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Ramapo Energy, LP - Ruling 2, April 9, 2001

Ruling 2, April 9, 2001

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

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

RULING

April 9, 2001

DEC Application No. 3-3926-00377/00001

Summary

This ruling pertains to Rockland County's motion which asserted that the New York State Department of Environmental Conservation lacks authority to issue Prevention of Significant Deterioration air permits under both federal and state law. The question of whether federal law authorizes EPA's delegation agreement with DEC for implementation of the PSD program is beyond the jurisdiction of a DEC Administrative Law Judge to decide. Rockland County's requests regarding the PSD notice and DEC's further procedures (if any) with regard to PSD review are denied.

Arguments Regarding the Brief

First I would note that, contrary to the assertion in the March 7, 2001 transmittal letter which accompanied Rockland County's brief, I did not request submission of briefs on this subject. Instead, I allowed submission of briefs on an argument which Rockland County raised at the issues conference on February 16, 2001, with the briefs to be submitted after the Department of Environmental Conservation ("DEC") Staff provided a copy of the delegation agreement.(1) DEC Staff mailed the delegation agreement and related documents to the persons on the DEC service list on February 20, 2001.

On March 7, 2001, Rockland County submitted a brief which requested that the Notice of Determination to Issue a Prevention of Significant Deterioration (PSD) Permit which was issued for the above project in late December, 2000 ("December, 2000 PSD notice") be annulled, and that DEC refrain from any further actions in furtherance of issuing PSD permits in the above matter. In the alternative, Rockland County requested that if it is determined that DEC has the authority to issue PSD permits, the notice should be withdrawn and the public hearing and issues conference should be re-noticed to allow for consideration and potential adjudication of PSD issues consistent with requirements of the Environmental Conservation Law ("ECL"), the State Administrative Procedure Act ("SAPA"), and the Uniform Procedures Act ("UPA", ECL Article 70).(2)

Ramapo Energy Limited Partnership (the "Applicant") replied to Rockland County's brief on March 16, 2001. The Applicant argued that a DEC permit hearing is not the forum for challenging the delegation of administrative authority from the United States Environmental Protection Agency ("EPA") to the New York State DEC. The Applicant also argued that EPA properly delegated its federal PSD permitting authority to DEC, and that state law neither precludes DEC's issuance of PSD permits pursuant to federal procedural requirements nor mandates adjudicatory hearings on such permits.

The DEC Staff submitted a reply brief on March 23, 2001, arguing that questions of federal law may not be raised in a state administrative proceeding, that DEC has the authority to implement the PSD program pursuant to the EPA-approved State Implementation Plan and the PSD delegation agreement, and that neither federal nor state law requires or authorizes the application of SAPA or UPA procedures to DEC's implementation of the federal PSD program.

Discussion

DEC implements the PSD program in New York State under a delegation agreement with EPA.(3) The current version of the delegation agreement, which became effective in 1991, delegates to DEC the PSD review requirements as found in section 160 to 169 of the Clean Air Act and at 40 CFR 52.21 and identifies the terms and conditions governing this delegation.

The EPA's regulations regarding the State Implementation Plan for New York State are found at 40 CFR 52 Subpart HH (40 CFR 52.1670 through 52.1690). Among other subjects, Subpart HH addresses the implementation of the PSD program in New York State. 40 CFR 52.1689(a) states that the plan does not include approvable procedures for preventing the significant deterioration of air quality, and 40 CFR 52.1689(b) states that, "The provisions of §52.21(b) through (w) are hereby incorporated and made a part of the applicable state plan for the State of New York." (See also 40 CFR 52.21(a) regarding plan disapprovals and incorporation of the federal PSD regulations generally).

40 CFR 52.21(q) identifies the applicable procedures of 40 CFR 124 as governing the processing of PSD applications. 40 CFR 124 is the Procedures for Decisionmaking for various federal permits including PSD permits and permits under the National Pollutant Discharge Elimination System ("NPDES").

Prior to June 14, 2000, 40 CFR 124 contained a Subpart E which provided for evidentiary hearings. This Subpart was applicable to NPDES permits but was not available for use in review of PSD permits, as stated in former section 40 CFR 124.71 and in the table which formerly appeared in 40 CFR 124.1. In May, 2000, EPA promulgated an amendment to 40 CFR 124 (effective June 14, 2000) which removed Subpart E as part of efforts to "streamline" the permitting procedures.(4) Following this amendment, evidentiary hearings were not part of the process for any of the permits covered by Part 124. 40 CFR 124.71 was part of the Subpart that was removed. The removal of section 124.71 does not change the procedures applicable to PSD permits, since the evidentiary hearing procedure that section 124.71 identified as being "not available" for PSD permits is now not available for any of these permits.

PSD applications in New York State are processed by DEC under the federal program, including the applicable federal procedural regulations, and are not subject to the procedural provisions of UPA or SAPA. The present ruling is consistent with the procedures used in reviewing PSD applications in other cases involving electric generating facilities that are subject to PSL Article X.(5) The Commissioner's recent ruling in the present case states that the DEC "possesses explicit authority to implement the Prevention of Significant Deterioration ("PSD") permit review delegated to it by USEPA," and confirms the use of the federal procedures in the PSD program.(6)

Ruling

The question of whether federal law authorizes EPA's delegation agreement with DEC for implementation of the PSD program is beyond my jurisdiction to decide.

With respect to Rockland County's request regarding the PSD notice and DEC's further procedures (if any) with regard to PSD review, the request is denied. The hearing will proceed under the federal procedures as described in the December, 2000 PSD notice.

_____________/s/_____________
Susan J. DuBois
Administrative Law Judge
Albany, New York

Dated: April 9, 2001

TO: Persons on Interim Service List

1 Issues conference transcript, pp. 60 - 89.

2 Rockland County made related arguments in the hearing on the application of Mirant Bowline, LLC for a Certificate of Environmental Compatibility and Public Need and for DEC permits for its proposed electric generating facility in the Town of Haverstraw, Rockland County. A ruling on these arguments, and on other subjects, was issued recently (Mirant Bowline, LLC, DEC Project No. 3-3922-0003/00015, Ruling on Proposed Adjudicable Issues and Petitions for Party Status, March 30, 2001).

3 The three ways in which a state may administer the PSD program were summarized by the EPA Environmental Appeals Board in its decision in the matter of the Milford Power Plant: "Under the Clean Air Act and its implementing regulations, a PSD program (or portions thereof) may be administered within a state in one of three ways. First, the program can be run by EPA pursuant to a Federal Implementation Plan ("FIP")... Second, EPA can delegate its authority to operate the PSD program to a state, in which case the state issues PSD permits as federal permits on behalf of EPA... Third, EPA can approve a state PSD program if it meets the applicable requirements of federal law, in which case the program is incorporated into the state's "State Implementation Plan" ("SIP")... In this last instance, the state would conduct PSD permitting under its own authority [citations omitted]." In re: Milford Power Plant, PSD Appeal No. 99-2, October 18, 1999.

4 65 FR 30886, 30912.

5 In the Matter of Athens Generating Company, LP, Recommended Decision dated September 3, 1999, pp. 195 - 199; In the Matter of Heritage Power, LLC, Recommended Decision dated December 15, 2000, pp. 13 - 18; In the Matter of Mirant Bowline, LLC, Ruling dated March 30, 2001, pp. 9 - 10.

6 In the Matter of Ramapo Energy Limited Partnership, Ruling of the Commissioner dated April 4, 2001, p. 6 - 7.

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