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Ramapo Energy, LP - Order Concerning Interlocutory Appeals, July 25, 2001

Order Concerning Interlocutory Appeals, July 25, 2001

NEW YORK STATE BOARD ON ELECTRIC GENERATION SITING AND THE ENVIRONMENT

At a session of the New York State Board on Electric Generation Siting and the Environment held in the City of Albany on July 24, 2001

BOARD MEMBERS PRESENT:

NEAL N. GALVIN, Alternate for
Maureen O. Helmer, Chairman
New York State Public Service Commission

ERIN M. CROTTY, Commissioner
New York State Department of
Environmental Conservation

MICHAEL SANTARCANGELO, Alternate for
Charles A. Gargano, Commissioner
Empire State Development

DAVID L. SMITH, Alternate for
Antonia C. Novello, Commissioner
New York State Department of Health

VINCENT DeBIASE, Ad Hoc Member

LOU PROFENNA, Ad Hoc Member

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 CONCERNING INTERLOCUTORY APPEALS FROM ARTICLE X ISSUES RULING
(Issued and Effective July 25, 2001)

BY THE BOARD:

BACKGROUND AND INTRODUCTION

On November 29, 1999, Ramapo Energy Limited Partnership (Ramapo ELP or the Applicant) made a filing seeking a Certificate of Environmental Compatibility and Public Need, pursuant to Public Service Law (PSL) Article X. The Applicant proposed to construct and operate a 1,100 megawatt (MW) natural gas-fired, combined cycle electric generating facility in the Town of Ramapo, Rockland County.

After extensive supplementation, the Chairman found, in a letter dated January 2, 2001, that the application was sufficiently in compliance with PSL §164 and fixed the date of February 15, 2001 for the commencement of hearings. A prehearing conference was held on February 26, 2001.

On or about April 19, 2001, 14 active parties submitted statements of the issues proposed to be litigated and several of them subsequently submitted comments on the others' submissions. On April 30, 2001, the Department of Public Service (DPS) and Department of Environmental Conservation (DEC) Examiners jointly issued their Order Specifying Issues (the Order). Issues identified in a 16-page list attached to the Order could be litigated through the submission of direct testimony and exhibits.(1) Issues to be adjudicated with respect to air and water permits sought from DEC were identified in a separate ruling by the DEC Examiner, issued on April 17, 2001.(2)

Five active parties appeal from the Order. The County of Rockland (the County) contends generally that the Examiners unduly limited Article X issues, excluding any that are also related to whether and the conditions under which air and water permits should be issued.(3) The Applicant and DEC Staff separately argue that the Examiners improperly identified three specific air issues for adjudication under Article X, including one concerning fine particulates having a diameter of 2.5 microns or less (PM2.5).(4) The County also appeals on PM2.5, contending that while PM2.5 was properly identified as an Article X issue, the Examiners established unwarranted requirements for parties who propose to submit evidence on that issue. The PJM Interconnection, LLC and Public Service Electric and Gas Company (jointly, PJM and PSE&G), agree that the Examiners properly identified as an issue the impacts of the proposed 1,100 MW plant on the electric transmission systems they own or operate. However, PJM and PSE&G argue the Examiners unreasonably refused to allow consideration of such impacts cumulatively with similar impacts of two other electric generation plants proposed to be located in Rockland County.(5)

For the reasons discussed below, the Applicant's and DEC Staff's appeals are granted and the other appeals are denied.

ARTICLE X REVIEW OF ISSUES THAT RELATE TO WHETHER AIR AND WATER PERMITS SHOULD BE ISSUED BY DEC

The County says it had proposed numerous issues for adjudication under Article X which are not identified in the Order and it infers that this is because the issues were determined to be exclusively DEC air or water permit issues. As to such air issues, the Order says "DEC permit issues will not be relitigated as Article X issues, regardless of whether they were or were not held to be adjudicable [in the DEC permit issues ruling]."(6) The County gives no specific examples of additional Article X issues it believes should have been identified by the Examiners. Nor does it explain whether each such additional issue has or has not been identified for adjudication for the purposes of DEC permitting.

The County appeals, offering three basic arguments about why the Order should be vacated and its additional issues should be identified for adjudication Under Article X. To begin, the County argues that the record created following the Examiners' approach will be inadequate for the Siting Board to meet some of its explicit Article X responsibilities. It contends, for example, that the Board will not be able to find and determine: (1) the nature of the probable environmental impacts; (2) that the facility will minimize adverse environmental impacts; and (3) that the facility will be in the public interest.(7) The County suggests the Board should not relinquish any of its responsibilities in this fashion, and that it should not restrict its ability to deny a certificate or to impose stricter conditions if circumstances require. It maintains that restricting the scope of issues to be reviewed is an extraordinary circumstance that warrants interlocutory review of the Order.

Second, the County argues that the Examiners' approach would shield the Applicant from an environmental review as comprehensive as one that would be required under the State Environmental Quality Review Act (SEQRA). It claims that Article X is supposed to be the functional equivalent of the full environmental review required under SEQRA and contends it would be completely unreasonable to exclude from the record "without any discussion whatsoever" its additional issues that fall squarely under Article X.

Third, the County suggests the Examiners' approach is improper because it amounts to the Board adopting DEC's more restrictive "substantive and significant standard" for determining which issues should be litigated. The County maintains Article X requires only that an issue be "relevant and material" and complains the Examiners have no authority to impose a different standard.

No parties reply to these arguments.

Subsequent to the County's appeal, two other Siting Boards have addressed many of the arguments raised by the County. Those Boards both concluded that a bright line exists between the DEC's federally delegated permitting authority and a Siting Board's Article X responsibilities, and that the DEC Commissioner's final permitting decisions are an important input before the Siting Board can make a final decision.(8)

Under those decisions, the DEC determines what permitting issues warrant adjudication and arguments concerning such issues are ultimately considered by the DEC Commissioner alone. The DEC Commissioner's decision is final and any permits granted by the DEC Commissioner become the sole basis for all required Board findings related to such issues, including those related to predicting the probable environmental impacts, ensuring adverse environmental impacts are minimized, and evaluating whether construction and operation of the proposed facility is in the public interest.

These conclusions are reasonable and we adopt them in this case. It is reasonable to determine our authority and obligations under PSL §168 in a way that avoids inefficient duplicative review by a Siting Board (one state agency) of issues that pertain to whether federally delegated air and water permits should be issued by the DEC Commissioner (another state agency).(9) This approach is also practical because it avoids altogether situations in which the Board might be called upon to impose conditions or restrictions that would conflict in any manner with those established by the DEC Commissioner under exclusive federally-delegated authority. As the DEC Commissioner alone will act on matters related to air and water permits, evidence on such topics is neither relevant nor material under Article X as it will not impact any findings we will make or any conclusions we will reach in this case. The suggestion that we are improperly refusing to consider relevant and material evidence, accordingly, is rejected.(10)

The Bowline Siting Board also recently addressed the issue of whether the Siting Board, consistent with a review under the State Environmental Quality Review Act (SEQRA), should consider arguments under Article X in support of air-or water-related restrictions or conditions stricter than those imposed by the DEC Commissioner. That Board determined, consistent with the bright line approach, that any arguments in support of discretionary imposition of case-specific stricter standards or conditions should be addressed to the DEC Commissioner. That conclusion is also adopted here.(11)

Accordingly, the County of Rockland's appeal is denied on the general issue of the relative roles and responsibilities of Siting Boards and the DEC Commissioner.

PM2.5, CUMULATIVE DEPOSITIONAL IMPACTS ON PARKLANDS AND HIKING TRAILS, AND
EFFECTS ON RECREATIONAL OPPORTUNITIES AT SUMMER CAMPS AND AT HARRIMAN STATE PARK

General Background

The Examiners made clear that the DEC Commissioner would decide all permit issues under federally delegated authority and, as previously discussed, held that permit-related issues would not be litigated under Article X, whether or not DEC identifies them for adjudication as a permit issue.

The Examiners also ruled, however, that certain air-related issues should be considered by the Siting Board under PSL §168(2)(b) (which requires the Board to find and determine the nature of the probable environmental impacts, including an evaluation of the predictable adverse and beneficial impacts on the environment and ecology, public health and safety, aesthetics, scenic, historic and recreational value, forest and parks, air and water quality, etc.) and PSL §168(2)(c)(i)(which requires the Board to find and determine that the facility minimizes adverse environmental impacts, considering the state of available technology, the nature and economics of . . . reasonable alternatives . . . , the interest of the state with respect to the aesthetics, preservation of historic sites, forests and parks, fish and wildlife, etc.).

The Examiners ruled that the following air-related issues would be adjudicable under Article X:

  1. Non-criteria pollutants.
  2. Construction activity impacts and related Non-Prevention of Significant Deterioration (PSD) dust control.(12)
  3. Fine particulates (PM2.5), subject to some restrictions.(13)
  4. Cumulative depositional impacts on parkland and hiking trails.
  5. Impacts on recreational opportunities in summer camps and the Harriman State Park because of increased nitrous oxide (NOx) and Volatile Organic Compounds (VOCs) emissions and an increased number of ozone action days.

The arguments offered on appeal are summarized by issue, followed by our discussion and decision on these related issues.

PM2.5

1. Background

The Examiners explained why they identified PM2.5 as an issue to be adjudicated under Article X. Given that Article X calls for a comprehensive environmental review that substitutes for one under SEQRA, the Examiners suggested the process should allow for consideration of conditions that could be imposed now to assure that the Ramapo facility would not be unable to comply with PM2.5 controls, should this become necessary later.(14)

The Examiners noted that the Applicant itself would not be required to present information on PM2.5 but concluded that intervenors should be able to do so. The Examiners considered administrative and court decisions that were cited in opposition to adjudication of the issue, but they distinguished them as the Examiners would place no burden on the Applicant to prepare a study or present direct evidence on PM2.5.(15)

The Examiners directed that all parties submitting evidence on PM2.5 must address the considerations set forth in the Environmental Protection Agency's (EPA's) 1997 rulemaking preamble, Presidential documents from 1997 concerning implementation of Revised Air Quality Standards, and the decisions in American Marine Rail LLC, and Spitzer v. Farrell.(16) The Examiners also required that proponents of any Article X certificate condition more stringent than applicable air permit standards (1) identify specific impacts; (2) demonstrate such impacts would be caused by the facility; and (3) propose specific certificate conditions to mitigate those impacts. The Applicant would have an opportunity to respond.

Three active parties filed appeals concerning this part of the Order. The Applicant and DEC Staff argue the Examiners improperly identified PM2.5 as an issue for adjudication under Article X. These two appeals are opposed by the Torne Valley Preservation Association and the Rockland County Conservation Association (jointly, TVPA/RCCA). The County also appeals, contending PM2.5 was properly identified as an issue for adjudication but that the Examiners established unwarranted requirements that parties addressing the issue would have to meet. There is no reply to the latter appeal.

2. The Applicant and DEC Staff Appeals and Replies

The Applicant and DEC Staff offer four key legal reasons why they believe PM2.5 issues should not be adjudicated under Article X. To begin, it is claimed that the Board has no jurisdiction over PM2.5 and that if it is an adjudicable issue at all, it falls squarely within DEC's air permitting authority. This argument leads to an alternative suggestion that if the issue will be litigated, it should be considered as part of the DEC permitting process.

Second, DEC Staff contends that evidence and argument covering PM2.5 would neither be relevant nor material, and both it and the Applicant contend consideration of PM2.5 would not be practical, because National Ambient Air Quality Standards (NAAQS) adopted by EPA cannot be implemented until three years' data are collected, areas that meet and that do not meet the PM2.5 standard can be designated, models for predicting PM2.5 levels can be approved, and plans can be developed by the State and reviewed by EPA for reducing PM2.5 levels where they are too high and keeping other areas at safe levels.

Third, these parties note that the DEC Commissioner and New York Supreme Courts twice held that PM2.5 is not properly considered yet, and that the issue, therefore, need not be considered here either. (17) Finally, the Applicant contends the Board's decision would not be sustainable if it established PM2.5 standards or requirements for the proposed plant. It suggests such a result would amount to ad hoc rulemaking that would result in the arbitrary and capricious double regulation of fine particulates with diameters of 2.5 microns or less. This duplicative regulation would be imposed first when the DEC Commissioner ensures compliance with NAAQS for PM10--which includes PM2.5--and a second time by the Board under Article X for PM2.5 alone.(18)

The TVPA and RCCA jointly reply that the Applicant's and DEC Staff's PM2.5 appeals should be denied. They contend that this Board has broad authority and responsibilities to consider environmental and public health impacts of proposed power plants and that these are not limited or rendered moot by the DEC's permitting processes. These parties agree a full regulatory framework for PM2.5 is not in place now, but they suggest that pending development of such a framework, we should entertain intervenor evidence concerning adverse negative environmental impacts, including impacts on health and mitigation.(19)

TVPA/RCCA suggest the administrative and court precedent relied on by DEC Staff and the Applicant are not conclusive. They maintain, for example, that those decisions do not preclude consideration of adverse impacts of fine particulates and point out that a Siting Board's authority under Article X was not an issue in any of the cited cases. They contend adjudication of the issue would have case specific results rather than establish a statewide standard and insist it would not be arbitrary and capricious for the Board and the DEC permitting process to both regulate PM2.5 emissions. TVPA and RCCA also cite the Examiners' March 15, 2001 issues ruling in the East River cases (99-F-1314 et al.) as authority for their position. They conclude, stating that we should not preclude consideration of PM2.5 merely because it might be difficult to control fine particulates perfectly at this point.

3. The County's Appeal

The County contends PM2.5 issues fall squarely under Article X given the Board's responsibilities under PSL §168 to find and determine probable environmental impacts, determine that such impacts are minimized, and ensure the plant is compatible with public health. It emphasizes that the existing PM10 standards are inadequate from a health and safety perspective and that Board action on PM2.5 is thus warranted.

Turning to aspects of the Order it disagrees with, the County asserts that the Examiners arbitrarily and capriciously changed the evidentiary standard from the one of relevance and materiality outlined in Article X to one that will be impossible to meet in the time available. It argues, for example, that requiring it to address a DEC Commissioner's Interim decision amounts to an impermissible incorporation of the substantive and significant standard of proof, and that requiring it to address specified presidential papers and the EPA rulemaking preamble amounts to the improper application of the standards for a federal rulemaking proceeding in the context of a state facility siting case.

Like TVPA/RCCA, the County distinguishes administrative and court precedents relied on by the Applicant and DEC Staff, claiming, for example, that the AMR and Spitzer v. Farrell cases were both erroneously decided to the extent they each said there were no PM2.5 standards in effect at the time. It notes that the U.S. Court of Appeals that reviewed those standards explicitly declined to set them aside and states that the Court's decision has never been reversed.(20) It also maintains the AMR and Spitzer v. Farrell cases were incorrectly decided to the extent neither acknowledges DEC's authority to impose under SEQRA air emissions standards stricter than those adopted by EPA. The County further distinguishes prior decisions, suggesting that conducting a PM2.5 analysis under SEQRA was incorrectly found to be rulemaking and that the quantity of PM2.5 anticipated from mobile sources in Spitzer v. Farrell, for example, would be significantly less than the amount of PM2.5 to be released by the proposed plant.

Finally, the County provides a copy of a letter from an EPA official (Kathleen Callahan, Director of the Division of Environmental Planning and Protection in EPA Region II) suggesting that analysis of PM2.5 issues could properly be performed pending implementation of the existing NAAQS for PM2.5.(21) No party replies to the County's appeal on PM2.5.

Depositional Impacts and Ozone

1. Background

Emissions of sulfates and nitrates can lead to increased acid deposition. Increased nitrous oxide emissions in combination with VOCs, in the presence of sunlight, can cause an increase in ozone, a major component of smog. Both acid deposition and ozone have negative environmental and/or health impacts.

As noted briefly above, the Examiners identified issues for adjudication under Article X concerning (1) the proposed plant's cumulative depositional impacts on parklands and hiking trails, and (2) whether increased NOX and VOC emissions from the facility will result in increased ozone action days.(22) The Examiners did not explain why they identified these two specific issues for adjudication. However, one may infer from the Order that these issues were understood by the Examiners to be ones no one had proposed for litigation in the context of DEC permitting and that the concerns about these issues appeared to them to be related directly to findings that must be made under PSL §168, including identifying impacts on the environment and public health and ensuring adverse environmental impacts are minimized given the state of technology.

2. The Appeals and Replies

The Applicant and DEC Staff oppose identification of acid deposition issues for adjudication under Article X. They emphasize that control of acid deposition is governed by DEC as part of its air permitting authority. Thus, DEC Staff suggests any evidence concerning acid deposition would be neither material nor relevant to an issue the Board should decide. DEC also faults the Examiners for not explaining precisely what the pollutants or geographic areas of concern are.(23) In the absence of these details, DEC Staff suggests, the issue is speculative and leaves the door open for irrelevant information to come into the record. No party responds to this aspect of the appeals of DEC Staff and the Applicant.(24)

Turning to the impacts of increased ozone on recreation at summer camps and the Harriman State Park, the appealing parties argue that NOX and VOCs, precursors to ozone, fall under DEC's air permitting authority, to the extent they are subject to control requirements and through implementation of strict New Source Review standards that apply when, as here, the proposed plant would be constructed in an area currently classified as a "severe non-attainment area for ozone."

As a result of the New Source Review, DEC Staff observes, there can be no net increase in ozone from the proposed plant as it will have to be minimized and offset. The Applicant adds that couching the issue in terms of a recreational impact (under PSL §168(2)(b) and (c)(i)) does not change DEC's responsibility to regulate air pollution. DEC Staff again suggests that the issue is stated too vaguely and that evidence on NOX and VOCs will neither be relevant nor material under Article X given DEC's responsibility on the issue.

The ozone-related parts of the DEC Staff's and the Applicant's appeals are opposed jointly by the Palisades Interstate Park Commission and the Town of Ramapo (PIPC/Ramapo), in a pleading dated May 29, 2001. These are the two parties that had originally proposed the issue be identified for adjudication under Article X.

PIPC/Ramapo agree completely that NOX and VOCs are regulated by DEC and that air advisories are issued as warranted by DEC in consultation with DOH. A separate Siting Board review of the impacts of NOX and VOCs on the local community is nevertheless warranted, according to PIPC/Ramapo, because of the public health and public interest findings the Board must make under PSL §168. These parties deny that DEC's permitting role undermines the Board's statutory responsibility, particularly as any offsets or credits that will have to be obtained by the Applicant under the New Source Review process may come from anywhere within the same ozone non-attainment area, or from other ozone non-attainment areas that are the same as or worse than the one the plant would be in, including other states. These parties emphasize that obtaining credits elsewhere does nothing to ensure the proposed facility will not exacerbate local air quality problems.

PIPC/Ramapo point out as well that it has recently became known that deciduous forested areas like the Torne Valley contain naturally occurring VOCs that will mix with the proposed plant's air emissions to form ozone(25) and that this is a further reason why the Board should deny DEC Staff's and the Applicant's appeals.(26)

Discussion

As discussed above in connection with the County's general appeal, we are following the bright line established by Siting Boards in the Bowline and East River proceedings. Our evaluation of the arguments on three specific air-related issues starts from that conclusion. The question presented is, thus, whether any of the arguments offered in the pleadings on those specific issues warrant a departure from or movement of the bright line.

The arguments offered in four pleadings concerning consideration of PM2.5 issues under Article X are much like those offered in the Bowline and East River cases. The exception is the County's argument that the AMR and Spitzer v. Farrell cases were wrongly decided. Even if this argument is correct, it has no effect on our conclusion, discussed above, that permitting issues will be decided by the DEC Commissioner alone, pursuant to federal authority delegated exclusively to that Commissioner.

Turning to acid deposition, the arguments presented on appeal establish convincingly that nitrates from the proposed plant will be regulated by the DEC as part of its exclusive air permitting authority and no good reason has been presented explaining why separate review of the same matter by this Board is warranted. The Applicant's and DEC Staff's unopposed appeals on this issue are granted as well.

There is no dispute that DEC will regulate precursors to ozone both by requiring controls of them and through the New Source Review process under which, among other things, emissions offsets must be obtained to ensure no net increase in ozone precursors. PIPC/Ramapo are dissatisfied with the extent of the geographic locations from which such credits may be obtained and propose to introduce evidence for our consideration about the proposed plant's effects on ozone with isoprenes. Such evidence will not be allowed for Article X purposes, however, as the DEC permits will ensure that impacts on air and water quality are minimized and are compatible with the public health and safety.(27) In that process, the Applicant will be required to show that its facility will not have an adverse effect on local air quality under the National Ambient Air Quality Standard for ozone promulgated under Title 1 of the Clean Air Act. The required emission reduction credits are an additional requirement to reduce ozone regionally. The Applicant's and DEC's Staff's appeals on that issue are granted.(28)

TRANSMISSION SYSTEM IMPACTS

The PJM Interconnection is responsible for the day-to-day operation of the largest centrally-dispatched electrical system in North America, covering all or parts of Pennsylvania, New Jersey, Maryland, Delaware, Virginia, and the District of Columbia. It also helps ensure a competitive wholesale energy market within its system and facilitates access to transmission. PSE&G, one of over two hundred members of PJM, purchases, transmits, and distributes electricity in New Jersey. It also owns and operates transmission lines and equipment and some of those lines interconnect with New York's transmission system.

These parties proposed that they be allowed to adjudicate the effects of the proposed plant on their systems in the context of all the new electric generation capacity likely to be added in Rockland County. They estimated equipment upgrades would have to be made at a cost of more than $30 million and that a new transmission line would have to be constructed interconnecting New York and New Jersey.(29) No cost estimate was offered for the new line.

The Examiners agreed in part with PJM and PSE&G, identifying public interest issues about the electric system impacts of the facility, by itself, including, but not limited to: (1) voltage stability, thermal limitations, short circuits, and transmission interface capabilities; (2) ancillary services; (3) transfer capabilities; and (4) mitigation of adverse reliability impacts.(30) The Examiners declined to identify cumulative impacts of this and other proposed Rockland County generation facilities, because "this is a facility-specific licensing proceeding that should not be affected by speculation about the outcomes of other licensing proceedings."(31)

PJM and PSE&G appeal jointly, contending generally that the Examiners' approach precludes a "realistic" assessment of the impacts of the proposed plant, excludes relevant and material evidence, and disregards an important aspect of whether the proposed facility is in the public interest. In support of this contention PJM and PSE&G argue, first, that the Examiners properly found the Board has jurisdiction to consider transmission system impacts. They contend such jurisdiction is properly established by the requirements that the Board find and determine whether the proposed facility is in the pubic interest (PSL §168(2)(e)) and that the Examiners not preclude consideration of issues which warrant consideration in order to develop an adequate record (PSL §165(2)). PJM and PSE&G also maintain another Siting Board previously considered transmission system impacts(32) and that such consideration in this case would be consistent as well with preapplication stipulations in this and the Sithe Torne Valley proceedings. Those stipulations required the respective developers to each conduct a study showing the effects of the simultaneous operations of their two proposed facilities.

PJM and PSE&G also argue the Examiners' approach is illegal or unfair. They point out that when the Bowline Unit 3 applicant sought party status in this proceeding, Ramapo ELP objected and argued that the Bowline Unit 3 applicant should be limited to the development of the record on the issue of the impact of Ramapo ELP's proposed facility on the transmission system. The Examiners declined to impose such a restriction and, PJM and PSE&G assert, gave the Bowline Unit 3 applicant unrestricted status in this case. PJM and PSE&G argue that allowing the Bowline Unit 3 applicant unrestricted status to examine all impacts of the proposed plant, while denying them the right to do the same, is arguably a violation of PJM and PSE&G's equal protection rights.(33)

PJM and PSE&G's third general argument is that the Examiners' approach unreasonably precludes consideration of transmission system impacts with reference to existing and reasonably expected future conditions. They claim it would be unrealistic to examine transmission system impacts without "at least" considering the effects of Bowline Unit 3, as final certificate and permit decisions could be made earlier for that facility than they will be in this case. If the impacts of Bowline Unit 3 are not considered in this case at this time, they contend, the Board would be faced with the problem of having precluded the introduction of evidence about what would have become reality.

In the same vein, they note that at the time a system reliability impact study was performed for Bowline Unit 3, that facility was scheduled to go on line in 2003, the same year proposed for the Ramapo and Torne Valley facilities. Moreover, both the proposed Ramapo and Bowline Unit 3 facilities are being scrutinized in the NYISO's studies of system impacts of so-called class of 2001 projects. Under the Examiners' approach, PJM and PSE&G posit, the impacts of all the relevant plants could never be examined in a particular Article X proceeding. PJM and PSE&G also contend that they are not seeking a determination in this case of the impacts of plants other than Ramapo. Rather, they say, they seek only a determination of the impacts of the Ramapo plants in the context of the "likely" future. Finally, PJM and PSE&G claim the Examiners' approach gives an unwarranted advantage to the Applicant in this proceeding vis-à-vis other Article X applicants.

Relying heavily on circumstances that were disclosed after the appeal was filed, the Applicant replies that there is no merit to the appeal and that no consideration should be given in this case to impacts of its proposed plant on PJM and PSE&G.

According to the Applicant, PJM's reply to discovery requests received on May 16, 2001 (the day after interlocutory appeals were due to be filed) shows that PJM is involved in a Memorandum of Understanding (MOU) process with the NYISO that will address the same issues PJM seeks to litigate in this case.(34) The Applicant criticizes PJM's failure to disclose this fact sooner and maintains, in light of it, that no decision should be made in this case about impacts of its facility in the PJM or PSE&G transmission systems.(35) The Applicant contends this disclosure supersedes the requirements of PSL §165(2) and suggests the arguments about what public interest considerations are required under PSL §168(2)(e) comprise a "red herring" because the Board has no jurisdiction over PJM or PSE&G.

The Applicant also maintains the Athens Board's decision is distinguishable, as the facts there did not involve a cross-border dispute affecting multiple ISOs. The Applicant suggests it would not be fair in any event to consider the impacts of New York plants as PJM and PSE&G propose. It contends, for example, that the calculated costs of over $30 million improperly treats multiple new generation projects to be located within the PJM as if they were ahead of New York plants, even though the latter are much further along toward construction.

The Applicant denies the Examiners' approach amounts to denial of equal protection, saying that neither the Bowline Unit 3 applicant nor PJM and PSE&G can adjudicate issues beyond those identified in the Order.

Arguing in the alternative, the Applicant offers several reasons why it should not be required to study any impacts of its facility in the context of a completed Bowline Unit 3 or the Sithe Torne Valley facility. It contends information about Sithe Torne Valley is neither relevant nor material as that project is on hold, that the Chairman has not yet determined the application for that unit is in compliance with PSL §164, and that a different, smaller-sized facility may yet be proposed.(36) The Applicant goes on, stating that Bowline Unit 3 is in the NYISO's Transmission and Interconnections Study queue in the 28th position while its proposed facility is number 11. It points out that Bowline Unit 3 received approval from the NYISO on January 17, 2001, more than a month after the Applicant received approval, on December 12, 2000. It notes, moreover, that when the Bowline Unit 3 applicant had to perform a reliability study for the NYISO, it was required to include the proposed Ramapo project in the baseline.(37)

Subsequent to PJM and PSE&G's joint appeal, the Bowline Siting Board had occasion to address many of the arguments raised on appeal here. Specifically, that Board concluded that the Planning Working Group's Task Force on New Interconnection is the appropriate forum to address the issues raised on appeal, subject to review by the Federal Energy Regulatory Commission (FERC). That Board noted that the Athens and Heritage Siting Boards properly declined to substitute their judgment for others having responsibility for resolving specific transmission issues. The Bowline Siting Board explained that the allocation of costs for transmission impacts is not among its core responsibilities and stated that its consideration of transmission impacts such as those proposed here would put it in a position of deciding matters that would affect entities not subject to its jurisdiction. Finally, the Bowline Siting Board found unripe arguments that had been presented concerning cumulative transmission impacts of multiple new plants.(38)

Nothing has been presented in the appeal by PJM and PSE&G here that undermines those conclusions. The arguments by PJM and PSE&G that consideration of transmission impacts on their systems is consistent with previously negotiated stipulations is also unpersuasive as what one or more active parties in an Article X case agrees to does not bind this Board in any way. Similarly, the suggestion that the Bowline Unit 3 applicant has greater rights in this case than PJM and PSE&G is faulty, as the Applicant suggests, because all parties may adjudicate only those matters identified as issues. Moreover, the discovery response identified as RE-53 clearly suggests that PJM itself recognizes the reasonableness of transmission system impacts being resolved by the Planning Working Group's Task Force on New Interconnection issues. In sum, PJM and PSE&G's appeal is denied. The Examiners should proceed with adjudication of Article X issues in light of the conclusions reached here. Specifically, any issues concerning impacts of the Ramapo Plant on the out-of-state transmission systems will not be adjudicated.(39)

As noted above, the Applicant's arguments that no cumulative impacts of its facility and Sithe Torne Valley be further considered in this case is similar to one raised in its petition for a declaratory ruling. That petition improperly seeks a declaratory ruling by the Chairman when the relief sought is case specific and is raised in the context of ongoing litigation. Accordingly, the Chairman declines to issue a declaratory ruling under 16 NYCRR §8.2(e) and §204 of the State Administrative Procedure Act. As the Applicant does not explain what actions it has taken to seek relief of its preapplication stipulations from other signatories, and as it took no appeal on this issue, this broader issue is not properly before this Board at this time.

The Board on Electric Generation Siting and the Environment for

Case 98-F-1968 orders:

  1. The interlocutory appeals described in the foregoing order are decided as discussed above.
  2. This proceeding is continued.

1.

2.

By the New York State Board on Electric Generation Siting and the Environment - Case 98-F-1968

(SIGNED) JANET HAND DEIXLER Secretary

1 An order identifying issues is required under PSL §165(2).

2 Appeals to the DEC Examiner's separate ruling on adjudicable permitting issues were resolved by the DEC Commissioner in an Interim Decision dated July 13, 2001.

3 The County also appealed on the schedule for prefiling direct testimony and exhibits. That aspect of its appeal is moot and is not discussed further as the schedule was subsequently revised to the County's satisfaction in a Stipulation filed with the Albany County Supreme Court on May 16, 2001, dismissing a suit by the Torne Valley Preservation Association with prejudice.

4 One micron equals one one-millionth of a meter or one one thousandth of a millimeter.

5 The two other proposed plants are Mirant Bowline LLC's proposed 750 MW, combined cycle electric generation facility in the Town of Haverstraw (Bowline Unit 3) and Sithe Energy's originally proposed facility of 877 MW, also to be located in the Town of Ramapo (Sithe Torne Valley). The latter proposal is in the process of being revised to a 510 MW simple cycle peaking facility. Another plant was proposed for Rockland County (Haverstraw Bay LLC's 550 MW Grassy Point Energy Project in the Town of Haverstraw). However, that project has been on hold under Article X since November 2000 and no Article X application for it has been filed. The New York Independent System Operator, Inc.'s (NYISO's) May 1, 2001 Transmission and Interconnection Study queue lists Grassy Point as "withdrawn."

6 The Order, Attachment A, p. 1.

7 PSL §168(2)(b), (c)(i), and (e). Under these sections, a certificate cannot be granted unless required findings and determinations are justified by the record concerning the nature of probable environmental impacts, the minimization of adverse environmental impacts, and whether construction and operation of the proposed facility would be in the public interest. The County acknowledges to a certain extent that DEC permit decisions are relevant and arguably determinative of the Board findings and determinations required under PSL §168(2)(d), which concerns, among other things, compliance with environmental laws and regulations. But it contends this section should not be read to render meaningless other subsections of PSL §168(2).

8 Case 99-F-1164, Bowline Unit 3, Order Concerning Interlocutory Appeals (issued June 21, 2001), pp. 15-18 and Case 99-F-1314, East River Repowering, Order Concerning Interlocutory Appeals (issued June 22, 2001), pp. 12-15.

9 Similarly, it is not reasonable to assume the Legislature expected Article X Siting Boards to take evidence and argument on permitting issues that the DEC determines are not adjudicable.

10 The County has not identified any of the specific additional issues it would like to adjudicate under Article X nor has it specified which, if any, of those additional issues have been identified for adjudication in the DEC permit proceedings. If the County wanted these issues considered by us it should have clearly listed them as a basis for its appeal, 16 NYCRR §§4.7(c) and 3.6(c).

11 Case 99-F-1164, supra, Order Concerning Interlocutory Appeals (issued June 21, 2001), p. 18, n. 46.

12 The first two issues listed are not subject to any appeals.

13 Fine particulates or PM2.5 refers to particulates less than or equal to 2.5 microns or 2.5 millionths of a meter in diameter. Fine particulates are a component of PM10, which refers to all particulates with a diameter less than or equal to 10 microns. An ambient air quality standard has been adopted and implemented for PM10 (40 CFR §50.6). The proposed plant would be built in an area where the PM10 standard is being met. An ambient air quality standard has been adopted for PM2.5 but it has not yet been implemented and it will be at least a few years before it is. These air quality standards were developed to avoid the adverse health effects of some particulates, including respiratory distress, cardiological problems, and increased mortality.

14 The Order, pp. 8-9.

15 One of the decisions, Matter of Spitzer v. Farrell, slip op., Index No. 400365/00 (Supreme Court, New York County, October 12, 2000) involved an Article 78 proceeding, decided by Justice Parness, challenging the New York City Department of Sanitation's (DOS's) SEQRA review of an interim solid waste export plan for Manhattan. Under that plan, 2,300 tons of garbage from Manhattan would be trucked each day to New Jersey via the Holland Tunnel and other means. The Court found the decision not to require consideration of PM2.5 from increased trucking was responsibly based. The decision is Exhibit D of the Applicant's interlocutory appeal. The DEC Commissioner's February 14, 2001 Interim Decision in the Matter of American Marine Rail, LLC (DEC Project No. 2-6007-00251/00001) reversed an Administrative Law Judge who had directed the applicant in the case to analyze PM2.5 as part of its environmental impact statement under SEQRA or in a supplement to its application. That case involved a proposal to construct and operate a barge-to-rail solid waste transfer station in the Bronx. The Commissioner found no legal basis to compel the Applicant to conduct a PM2.5 air analysis, pending, among other things, preparation of a comprehensive PM2.5 database and the development of models. The decision is Exhibit B to the Applicant's interlocutory appeal.

16 The Order, p. 6 (citations omitted here).

17 The second Supreme Court decision referenced above is the Matter of Uprose v. New York Power Authority, slip op., (Index No. 4204-01, April 6, 2001), in which Justice Knipel confirmed the determination of the New York Power Authority that PM2.5 need not be considered in the siting of a new non-major electric generating facility. The Appellate Division disagreed, concluding, in pertinent part, that NYPA failed to take the requisite hard look at PM2.5 under SEQRA. Matter of Uprose v. Power Authority, ___AD2d___. (slip op. 4). (2d Dept., July 23, 2001). That court did not discuss any arguments about the feasibility of such an analysis.

18 DEC Staff offers other arguments in support of its appeal, including that (1) the issues presented are legal not factual; and (2) the Order lacks clarity to the extent it does not state what parties are to do to address the EPA rulemaking preamble, presidential papers, and the AMR and Spitzer v. Farrell precedents. DEC Staff also provides a copy of an October 21, 1997 memorandum from John Seitz, Director of EPA's Office of Air Quality Planning and Standards, to EPA Regional Directors, stating that PM10 would be used as a surrogate for PM2.5 on an interim basis for meeting New Source Review standards until PM2.5 data can be collected, models can be developed, etc.

19 These parties agree with the Examiners that the Applicant should not be required to introduce direct evidence on PM2.5. TVPA/RCCA also suggest that PM2.5 is relevant to an evaluation of whether the proposed plant would have disparate environmental impacts on certain populations, an issue they say (TVPA/RCCA Reply, p. 8) was identified as an adjudicable issue and which has not been appealed. This is apparently a reference to issue H.2.a on p. 15 of Attachment A to the Order.

20 The County's Appeal, pp. 21 and 23, citing American Trucking Associations, Inc. et al. V. EPA, June 18, 1999 per curium order (District of Columbia Circuit).

21 The date cannot be read on the copy provided.

22 The term "ozone action days" refers to those days on which the DEC, in cooperation with the Department of Health (DOH), issues health advisories through DEC's website and the media, suggesting that all people, and especially children, those who exercise or work outdoors, or those with respiratory diseases, should limit strenuous activity in the PM hours and that those with asthma or other respiratory problems should stay indoors. As ozone levels increase, coughing, throat irritation, shortness of breath, decreased lung function, increased susceptibility to infection, aggravation of asthma, and other respiratory ailments can result and the severity of the effect increases with the amount of ozone.

23 The Applicant and DEC Staff, however, both assume nitrates are the pollutant of concern.

24 The Palisades Interstate Park Commission and Town of Ramapo jointly state that they have no current plans to introduce any evidence on this issue based on what they know now, though they reserve their right to do so should new facts come to light.

25 An April 27, 2001 Article in Science (vol. 292) on this topic is Exhibit B to their Memorandum in Opposition to Appeals.

26 PIPC/RCCA also deny the Examiners failed to state the issue clearly enough and assert that the possibility that consideration of ozone issues under Article X will result in more work for DEC Staff is not a valid basis for granting the latter's appeal.

27 Case 99-F-1314, supra, Order Concerning Interlocutory Appeals (issued June 22, 2001), p. 13.

28 Now that three separate Boards have considered the jurisdictional issues, similar appeals should not be necessary. Any such appeals that are filed are likely to be examples of appeals that do not raise extraordinary circumstances. The Secretary should not allow such appeals to come to us until the time for a final decision in the case.

29 The bases for the estimate are set forth in Exhibit 2 of Exhibit A to their appeal.

30 The Order, Attachment A, p. 15 of 16.

31 The Order, p. 12. See also, p. 3, where the Examiners said the focus of this proceeding is on the application and the existing and known future setting of the proposed facility. They contrasted this case with a planning proceeding in which hypothetical scenarios incorporating a variety of assumptions might be analyzed.

32 They point to the Athens proceeding, where the proposed plant was likely to cause overloading of a transmission line. The Board directed the loading problem be resolved by the parties, subject to Public Service Commission's (PSC's) oversight. It also directed that the applicant in that case pay its proportional share of the costs of a new series reactor should one be needed. Case 97-F-1563, Athens Article X, Opinion and Order Granting Certificate (issued June 15, 2000), pp. 100-101.

33 PJM and PSE&G's Appeal, p. 10. U.S. Const. Amend. XIV, N.Y. Const. Art. I, §11. No case citations are provided to support this argument.

34 In its response to request RE-53, PJM says in part that its cost allocation procedures for projects outside the PJM Control Area are currently being developed as part of the ISO MOU process, a cooperative process among the New York, PJM, Ontario, and New England ISOs. This answer is in Exhibit B of the Applicant's pleading opposing PJM and PSE&G's appeal.

35 The Applicant argues such an outcome would also be consistent with the reasoning of the Bowline Unit 3 Examiners who concluded similar transmission system impact issues should be resolved outside of Article X.

36 The Applicant offered similar arguments in a May 25, 2001 petition for a declaratory ruling, asking that cumulative impacts of any kind of its proposed facility and Sithe Torne Valley not be adjudicated or considered further as the Sithe Torne Valley proposal is being modified and will no longer proceed on a parallel track with this case. It maintains in that pleading that evidence concerning Sithe Torne Valley would not be relevant or material.

37 The unstated implication of this alternative line of argument is that cumulative plant impacts on the transmission system, should they be considered at all, would better be examined in the Bowline Unit 3 Article X proceeding.

38 See Case 99-F-1164, supra, Order Concerning Interlocutory Appeals (issued June 21, 2001), pp. 27-28.

39 Now that two separate Boards have considered this issue, similar appeals should not be necessary. Any such appeals that are filed are likely to be examples of appeals that do not raise extraordinary circumstances. The Secretary should not allow such appeals to come to us until the time for a final decision in the case.

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