this proceeding. In order to expedite the orderly conduct of the hearings,(12) all parties, including the applicant, will be required to submit prepared separate direct and rebuttal testimonies addressing those issues individually.(13) The issues to be addressed in separate prepared testimonies are as follows:
- Impacts, and mitigation of impacts, on timber rattlesnakes.
- Adjudicable issues pertaining to DEC air and water permits.
- The applicant's blasting plan and its impacts.
- Impacts, and mitigation of impacts, on the existing UWNY public water supply system.
- Electric system impacts of the proposed facility (operational and market impacts).
The issues set forth above will be the first issues to be addressed at the evidentiary hearings, in the order set forth.
In addition, DEC Staff has proposed to address timber rattlesnake issues by writing prepared testimony that does not reveal confidential information about rattlesnake habitat, as defined in the February 14, 2001 Ruling on Motion and Protective Order, and by presenting such confidential information, as necessary, in exhibits that will be distributed only to parties that have agreed in writing to follow the terms of the protective order. DEC Staff's proposal is reasonable, and all parties planning to address rattlesnake issues should follow the same procedure. Moreover, trial briefs should also be written to avoid revealing confidential information.
To allow the parties time to accommodate these requirements, the schedule will be modified so that the due date for filing agency and intervenor party direct testimony and exhibits will be changed from May 15, 2001 to May 18; the due date for filing rebuttal testimony and exhibits will be changed from June 5 to June 8; and the due date for trial briefs will be changed from June 12 to June 14.
As discussed in the March 19 Procedural Ruling, trial briefs should be prepared only by parties that have submitted prepared direct or rebuttal testimony, and they should set forth (1) affirmative statements describing how the filing parties' own evidentiary presentations are related to the findings and determinations the Siting Board must reach under PSL § 168(2), and (2) as applicable, conditions that should be included in any certificate granted to the applicant. Given the extensive scope of the issues identified for litigation, parties filing trial briefs should follow the outline format of Attachment A when writing their trial briefs. The examiners will accept service of trial briefs via electronic mail on the service date, so long as hard copies of the briefs are mailed on the same date.
Finally, in order to expedite the orderly conduct of the hearings,(14) all parties shall observe the following procedures for the introduction of prepared testimony and for the introduction of proposed exhibits during cross-examination:
- Fully-corrected copies of prepared testimony, printed or typewritten on a single side of the page and conforming with the requirements of 16 NYCRR §4.5, shall be submitted to the examiners and the stenographic reporter. The examiners and parties shall also be given copies of pages of prepared testimony originally served on the parties on which corrections are clearly marked.
- Documents obtained through informal discovery processes will be allowed into the evidentiary record only in accordance with 16 NYCRR §5.2(b).
- Parties planning to propose the inclusion of other documents in the evidentiary record during the examination of witnesses must have sufficient copies of those documents, at the time of the examination, so that at least one copy can be distributed to each of the examiners and to each active party on whose behalf an appearance has been entered at the hearing session. Unless the examiners otherwise deem it proper, a recess will not be called during the course of the examination to accommodate this requirement.
For the New York State Department
of Environmental Conservation
By: ROBERT R. GARLIN
SUSAN J. DuBOIS
ISSUES TO BE ADDRESSED
A. AIR QUALITY
1. Exclusively DEC Air Permit Issues--See Issues Ruling of 4/17/01
2. Article X Issues
a. Generally: Article X air quality issues must be litigated by their proponents taking into account, among other provisions, §168(2)(b) ["evaluation of the predictable adverse . . . impacts on the environment and ecology, public health and safety"] and §168(2)(c)(i) ["minimizes adverse environmental impacts, considering the state of available technology"]. DEC permit issues may not be relitigated as Article X issues, regardless of whether they were or were not held to be adjudicable.
b. Non-criteria pollutants:
(1) Adequacy of consideration of NCP impacts as required by stipulations.
(2) Need for a cumulative air quality analysis for NCPs
(3) Need for a multi-pathway risk assessment for NCPs.
c. Construction activity impacts (dust control): apart from those addressed in PSD permit conditions [DEC Issues Ruling 23].
d. Other air pollution impacts
(1) Fine particulates (PM2.5): To be relevant and material, presentations by proponents must address the considerations set forth in EPA's rulemaking preamble [62 Fed. Reg. 38651 (7/18/97)], the Presidential Documents regarding Implementation of Revised Air Quality Standards [62 Fed. Reg. 38421 et seq. (7/18/97)], and the Interim Decision in American Marine Rail, LLC [DEC Project No. 2-6007-00251/00001 (2/12/01)]. Also pertinent is the 10/12/00 opinion of Justice Parness (Supreme Court, New York County) in Spitzer v. Farrell.
(2) Cumulative depositional impacts on parklands and hiking trails.
(3) Whether recreational opportunities in summer camps and the Park will be limited because increased NOx and VOC emissions from facility will result in increased number of ozone action days in the local community.
B. WATER RESOURCES
1. Surface Water Quality and Quantity
a. Potential impacts on Torne Brook, including buffer zones, vegetative shading, and thermal changes.
b. Fishery impacts that would result in:
(1) Adverse cultural and social impacts on minority members of the Hillburn community.
(2) Adverse impacts on subsistence fishing.
b. Deposition of airborne pollutants from facility directly on surface waters used by water supply systems.
3. Ground Water Quantity and Quality
a. Potential impacts of accidental spills or releases.
4. Freshwater Wetlands
a. Whether the proposed facility will have an adverse impact on existing wetlands
5. Impact of the facility's water consumption on the operations of existing water supply and sewage systems dependent on the Ramapo and Passaic Rivers and their watershed.
a. Whether the UWR system has an adequate supply of water, without plant additions, to supply the needs of the proposed facility without adversely affecting its other customers and downstream users of the source water.
(1) Adequacy of on-site water storage during full peak water/electricity demand season.
(2) Water system improvements required, and impacts of same (compatibility with public health and safety).
(3) Incorporation of Rockland County Sanitary Code Article V (Mandatory Water Conservation Measures) into certificate, with condition requiring compliance.
d. Impact of facility on Ramapo River flow (given well field pumping restrictions in 1976 DEC permit to maintain the minimum flow; and given other measures required to maintain river flow and contain contamination near the well field).
(1) Impacts on Potake Pond, Cranberry Ponds, Lake Sebago and Pine Meadow Lake.
(2) Impacts on Village of Suffern's Wastewater Treatment Plant (including consideration of issues related to additional flow augmentation).
(3) Consequences for river itself, and well field, of low flows.
(4) Whether water system can support facility's water needs during low flow conditions, drought, or steam augmentation, in light of existing water system demands and water supply capacity.
(a) UWR's need to draw on water sources located on lands owned or controlled by PIPC.
(b) Impacts on Lake DeForest.
c. Impacts of inter-basin transfer of water if facility discharges wastewater to public treatment system; impact on Wanaque Reservoir Watershed and water users relying on reservoir for supply. Questions about where dimineralizers will be backwashed and regenerated.
d. Maintenance of recharge areas for Ramapo River and for groundwater; changes due to replacement of vegetation with impermeable surfaces.
e. Impact on water system's capability (supply, capacity) for meeting needs of future development.
6. Wastewater Management and/or Treatment
a. Contemplated discharge of wastewater: facility would direct wastewater to discharge pipe at County Solid Waste Management Agency facility; wastewater would be combined with Agency's clear effluent and directed to Town's leachate pumping station at the closed landfill; pumping station would direct wastewater, clear effluent, and leachate to Town's sewer system. Issues:
(1) Whether Town has agreed to accept facility's wastewater at the leachate pumping station.
(2) Whether wastewater quantity (gpd) or discharge rate (gpm) exceeds capacity of leachate pumping station; whether pumping station could accommodate additional wastewater from steam augmentation process; and, if upgrades are required, applicant's responsibility to provide them.
(3) Absent any agreement with the Town (not yet reached), should applicant propose alternative disposal plan?
b. Should there be a requirement that wastewater discharges remain within Ramapo River basin?
c. Should floor drains discharge into the wastewater system or into storm drains?
d. Wastewater needs for 850 employees.
6. SPDES Permits Issues--See Issues Ruling of 4/17/01
C. TERRESTRIAL BIOLOGY
1. Substantial interference with the movement of resident or migratory wildlife species.
2. Impacts on significant habitat areas that result in:
a. Adverse cultural and social impacts upon minority members of the Hillburn community.
b. Adverse impacts on subsistence hunting.
c. Foraging and mating patterns of deer and other game.
4. Substantial adverse impacts on threatened/endangered species of animals or plants (or species otherwise identified for concern)
a. Timber rattlesnakes
(1) Percentage of habitat in the Torne Valley that will be affected by the facility.
(2) Scheduling of construction of the facility and the mitigation measures, to coordinate them in light of the active season for timber rattlesnakes (April through early October).
(3) Permanent impact of facility construction on one basking area.
(4) Possible long-term impacts of construction activities on another basking area.
(5) Sufficiency of restoration after construction of gas pipeline along or near a basking area, to allow the area's return as viable snake habitat.
d (6) Adequacy and likelihood of success of proposed mitigation
e basking area.
(a) Lack of prior DEC approval of mitigation basking areas at other project sites.
(b) Lack of proof of effectiveness of creation of mitigation basking areas in an environment like that of Torne Valley.
(c) Doubts about design and siting of mitigation basking area. Would shadows from exhaust stacks and cooling structures alter the microclimate in the mitigation basking area, rendering it unsuitable?
(7) Suitability of proposed set-aside of 30 acres of undisturbed territory as critical snake habitat, and its adequacy to mitigate potential adverse impacts of project.
c (8) Impacts of access roads and increased traffic on existing
(a) Lack of final detailed map, to determine impact on migration.
(b) Increased road mortality.
(c) Effectiveness of tunnels (culverts) and barriers as mitigation measures, due to lack of use by snakes and/or potential use by predators (including malicious humans).
(9) Adequacy of applicant's documentation of the context of the existing timber rattlesnake populations in the proposed project area, such as the locations of all known hibernacula and occupied habitat in the vicinity of the proposed project site, or the relative importance of those hibernacula and habitats from a statewide perspective.
(10) Adequacy of documentation of level of current use or occupation of project area by rattlesnakes.
(a) Should documentation include a multi-year telemetry study of at least a few dozen individuals from existing population using hibernacula within approximately two miles of the project site?
(b) Whether area permanently lost to structures, roads, and landscaping will adversely affect rattlesnakes migrating from hibernation areas up to two miles away, which would include areas within Harriman State Park.
(11) Whether shadows from stacks and cooling structures would reduce suitability of the remaining natural habitat areas.
(12) Whether use of snake fencing to prevent access to the suitable remaining habitat on the project site would constitute an impermissible taking under applicable laws.
d. Eastern wood rat
e. Small-flowered crowfoot
f. Other Species:
(1) Loss of, or impacts on, habitats of species of special concern (6 NYCRR Part 182): Coopers Hawk, Red Shouldered Hawk, Sharp Shinned Hawk, Cerulean Warbler, Box Turtle, Wood Turtle, Spotted Turtle, Marbled Salamander, Jefferson Salamander, and Blue Spotted Salamander.
(2) Facility's impact on species whose habitat includes wetlands.
D. SOILS, GEOLOGY, SEISMOLOGY, and AGRICULTURAL LANDS
1. Characteristics of soils and geology at the project site, and impacts and design considerations associated with the site's characteristics.
a. Earthquake impacts on facility operation and especially ammonia storage structures; seismic standards in facility design.
b. Geologic structures and formations; fracture systems:
(1) Analysis of existing fracture systems on the site; how fracture systems affect geologic conditions, surface water and groundwater flow, and drainage patterns.
(2) Analysis of whether construction of facility, electric and gas interconnections, and facility operations would affect existing fracture systems, flows, and drainage patterns.
(3) How changes in fracture systems, flows, and drainage patterns would affect nearby landfill.
4. Substantial increase in potential for erosion, flooding, leaching, or drainage problems
a. Flood hazard
(1) Calculation of base flood elevations for portions of project site located within 100-year flood hazard zone.
(2) Whether facilities or structures within hazard zone are designed to withstand buoyancy effects and/or hydrostatic forces.
(3) Effect of proposed facility on frequency, duration, and/or intensity of flood events.
b. Whether facility will change existing water flow and/or drainage patterns to the detriment of other areas in the Torne Valley, especially the hazardous waste site and the aquifer.
4. Blasting procedures, impacts, mitigation, and plan for compensation for damages
a. Require applicant to submit a detailed blasting plan for comment before the hearings and before a certificate is granted, rather than allowing it to be submitted as part of a post-certification construction plan.
b. Analyze impacts and possibility of safeguarding and/or mitigation or compensation with respect to the following:
(1) Potentially sensitive areas identified in Stipulation No. 8.
(2) Timber rattlesnakes.
(3) Geologic fracture systems, water flows, and drainage patterns.
(4) Landfill, especially the cap, leachate collection system, and underlying bedrock.
c. Adequacy of compensation for damages, if any; insurance requirement for applicant and/or blasting contractor.
d. Other Issues/Possible Conditions:
(1) Water resource pollution from blasting material (ammonium nitrate and fuel oil)--both use and storage.
(2) Blasting hours and logistical considerations.
(3) Limits on size and/or magnitude of charges or the number of discrete blasts.
(4) Locations to be monitored during blasting.
(5) Information required in pre- and post-blasting reports and inspections.
E. AESTHETICS; SCENIC, HISTORIC, and RECREATIONAL VALUES
1. Visual impacts of facility structures and stack plumes
a. Impacts at receptors outside five-mile radius in applicant's analysis.
b. Assessment of plumes drifting into vistas.
c. Whether simulated dimensions of exhaust stack vapor plumes are understated.
d. Thoroughness of evaluation and definition of "typical operating" and "worst case" visible plume conditions; simulations of plumes under those operating conditions.
e. Whether to prepare photographic simulations of additional impacted receptors.
6. Visual impacts of on-site clearance of vegetation, including impacts on park users, recreational opportunities, and aesthetically important sites.
7. Impairment of character or quality of important historical, archeological, or aesthetic resources.
a. Adequacy of the application's description of the nature of the probable visual impact. Significant affected resources, other than the Torne Valley itself, including the following:
(1) Harriman State Park.
(2) Torne Brook Farm.
(3) Ramapo Gates of Praise Presbyterian Church.
(4) Camp Ramapough.
(5) Suffern-Bear Mountain Trail, Kakiat Trail, Hillburn-Torne-Sebago Trail, Racoon Brook Hill Trail, and High Torne.
f. Consideration of current seasonal use of PIP facilities, including use in winter ("leaf-off") season.
g. Consideration of any known programs to expand usage of recreational facilities (possibly including interstate trail from Ramapo Reservation to HSP and multi-modal Ramapo River Greenway Trail.)
4. Whether facility minimizes adverse visual impacts; whether modification, additional mitigation measures, or certificate denial are warranted.
a. Evaluation of design alternatives, including site layout, site grading, and landscape planting.
b. Summary of all visual and aesthetic mitigation items in accordance with DEC's Program Policy on Assessing and Mitigating Visual Impacts.
c. Include consideration of offsets--e.g., elimination of an eyesore--as mitigation.
5. Impact on Palisades Interstate Park System, considering the park's designation as an aesthetic resource of statewide significance.
a. A pertinent consideration regarding the "no action" alternative.
6. Substantial change to open space and recreational resources, including but not limited to adverse impacts to resources located beyond the project site boundary.
a. Adequacy of the application's description of the nature of the probable environmental impact on recreation, especially users of Harriman State Park.
b. Impact on recreational use of Ramapo River, a portion of which is classified as a recreation river under the Wild, Scenic and Recreational Rivers Act.
7. Significant adverse impacts on the use and enjoyment of other natural resources.
8. Visual and aesthetic impacts of facility lighting.
a. Analysis of facility's operational, safety, and security lighting needs.
b. Visual simulations of nighttime views.
c. Best practices mitigation plan to minimize impacts such as glare, light trespass, and sky glow.
d. Impacts and mitigation of aviation lighting (if lighting is required by FAA).
F. PUBLIC HEALTH AND SAFETY
1. Traffic and Road Management
(1) Capability of local roadways to accommodate increased traffic and bear the weight of construction vehicles.
(2) Increased safety risks to public from construction vehicle traffic and traffic delays.
(3) Effects on landfill of increased traffic and vibrations on near or adjacent roadways.
(4) Hours of construction activities and other logistical matters.
(1) Ammonia delivery through Town of Ramapo
(a) Roads and routes used.
(b) Times of deliveries (considering, e.g., coincidence with school transportation)
c. Generally: Adequacy of the application's description of the nature of the probable transportation impact.
(1) Adequacy of assessment of construction traffic noise
(a) Adequacy (numbers) of receptor(s) near high-traffic locations.
(b) Assessment methodology's consideration (or lack thereof) of actual routes of vehicles and the fact that they will be ascending a significant grade.
(3) Averaging period for comparing noise impacts with applicable noise standards (entire construction period vs. frequent, periodic measurements allowing for mitigation during the course of construction).
(4) Weekend and nighttime construction noise
(a) Assessment of impact (change) taking into account ambient weekend and nighttime noise levels.
(b) More stringent property line noise standards for such times, taking into account presence of residents and greater use of park and natural areas during those times.
(c) Limits on or prohibition of weekend and nighttime construction activity if mitigation is not possible.
d. Substantial adverse change, assessing hearing damage, sleep interference, indoor and outdoor speech interference, low frequency noise annoyance, community complaint potential, and potential for structural damage due to vibration or infrasound.
(a) Adequacy of information about applicant's modeling of operating noise.
(i) Ability to verify conclusions reached.
(ii) Necessity for other parties to use commonly accepted computer programs or algorithms to assess noise impacts.
(c) Lack of description of the post-construction noise evaluation studies to be performed to establish conformity with facility design goals (information required by Stipulation No. 6).
(d) Methods to be employed by applicant to achieve equipment sound power levels set forth in Appendix L2 of application.
(e) Evaluation of impacts on parklands and park users.
(f) Continuous monitoring at Torne Brook Farm, Suffern-Bear Mountain Trail, and High Torne Mountain to assure recording of appropriate background noise levels.
(g) Mitigation required for Suffern-Bear Mountain Trail and High Torne Mountain.
(h) Requirement of CNR standard "C" at all receptors.
(2) Requirement of compliance with performance standards for noise required by §376-104 of the Town of Ramapo's Zoning Law.
9. On-site equipment, systems, and plans for emergencies
a. Hazardous substance incidents (especially ammonia solution stored for SCR system).
(1) Whether urea should be used instead of ammonia; relative safety of transportation and storage.
(2) Whether chemical transfer areas should have their own designated emergency spill containment, with sufficient capacity (truckload) and no reliance on valves.
(3) CAA §112(r) establishes general duty to initiate activities to prevent and mitigate accidental releases substances such as ammonia. Application says applicant will conduct a "general duty clause" analysis.
(a) What are ammonia release hazards, risk of occurrence, or environmental effects?
(b) Should applicant be required to prepare worst case analysis of off-site air concentrations resulting from accidental release?
b. Other emergency-related matters:
(1) Public safety response needs that cannot be met by mutual aid arrangements (fire and EMTs).
(2) Assessment of current resources and training of local emergency response personnel; addition of special equipment, training, and other resources.
c. Adequacy of road serving the project site for emergency access.
3. Creation of hazard to human health (not otherwise addressed)
G. WASTES [NO SPECIFIC ISSUES IDENTIFIED FOR THIS TOPIC]
H. LOCAL LAWS, LAND USE and COMMUNITY CHARACTER
1. Local laws: Whether an electric generation facility owned by an entity that is not subject to the full range of regulation as an electric corporation under PSL Article 4 can be classified as a "utility" or "public utility structure" in a PI Zoning District under the Town of Ramapo Zoning Law (Zoning Law Use Table and §376-23D).
a. Whether to require applicant to apply to Town of Ramapo Building Inspector for determination of classification.
b. Whether to require applicant to appeal an adverse determination by the Building Inspector to the Zoning Board of Appeals pursuant to §376-151B.
c. Various Zoning Law requirements:
(1) §376-104: Performance standards, especially those for noise, vibration, smoke, dust, atmospheric pollutants, odorous matter, toxic or noxious matter, and fire, explosive matter, and heat.
(2) §376-31, Table of Use Requirements: buffer areas, minimum distance between detached buildings, fire access, maximum building length, parking and storage, access to parking or loading areas, minimum off-street parking spaces.
(2) Article VII: General requirements for parking spaces and loading areas.
(3) §376-33K: Prohibition of water tower or requirement for conditional use approval.
(4) §376-60: Eligibility of water tower for exception to permitted height.
(5) §376-41 and Bulk Table, PI Zoning District: Facility as proposed does not comply with building height and street frontage requirements.
(6) Article VIII: Sign requirements.
(7) Article IX: Site development plan approval by Planning Board (or instead by Siting Board, but requiring compliance with substantive requirements).
(9) Article XIV: Building permit and certificate of occupancy.
(10) Subdivision regulations: Application for and receipt of subdivision approval.
d. Various Other Local Laws:
(1) 10-1992: Blasting and Explosives
(2) 7-1968: Streams and Watercourses
(3) 6-1997: Fire Protection
(4) 12-1965: Electrical Standards
(5) 2-1985: Soil Erosion and Sediment Control
(6) 12-1965: Flood Damage Prevention
(7) 7-1982: Noise Pollution Control Law
e. State Town Law §280-a:
(1) Generally prohibits a town from issuing a construction permit for a building on a plot that does not directly abut, with at least 15 feet of frontage, an improved street or highway. Allows an appeals board (such as Ramapo's ZBA) to issue a permit if circumstances do not require the structure to be related to a street or highway.
(2) Issue: Whether this provision should be applied to the facility in whole or in part (because a Town permit need not be required [PSL §172(1)]).
2. Impairment of the character or quality of existing community or neighborhood.
a. Whether the proposed project will result in a disproportionately high and adverse environmental burden upon the low income and/or minority communities in the vicinity of the project site. (A pertinent consideration in addressing the "no action" alternative.)
b. Value of residential property in the vicinity of the project site, including residences in Montebello.
3. Substantial change to the use or intensity of the use of land.
4. Substantial change to the capacity of land to support existing and planned uses.
a. Adequacy of the application's description of the nature of the probable impact on existing and planned land uses in the area.
b. Whether the facility minimizes adverse impacts on existing and planned land uses in the area; whether modification or additional mitigation measures are warranted.
I. PUBLIC INTEREST
1. Whether proposed facility would be "selected pursuant to an approved procurement process." (See PSC Case 99-E-0089, Declaratory Ruling Concerning Approved Procurement Process, issued August 25, 1999.)
2. Electric Systems
a. Interconnection plant
b. System impact of proposed facility, by itself, including but not limited to:
i. Voltage stability, thermal limitations, short circuits, and transmission interface capabilities
ii. Ancillary services
iii. Transfer capabilities
iv. Mitigation of adverse reliability impacts
e. Electromagnetic fields.
f. Whether the application adequately describes the nature of the probable economic impact of the facility on wholesale electric prices.
g. Whether the application adequately describes the potential contribution of the facility to competitive electric energy markets.
8. Gas Systems
a. Interconnection plant (apart from timber rattlesnake and noise impact issues)
b. Availability of pipeline capacity and gas commodity
3. Impacts on municipal and other local facilities and services (not otherwise addressed).
4. Security fund, insurance, restoration, and decommissioning plan
a. Whether discussion of decommissioning plan should include disconnection from electric, gas, water, and sewer systems; disposition of stored petroleum and chemical products; target levels of residual contamination; sequence and duration of activities; disposition of demolition debris; and cost and financial resources.
b. Other issues:
(1) Initial amount of financial security for site.
(2) Insurance to be obtained for construction period and operation.
(3) Adequate funding for decommissioning, from the outset of operation.
(4) Entity responsible for completion of all decommissioning and restoration--applicant or, if different, ultimate certificate holder.
5. Alternatives such as different technology, scale or magnitude, design, timing, use, and types of action [16 NYCRR §1001.2(e)]."
EXHIBIT EXCHANGE LIST
ROBERT R. GARLIN
ADMINISTRATIVE LAW JUDGE
NYS DEPT OF PUBLIC SERVICE
Three Empire State Plaza
Albany, NY 12223-1350
Tel: (518) 474-0739
Fax: (518) 473-3263
SUSAN J. DuBOIS
ADMINISTRATIVE LAW JUDGE
NYS DEPT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, NY 12233-1550
Tel: (518) 457-3468
Fax: (518) 485-7714
FRED ULRICH OFFICE OF ELECTRICITY AND ENVIRONMENT
NYS DEPT OF PUBLIC SERVICE
Three Empire State Plaza
Albany, NY 12223-1350
Tel: (518) 486-5211
Fax: (518) 474-5026
OFFICE OF GENERAL COUNSEL
NYS DEPT OF PUBLIC SERVICE
Three Empire State Plaza
Albany, NY 12223-1350
Tel: (518) 486-2653
Fax: (518) 473-7081
DIVISION OF ENVIRONMENTAL PERMITS
NYS DEPT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, NY 12233-1550
Tel: (518) 457-2224
Fax: (518) 457-5965
LISA A. WILKINSON
OFFICE OF GENERAL COUNSEL
NYS DEPT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, NY 12233-1550
Tel: (518) 457-3551
Fax: (518) 457-3978
FRANK J. DeCOTIS
DIVISION OF LEGAL AFFAIRS
NYS DEPT OF HEALTH
Corning Tower, Room 2455
Empire State Plaza
Albany, NY 12237-0001
Tel: (518) 486-1336
Fax: (518) 473-2802
ANTHONY J. GREY
BUREAU OF TOXIC SUBSTANCE ASSESSMENT
NYS DEPT OF HEALTH
Flanigan Square, Room 330
547 River Street
Troy, NY 12180-2216
Tel: (518) 402-7800
Fax: (518) 402-7819
CHARLES A. GARGANO
EMPIRE STATE DEVELOPMENT
30 South Pearl Street
Albany, NY 12245
Tel: (518) 292-5100
Fax: (212) 803-3715
PROJECT MANAGER, ENERGY ANALYSIS
NYS ENERGY RESEARCH AND DEVELOPMENT AUTHORITY
286 Washington Avenue Extension
Albany, NY 12203-6300
Tel: (518) 862-1090 ext 3378
Fax: (518) 862-1091
NYS OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION
One Empire State Plaza
Albany, NY 12238
Tel: (518) 474-0456
Fax: (518) 486-2926
ROGER S. HAASE
STATE OF NEW JERSEY DIVISION OF LAW
Richard J. Hughes Justice Complex
25 Market Street
P.O. Box 093
Trenton, NJ 08625
Tel: (609) 984-6811
Fax: (609) 984-9315
N. JONATHAN PERESS
JOHN F. KLUCSIK
GILBERTI, HEINTZ & SMITH
555 East Genesee Street
Syracuse, NY 13202-2159
Tel: (315) 442-0100
Fax: (315) 442-0106
STEPHEN J. POWERS
DEPARTMENT OF LAW COUNTY OF ROCKLAND
Allison-Parris County Office Building
11 New Hempstead Road
New City, NY 10956
Tel: (845) 638-5112
Fax: (845) 638-5676
ANDREW J. DALTON
WHITEMAN, OSTERMAN & HANNA
One Commerce Plaza
Albany, NY 12260
MICHAEL KLEIN, TOWN ATTORNEY
TOWN OF RAMAPO
237 Route 59
Suffern, NY 10901
Tel: (845) 357-7900 ext 2225
Fax: (845) 357-7127
VILLAGE OF SUFFERN
61 Washington Avenue
Suffern, NY 10901
Tel: (845) 357-2600
Fax: (845) 357-0649
RAYMOND J. KANE, DIRECTOR
TORNE VALLEY PRESERVATION ASSOCIATION
P.O. Box 765
Hillburn, NY 10931
Tel: (845) 368-0931
BETTY HEDGES, PRESIDENT
ROCKLAND COUNTY CONSERVATION ASSOCIATION
P.O. Box 213
Pomona, NY 10970
Tel: (845) 354-1071
CARL G. DWORKIN
6281 Johnston Road
P.O. Box 3784
Albany, NY 12203-3784
Tel: (518) 452-5442
Fax: (518) 452-5520
ANNE L. KRUGER
PASSAIC RIVER COALITION
246 Madisonville Road
Basking Ridge, NJ 07920
Tel: (908) 766-7550
Fax: (908) 766-7550
THOMAS A. GILBERT
APPALACHIAN MOUNTAIN CLUB
P.O. Box 118
Titusville, NJ 08560
Tel: (609) 818-1776
Fax: (609) 737-7264
STEPHEN L. GORDON
BEVERIDGE & DIAMOND
477 Madison Avenue
New York, NY 10022-5802
Tel: (212) 702-5400
Fax: (212) 702-5450
CHRISTOPHER G. REIN
ENVIRONMENTAL SCIENCE SERVICES, INC.
272 West Exchange Street
Providence, RI 02903
Tel: (401) 421-0398 ext 196
Fax: (401) 421-5731
ARTHUR W. ILER
PJM INTERCONNECTION, LLC
Valley Forge Corporate Center
955 Jefferson Avenue
Norristown, PA 19403-2497
Tel: (610) 666-4650
Fax: (610) 666-4281
JOSEPH A. SHEA
PSEG SERVICES CORPORATION
80 Park Plaza
Newark, NJ 07102
Tel: (973) 430-6441
Fax: (973) 430-5983
JAMES M. MELIUS
NYS LABORERS' EMPLOYERS
EDUCATIONAL TRUST FUND
18 Corporate Woods Boulevard
Albany, NY 12211
Tel: (518) 449-1715
Fax: (518) 449-1621
SUFFERN FREE LIBRARY
66 Maple Avenue
Suffern, NY 10901
FINKELSTEIN MEMORIAL LIBRARY
24 Chestnut Street
Spring Valley, NY 10977
1 Minutes of Prehearing Conference, Transcript (Tr.) 363.
2 Public Service Law (PSL) §165(2). The examiners sent a memorandum to the active parties, dated April 23 (the target date for this order), setting forth the issues that may be litigated in the evidentiary hearings in this proceeding and describing some of the decisions made about whether to exclude proposed issues or to include them over objections. The same list of issues is set forth in Attachment A to this order.
3 Ramapo ELP has filed a motion for a declaratory ruling that cumulative impacts of its proposed project and the planned Sithe Energies Torne Valley station are not adjudicable in this proceeding. This order effectively provides the relief sought by the applicant, but the parties should understand that this order is not a ruling on the applicant's motion. Only the Chairman of the Siting Board may issue a declaratory ruling (PSL §161).
4 The statement of issues submitted by TVPA/RCCA asserts that it "intend[s] either to cross-examine other parties' witnesses or to offer direct testimony or both with respect to" the issues identified in its statement (emphasis supplied). TVPA/RCCA should understand that issues identified in its statement may not be introduced solely through cross-examination.
5 Some parties complained that AMC's statement was also filed late, but it was received by the presiding examiner on the due date.
6 PSL §§167(1)(a) and 172(1).
7 6 NYCRR §§624.4, 624.5, and 624.8(d).
8 Town of Henrietta v. Department of Environmental Conservation, 76 A.D.2d 215 (4th Dept., 1980).
9 PSL §167(1).
10 Environmental Conservation Law Article 17, Titles 7 and 8.
11 PSL§ 172(1).
12 PSL §165(2).
13 For example, a party might have been preparing to sponsor a witness (or panel of witnesses) whose testimony would address impacts of the proposed facility on rattlesnake habitat, the water supply system, scenic vistas, and traffic. This ruling requires that the party must submit prepared testimony by the witness(es) in three separate documents addressing (1) rattlesnake impacts, (2) water supply impacts, and (3) the other impacts.
14 PSL §165(2).