Ramapo Energy, LP - Ruling 3, April 17, 2001
Ruling 3, April 17, 2001
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter
the Application of Ramapo Energy Limited Partnership for Permits from the Department of Environmental Conservation
RULING ON ISSUES AND PARTY STATUS
DEC Application No. 3-3926-00377/00001
This ruling identifies the issues for adjudication regarding the air and water permit applications which are under review by the New York State Department of Environmental Conservation as part of the review of a proposed major electric generating facility. The ruling also identifies the parties which may participate in the portion of the adjudicatory hearing having to do with these permits. The Applicant and the DEC Staff are parties to the hearing under the DEC permit hearing procedures. In addition, party status is granted to the Town of Ramapo and the Palisades Interstate Park Commission (participating as a consolidated party), to Rockland County, to the Torne Valley Preservation Association and the Rockland County Conservation Association (participating as a consolidated party), and to the Village of Suffern. The petitions for party status by the Passaic River Coalition and the Village of Chestnut Ridge are denied.
The issues identified for adjudication in the hearing are: four issues regarding the information used in modeling concentrations of air pollutants, the emission limit and technology associated with the lowest achievable emission rate for oxides of nitrogen, identification of emission reduction credits, dust control measures during construction, formaldehyde emissions, the height of the stacks as it relates to the definition of good engineering practice stack height, certain requests by the Applicant for changes in conditions in the draft air permits, and the question of whether the project is subject to general permits for storm water discharges as opposed to requiring and individual permit for these discharges.
Approximately seventeen proposed issues were excluded, for reasons discussed further below. The issue of the record of compliance by the Applicant's parent company is limited and will be included in the record based on documents from another state. The issue of evaluating alternatives is limited to the technology alternatives for oxides of nitrogen. Several of the proposed issues would be within the scope of the comprehensive environmental review of the project, which in this case is being conducted under Public Service Law Article X, rather that being within the scope of the DEC permit standards.
Ramapo Energy Limited Partnership (the "Applicant") proposes to construct and operate four Alstom GT-24 combustion turbines, four heat recovery steam generators, and four steam turbine generators and associated balance-of-plant systems and facilities. The fuel will be natural gas. The nominal electric generating capacity of the proposed facility will be approximately 1,100 megawatts. United Water of New York, a public water supply company, will provide the 0.134 million gallons per day on average required for the project. The average wastewater discharge of 22,500 gallons per day will be discharged to the Rockland County Sewer District No. 1. The project site is on Torne Valley Road, in the Town of Ramapo, Rockland County.
Pursuant to Part 201 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR Part 201"), the Applicant has opted to apply for a preconstruction permit and certificate to operate. This would authorize construction and operation of the proposed facility, pursuant to 6 NYCRR 201-6.1 prior to the Applicant's obtaining a Title V permit under the federal Clean Air Act. The project also requires a Prevention of Significant Deterioration ("PSD") permit pursuant to Title 40 of the Code of Federal Regulations ("40 CFR") Section 52.21.
The Department of Environmental Conservation ("DEC") Staff determined that the project is subject to general permits for storm water discharges under the State Pollutant Discharge Elimination System ("SPDES," Environmental Conservation Law ("ECL") Article 17, Titles 7 and 8). The general permits are GP-93-06 (Storm Water Discharges from Construction Activities) and GP-98-03 (Storm Water Discharges Associated with Industrial Activity Except Construction Activity). No individual SPDES permit application for waste water discharge was required since the Applicant proposes to discharge waste water to the sewer district.
In addition to the air and water permits which are administered by DEC, the project requires a Certificate of Environmental Compatibility and Public Need pursuant to Article X of the New York State Public Service Law ("PSL"). The DEC public hearing is being held contemporaneously and on a joint record with the related PSL Article X proceedings (Article X Case No. 98-F-1968). The portion of the hearing which concerns the air permit under Part 201 and the SPDES permits is being conducted pursuant to the procedures of 6 NYCRR Part 624 (the Department of Environmental Conservation's permit hearing procedures).
The DEC Staff has determined that the proposal is a Type II action under 6 NYCRR 617.5(c)(35), a section of the regulations implementing the State Environmental Quality Review Act ("SEQRA," ECL Article 8).
The DEC Staff prepared a draft Part 201 permit and a draft PSD permit. The Department issued two separate notices regarding the application, the draft permits, and the hearing process in late December, 2000. These notices were: (1) an Announcement of Public Comment Period, and Combined Notice of Complete Application, Public Hearing and Issues Conference, and (2) a Notice of Determination to Issue Prevention of Significant Deterioration (PSD) Permit.
The notices were published in the December 27, 2000 issue of the Department's Environmental Notice Bulletin, which is published on the Internet. The notices were also published in the Rockland County Times on January 4, 2001, the Home and Store News on January 10, 2001, the Rockland Review on January 5, 2001, and the Rockland Journal News on January 4, 2001. The notices were also mailed to the chief executive officers and clerks of the town and county in which the project is located, and to other persons known or believed to have an interest in the project including those on the service list for the related Article X hearing.
The joint Article X and DEC public statement hearing began on February 15, 2001 at the Ramapo Town Hall, Suffern, New York. The DEC issues conference was opened briefly on February 15, 2001, as scheduled in the notice of hearing, and was adjourned to February 16, 2001 in order to provide additional time for the public statement hearing. The DEC issues conference continued on February 16 and February 26, 2001.
Several organizations and governmental bodies submitted petitions for party status in the hearing on the air and water permits (see 6 NYCRR 624.4 and 624.5). These petitions were from Rockland County, the Village of Suffern, the Palisades Interstate Park Commission ("PIPC") and the Town of Ramapo participating as a consolidated party ("PIPC/Ramapo"), the Rockland County Conservation Association and the Passaic River Coalition who were participating initially as a consolidated party ("RCCA/PRC"), the Torne Valley Preservation Association ("TVPA"), and the Village of Chestnut Ridge.
The DEC Staff and the Applicant are automatically full parties to a permit hearing (6 NYCRR 624.5(a)).
The Applicant is represented in this hearing by Stephen L. Gordon, Esq. and Michael G. Murphy, Esq. of the firm of Beveridge & Diamond, P.C., New York. The Department Staff is represented by Lisa A. Wilkinson, Esq., Assistant Counsel, and Anthony B. Quartararo, Assistant Counsel, Albany. Rockland County is represented by N. Jonathan Peress, Esq., Kevin G. Roe, Esq., and John Klusick, Esq., of the firm of Devorsetz, Stinziano, Gilberti, Heintz & Smith, P.C., Syracuse, New York. The Palisades Interstate Park Commission and the consolidated party (PIPC/Ramapo) is represented by Andrew J. Dalton, Esq. and Philip H. Gitlen, Esq., of the firm of Whiteman, Osterman & Hanna, Albany. Michael Klein, Esq. also appeared on behalf of the Town of Ramapo. The Village of Suffern is represented by Terry Rice, Esq., Village Attorney, Suffern. The Village of Chestnut Ridge is represented by Doris F. Ulman, Esq., Village Attorney, Pomona.
The joint petition for party status from RCCA/PRC was submitted by Betty Hedges, Ella F. Filippone, and Anne L. Kruger, Ph.D. At the issues conference on February 16, 2001, RCCA/PRC was represented by Dorice Madronero, Dr. Kruger, and several additional persons, with Ms. Madronero as the main spokesperson for the organizations on that date. On February 26, 2001, RCCA (but not PRC) was represented by Carl G. Dworkin, Esq., Albany. Mr. Dworkin also stated that he was representing TVPA. In correspondence after the February 26, 2001 session of the issues conference, TVPA and RCCA have been represented jointly (as "TVPA/RCCA") by Mr. Dworkin, and by Gary S. Bowitch, Esq., and J. Mark McQuerrey, Esq. TVPA had been represented separately at the February 16, 2001 session of the issues conference by several persons, with Robert Demers as their main spokesperson.
The original deadline for petitions for party status was February 12, 2001. At the issues conference on February 15, 2001, I allowed for supplements to the petitions to be submitted by March 2, 2001. At the February 26, 2001 issues conference, I extended this deadline to March 19, 2001 and also set March 7, 2001 as the date for submission of additional materials and revised draft permit conditions by the Applicant and the Department Staff. These dates were chosen in an effort to provide time for additional information to be submitted and also allow for the preparation of an issues ruling (and the possibility of appeals of this ruling), while still having the testimony on DEC issues and that on Article X issues occur at approximately the same time and within the one-year time frame of the Article X review. In response to this schedule, the intervenors requested additional time beyond March 19, 2001 and both the Applicant and the Department Staff requested an opportunity to respond to the intervenors' supplemental submissions. Following discussion of these requests, I left the schedule as announced but stated that I would consider the comments that had been made about further extensions or additional responses.
On March 19, 2001, Presiding Examiner Robert R. Garlin and I issued a procedural ruling which, among other subjects, set a schedule for both the Article X and DEC aspects of the hearing. This ruling granted the intervenors until March 30, 2001 to supplement their petitions, and granted the Applicant and the Department Staff to April 6, 2001 to submit further responses to the petitions. The last of the correspondence on identification of DEC issues was the April 6, 2001 responses.
Procedural Motions and Rulings
Between the start of the issues conference and the date of this ruling, there have been two motions by Rockland County and one by PIPC/Ramapo concerning the interrelation of the Article X process, the DEC permit review process under 6 NYCRR Part 624, the State Environmental Quality Review Act and the federal procedures for review of PSD permits. The motions by Rockland County have been the subject of separate rulings which will be briefly noted here. The motion by PIPC/Ramapo, to dismiss the proceeding concerning the draft air permits, is pending and I have not yet made a ruling on it.
Rockland County made a motion on the record on February 16, 2001 regarding the DEC hearing and the Article X process, which requested among other things that the DEC hearing be re-noticed to include all environmental issues. I made a ruling on the record, which I re-stated in a written ruling on February 22, 2001 that also discussed a section of the ECL that Rockland County had cited at the issues conference. Subsequently, Rockland County filed with the Commissioner a motion for leave to appeal the February 22, 2001 ruling on an expedited basis (6 NYCRR 624.8(d)). Commissioner Erin M. Crotty denied this motion on April 4, 2001, in a ruling that also discussed several aspects of the DEC's role in Article X cases.
Rockland County also submitted a motion on March 7, 2001, challenging DEC's role in PSD permit review and arguing that if DEC has such a role the review should occur under New York State and DEC procedures, rather than the federal procedures. On April 9, 2001, I made a ruling which stated that I did not have jurisdiction to review the DEC's authority to issue PSD permits, and denied Rockland County's motion with regard to the review procedures.
As discussed in the notice for the PSD permit, the final determination on the PSD permit may be appealed to the Environmental Appeals Board of the U.S. Environmental Protection Agency, under the procedures of 40 CFR 124. Any such appeals would need to be filed within 30 days of the final decision on the PSD permit. On March 26, 2001, I wrote to the DEC Staff regarding procedures for re-opening the public comment period to include the continuing correspondence from the parties that is relevant to the PSD permit rather than to the Part 201 permit. I received replies about this from the DEC Staff and from the Applicant. The DEC Office of Hearings and Mediation Services has not yet issued a notice re-opening or extending the comment period but I anticipate that this will occur in the near future.
The March 30, 2001 petition from TVPA/RCCA included arguments related to those in the three motions noted above, and also argued that since the DEC's PSD permit review would be pursuant to a delegation of authority from the U.S. Environmental Protection Agency ("EPA"), environmental impact review under the procedures of the National Environmental Policy Act ("NEPA") would be required. Under the federal laws and regulations, however, PSD permits are not subject to the environmental impact statement provisions of the National Environmental Policy Act (15 USC 793(c), 40 CFR 124.9(a)(6)).
Rockland County, TVPA/RCCA, and PIPC/Ramapo all presented arguments regarding the type of permit for which the Applicant had applied under 6 NYCRR Part 201 (i.e., a preconstruction permit and certificate to operate as opposed to a Title V permit). These arguments included an assertion that a Title V permit was required, and arguments regarding the Applicant's correction of its application form and the adequacy of the notice of hearing and complete application.
The permit application form, as it existed at the time when the DEC Staff found the application to be complete, had a box checked for "Title V permit." In response to various criticisms from Rockland County regarding deficiencies in the permit application (Rockland County Position No. 12), the Applicant submitted a revised application form on March 7, 2001. This form, in addition to including a signature and making certain flow rates consistent with information elsewhere in the application materials, had the box for State Facility Permit (New) checked, instead of the box for Title V Facility Permit (New).
The December 26, 2001 notice of complete application and notice of hearing stated that, "Title V of the federal Clean Air Act requires applicants of major sources of air pollutants to obtain air permits. Pursuant to 6 NYCRR Part 201, Ramapo Energy has opted to obtain a preconstruction permit and certificate to operate authorizing the construction and operation of the proposed Ramapo facility, pursuant to 6 NYCRR Subpart 201-6.1, prior to obtaining a Title V permit. Pursuant to the requirements of ECL Article 19, and 6 NYCRR Part 201 (Permits and Registrations) and 6 NYCRR Subpart 231-2 (Requirements for Emission Sources Subject to §§172 and 173 of the Clean Air Act, 42 USC §7502 and §7503 on or after November 15, 1992), Ramapo Energy has filed a complete application with the DEC for this air emissions permit. The NYS DEC hereby notices a complete application and draft permit to construct and certificate to operate, along with permit conditions for the facility..."(1)
The draft permit documents which were made available by the DEC Staff in late 2000 were (1) the draft permit under the ECL, which identified the permit type as "Air State Facility" (page 1 of draft permit), (2) air pollution control permit conditions, and (3) the draft PSD permit conditions. (The terms "preconstruction permit and certificate to operate," "Air State Facility Permit" and "state facility Part 201-6 permit to construct and certificate to operate" were used in the notice, the draft permit and the fact sheet which was cited in the notice, to describe the permit for which the Applicant had applied and for which the DEC Staff had prepared a draft.)
6 NYCRR Subpart 201-6 (Title V Facility Permits) contains provisions regarding preconstruction permits for stationary sources. 6 NYCRR 201-6.1(b)(1) provides that, "The department may allow operation to continue indefinitely under the terms and conditions of preconstruction permits without requiring a permit extension or renewal provided the permittee files a timely and complete application for a title V facility permit in accordance with section 201-6.3 of this Subpart."
6 NYCRR 201-6.3(a)(2) provides that owners and/or operators of certain facilities subject to Subpart 201-6 shall submit a complete application for initial issuance of a Title V permit "[w]ithin one year of the commencement of operation of a new stationary source subject to permitting under this Subpart that is constructed on or after the date EPA approves New York's operating permit program."
Regarding the scope of information required for a Title V permit as opposed to that for a preconstruction permit for a major stationary source, 6 NYCRR 201-6.1(b)(3) requires that applications for such preconstruction permits include the information required for Title V permits under 6 NYCRR 201-6.3, "and any additional information required by the Department to demonstrate that the emission source will comply with all applicable State and Federal regulations under this Title [i.e., Title 6 of NYCRR]." Use of a preconstruction permit for a major source does not omit requirements or information that would be necessary had the application be for a Title V permit. Rockland County's comparison of the requirements of Subpart 201-5 and those of Subpart 201-6 relate to what is required for state facility permits for sources which, in contrast to the present proposal, are not required to apply for a Title V permit later.
Rockland County made a similar argument in the hearing on the permit applications of Mirant Bowline, LLC. The County's argument was rejected in that case and the Administrative Law Judge found that no issue of law or adjudicable issue had been raised regarding use of a state facility permit as opposed to a Title V permit (In the Matter of Mirant Bowline LLC, Ruling on Proposed Adjudicable Issues and Petitions for Party Status, March 30, 2001, p. 37-38).
Rulings on Party Status
As stated above, the DEC Staff and the Applicant are automatically full parties to a permit hearing pursuant to 6 NYCRR 624.5(a).
Full party status in the adjudicatory hearing is granted to the Palisades Interstate Park Commission and the Town of Ramapo, participating as a consolidated party (PIPC/Ramapo). Full party status is also granted to Rockland County. Both of these parties have identified the required environmental interest in the proceeding, identified issues for adjudication which meet the criteria of 6 NYCRR 624.4(c), and presented offers of proof as required in 6 NYCRR 624.5(b).
Full party status is granted to the Torne Valley Preservation Association and the Rockland County Conservation Association, participating as a consolidated party (TVPA/RCCA). These organizations have also met the requirements of 6 NYCRR 624.5(b) and (d). Although RCCA originally submitted a petition for party status in conjunction with the Passaic River Coalition (PRC), RCCA has more recently been represented together with TVPA. The March 19 and 30, 2001 petitions submitted by Mr. Dworkin were on behalf of RCCA and TVPA, but not PRC. PRC did not participated in the recent correspondence regarding identification of issues, nor identify how it would plan to participate in the DEC permit hearing separately from RCCA.(2) The February 6, 2001 petition for party status from RCCA and PRC did not identify any issues for adjudication in the DEC permit hearing, other than a brief reference to an issue identified by other parties, nor provide a sufficient offer of proof. PRC's petition for party status is denied.
The Village of Suffern has identified the required environmental interest in the proceeding and has presented an offer of proof on subjects that have been identified as issues for adjudication. Although the Village of Suffern did not identify any issues beyond those raised by other parties, it contributed to the identification of these issues and can make a meaningful contribution to the record regarding these issues (624.5(d)(1)(ii)). The Village of Suffern has full party status in the adjudicatory hearing pursuant to 624.5(b) and (d).
The Village of Chestnut Ridge submitted a petition for party status on February 8, 2001. This petition appeared to be in response to the DEC notice of hearing, but it sought to raise an issue regarding the Town of Ramapo Zoning Law in relation to the project and how the zoning should be taken into account by the Siting Board. The petition did not propose any issues regarding air or water permits, nor air or water impacts generally. The Village of Chestnut Ridge did not participate in the DEC issues conference.
On February 14, 2001, Presiding Examiner Garlin issued a ruling on party status in the Article X case, which granted the Village of Chestnut Ridge permission to intervene in the Article X certification proceeding. The Village's petition appears to have been directed towards the Article X aspects of the hearing. To the extent that the petition was for party status in the DEC permit hearing under 6 NYCRR Part 624, the request for party status is denied.
No petitions for amicus status were submitted (624.5(b)(3)).
Standards for Identifying Issues for Adjudication
6 NYCRR Section 624.4(c) specifies the standards for adjudicable issues in a DEC permit hearing. An issue is adjudicable if it relates to a dispute between the DEC Staff and an applicant over a substantive term or condition of the draft permit (624.4(c)(1)(i)). When the Department Staff has determined that a permit application, conditioned by a draft permit, will meet all statutory and regulatory requirements, the potential party proposing an issue has the burden of persuasion to demonstrate that the proposed issue is substantive and significant (624.4(c)(1)(iii)).
An issue is substantive if there is sufficient doubt about the applicant's ability to meet statutory or regulatory criteria such that a reasonable person would inquire further (624.4(c)(2)). An issue is significant if it has the potential to result in the denial of a permit, a major modification to the proposed project or the imposition of significant permit conditions in addition to those proposed in the draft permit (624.4(c)(3)).
In order to establish that adjudicable issues exist, "an intervenor must demonstrate to the satisfaction of the Administrative Law Judge that the Applicant's presentation of facts in support of its application do not meet the requirements of the statute or regulations. The offer of proof can take the form of proposed testimony, usually that of an expert, or the identification of some defect or omission in the application. Where the proposed testimony is competent and runs counter to the Applicant's assertions an issue is raised. Where the intervenor proposes to demonstrate a defect in the application through cross-examination of the Applicant's witnesses, an intervenor must make a credible showing that such a defect is present and likely to affect permit issuance in a substantial way. In all such instances a conclusory statement without a factual foundation is not sufficient to raise issues." (In the Matter of Halfmoon Water Improvement Area, Decision of the Commissioner dated April 2, 1982). Subsequent decisions of the Commissioner have provided additional interpretation of this standard.
Proposed Issues for Adjudication
The petitions for party status and the supplemental petitions proposed various issues concerning the air and water permits administered by DEC. The proposed air issues are addressed first, followed by those that relate to the Applicant's response to the revised draft air permit, and finally by the proposed issues that relate to the SPDES general permits for storm water and other water matters.
There was some overlap between the issues proposed by various parties. The rulings which follow discuss the arguments issue-by-issue, and may discuss arguments and offers of proof made by more than one party on the particular issue. Where reference is made to the petitions for party status, or to the numbering of proposed issues in the petitions, the versions referred to are the March 30, 2001 version of the PIPC/Ramapo petition, the March 17, 2001 version of the Rockland County petition as supplemented on March 19, 2001, and the March 30, 2001 version of the TVPA/RCCA petition, unless otherwise specified.
The requirements applicable to review of the air permit applications for the proposed project are affected by the location of the project. The project is under the Prevention of Significant Deterioration ("PSD") permit program with regard to criteria pollutants for which the ambient concentration at the project location is less than the National Ambient Air Quality Standards (i.e., in attainment), and the project is subject to new source review in non-attainment areas with regard to contaminants for which the area is not in attainment of the standards.
Rockland County is in a severe non-attainment area for ozone, but is in attainment for other criteria pollutants including particulate matter (PM) and carbon monoxide (CO). Oxides of nitrogen (NOx) and volatile organic compounds (VOCs) are precursors of ozone. The proposed facility will potentially emit these pollutants at rates greater than the major source threshold, and the facility is subject to Lowest Achievable Emission Rates (LAER) for NOx and VOCs. The facility is subject to Best Available Control Technology (BACT) for the remaining criteria pollutants with potential emissions greater than the applicable significance level.
The Applicant proposes to use dry low-NOx combustion technology in the combustion turbine, and selective catalytic reduction (SCR), to control NOx to meet LAER. The Applicant proposes to control emissions of sulfur dioxide (SO2) and PM through use of natural gas as the sole fuel. Control of VOCs was initially proposed to be by means of proper combustion controls, but in discussions with the DEC Staff prior to completion of the application, the Applicant agreed to use of a CO catalyst which would reduce VOC emissions.
Topographic Information Used in Applicant's Modeling
This proposed issue, and the following three proposed issues, relate to the Applicant's air quality modeling, which was done using various models and for multiple purposes. The modeling was discussed in both the application and the December 12, 2000 fact sheet prepared by the DEC Staff.
The first issue in the February 12, 2001 petition from PIPC/Ramapo had a heading that dealt with the proposed facility's control technologies, but the text under the heading dealt with a request by PIPC/Ramapo's consultant to the Applicant for data and computer files. The information was later provided.
The March 19 and March 30, 2001 versions of PIPC/Ramapo's petition re-titled the first issue as "There is a Discrepancy in the Topographic Information Used by RELP for its Modeling." The text of the proposed issue discussed the review by PIPC/Ramapo's consultant, Resource Systems Group, of certain map locations and coordinate systems and alleged inconsistencies and defects in the information used in the Applicant's modeling. The petition stated that in areas of complex terrain such as the project site, these discrepancies can have a significant impact on dispersion modeling results. PIPC/Ramapo also stated that on March 9, 2001 they had requested from the Applicant additional information on the coordinates used for the plant in the modeling. PIPC/Ramapo requested an additional 30 days after receipt of the information to re-run the models. On April 3, 2001, I denied the request further extensions of the March 30, 2001 deadline for supplementing the petitions.
The April 6, 2001 response from the DEC Staff asserted that the topographic information was taken from a topographic map and did not involve the use of the coordinates discussed by PIPC/Ramapo's consultant. Both the DEC Staff's and the Applicant's responses to the petitions cite the map which is Figure 2 of the Air Quality Modeling Protocol, Application Appendix E-2, in relation to checking the elevation of major terrain features or the map coordinates. The map does not, however, contain any visible notations regarding a coordinate system; it also covers only the area immediately around the plant and does not include terrain features such as Diamond Mountain, Ramapo West Mountain or Ramapo East Mountain. The DEC Staff's response also stated that the process of using the map "can be confirmed by looking at the computer input files which the Town of Ramapo's and PIPC's consultants received on or about March 5, 2001."
This proposed issue was not discussed at the issues conference since it was first proposed in the supplemental petition dated March 19, 2001 and the issues conference ended on February 26, 2001. I do not have the computer input files, which are not included in the application itself but were sent by the Applicant to agency staff and to the consultant for PIPC/Ramapo. The references by the Applicant and the Department Staff to Figure 2 of Appendix E-2 also do not resolve this issue. In addition, the Department Staff's response says that the terrain digitization process did not use a Universal Transverse Mercator (UTM) data base, but the Applicant's response says that the correct UTM coordinates were used.
Ruling: This issue needs to be resolved through testimony and the opportunity to cross-examine the experts who have done or reviewed the work. The outcome of the issue, if the intervenors prevail, would call into question the project's compliance with regulatory criteria, including provisions regarding formaldehyde and other contaminants.
If, upon further review of the computer input files or other information, PIPC/Ramapo's consultants determine that the asserted discrepancies do not exist, this issue could be withdrawn. Given the information in the hearing record at present, however, a substantive and significant issue exists and has not been resolved nor successfully rebutted by the Applicant or the Department Staff.
Adequacy of Complex Terrain Modeling
PIPC/Ramapo stated that their consultant's review of the Applicant's air modeling for complex terrain (using the CTSCREEN model) found that the Applicant failed to include any receptors between the highest stack height elevation (780 feet) and the 900 foot contour. PIPC/Ramapo stated that this omission was contrary to the modeling protocol and was significant with regard to lateral plume impaction. The March 17, 2001 report from Resource Systems Group stated that this omission has a material effect on the Applicant's ability to demonstrate compliance with both federal and state requirements, and is relevant to both the draft "New York Air Permit" and the PSD permit. The Village of Suffern also submitted a March 1, 2001 letter from its consultant Bruce A. Egan, of Egan Environmental Inc., which criticized the Applicant's complex terrain modeling, including both the spacing of the receptor array and the meteorological data used (discussed below as a separate proposed issue).
The arguments on this issue are similar in some ways to those regarding the issue above. As with the topography issue, the Applicant's April 6, 2001 response to the petitions refers the reader to the computer files, which are not available to me, to confirm the elevations of a group of receptors. The requirements of the modeling protocol, which are in dispute between the RSG report and the DEC staff's April 6, 2001 response, also require interpretation; the resolution of this dispute is not evident from reading the cited section of the protocol (Appendix E-2, section 5.2, page 67).
The CTSCREEN model was used in modeling non-criteria pollutants, including formaldehyde. The Applicant's evaluation of formaldehyde emissions is an additional issue, as discussed below. Both the topographic information and the complex terrain modeling were used in analyses that were not limited to the draft PSD permit. Although PSD permit applications are not subject to evidentiary hearings under the procedures of 40 CFR Part 124, factual disputes that are relevant to state requirements are not excluded from adjudication on the basis that they also are relevant to PSD permits.
Ruling: PIPC/Ramapo and the Village of Suffern have raised a substantive and significant issue regarding the adequacy of the Applicant's's complex terrain modeling.
Adequacy of Meteorological Data used for Modeling
PIPC/Ramapo challenged the Applicant's use of off-site meteorological data in its air quality modeling. This proposed issue initially identified the meteorological data as coming from Suffern, New York but the Applicant clarified that the Suffern data was ambient air quality data and that the meteorological data was from Newburgh. PIPC/Ramapo later claimed that the Applicant had not explained the appropriateness of using the Newburgh data, but the Applicant responded that the basis for using the Newburgh data is identified in Appendix E-2 and that DEC had approved use of this data (see App. E-2, pp. 37 - 39).
PIPC/Ramapo also submitted a report from its consultant (Resource Systems Group) which stated that on-site meteorological data is preferred for a major source, and cited both EPA's New Source Review Workshop Manual and 40 CFR Part 51, Appendix W, section 9.3, in support of this. RSG's report also stated that this is especially so when a site has complex terrain, and that the area of the proposed project has significant topographic features that affect meteorological conditions. RSG stated that in the absence of on-site data, a more conservative approach would be to use worst case results from modeling with each available data set, and that they were working on this. (Contrary to the Applicant's characterization of how PIPC/Ramapo proposes to use data from White Plains, PIPC/Ramapo is not proposing to use White Plains data instead of Newburgh data, but as one of several possible data sets in a worst case analysis.)
The Applicant's's April 6, 2001 response stated that Appendix W also provides for the use of data from nearby meteorological stations and that this is typically used. The Applicant also argued that the use of this data is solely a PSD issue and as such cannot be adjudicated. The Department Staff stated that although on-site data is preferred, the availability of such data is typically the exception and not the rule.
The Village of Suffern's petition included the issue of on-site meteorological data. The discussion of it in Dr. Egan's letter related mostly to criteria pollutants, but also argued that on-site meteorological data is needed for refined modeling of complex terrain. The CTSCREEN model was used for some modeling for two non-criteria pollutants (i.e., non-PSD review), which the Applicant's air quality modeling report describes as refined modeling (App. E-3, page 30 - 32). The Department Staff's April 6, 2001 response stated the Newburgh data was only used for simple terrain (less than stack height) and that the CTSCREEN model used for complex terrain has built-in worst-case meteorological inputs (see Appendix E-2, section 3.3., p. 46).
Dr. Egan's letter also included the statement that "Refined modeling has a specific regulatory definition and has not been performed for high terrain areas," but the letter did not provide any citation for the definition in question.
Although PIPC/Ramapo stated that the Newburgh meteorological data was also used in the Applicant's analyses regarding new source review for non-attainment areas, PIPC/Ramapo initially objected to providing further information on how the data was used in non-PSD aspects of the application review. PIPC/Ramapo did subsequently provide a letter, dated March 9, 2001, responding to my question about this. The letter stated that the modeling (and the source inventory, discussed as the next issue) are relevant to both the draft PSD permit and the draft Part 201 permit because the inventory and the modeling data can be used to demonstrate compliance with both the National Ambient Air Quality Standards and State Air Quality Standards. The letter stated that the "State only enforceable conditions" in the draft permit would require compliance with all applicable DEC air regulations including 6 NYCRR Part 257.
Condition 93 of the March 7, 2001 version of the state facility permit draft cites as its applicable state requirement 6 NYCRR 201-5.3(b). That subdivision provides that state facility permits "may contain such conditions as the department shall require to insure compliance with the provisions of this Title [i.e., Title 6 of NYCRR]." Part 257 is among those regulations. Item 93.1 of the draft permit states that "Emissions of the following contaminants are subject to contaminant specific requirements in this permit (emission limits, control requirements, or compliance monitoring conditions)" and then lists VOC, PM-10, ammonia, particulates, sulfuric acid, sulfur dioxide, carbon monoxide, and oxides of nitrogen.
Part 257 includes ten subparts governing air quality standards, including Subpart 257-3 regarding particulates and Subpart 257-7 governing nitrogen dioxide (NO2). Part 257 became effective on May 1, 1972 and predates the federal PSD program (see Clean Air Handbook , David R. Wooley, 9th Edition, page 1-49, regarding the start of the PSD program). The Part 257 standards for suspended particulates (particles below 10µ in diameter) for 24 hours and annually and for NO2 for 24 hours are greater than or equal to the National Ambient Air Quality Standard ("NAAQS") for the same contaminant and duration. It appears likely that air quality reports prepared recently would focus on the NAAQS, if compliance with these standards would also mean compliance with the Part 257 standards. This does not, however, negate the applicability of the state standards. The application form for the present project (at page 3 of 25, in Appendix E-7) acknowledged Part 257 as an applicable requirement.
Thus, the modeling for the criteria pollutants which are also regulated under Part 257 is relevant to both the PSD permit and the Part 201 (state facility) permit. The issue is not excluded from adjudication based on it being solely a PSD matter that is not subject to evidentiary hearings.
The question of whether and how to include the proposed meteorology issue in the future stages of the adjudicatory hearing depends on the strength of the offers of proof and responding arguments, and on devising a process to consider this issue within the existing schedule of this hearing (see March 19, 2001 procedural ruling in Article X Case No. 98-F-1968). PIPC/Ramapo and the Village of Suffern have both submitted reports from their consultants that reasonably would lead to further inquiry, and PIPC/Ramapo has proposed doing additional analysis and modeling.
PIPC/Ramapo requested additional time to evaluate data and possibly re-run modeling. The significance of the differences between the modeling as done by the Applicant and the modeling as done under the "worst-case" procedure described by PIPC/Ramapo's consultant cannot be evaluated at present since the latter information is not yet available. There would also need to be clarification from the intervenors of how much of a difference could be expected between the Applicant's results and those of studies done using on-site data, with regard to whether the state standards might be exceeded (as opposed to evaluating the results in terms of NAAQS and consumption of increments). A brief review of the concentrations involved suggests that, in very simple terms, it would take a bigger difference between the results obtained using different meteorological data to pose a problem for compliance with the state standards as opposed to compliance with the increments. The intervenors' explanation of how the modeling relates to state requirements would need to be clarified in terms of the specific state standards in 6 NYCRR Part 257.
Information on the choice of meteorological data was part of PIPC/Ramapo's interrogatories to the DEC Staff served on March 12, 2000, to which the Department Staff objected on March 23, 2001, on the basis that at this stage of the hearing, discovery is limited to information available under the Freedom of Information Law ("FOIL"). As of the date of this issues ruling, no ruling has been made regarding the Department Staff's objection, although the March 19, 2001 procedural ruling dealt with discovery in the hearing generally. On March 30, 2001 (the deadline for the intervenors' supplemental petitions), the Department Staff provided PIPC/Ramapo with documents available under FOIL on the subjects requested, but it is unknown what additional documents might be available if the interrogatory was treated as such rather than as a FOIL request. The Department Staff's resistance to providing the requested information should be taken into account in evaluating the present state of PIPC/Ramapo's offer of proof. Although the intervenors had from the date of receipt of the notice to March 30, 2001 to complete their petitions for party status, the complete modeling data was not provided by the Applicant until March 5, 2001 and the Department Staff's response to the interrogatory was dated March 30, 2001.
In the Applicant's favor, the Applicant requested and received approval from the DEC for its choice of the meteorological data (Application Appendix E-2, pages 38 - 29). Given this, and the current incomplete development of the offers of proof by the intervenors, it is not yet clear that a substantive and significant issue exists requiring adjudication.
Ruling: The issue of meteorological data remains as a potential issue for adjudication. I will allow PIPC/Ramapo to submit the results of the additional analysis by their consultant, as well as the clarifications discussed above regarding the significance of this subject in terms of the state standards in Part 257, as pre-filed testimony on May 15, 2001. The Applicant and/or DEC Staff may submit rebuttal testimony on June 5, 2001. If the intervenors do not submit testimony on this issue or do not provide the required clarifications regarding its relation to state air quality standards, nothing further would be required from the Applicant on this issue.
Completeness of Source Inventory
Both Rockland County and PIPC/Ramapo challenged the Applicant's source inventory which was used in the air modeling, on the basis that sources less than 1,000 tons per year ("TPY") of the pollutant being modeled had been omitted in when inventorying the sources in New York City, and that Air Guide 36 instead has a threshold of 100 TPY. The Department Staff, in a December 12, 2000 summary of the project review (included as part of the DEC fact sheet and also as Rockland County petition Exhibit H) had said that the 1,000 TPY threshold was used due to the large number of sources in New York City.
The Applicant argued that the omitted sources would drop out anyway following a required calculation to filter out insignificant sources. Rockland County contested this, and argued that the culling process should be applied to a complete inventory so as not to circumvent the process. Rockland County stated that it was prepared to provide to the parties a copy of what it described as the best emissions inventory for the New York City Metropolitan Area, which was done in June, 2000.
This issue is similar to the meteorological data issue, in that the analyses which would be affected by the source inventory were presented in the application and discussed at the issues conference in terms of PSD requirements. If this issue were solely related to the PSD permit review, it would not be subject to adjudication. As noted above, however, there are state air quality standards as well as federal ones. PIPC/Ramapo's March 9, 2001 response to my question regarding the relevance of the inventory to PSD or Part 201 permit requirements came after the issues conference. The correspondence regarding proposed issues contains little or no discussion of how results based on a different source inventory would relate to the state standards in 6 NYCRR Part 257. As with the meteorology issue, PIPC/Ramapo proposed to do additional modeling based on a revised inventory but had not provided this as of March 30, 2001.
The issue of the source inventory also remains as a potential issue for adjudication. I will allow PIPC/Ramapo to submit the results of the additional analysis by their consultant, as well as clarification regarding the significance of this subject in terms of the state standards in Part 257, as pre-filed testimony on May 15, 2001. The Applicant and/or DEC Staff may submit rebuttal testimony on June 5, 2001. If the intervenors do not submit testimony on this issue or do not provide the required clarifications regarding its relation to state air quality standards, nothing further would be required from the Applicant on this issue.
LAER Analysis for NOx
PIPC/Ramapo and Rockland County both questioned the Applicant's analysis of the lowest achievable emissions rate for oxides of nitrogen and the achievability of the NOx emission limit in the draft permit. The issue of NOx offsets (discussed as the next issue) is also closely related to the Lowest Achievable Emission Rate ("LAER") analysis and the NOx emission limit.
NOx is an ozone precursor, and the proposed facility would be located in a severe nonattainment area for ozone. The proposed project is subject to LAER for NOx . NOX is produced in combustion facilities from oxidation of the nitrogen in the air at high temperatures (thermal NOx) and from oxidation of nitrogen contained in the fuel (fuel NOx). As discussed in the introduction to this section of these rulings, the Applicant proposes to control NOx by means of dry low-NOx combustion technology and selective catalytic reduction ("SCR"). The latter process uses ammonia and a catalyst to convert NOx into nitrogen. The Applicant also proposes to burn only natural gas, which has a lower nitrogen content than other fossil fuels.
The application predicted that the proposed technology would control NOx emissions to 2.5 parts per million volume dry (ppmvd) at 15% oxygen or less, although emissions would be higher during startup and shutdown. The application includes a BACT/LAER analysis (Appendix E-1) which proposed the 2.5 ppmvd NOx limit as representing the most stringent emission rate that is achievable with state-of-the-art combustion turbine technology. This analysis also concluded that although permits had been issued with NOx emission limits as low as 2.0 ppmvd, these units were not yet in operation and the ability of the proposed technology to reach this emission limit had not yet been proved.
In the draft permit, the DEC Staff specified a NOx emission limit of 2.0 ppmvd. The Applicant has committed to this limit, in a September 29, 2000 letter to Public Service Commission Chairman Maureen Helmer, and agreed to this as part of the draft permit. The number of emission offsets which the Applicant would need to obtain is now lower than that originally proposed, due to the lower emission of NOx that would be permitted at the 2.0 limit as opposed to the earlier 2.5 limit. The emission offsets are discussed further under the next issue.
The proposed issue is (1) whether the project as proposed by the Applicant could reasonably be expected to achieve the 2.0 ppmvd limit, and (2) whether other technologies identified by the intervenors need to be considered in analyzing LAER for this emission source and identifying the technology required.
6 NYCRR 200.1(ak) defines Lowest achievable emissions rate (LAER) as follows: "The most stringent emission limitation achieved in practice, or which can reasonably be expected to occur in practice for a category of emission sources taking into consideration each air contaminant which must be controlled. In no event shall the application of this term permit a proposed new source or modification to emit any air contaminant in excess of the amount permitted under any applicable emission standard established under 6 NYCRR or 40 CFR."
At the issues conference, counsel for the Applicant stated that after the Department Staff asked that the limit be lowered to 2.0 ppmvd, the Applicant had contacted the vendor of the turbines who then said that the facility could achieve this lower limit. Counsel for the Applicant argued that the Applicant was not required to demonstrate this in advance since the facility had not been built and noted that two of American National Power's(3) projects in Massachusetts had agreed to the same NOx limit, using the same equipment from the same vendor.
When I asked whether information from the vendor about whether the facility could comply with the lower limit was in the addenda or errata of the application, the Applicant's consultant stated that the Applicant had been told this by the vendor in a telephone call. The individuals who were involved in the phone call were not identified. The application and the hearing record contain nothing in writing from the vendor concerning this guarantee, nor concerning any technical basis for it.
The Department Staff argued that the air permit for the Athens Generating Facility and other draft or final permits have a 2.0 limit for NOX for facilities using SCR. The Athens plant has not been built yet, nor have the other power plants in New York State that would use this technology and have this limit in their draft permit. The Department Staff, in a letter following the issues conference, stated that they were "aware of one facility (Newington, New Hampshire) utilizing the ABB turbines guaranteed to meet this limit and have found no evidence this limit is being achieved in practice. Therefore, the Lowest Achievable Emission Rate (LAER) for this facility is based on the vendor's guarantee and the fact that other permits have been issued for similar facilities with the same limit." (March 7, 2001 letter from Christopher M. Hogan).
The Department Staff argued at the issues conference that Rockland County should be required to prove that there is a facility with the same equipment which is not meeting the 2.0 ppmvd NOx limit. Rockland County responded that the Applicant's own Article X application could serve as the offer of proof, since this identifies 2.5 ppmvd as the most stringent emission limit achievable with the technology in question. Rockland County has also proposed to present expert testimony on the air issues it proposed. The report by the air quality consultants for PIPC/Ramapo also identified as a significant omission the lack of explanation of how or if the 2.0 ppmvd limit can be achieved, although the report stated that the lower limit would be an improvement if it can be achieved.
Even if a vendor's guarantee can serve as the basis for what "can reasonably be expected to occur in practice," a phone conversation as described above cannot be taken as a "vendor's guarantee." The vendor has apparently provided nothing in writing making a commitment about the emission rate, nor providing any technical evaluation in support of it. Obviously, a power plant cannot be tested prior to having been built, but reasonable predictions could be made based on available information about the technology generally, as is done in many areas of environmental analysis. Particularly where the only detailed analysis in the hearing record thus far identifies a higher limit as the most stringent achievable, further inquiry through adjudication of this issue is necessary.
The March 30, 2001 petition from PIPC/Ramapo and the April 6, 2001 response from the Department Staff contain two conflicting quotes from an EPA document which are characterized as providing EPA's guidance on sources of information for determining LAER. While this guidance may be relevant in deciding the issue once a record is developed at the hearing, the quote cited by the Department Staff does not eliminate the issue. This is particularly so in view of the regulatory definition of LAER cited above. By itself, the fact that a limit has been included in the permits for other plants is not conclusive proof that the limit can reasonably be expected to occur in practice, although the existence of the other permits may be part of the evidence relevant to what can reasonably be expected to occur in practice.
With regard to review of other NOx control technologies, PIPC/Ramapo presented a report from its consultant discussing an additional technology (Xonon) that the consultant believes should be reviewed for potential applicability as LAER. PIPC/Ramapo also advocated consideration of an additional technology known as SCONOX, although this was evaluated and rejected in the Applicant's LAER analysis, and argued that this technology would avoid the ammonia emissions associated with SCR systems. The Applicant and the Department Staff both maintained, in their responses to the petitions, that these other technologies are infeasible in power plants of the type proposed here.
Two recent issues rulings, in other cases involving air permits for power plants subject to PSL Article X, have evaluated proposed issues that are similar, although not the same, as the issue proposed here (Consolidated Edison (East River Repowering), Case No. 99-F-1314, ALJ's Issues Ruling and Procedural Ruling dated March 15, 2001; Mirant Bowline LLC, DEC Application No. 3-3922-0003/00015, ALJ's Ruling dated March 30, 2001.) LAER for NOx was identified as an issue for adjudication with regard to the air permits for the Consolidated Edison project but not for the Mirant Bowline project. Neither of these rulings would determine the outcome of the present ruling since the applications and offers of proof are different in the three cases.
Ruling: In the present case, the intervenors have made a substantive and significant offer of proof about both sub-issues concerning NOx LAER. The question of whether the 2.0 ppmvd limit can reasonably be expected to occur with the technology proposed relates to a significant permit condition, to whether the project as proposed can be expected to comply with that condition, and to the number of emission offsets which the Applicant would be required to obtain (a substantive issue by itself). The positions of the parties regarding the basis for revising the emission limit relate to identifying an omission in the application, which in this instance is a technical question that requires further inquiry through expert testimony rather than solely through briefs and reports. In addition, if one of the alternative technologies is shown to be LAER technology for NOx, it would result in a significant change to the project.
Quantity of Offsets for NOx
6 NYCRR Part 231 governs new source review in nonattainment areas and ozone transport regions. Subpart 231-2 contains requirements for emissions units subject to the regulation on or after November 15, 2002. Under Subpart 231-2, the Ramapo Energy project would be required to offset its potential emissions of NOx and VOCs by a ratio of at least 1:1.3, by obtaining emission reduction credits ("ERCs") that meet the requirements of Subpart 231-2. This Subpart requires that the credits be identified and certified, a process subject to additional notice and opportunity for a hearing on the question of whether the offsets comply with the requirements of 231-2.9 (see also 231-2.10 and 231-2.1(b)(13) and (14)).
The Article X application states that the project would require 390 tons of NOx offsets. This number was based on the earlier emission rate of 2.5 ppmvd of NOx. The draft permit, which was prepared after the emission limit was lowered to 2.0 ppmvd, requires the Applicant to obtain 313 tons of NOx offsets. Rockland County initially proposed an issue regarding this in terms of an inconsistency between the Article X application and the draft permit (Position No. 1). Rockland County also stated that the 2000-2003 NOx New Source Allowances the Applicant states it will request have already been requested and allocated to the Athens Generating Project (Position No. 7).
Following discussion at the issues conference, this issue has changed slightly in scope. The reason for the two numbers was identified, but as discussed above regarding NOx LAER, the required number of offsets is in question due to whether the emission limit will be 2.0 or 2.5 ppmvd (corresponding to 313 tons or 390 tons, respectively). Further, although the application identifies the source of some of the emission offsets, the Applicant has obtained only 200 tons of offsets out of the 313 currently proposed. The Applicant has not yet submitted ERC forms to the Department Staff. The Department Staff intends to provide notice of the credits as one notice, not piecemeal, and the December 26, 2000 notice of hearing stated that there would be a subsequent notice for a separate public comment period in accordance with section 231-2.10. At the issues conference, I noted the provision regarding the supplemental public notice and that offers of proof relating to emission offset requirements would not be considered to be late-filed petitions for party status under Part 624 (see 231-2.10(c)(2)). I also noted the possibility of delay if the offsets are not identified relatively soon. The parties presented arguments regarding the stage of the process at which the offsets would need to be identified, which ranged from the time of the hearing to the time when the plant begins operation.
The question of when power plant siting applicants are required to obtain ERC's was addressed as Ruling #5 in the March 30, 2000 ruling on the Mirant Bowline LLC application, and I agree with the reasoning stated by Administrative Law Judge Kevin Casutto in that ruling, except as noted after the following quote from that ruling.
The Mirant Bowline ruling, at pages 12 to 13, stated as follows:
"The Applicant is required to obtain the necessary ERC's as a precondition to issuance of final permits. Pursuant to 6 NYCRR 231-2.10(c)(1), prior to issuance of a DEC air permit for any emission source which is part of a proposed major facility subject to the requirements of Part 231, a supplemental DEC public notice is required - i.e., a notice supplemental to the initial DEC Part 624 public hearing notice for the project.
"...The regulatory language specifies a 'supplemental public notice', not a new DEC hearing process separate from the Part 624 permit hearing process. Further, 6 NYCRR 231-2.10(c)(2) specifies that any petitions for party status filed pursuant to the supplemental public notice will not be considered late filed petitions under Part 624. Therefore, 6 NYCRR 231-2.10 requires that the permit hearing for the major facility air permit may be a bifurcated proceeding (assuming the ERC's have not been obtained and submitted with the initial permit application) to include any comment and proposed issues relating to the Applicant's submittal of proposed ERC's and DEC Staff's review thereof. Consequently, the ERC component of the DEC public hearing process must occur within the time frame of the related PSL Article X proceeding."
In the Mirant Bowline hearing, the issues conference record is being held open regarding the subject of any proposed issues related to review of the ERCs. In my view, this is not necessary in the Ramapo Energy hearing. In the present case, the opportunity to petition for party status regarding the ERCs and to identify issues for adjudication regarding the ERCs can be scheduled in the supplemental notice which will need to be published pursuant to 6 NYCRR 231-2.10. This process will, however, need to occur within the time frame of the Ramapo Energy DEC permit proceeding (and thus within the Article X proceeding).
Ruling: An issue has been raised in the Ramapo Energy hearing concerning the number of offsets required. In addition, the ERCs will need to be identified and the additional notice will need to be published within the time frame of the related PSL Article X proceeding. Further adjudication may be necessary, depending on the response to the additional notice.
Rockland County has already asserted that some of the offsets currently identified by the Applicant are not available. I am not making a ruling at present on whether this assertion raises a substantive and significant issue, but will consider this with any offers of proof that are submitted in response to the additional notice regarding certification of the ERC's. Rockland County may revise its offer of proof regarding whether the offsets comply with 231-2.9 after the additional notice is published.
Interaction of Control Technology for CO, NOx, and VOCs
PIPC/Ramapo stated that the Applicant's LAER/BACT analysis (Appendix E-1 of the Article X application) failed to adequately describe the interactions between carbon monoxide (CO) catalysts for CO reduction and their possible effect on VOCs. PIPC/Ramapo's February 12, 2001 petition for party status also contained a discussion of the application's reliance on combustion controls alone as BACT for CO, but in the September 29, 2000 letter to Chairman Helmer the Applicant agreed to the DEC Staff's request to include a CO catalyst. This latter part of the proposed issue has apparently been withdrawn by PIPC/Ramapo since it was not included in their March 30, 2001 petition.
At the issues conference on both February 16 and February 26, 2001, the Applicant's consultant Christopher Rein stated that VOC emissions will be reduced by installation of a CO catalyst and that there are no known interactions between CO catalysts and selective catalytic reduction (SCR) devices to reduce NOx when there are installed in the same power train. PIPC/Ramapo's March 30, 2001 supplemental petition and the attached March 17, 2001 report from its consultant contain no response to this assertion and simply re-state the position in the initial petition. They did not identify any additional possible interactions that would require further evaluation.
Ruling: PIPC/Ramapo has not identified an omission from the application regarding the interaction of these technologies. Further, the Best Available Control Technology analysis is a requirement of the PSD program and would not be adjudicated under the federal procedures for PSD permits. The New York State air quality standards of Part 257, discussed in an earlier section of these rulings, do not contain a technology requirement but instead specify ambient concentration limits.
BACT for PM-10
PIPC/Ramapo's February 12, 2001 petition asserted that the Applicant's BACT analysis for PM-10 fails to provide a cost analysis to justify rejection of established PM-10 control technologies such as electrostatic precipitators and fabric filters. At the issues conference, both the Applicant and the Department Staff stated that this is a PSD issue, and the Applicant stated that it is commonly known that these technologies are not technically feasible controls for gas-fired combustion turbines. PIPC/Ramapo stated that they would check with their consultant and respond in the supplemental petition. The supplemental petition said less about this proposed issue than did the original petition, and provided no information on whether the other technologies were feasible.
Ruling: This proposed issue is not substantive or significant. It would also not be an issue for adjudication since, as with the previous issue, it is related to the PSD program rather than to any state requirements. The parties' submissions on this subject will be treated as comments on the draft PSD permit.
Rockland County proposed an issue regarding the PSD increment for PM-10, arguing that the cumulative emissions of the Ramapo Energy project and the Torne Valley Station project would exceed the allowable increment. Rockland County also argued that the Applicant and the Department Staff had failed to comply with Air Guide 26 and Air Guide 12 regarding public input in situations where a project would consume more than 75% of the short term increment available. The Village of Suffern submitted a letter from its consultant which, among other things, noted that the allowable increment must be shared with all future sources.
The proposed issue is not subject to adjudication since it relates to the draft PSD permit. With regard to the Air Guide procedures, these specify the DEC's approval process in reviewing PSD increment consumption above 75% of the short-term increment. Air Guide 26 (at page 6) states that consumption above this limit must be approved by the Director of the Division of Air Resources. Air Guide 12 (at page 6) states that approval of this increment consumption by one source requires clearance by the Director following public input on the growth limiting potential of the project.
The DEC Staff's April 6, 2001 response to the petitions stated that the Director of the Division of Air Resources had determined that there is little or no potential for growth limitation under the conditions predicted by the modeling (response, p. 31 - 32). DEC Staff also stated that the legality of the Air Guide 12 policy is in question in view of the Clean Air Compliance Act of 1993, and cited ECL 19-0302 and 19-0303. Air Guide 12 is dated June 14, 1990.
Ruling: PM10 increment consumption will not be adjudicated in the DEC permit hearing on this project. The parties arguments on this subject will be considered as comments on the draft PSD permit.
Construction Impacts and Dust Control
PIPC/Ramapo argued that the draft permit conditions addressing dust impacts during construction are insufficient, and proposed a number of permit conditions based on the recommendation of its consultants. Some of these conditions, or ones similar to them, are already in the draft PSD permit, however, at section III.D.1 through 4. These include limiting truck speed and using dust suppression systems on all unpaved roads and disturbed areas.
Several of PIPC/Ramapo's proposed conditions are not in the draft permit, however. These include revegetating disturbed areas and paving roads within specified distances of highways. (The site is next to the access road for the Rockland County waste management facilities, which would be considered the nearest "highway"). PIPC/Ramapo also recommends covering stockpiled materials while the draft permit requires that they be periodically removed.
The Department Staff stated that no basis had been shown that additional measures are necessary or required as a matter of state or federal law, and that dust control conditions could be incorporated into the Article X certificate if necessary. The Applicant argued that PIPC/Ramapo had made no offer of proof why the measures in the draft permit were inadequate.
Some of the conditions proposed by PIPC/Ramapo are already in the draft permit. The others, with the exception of having truck washing stations at exits, are things that are commonly considered or required in the review of applications for sand and gravel mines or solid waste management facilities. Although the existing condition is in the draft PSD permit, authority also exists to include conditions such as these in a state facility permit under the general prohibition against air pollution in 6 NYCRR 211.2. The proposed issue is also within the purview of Article X. At the Article X pre-hearing conference, Rockland County tentatively identified it as an issue on which the County would present testimony.
Ruling: PIPC/Ramapo has identified additional dust control conditions, and will be allowed in the DEC hearing to present testimony regarding why these should be added to the draft permit conditions on this issue. It appears, however, that this is an issue which could be resolved by stipulation among the parties.
Rockland County asserted that the Applicant's analysis of formaldehyde emissions, using emission factors in the EPA publication AP-42, had demonstrated levels over the thresholds in Air Guide 1, but that the Applicant had then relied on a lower formaldehyde emission factor in another EPA publication as being more representative of the emissions from its proposed facility. Air Guide 1 is a DEC policy document entitled "Guidelines for the Control of Toxic Ambient Air Contaminants" (DEC Program Policy DAR-1, revised on November 12, 1997).
PIPC/Ramapo also stated that the Applicant had not properly evaluated formaldehyde emissions and had not demonstrated compliance with New York's annual or short term guideline concentrations. The report submitted by the consultant for PIPC/Ramapo identified formaldehyde as a concern because of the expected high background levels of formaldehyde in areas adjacent to major highways, and stated that high background formaldehyde levels when combined with formaldehyde point sources can lead to elevated cancer risks.
At the issues conference, there was discussion of which document was appropriate to use as the source of the emission factor, and of a third EPA document(4) which was distributed by the Department Staff at the conference in support of their argument that the CO catalyst would also reduce formaldehyde emissions and would need to be taken into account in evaluating the emissions from the facility. The Department Staff stated that the AP-42 factors assume no controls.
Although the Applicant's consultant initially stated that the third EPA document appeared to have lower emission factors than the EPA report used by the Applicant, the average emission factor in Table 1 of this document (the Roy memo) appears to be essentially the same as the factor which Rockland County cited from the April 2000 version of AP-42 (7.09E-4 lb/MMBtu in the Roy memo, and 0.00071 lb/MMBtu in Rockland County's petition).(5) The Applicant's responses to the petitions for party status did not include the assertion that use of the third document would lower the impacts even further, and this assertion appears to have been abandoned.
The EPA's "New Source Review Workshop Manual" (1990 Draft), cited by Rockland County in connection with this issue, identifies AP-42 as one of several methods of estimating potential to emit, along with "performance test data on similar units," "test data from EPA documents," and other methods. The manual states that, "For each emissions unit, the estimate should be based on the most representative data available." The stipulations in the Article X case for this project also identified this manual as one of the documents to be used in the air studies for the project. Thus, it appears that the question of whether to use the AP-42 emission factors or the emission factors in the report to Congress used by the Applicant is a matter of professional judgement. Rockland County has submitted an offer of proof that the AP-42 emission factors are more reliable than those used by the Applicant, and has proposed testimony by Arthur Fossa, P.E., on this subject. PIPC/Ramapo has also submitted a letter from their consultant Colin J. High, Ph.D., stating that the EPA report to Congress is not a substitute for AP-42.
Further, the March 17, 2001 Rockland County petition states that even when the 85% to 90% control associated with the CO catalyst is taken into account the impacts would still exceed the annual guideline concentration.
The Applicant's consultant noted that the application evaluated the combined impacts of the Applicant's proposed facility and the Torne Valley Station power plant proposed for a nearby site and found that the combined impacts were below the guideline concentrations. Aside from the question of the emission factor used, there is no indication that the formaldehyde emissions estimated for the other power plant are greater than or equal to the formaldehyde emissions from vehicles in the vicinity of the two power plant sites. The inclusion of impacts from the second possible power plant cannot be assumed to account for background levels from vehicles.
The Department Staff, in their April 6, 2001 response to the petitions, stated that the Torne Valley Station project proposal has been withdrawn. This does not appear to be so. The March 22, 2001 letter from Sithe Torne Valley LLC (which was included in the Department Staff's March 30, 2001 response to a PIPC/Ramapo discovery request) instead says that Sithe Torne Valley LLC is re-evaluating its proposal and intends to modify the proposal as described in the letter.
The alleged deficiencies in the topographic information used in the Applicant's modeling and the alleged deficiencies in the Applicant's complex terrain modeling are also relevant to this proposed issue and indicate the need for further inquiry.
The Department Staff's assertion that there are no regulatory requirements to impose any permit limits on formaldehyde is based on acceptance of the results submitted by the Applicant, which results are in question due to the choice of emission factors, as well as due to the intervenors' other criticisms of the analyses relevant to formaldehyde. The Department of Health comments and the Applicant's February 23, 2001 update of its assessment of non-criteria pollutant impacts in response to DOH, as cited in the DEC Staff's April 6, 2001 response to the petitions, do not appear to have been provided for the hearing file.
Ruling: The intervenors have raised a substantive and significant issue regarding formaldehyde emissions and impacts from the proposed project. This issue is also potentially an issue for adjudication in the Article X hearing under PSL 168(2)(b), even if it is not adjudicated as part of the DEC permit hearing.
PIPC/Ramapo's February 12, 2001 petition proposed that the limit for ammonia emissions should not be greater than 2 ppm. This was discussed as Issue No. 9 of the February 12, 2001 petition. PIPC/Ramapo argued that a similar limit applied to a power plant in Massachusetts owned by the Applicant's parent company.
This proposed issue was discussed at the February 16, 2001 issues conference, and the DEC Staff questioned whether there is any regulatory basis to impose such a limit in New York State. The Applicant agreed to provide certain documents about the Bellingham plant, and did so on February 26, 2001.
PIPC/Ramapo's March 19, 2001 and March 30, 2001 versions of their petition did not include the proposed ammonia limit as a separate issue. (The later versions of the petition do contain argument about how ammonia emissions should be considered in evaluating LAER for NOx, in the discussion of that issue as Issue No. 5 of the petition).
Ruling: No issue has been raised for adjudication regarding imposition of a 2 ppm limit for ammonia.
Record of Compliance
The DEC's Record of Compliance policy provides for the compliance history of permit applicants to be taken into account in deciding whether to grant or condition permits. The policy is contained in the Record of Compliance Enforcement Guidance Memorandum issued on March 5, 1993. PIPC/Ramapo proposed that "American National Power's problems at other power plants it owns are relevant to this case and should be adjudicated." PIPC/Ramapo only identified one violation, however, which involved ANP's power plant in Milford, Massachusetts and which led to a fine being imposed in January, 2001.
The Applicant opposed adjudication of this issue, and cited a recent interim decision (In the Matter of Waste Management of New York LLC, Interim Decision dated May 15, 2000) in which the Commissioner found no record of compliance issue based in part of the fact that there was no offer of proof that the personnel involved in the violations would be substantially involved in the proposed project. The Applicant also contrasted the Milford permit violation to the crimes involved in the case cited by PIPC/Ramapo (In the Matter of Al Turi Landfill, Inc., Interim Decision dated September 14, 1998).
The DEC Staff stated that they had contacted the Massachusetts Department of Environmental Protection and that based on DEC Staff's assessment of what happened with the Milford plant and of the conditions included in the draft permit for the Ramapo Energy plant, Staff would not modify or deny the Ramapo Energy air permits based on record of compliance considerations.
Ruling: The Milford plant's compliance history is relevant to the Ramapo Energy permit application, but this issue does not require adjudication other than to enter the Milford Power consent orders into the record and to allow the parties, in their briefs, to argue how it should be taken into account by the Commissioner in deciding whether to issue the permit and whether to add conditions. The scope of this issue is limited to this one situation, since there has not been an offer of proof regarding other violations. The Milford situation is not excluded from consideration based on the Waste Management Interim Decision since, although the personnel involved may or may not be the same at Milford and Ramapo, Ramapo Energy Limited Partnership has stated in its application that it will draw upon the experience of its parent ANP for management of the facility during operation (application, p. 1-2). The equipment involved in the Milford situation, as described in the DEC Staff's April 6, 2001 correspondence, was selective catalytic reduction equipment and the Applicant proposes to use technology of this general type at Ramapo. Since documentary evidence (the Massachusetts consent orders) exists regarding this, these documents will be included in the record and testimony would not be necessary unless a document is not clear on its face (see In the Matter of A-1 Recycling and Salvage, Interim Decision dated March 19, 1992).
The term PM2.5 refers to particles with an aerodynamic diameter of 2.5 microns or less. In 1997, EPA promulgated ambient standards for this air contaminant (62 FR 38651, July 18, 1997). These standards have been the subject of federal court litigation (Whitman v. American Trucking Associations, Inc., et al., __ U.S. __, (Docket No. 99-1257, decided February 27, 2001) and of rulings and interim decisions in recent DEC permit hearings (In the Matter of American Marine Rail, LLC, Interim Decision dated February 14, 2001). This contaminant was also proposed as an issue in two Article X power plant siting cases in which rulings have been issued recently (Consolidated Edison Company (East River), Issues Ruling and Procedural Ruling dated March 15, 2001; Mirant Bowline LLC, Issues Ruling dated March 30, 2001).
In the February 14, 2001 American Marine Rail (AMR) Interim Decision, the Commissioner of Environmental Conservation overturned an ALJ's ruling that PM2.5 impacts would need to be evaluated as part of the SEQRA review of a solid waste transfer station. In its February 27, 2001 decision, the U.S. Supreme Court overturned the D.C. Circuit Court of Appeal's decision that had invalidated the EPA's 1997 standard for PM2.5. The Supreme Court decision changed the legal status of the standard by confirming EPA's authority to promulgate it, but the current status of the EPA's implementation of the standard also affects whether there is an issue with regard to the DEC air permit under consideration here.
The Interim Decision in the AMR case was based only partly on the legal status of the PM2.5 standard (which at that time had been invalidated, and was under further review by the U.S. Supreme Court). The AMR Interim Decision also described the implementation of the standard by EPA, which includes gathering three years of data on ambient concentrations of PM2.5 and designating non-attainment areas. The designation of nonattainment areas is anticipated to occur in 2002, to be followed by a three year period in which areas designated as non-attainment would need to submit pollution control plans to EPA to meet the standard (Interim Decision, p. 11).
In the present case, the Village of Suffern submitted a letter from its consultant Dr. Egan which noted the Supreme Court decision and stated that for gas turbine emissions, most of the particulates identified as PM10 are also PM2.5. Citing the application's projected PM10 concentrations, Dr. Egan stated that the values are above the EPA's standards for PM2.5 and that therefore the fraction of PM10 that is PM2.5 needs to be carefully quantified.
TVPA/RCCA also proposed an issue regarding PM2.5, and sought to distinguish the present case from both American Marine Rail and Consolidated Edison (East River). In the latter case, the proposed issue of PM2.5 was excluded with respect to the DEC permit, but the Examiners allowed the intervenor to present its case regarding PM2.5 health effects as an issue under Article X (Ruling, pp. 11-15, 40-41). (Both of these cases, as well as the Mirant Bowline Issues Ruling and even the federal court case that invalidated the standards,(6) recognized the adverse health impacts of fine particulates.)
TVPA/RCCA identified several ways in which the Ramapo Energy project and its surroundings differ from the other two projects, and argued this proceeding is not limited to applying established standards but should instead include review under SEQRA and NEPA. As noted elsewhere in this ruling, however, and in the Commissioner's April 4, 2001 ruling, the comprehensive environmental review in this case is being done under Article X. The present rulings address what issues need to be adjudicated with respect to the DEC permits, and a separate ruling will be made regarding Article X issues for the Ramapo Energy project.
TVPA/RCCA's petition also asserted that substantially more baseline data is available now than at the time of consideration of the issues in the AMR proceeding, and that EPA has further developed its standards for assessing the impacts of PM2.5 since the dates of the AMR issues ruling and even the Interim Decision in that case. Although more data probably is available than at the time of the ruling, there is no indication that the three year data base has been completed. TVPA/RCCA provided no citation or specifics in support of its assertion that EPA has further developed the standards, either since August, 2000 or since February 14, 2001, and a search of the Federal Register showed no EPA notices to this effect.
Ruling: No issue regarding PM2.5 exists for adjudication with regard to the DEC permits for this project. Whether and how this issue would be addressed in the Article X hearing may be dealt with in the April 23, 2001 ruling on Article X issues.
Executive Order 12,898, issued by President Clinton in 1994, requires that "... each Federal agency shall make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies and activities on minority populations and low-income populations in the United States..." The U.S. Environmental Protection Agency is among the federal agencies that have been involved in implementing this Executive Order.(7)
On April 13, 2000, the DEC Staff required the Applicant to prepare an environmental justice analysis for the proposed project, as recommended by EPA Region 2 in a letter dated April 4, 2000. The Applicant submitted an Environmental Justice Analysis dated August 2, 2000.
In their March 3, 2001 petition for party status, TVPA/RCCA proposed an issue regarding the alleged defects in the Applicant's environmental justice analysis, including whether the procedure used was one that had been superceded by more recent EPA guidance, use of data from the 1990 census as opposed to the 2000 census, the methods used to identify the community of concern and the reference community, inadequate public participation, and cumulative impacts with the Torne Valley Station. TVPA/RCCA also proposed to present expert testimony about what their petition describes as "the Village of Hillburn's demographics and public health plight," and to conduct an independent environmental justice analysis.
Analysis of environmental justice was discussed at the Article X pre-hearing conference on January 31, 2001 in the context of a request from TVPA for intervenor funding for a consultant in the field of environmental justice (see PSL 164(6) and 16 NYCRR 1000.9 regarding funds for municipal and local parties in hearings under PSL Article X). TVPA was participating on its own, not jointly with RCCA, at the time of this request and the conference. In a ruling dated February 7, 2001, TVPA's request was denied without prejudice to TVPA's refiling a request that included certain additional information.
Environmental justice was first proposed as an issue for adjudication in the DEC permit hearing in the supplemental petition filed by TVPA/RCCA on March 19, 2001. This petition has now been superceded by TVPA/RCCA's March 30, 2001 petition. At the pre-hearing conference on January 31, 2001 the DEC Staff stated that the environmental justice analysis was requested as part of the PSD permit review and focused on air quality impacts, but that there potentially would be other environmental justice issues. The DEC Staff's April 6, 2001 response to the petitions does not address this proposed issue. The Applicant argued that the environmental justice issue is a component of the PSD process under a federal Executive Order, that there is no independent state law on environmental justice, and that as a PSD requirement the environmental justice analysis is subject to the procedural requirements of 40 CFR 124 which preclude adjudicatory hearings.
Environmental justice issues were discussed in the issues rulings for two recent hearings, one of which is an Article X power plant siting case (In the Matter of Consolidated Edison (East River), Issues Ruling and Procedural Ruling dated March 15, 2001). The other hearing is on a DEC permit application for a solid waste management facility (American Marine Rail, LLC, Issues Ruling dated August 25, 2000). The American Marine Rail application is not subject to PSL Article X but is subject to the State Environmental Quality Act ("SEQRA", Environmental Conservation Law Article 8).(8)
The American Marine Rail ruling stated that environmental justice is not specifically addressed in the Environmental Conservation Law, but that SEQRA already requires that agencies consider impacts to the environment including "land, air, water, minerals, flora, fauna, noise, objects of historic or aesthetic significance, existing patterns of population concentration, distribution or growth, and existing community or neighborhood character." (ECL 8-0105(6), 8-0109). The ruling found that this would appear to encompass the concerns of environmental justice that arose with respect to that application, and that doing a proper analysis under SEQRA would ensure that environmental justice considerations are addressed (ruling, p. 71).
In the Consolidated Edison Article X case, an intervenor challenged Consolidated Edison's environmental justice analyses and proposed to adjudicate the issue. In that case, both the applicant and the DEC Staff opposed adjudication of the issue, and the Applicant contended that the EPA and the DEC do not have authority to require an environmental justice evaluation for individual permit applications. The Consolidated Edison ruling stated that the environmental justice analysis was a requirement relevant only to the PSD application and that as such it would not be adjudicated pursuant to 40 CRF 124, that the analysis required by 6 NYCRR 231-2.4(a)(2)(ii) does not require an environmental justice analysis consistent with EPA guidelines. The ruling also stated that, as discussed in an earlier section of that ruling, the intervenor had raised a substantive and significant issue about whether the Applicant's 231-2.4(a)(2)(ii) analysis was sufficient to find that the benefits of the facility "significantly outweigh the environmental and social costs." (See Consolidated Edison ruling, pp. 31-37 for text of this discussion).
The facts, arguments and offers of proof in the Consolidated Edison case differ from those in the Ramapo Energy case. As in the Consolidated Edison case, however, Ramapo Energy's compliance with the EPA's guidelines or policies on how to conduct an environmental justice analysis is a question related to the PSD review and is not subject to adjudication.(9) The proposed issue of Ramapo Energy's compliance with 6 NYCRR 231-2.4 is discussed in the following section of the present ruling.
Apart from the question of compliance with EPA's December 20, 2000 guidelines, however, many of the underlying factual questions identified by TVPA/RCCA are ones which relate to the comprehensive environmental review of a DEC permit application. This review would be carried out pursuant to SEQRA for most projects requiring DEC permits, but pursuant to Article X for major electric generating facilities (8-0111(5)(b)). For the present project, the process analogous to what was done regarding environmental justice in the American Marine Rail case would be to consider these impacts under Article X.
The comprehensive environmental review of the Ramapo Energy project is being done under PSL Article X rather than under SEQRA (Ramapo Energy Limited Partnership, Commissioner's Ruling dated April 4, 2001, p. 5). The Commissioner's ruling described the environmental review under Article X as being as thorough as that under SEQRA (ruling, p. 2). Although the exact terms of Article X differ from those of SEQRA, the public health issues identified by TVPA/RCCA, the concept of minimizing adverse environmental impacts, the question of whether the facility is in the public interest, and other considerations related to this issue are within the scope of Article X (see PSL 168 regarding the required findings, and PSL 164(1) and 16 NYCRR 1001.3 regarding the required contents of an application). A separate ruling on Article X issues in the Ramapo Energy case is scheduled to be made on April 23, 2001.
Ruling: The Applicant's compliance with the EPA guidelines for environmental justice analyses will not be adjudicated as an air permit issue. The criticisms of the Applicant's environmental justice analysis will be treated as comments in the PSD permit review. Some of the underlying factual questions identified by TVPA/RCCA relate to the comprehensive environmental review of this project under Article X, and the scope of the Article X issues will be identified in a separate document.
Analysis of Alternatives under 6 NYCRR 231-2.4
This issue was proposed relatively late in the process of identifying issues for adjudication regarding the air and water permits. Rockland County's February 15, 2001 comments on the DEC permits alleged that this analysis was missing, but Rockland County did not include this in its February 10, 2001 petition for party status. The Applicant submitted a two page document with its March 7, 2001 response to the petitions, which identified the sections of the application which constituted this analysis.
TVPA/RCCA's March 19, 2001 petition did not discuss this subject, but their March 30, 2001 petition stated, in reference to the proposed environmental justice issue, that 6 NYCRR 231-2.4(a)(2)(ii) requires an analysis which evaluates the significance of social impacts and project benefits from the plant, and alternatives thereto. Rockland County's March 17, 2001 petition included an additional proposed issue regarding this analysis, which re-stated the County's position from its earlier comments, requested an additional 14 days within which to review the Applicant's document on this subject, and stated that the document failed to analyze the full range of alternatives and social costs. Although the deadline for supplementing the petitions was extended to March 30, 2001, the County did not submit further offers of proof regarding possible alternatives.
6 NYCRR 231-2.4, specifically at 231-2.4(a)(2)(ii), provides that: "Any proposed source project or proposed major facility which emits any nonattainment contaminant and is subject to [Subpart 231-2] according to any applicability criterion contained in section 231-2.2(a) of this Subpart must comply with the following permit requirements: ... submit an analysis of alternative sites, sizes, production processes, and environmental control techniques which demonstrates that benefits of the proposed source project of proposed major facility significantly outweigh the environmental and social costs imposed as a result of its location, construction, or modification within New York State...."
Ruling: The intervenors have not identified any issues regarding alternative sites, sizes or production processes regarding this project. The only aspect of alternatives for which a substantive and significant issue has been identified is that of environmental control techniques, specifically the control techniques for NOx, identified as an issue earlier in this ruling. Compliance with 6 NYCRR 231-2.4(a)(2)(ii) is not a separate issue in this hearing, but the demonstration required by this provision applies to the evaluation of the alternative control techniques for NOx.
State Facility Permit and Title V Permit
Arguments about which type of air quality permit is required for the project, and which type of permit had been applied for, were included in Rockland County's petition under Air Quality Permitting Process Position No. 1 and Air Quality Impacts Position No. 12, as well as in procedural arguments made by various intervenors. This subject was discussed earlier in the present rulings (see pages 5 through 7). No adjudicable issue has been identified concerning this subject.
Rockland County Position No. 12
Position No. 12 of Rockland County's petition identified various things it identified as omissions or deficiencies in the application. One of these was the omission of certain sources from the source inventory, which is discussed as a separate issue in these rulings. The other omissions have either been corrected, in the revised application submitted by the Applicant on March 7, 2001 or did not exist in the first place (the reference to "Part 237-3"). No issue is raised.
Emission Rates for Loads Between 75% and 100%
Rockland County's petition stated that the draft PSD permit contains emission limits for various pollutants at operating scenarios of 100% load and 75% load,(10) but that both draft permits fail to include limits for loads at intermediate levels of operation. The petition stated that "Given that some [combustion turbine] emissions are increased above the 100% load level when operating at lesser loads, it is imperative that the analyses and the permits clearly describe how emission rates will be determined within permit limits at loads between 75% and 100%; thereby providing a methodology that will be used over an appropriate averaging period to calculate facility emissions, and assuring that the appropriate level of offsets have been achieved" (emphasis added).
This proposed issue was discussed at the issues conference, and the Applicant identified the operating scenarios that had been evaluated (see Table 3 and page 6 of Appendix E-3). The table presents emission rates for ten operating scenarios, which consist of either 75% load or 100% load at ambient temperatures of -20, 0, 50 or 100 degrees Fahrenheit operating with out steam augmentation, plus two scenarios at 100% load with steam augmentation at 50 or 100 degrees F. Of the scenarios without steam augmentation, the highest emissions of NOx, PM10, SO2, sulfuric acid and VOC occur at 100% load and -20 degrees, while the highest emissions of CO occur at 75% load at -20 degrees. (Steam augmentation is discussed as a separate proposed issue below.)
Representatives of the Applicant stated at the conference that the response of CO to changes in the load percent are opposite to those of NOx. As the load increases, NOx emissions increase, but CO emissions decrease. The 100% load would produce the highest NOx emissions while the 75% load would produce the highest CO emissions. The Applicant's consultant stated that there was no need to specify emission limits for load conditions between 75 and 100%. The DEC Staff agreed with this description.
Rockland County argued that the emissions rates do not have a linear relationship to the load. The Applicant responded that the emission rate increases or decreases continuously depending on the pollutant in question, and there would not be a higher emission rate somewhere between the 75 and 100% load conditions. I asked whether the County was proposing testimony about there being a higher emission rate at some load between 75% and 100%, based on what has occurred elsewhere, and about whether the "given" that was stated in the proposed issue described anything different from the inverse relationship between NOx and CO emissions. The County did not provide any response to these questions which would indicate that further inquiry is necessary, but only made arguments about the adequacy of information in the application. The County's supplemental petition argued that emission rates vary for each of the ten scenarios, and that it would present permits for similar facilities that contain a matrix of limits, but the Massachusetts document that the County submitted in support of this offer of proof does not contain any loads between 75% and 100%.
Ruling: No issue has been identified for adjudication on this subject.
My review of the arguments on this proposed issue did, however, identify one question which should be clarified by the DEC Staff. The Air Quality Modeling Report (Appendix E-3 of the Article X application) at page 6 states that, "As the Project will have four identical turbines, individual units only need to be run in the range of 75% to 100% to provide a wide range of plant loads." No party cited a permit condition which limits the range of operation in this manner, however. I am requesting that the Department Staff identify where such a condition is stated, if it is, or provide a response regarding whether or not such a condition should be included.
Permit Conditions Regarding Steam Augmentation
Rockland County's February 10, 2001 petition stated that the draft air permits fail to address emission rates or fluctuations during use of steam augmentation. At the issues conference, the Applicant agreed to adding such conditions, and these were added by the DEC Staff in the March 7, 2001 revised draft permit.
Rockland County's March 17, 2001 supplemental petition did not contest the provisions of the added permit conditions, but only re-stated the original position about the permits failing to address this operating scenario.
Ruling: The revision of the draft permit resolves the issue which was originally proposed, and Rockland County has made no assertion or offer of proof that the added conditions in the draft permit are inadequate. No issue is raised.
Use of Emergency Diesel Generators
Rockland County proposed an issue regarding the number of hours per year during which the emergency diesel generators at the facility would be allowed to operate, arguing that the permit conditions are inconsistent with the manner of operation described in the application. The County also questioned how the use of these generators had been treated in the emissions estimates and modeling.
With regard to the latter question, the Applicant stated that only time when the diesel generators would be used at the same time as the combustion turbines would be during testing of the emergency equipment, and that under an actual emergency the turbines would not be operable. The Applicant stated that the emissions from the emergency diesel generators are much less than those from the turbines.
Ruling: The Department Staff revised Condition No. 22 of the draft state facility permit on March 7, 2001, in response to the argument about the number of hours permitted and to specify that the turbines would be shut down during emergency operation of the generators. Rockland County's March 17, 2001 supplemental petition re-stated essentially the same argument as had the original petition, and offered no reasons why the revised permit condition did not resolve the issue. No adjudicable issue exists regarding the emergency diesel generators.
Rockland County asserted that there is an inconsistency between the Article X application and the draft permits with regard to the emissions limits for carbon monoxide (CO). The difference between the two documents was due to the Applicant's September 29, 2000 agreement with the Department Staff's request that a CO catalyst be included in the project. The DEC Staff determined that a CO catalyst would be both BACT for CO and LAER for VOCs. The CO catalyst is anticipated to reduce emissions of both VOCs and CO. This proposed issue does not require adjudication.
Rockland County's February 10, 2001 petition stated that the draft state facility permit fails to properly limit opacity since the limit in the draft permit was the one found in 6 NYCRR 211.3 rather than the more restrictive limit in 6 NYCRR 227-1.3(a). The revised draft permit distributed by the Department Staff on March 7, 2001 contains the limit from subdivision 227-1.3(a) (see conditions 86 through 89). No issue remains for adjudication.
Standards of Performance for Stationary Gas Turbines
Rockland County asserted that the draft air permits fail to include provisions addressing the New Source Performance Standards under 40 CFR Subparts A and GG, including formulas for calculating NOx and SO2 standards, monitoring requirements, and various record keeping and notification requirements. At the issues conference, and the April 6, 2001 response to the petitions, the Department Staff noted that the draft PSD permit does contain SO2 testing requirements pursuant to Subpart GG, and that the Subpart GG NOx standard cited by Rockland County is far less stringent than the one already included in draft permit as a LAER requirement. The Applicant identified the permit conditions which address the Subpart A and GG requirements. Counsel for Rockland County stated that they would review the references cited at the issues conference.
Rockland County's March 17, 2001 supplemental petition restated the criticisms in its initial petition, and added arguments regarding requirements for Title V permits. The arguments relating to Title V permit requirements are based on the assertion that "the Applicant applied for a Title V permit, the County submitted comments on the Title V permit application as provided in the December 26, 2000 notice." As discussed on page 5 above, however, although the "Title V" box was checked on the permit application form, the December 26, 2000 notice identified the application as being for a preconstruction permit and certificate to operate. In addition, Rockland County's original petition for party status (dated February 10, 2001) presented its arguments regarding Subpart GG in terms of having reviewed the draft state facility permit (i.e., the draft preconstruction permit; see Position No. 10 of the original petition). The County's arguments regarding use of a Title V permit versus a preconstruction permit have already been addressed at pages 5 through 7 above.
Ruling: A review of the arguments and the draft permit conditions indicates that this proposed issue is without merit. The draft permits include the conditions described by the Department Staff and the Applicant, and there is no need to include the NOx formula which has effectively been superceded. This proposed issue would also have been a legal issue, rather than a factual issue requiring testimony.
Ammonia storage and general duty clause
Rockland County stated that the draft air permits fail to include provisions addressing requirements under the "general duty clause" of the Clean Air Act (CAA §112(r), 42 USC 7412(r), governing prevention of accidental releases)). The proposed issue specifically concerned preparation of a risk management program for storage and handling of ammonia used in the SCR system. The application states that since the project will use ammonia with a concentration of no more than 19%, a complete risk management program is not necessary, but the Applicant will conduct a hazard analysis that satisfies the general duty clause (application, p. 4-27). The Applicant stated at the issues conference that the hazard analysis would be done as a compliance filing under Article X. The DEC Staff stated that the DEC does not have delegation from EPA to implement section 112(r) of the Clean Air Act.
At the Article X pre-hearing conference on February 26, 2001, TVPA/RCCA and PIPC/Ramapo tentatively identified ammonia storage and transportation as an issue on which they proposed to present testimony, and PIPC/Ramapo stated that they would probably be proposing that a full risk management plan be implemented.
Ruling: This is an issue which would be considered under Article X, if proposed by the parties, rather than as part of DEC's permit hearing since it is not within the DEC's implementation of the Clean Air Act.
Rockland County argued that the 180 foot Good Engineering Practice (GEP) stack height and the results of subsequent air dispersion modeling performed by the Applicant are incorrect based on review of the EPA guidance documents and certain depictions of the facility in the application. GEP, with respect to stack height, is defined in the Clean Air Act as "the height necessary to insure that emissions from the stack do not result in excessive concentrations of any air pollutant in the immediate vicinity of the source as a result of atmospheric downwash, eddies and wakes which may be created by the source itself, nearby structures or nearby terrain obstacles (as determined by the Administrator)." (42 USC 7423(c)). GEP is also defined in 40 CFR 51.100(ii).(11) There is an EPA document on this subject entitled Guideline for Determination of Good Engineering Practice Stack Height (Technical Support Document for the Stack Height Regulations), EPA-450-4-89-023R, June 1985. DEC's Air Guide 26 also addresses this subject. Some pages from the EPA Guideline were attached as Exhibit D of the Applicant's April 6, 2001 response to the petitions, but the great majority of the document is not in the record.
The County asserted that the Applicant had not properly taken into account the effects of the turbine building, the cooling towers and the water tanks in this evaluation. Although the Applicant asserted that under the EPA guideline the cooling towers would be considered a porous structure and their use in the formula for GEP would be limited to the solid part of the structure, the County disputed this. The pages of the EPA guideline which were cited by the parties regarding their differing interpretations of this are not in the record.
In the March 19, 2001 supplemental text regarding this proposed issue, Rockland County also argued that the Applicant's GEP determination had failed to consider significant terrain features which the County said would have a high potential to cause downwash and to adversely effect the ground level concentrations of air pollutants. The Applicant's April 6, 2001 response argued that the definition of GEP in 40 CFR 51.100(ii), which contains a formula based on the height and lesser dimension of nearby structures, does not provide for an adjustment to this formula for nearby terrain heights unless DEC or EPA requests that a fluid modeling study be done. The Applicant also disputed the County's interpretation and application of the EPA Guidance with regard to how to define "nearby" features.(12) The Applicant also stated that Rockland County cannot claim there are any terrain downwash effects unless the County itself performs a fluid modeling study.
The definition of GEP stack height in 40 CFR 51.100(ii) contains three paragraphs numbered 1 through 3. The definition starts by saying that "Good engineering practice (GEP) stack height means the greater of: [the heights as determined in paragraphs 1 through 3]." The language quoted by the Applicant comes from the second of these paragraphs (40 CFR 51.100(ii)(2)(ii)). The quoted material, which is in the paragraph that also contains the formula, allows the regulatory agency to require the use of a field study or fluid model to verify GEP stack height for the source. There is an additional paragraph (40 CFR 51.100(ii)(3)) stating, "The height demonstrated by a fluid model of a field study approved by the EPA State or local control agency, which ensures that the emissions from a stack do not result in excessive concentrations of any air pollutant as a result of atmospheric downwashes, wakes, or eddy effects created by the source itself, nearby structures or nearby terrain features." The definition does not limit the consideration of terrain features and nearby structures only to situations where the regulatory agency has specifically required this. It also does not prohibit others from contesting either the GEP stack height as determined by an applicant, or the regulatory agency's decision (if any) about whether to require use of a field study or a fluid model.
Ruling: It is not necessary that the County have done its own modeling study in order to contest how the Applicant determined GEP stack height for the proposed project. The County has provided a detailed discussion of what it asserts are defects regarding this determination, and proposes to present testimony on this issue by Arthur Fossa, P.E.. Although the Applicant disputed the County's assertions, further inquiry is required to determine which position is more valid and whether the proposed stack height meets the requirements. Several aspects of this issue involve interpretation of detailed guidance, some of which is not in the record at present, and about which the parties' experts disagree. A substantive and significant issue has been identified concerning the GEP stack height for the proposed project.
Acid Rain (Title IV) Application
Rockland County stated that the Applicant's Title IV application and accompanying SO2 data were not incorporated as part of the record, and were not available for review by Rockland County. The Department Staff and the Applicant both stated that the Acid Rain permit application does not have to be submitted at this time, but that the Applicant did submit the application. The Title IV Acid Rain permit application was submitted with an October 13, 2000 letter from the Applicant's consultant to Chairman Helmer.
Although the Applicant provided this clarification in its March 7, 2001 response to the petitions, Rockland County's March 17, 2001 supplemental petition merely re-states its original position. I have obtained a copy of the October 13, 2000 letter and have included it in file of correspondence regarding the hearing. No issue is raised for adjudication.
Quantification of VOCs
Rockland County alleged that the air permit application and the Article X application's calculations quantify VOCs through the use of the non-VOC hydrocarbon methane. At the issues conference on February 26, 2001, the Applicant's consultant stated the County's position was erroneous and that the Applicant was proposing to use methane as a reference gas in testing for VOCs, as is appropriate under EPA Method 25A. The County did not respond to this assertion at the issues conference nor in its March 17, 2001 supplemental petition, which re-stated the original position verbatim. No issue is raised for adjudication.
Revised Draft Permits and DEC's Summary of Revisions
PIPC/Ramapo's March 30, 2001 supplemental petition contained an additional proposed issue (No. 11) regarding alleged errors in the DEC Staff's March 12, 2001 summary of the changes to the draft permit. This proposed issue also asserts that the draft permit excludes a necessary test method for particulate matter (Method 202). The Applicant's April 6, 2001 response identified six items in the revised permit conditions which list Method 202, and stated that it has not been excluded. The March 12 summary of changes listed four items for which the Applicant had recommended citing Method 201A; the summary listed the permit conditions by the numbers in the original draft permit, which was renumbered in being revised.
The draft permit now contains at least six conditions regarding particulates or PM-10, which specify both test methods 201/201A and 202 as the reference test methods. PIPC/Ramapo did not identify the conditions from which the method had been excluded, so any additional references to it which might be necessary (beyond those cited by the Applicant) have not been identified.
Ruling: The summary of changes to the draft permit is a document that is not required as part of the application, the draft permit or the permit review process generally. The revised draft permit is the relevant document, and it speaks for itself. The summary of the changes made in preparing the revised draft permits was an explanation provided by the DEC Staff. Challenges to the document's accuracy do not raise any substantive or significant issues.
Issues Between the Applicant and DEC Staff Regarding Draft Permit
In addition to issues proposed by intervenors, adjudicable issues can exist relating to a dispute between the DEC Staff and an applicant over a substantive term or condition of a draft permit (624.4(c)(1)(i)). Department Staff's March 7, 2001 revised draft permit incorporated some, but not all, of the changes proposed by the Applicant in a letter dated February 8, 2001. On April 5, 2001, the Applicant's consultant transmitted a letter identifying proposed changes in the revised draft permit, some of which had been proposed in the February 8 letter but not made. The April 5 letter also stated that the Applicant was interested in discussing the comments further with the DEC Staff. I do not know if this has occurred or if any agreement has been reached. DEC Staff has not stated a reason why some of the proposed changes were not made.
The Applicant described some of the proposed changes as reflecting changes in the relevant regulations, and if so, their omission may simply have been an oversight in preparing the revised draft permit. If not, there may be a dispute about what is required. The correspondence about the draft permit does not provide an adequate basis for deciding which of the comments are substantive, but the comments all relate to permit conditions and at least some of them are substantive.
Ruling: The Applicant's April 5, 2001 proposed changes to the draft permit are currently an issue in this hearing. It is possible, however, that some of these may be resolved if the DEC Staff confirms the agreements between the Applicant's consultant and the DEC Region 3 Office that are described in the letter. Also, the outcome of some of the comments may be resolved depending on what is required in regulations that may have been amended recently. If the differences between the DEC Staff and the Applicant are not resolved prior to the hearing, the Applicant may contest these permit conditions either through testimony or briefing, as appropriate. If the Applicant does not contest these provisions, or does not prevail in doing so, the changes proposed in the April 5, 2001 letter will not be made.
SPDES General Permits for Storm Water
As stated in the hearing notice, the DEC Staff determined that the project is subject to general permits for storm water discharges under the State Pollutant Discharge Elimination System ("SPDES," Environmental Conservation Law ("ECL") Article 17, Titles 7 and 8). No individual SPDES permit application for waste water (as opposed to storm water) discharge was required since the Applicant proposes to discharge waste water to a sewer.(13) The general permits are GP-93-06 (Storm Water Discharges from Construction Activities) and GP-98-03 (Storm Water Discharges Associated with Industrial Activity Except Construction Activity).
In the 1990's, the DEC issued these two general permits for storm water discharges. Each general permit allows for specified activities to be conducted pursuant to the conditions in the general permit, without the need for an individual permit application, and also identifies categories of activities that are not authorized by the general permit. In both general permits, these ineligible activities include discharges "that are likely to adversely affect a listed or proposed to be listed endangered or threatened species or its critical habitat."(14)
Both general permits also contain a requirement that discharges associated with activities that require any other permit under the Uniform Procedures Act (ECL Article 70, 6 NYCRR 621) must submit information specified in an appendix to the particular general permit.(15) The air permit required under 6 NYCRR Part 201 for the proposed project is one of these permits. Upon review of this information, the DEC may authorize an applicant to submit a notice of intent to obtain coverage under the general permit, or may require an application for an individual SPDES permit.
Rockland County's February 10, 2001 petition for party status stated, as storm water Positions No. 1 through 4, that the project is not eligible for coverage under either general permit due to lack of the information required in the two appendices, and due to the project's impact on a threatened species (timber rattlesnakes)(16) At the February 16, 2001 issues conference, the Applicant identified the sections of the application that contain the information required in Appendix G of the permit for construction activities. The Applicant stated that it would provide the information in Appendix C, and subsequently provided a document that contained a table of estimated storm water discharge characteristics for operations. The Applicant argued that the impacts on timber rattlesnakes would be due to the land clearing and habitat removal on upland portions of the site rather than due to storm water discharges, and that the wetlands are not significant rattlesnake habitat.
In the supplemental petitions for party status, PIPC/Ramapo and TVPA/RCCA also contested the applicability of the general permits. The supplemental petitions identified additional reasons why the general permits would not be applicable, which included alleged inadequacies in the Applicant's estimates of pollutants in the runoff, assertions about increased runoff and sediment transport, and assertions that increased runoff from the site may destabilize the closed landfill which is near the site.
In the supplemental petitions for party status, Rockland County proposed expert testimony that the runoff volume and velocity would increase, leading to increased transport of sediments even with the traditional sediment controls identified by the Applicant.(17) Rockland County also argued that the pollutant estimates submitted by the Applicant are qualitative and unsupported, and the County proposed to present testimony that the pollutants for which estimates are required are typically found in storm water from electric generating stations, due to handling and spillage of various materials. Rockland County made additional arguments about the impact on both rattlesnake habitat and the snakes themselves, and proposed testimony of a wildlife biologist on this subject. TVPA/RCCA proposed testimony by a hydrogeologist concerning possible impacts on the landfill due to increased runoff. PIPC/Ramapo proposed testimony regarding impacts on rattlesnakes, but this testimony may not relate directly to impacts of the water discharges.
With regard to the pollutant estimates, Rockland County asserted that Appendix C requires estimates of concentrations of various parameters. The relevant section of Appendix C does not use the word "concentrations," but in the context of what it requires, the information provided by the applicant may not be sufficient. The Applicant's table is written in terms of saying that the pollutants will be present in amounts less than what would violate the relevant standard. Particularly where the County has proposed expert testimony to contest this, the information submitted by the applicant does not resolve the question or eliminate the issue.
The DEC Staff's position is that the storm water discharges are not going to impact rattlesnake habitat, that the information provided by the Applicant on the subjects identified in the two appendices was sufficient, and that no issue had been raised with regard to the storm water permits. DEC Staff stated that impacts of construction on the rattlesnakes would be raised as an issue in the Article X hearing, but that the storm water discharge was not the concern.
The Applicant contested the assertions in the supplemental petitions. Except as discussed below regarding Rockland County's position No. 2, however, the Applicant's response only provides conflicting interpretations of the scientific and technical disputes which relate to whether or not the project is eligible for coverage under either general permit.
TVPA/RCCA and PIPC/Ramapo each discussed the applicability of the SPDES storm water permits as a single issue, but Rockland County's petition divided the issue into four separate positions, regarding the impacts and the adequacy of the information associated with each of the two permits. Of these four positions, Rockland County's storm water Position No. 2 is without merit. This position concerns the completeness of the information provided by the Applicant under Appendix G of GP-93-06 (construction). The local erosion control requirements which Rockland County stated were missing are specifically referenced in the Article X application at page 9-11. The County also asserted that the Applicant failed to describe the provisions of 6 NYCRR Part 663 (freshwater wetlands) and of Part 703 (water quality standards), but no permit under Part 663 is required for this project and Part 703 does not set forth "erosion and sediment control requirements" for which a description would be required under Appendix G of GP-93-06. Position No. 2 also included a footnote stating that DEC and U.S. Army Corps of Engineers wetland permits are required for the project, but state wetland requirements are reviewed under the Article X process and the applicant proposes to comply with the Corps of Engineers Nationwide Permit Program (application, pp. 6-51 to 6-52). The County has not presented any arguments or offers of proof that call these assertions into question.
Ruling: Apart from Rockland County's storm water Position No. 2, the intervenors have raised a substantive and significant issue regarding whether the project is subject to either of the general permits, as opposed to needing to apply for an individual SPDES permit for storm water discharges.
For the portion of this issue which relates to timber rattlesnakes, a key question is whether the habitat is or is not critical habitat for this species, not simply whether it is habitat. In addition, to the extent that the testimony may involve any confidential habitat information which would be protected under ECL 3-0301(2)(r), as opposed to testimony about the use of various habitats by the timber rattlesnake generally, the procedures established in the February 14, 2001 procedural ruling in the Article X case (Case No. 98-F-1968) apply. The parties must abide by the procedures stated in the ruling when preparing their testimony and exhibits regarding this portion of the storm water permits issue.
Water Quality Degradation in Torne Brook and Ramapo River
The February 6, 2001 petition for party status which was submitted jointly by RCCA and PRC alleged that the construction and operation of the proposed plant would be likely to cause violations of state water quality standards in Torne Brook, and would violate the antidegradation provisions of the Clean Water Act. One of the attachments with the petition asserted that the Applicant's project, together with the Torne Valley Station and two possible residential developments in the area, would cause the total nitrogen levels in Torne Brook and the Ramapo River to almost double.
At the issues conference on February 26, 2001, I inquired about the basis for the statements cited above, and about whether RCCA would be presenting testimony regarding this assertion. Counsel for RCCA requested that he be allowed to respond to this question in the March 19, 2001 correspondence supplementing the petitions. No response to these questions was provided in either the March 19 or March 30, 2001 supplemental correspondence regarding the TVPA/RCCA petition for party status.
Ruling: The February 6, 2001 petition's unsupported and general statement on this subject is not sufficient to raise an issue for adjudication. While it is possible that facts related to this proposed issue may also be relevant to the issues of applicability of the General Permits for storm water, no separate or additional issue regarding antidegradation has been raised.
Water Supply and Other Issues Proposed by RCCA/PRC
In their February 6, 2001 petition, RCCA and PRC proposed several issues regarding water supply and regarding effects on the Rockland County Sewer District No.1. These proposed issues are outside of the scope of the hearing on the DEC air and water permits. Additionally, the offer of proof did not raise a substantive and significant issue as defined in 6 NYCRR Part 624. Some of these issues may, however, be within the scope of the Article X proceeding which will be the subject of a separate ruling.
Pursuant to 6 NYCRR Subdivisions 624.6(e) and (g), and 624.8(d), these rulings on party status and issues may be appealed in writing to the Commissioner.
Any appeals must be received at the office of the Commissioner no later than 4:00 P.M. on April 24, 2001 , at the following address: Commissioner Erin M. Crotty, NYS Department of Environmental Conservation, 50 Wolf Road, Albany, New York 12233-1010 (firstname.lastname@example.org)
The parties are to transmit copies of any appeals and replies to all persons on the service list at the same time and in the same manner as they are sent to the Commissioner.
The parties recently agreed to accept service by e-mail for the Article X issues statements which were due on April 16, 2001, provided that a hard copy is also served via regular mail and that any attachments are received by April 16. PIPC/Ramapo proposed that e-mail service also be permitted for additional service dates, if service of the April16 documents works well. I am authorizing service of appeals of this issues ruling by e-mail as well, under the same requirements about hard copy and attachments. (If a problem arises with the e-mail service on April 16, I may be contacting the parties about sending the hard copy of appeals of this ruling by overnight mail as opposed to regular mail.) Service by fax is not authorized.
Appeals should address these rulings directly, rather than merely restating a party's contentions.
Susan J. DuBois
Administrative Law Judge
Albany, New York
Dated: April 17, 2001
TO: Persons on 3/22/01 Interim Service List
Persons on Active Parties List
1 PIPC/Ramapo's assertion, in the heading on page 11 of its March 30, 2001 petition, that the December 26 notice found the Applicant's Title V permit application to be complete, does not accurately describe the notice.
2 The April 12, 2001 letter from PRC, which I received by fax on April 16, 2001, did not provide the clarification I requested at the issues conference. The letter was also sent after the deadline for supplementing the petitions.
3 Ramapo Energy Limited Partnership is a Delaware limited partnership, formed by American National Power, Inc. to be the owner/operator of the proposed project (Application, p. 1-2).
4 December 30, 1999 memorandum from Sims Roy of the Emissions Standards Division to "Docket A-95-51"
5 There appears to be a typographical error regarding this factor in the March 30, 2001 PIPC/Ramapo petition and Exhibit H of that petition.
6 American Trucking Associations v. EPA, 175 F.3d 1027, 1056 (D.C. Cir. 1999)
7 EPA's implementation of the Executive Order with regard to federally-funded programs administered by states under the EPA statutes is discussed in the Administrative Law Judge's issues ruling in a pending DEC permit hearing (In the Matter of American Marine Rail, LLC, Ruling dated August 25, 2000, pp. 66 - 73.)
8 Although the ruling about PM2.5 in the American Marine Rail issues ruling was reversed by the Commissioner in an Interim Decision dated February 14, 2001, the Commissioner did not reverse or modify the ALJ's ruling with regard to environmental justice.
9 See In the Matter of Ramapo Energy Limited Partnership, Ruling of the Commissioner, April 4, 2001, p. 5-6, and April 9, 2001 ALJ ruling, regarding PSD procedures.
10 Although Rockland County stated that the state facility permit fails to designate which factors are assigned to which scenario, the DEC Staff responded that the 75% load level is process GA1 and the 100% load level is process GA2 in the state facility permit.
11 This subdivision is denoted by a double lowercase letter i, not a lowercase Roman numeral 2.
12 50 CFR 51.100(jj) also defines "nearby" structures and terrain features.
13 The availability of the sewer connection was called into question at the public statement hearing, but no party proposed this as an issue in their petition for party status. If the waste water would be discharged to waters of the state, a SPDES permit would be necessary for this discharge (ECL 17-0701).
14 GP-93-06, section I.C.4; GP-98-03, section I.C.5
15 For GP-9-06 (Construction activities) this is Appendix G, which includes information about erosion control measures, runoff, and impervious areas; for GP-98-05 (Industrial activities) this is Appendix C, which includes among other things estimates of pollutants for all outfalls.
16 Timber rattlesnakes (Crotalus horridus) are listed as a threatened species in New York State (6 NYCRR 182.6(b)(5)(v)). ECL 11-0535(2) prohibits the taking of any endangered or threatened species, except under license or permit from DEC). See also the 1999 Commentary following ECL 11-0535 (McKinney's Consolidated Laws of New York Annotated).
17 The construction would involve significant amounts of blasting and earthmoving, on slopes mostly ranging from 8% to 35%, lending additional weight to the offers of proof.