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Wawayanda Energy Center - Ruling, January 11, 2002

Ruling, January 11, 2002

NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION

Application of Wawayanda Energy Center, LLC. for: (1) a Preconstruction Permit and Certificate to Operate, pursuant to title 6 of the New York Code of Rules and Regulations (6 NYCRR)Part 201; (2) a Clean Air Act (CAA) Title IV permit pursuant to Code of Federal Regulations (CFR) § 76.6(a)(3), Environmental Conservation Law (ECL) Article 19, 6 NYCRR Part 201 and Subparts 201-6.1 and 231-2; and, (3) a State Pollutant Discharge Elimination System (SPDES) storm water permit pursuant to Article 17 of the ECL and 6 NYCRR Part 750 et seq.

RULING ON ISSUES AND PARTY STATUS

DEC Case #

3-3356-00109/00001

Companion to:

PSC Case 00-F-1256

January 11, 2002

Executive Summary

This ruling addresses issues proposed for adjudication in the DEC administrative hearing process in the above-captioned matter. A separate ruling will be issued shortly regarding issues proposed for adjudication in the Article X hearing process.

Four petitions for party status were timely received regarding the Application of Wawayanda Energy Center, LLC (Applicant"). These petitions were from: 1) Wawayanda Citizens Advisory Group ("WCAG") which proposed ten issues for adjudication; 2) Orange Environment, Inc. ("OE") which proposed three issues for adjudication; 3) the Town of Wawayanda ("Town") which proposed six issues for adjudication; and, 4) Mrs. Carol A. Moore who proposed two issues for adjudication. In addition, one late-filed petition for party status was received from the City of Middletown ("City") which proposed one issue. Finally, two letters were received from neighbors of the proposed plant, Dr. Deevy-Jane Greitzer and Mrs. Jeanette Nebus requesting amicus status.

The Associate Examiner finds that none of the twenty-two issues proposed meet the standard for adjudication and, accordingly, all petitions for party status in the DEC administrative hearing process are denied. Consequently, the Associate Examiner rules that no DEC adjudicatory hearing is necessary. This matter is remanded to the Staff of the Department of Environmental Conservation ("DEC Staff") to continue processing the permit applications.

Introduction

This ruling addresses the DEC issues conference in the above captioned matter. A separate ruling regarding the proposed Article X issues will be released shortly.

There are two separate and distinct approvals that the Applicant needs to construct and operate its proposed power plant. The first approval is a Certificate of Environmental Compatibility and Public Need, which must be secured from the New York State Board on Electric Generation Siting and the Environment ("the Siting Board"). The second approval, from the Department of Environmental Conservation ("DEC"), constitutes permits to discharge air pollution and storm water. Each agency has its own administrative hearing process, which includes an opportunity to adjudicate issues. In order to promote the efficiencies of the two hearing processes without sacrificing any of the procedural protections, a hearing schedule is in effect that closely coordinates these two administrative hearing processes.

Project Description

The Applicant proposes to construct and operate two General Electric 7FB combustion turbines, heat recovery steam generators and one steam turbine generator 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 540 megawatts. The Project will employ an Air Cooled Condenser and will require on average 244,000 gallons per day ("gpd"). Cooling water will be supplied by the City of Middletown's publily owned treatment works and potable water (5,000 gpd) will be supplied the City of Middletown through Wawayanda Water and Sewer District No. 1. The project is located off Dolsontown Road, approximately 2,000 feet east of the intersection with 17M, in the Town of Wawayanda, Orange County.

Public Notice

The public notice provided by the Applicant to the surrounding community exceeds what is required by law. DEC regulations required the Applicant to publish the notice of hearing once, at least thirty days prior to the hearing date, in a newspaper having general circulation in the area within which the proposed project is located (6 NYCRR 624.3).

In this case, the Applicant voluntarily exceeded these minimums. The official DEC Notice of Complete Application, Public Hearing and Issues Conference was published in the Middletown Times Herald Record on October 28 and 31, 2001. In addition, a supplemental notice regarding Emission Reduction Credits ("ERCs") was published in the Middletown Times Herald Record on November 18, 2001.

Legislative/Public Statement Hearing

As provided in notices issued by the Secretary to the Siting Board and the DEC Office of Hearings and Mediation Services, and published in newspapers by the Applicant described above, joint legislative/public statement hearings were convened at 1:00 p.m. and 7:00 p.m. on December 4, 2001 at Slate Hill Social Hall, 1975 Route 284, Slate Hill, New York.

During the afternoon hearing, approximately 60 people attended and 11 people made oral statements for the record. Of those who spoke, 5 spoke in favor of the project and 6 spoke against. During the evening hearing, approximately 130 people attended and 27 people made oral statements for the record. Of those who spoke, 5 spoke in favor of the project and 18 spoke against.

Issues Conference

A joint issues conference occurred on December 6, 2001 at 11:30 a.m. at the Slate Hill Social Hall, 1975 Route 284, Slate Hill, NY, and continued on December 18, 2001, at 11:30 a.m. at the New Hampton Social Hall, 5024 Route 17M, New Hampton, NY. On December 6 and briefly on December 18, DEC proposed issues were discussed pursuant to 6 NYCRR Part 624. In the afternoon of December 18, the Article X proposed issues were discussed.

Introduction

The DEC issues conference occurred on December 6, 2001 and reconvened briefly on December 18, 2001. On December 6, twenty-one issues were proposed for adjudication. Due to complaints from a number of parties that they had not had enough time to prepare, the Associate Examiner allowed the parties additional time to supplement their offers of proof on their proposed issues. These supplemental offers of proof were received on December 14, 2001.

At the December 18, issues conference these supplemental offers of proof were discussed. Also discussed on December 18, 2001 were matters relating to Emission Reduction Credits ("ERCs"). Due to the bankruptcy of Bethlehem Steel, in Pennsylvania, the Applicant could not get custody of the ERCs it had entered into a contract to buy from Bethlehem in time for the initial DEC hearing notice. Thus, a supplemental notice regarding the use of the ERCs had to be published after the bankruptcy trustee released the ERCs. At the December 18, issues conference, Orange Environment proposed one issue related to ERCs (this is discussed as DEC issue #13, below).

Appearances

The Applicant and DEC Staff are parties to a DEC Issues Conference by operation of law (6 NYCRR 624.5(a)). The Applicant appeared by its attorneys Stephen L. Gordon, Esq. and Michael G. Murphy, Esq. of the law firm Beveridge & Diamond. Also present for the Applicant were David A. Devine, Donald R. Neal, Dan Thompson, Donald B. Walters, Richard Kanoff, Theodore Main, John Flumerfelt and Stephan Solzhenitsyn.

DEC Staff appeared by William G. Little, Esq., and Mark Sanza, Esq. Also present from DEC Staff were Leon Sedefian, Christopher Hogan, and George Sweikert.

DEC regulations allow any person, organization or combination thereof to file a petition for consideration of a request for full party status (6 NYCRR 624.5(b)). Five petitions for party status were received. The first petition was received from the Wawayanda Citizens Advisory Group ("WCAG"). The WCAG was represented by Mathy Stanislaus, Deborah Marie Glover, and Rose Robischon. Also present for the WCAG were Robert E. Henshaw, Laura Truettner and Bob Newman.

The second petition was received from Orange Environment, Inc. ("OE"). OE appeared by Harold Ross, Kate Fox, Scott Thornton, Esq., and George Thurston.

A third petition was received from the Town of Wawayanda ("Town"). The Town was represented by David G. Zuckerman, Esq. Also attending for the Town were Michael Bontje, James Ullrich and Ross Winglovitz.

A fourth petition was filed by the City of Middletown ("City"). The City appeared by Richard J. Guertin, Commissioner of Public Works. Russell A. Budd and Chistakis Roumbas also attended.

A fifth petition was filed by Mrs. Carol Moore, who appeared pro se.

In addition, two petitions for amicus status were received, one from one from Jeanette Nebus, from the Coalition of Health Professionals Against Pollution and the second from Dr. Deevy-Jane Greitzer.

Proceedings and Closure of the Record

The DEC issues conference record closed on January 2, 2002 with the receipt of the issues conference transcript.

Standard for Determining Issues

For the environmental permit applications pending before the Department of Environmental Conservation ("DEC"), Title 6 of the Official Compilation of Codes, Rules and Regulations (6 NYCRR §624.4(c)) outlines the standards for adjudicable issues. When, as here, the DEC Staff has determined that a proposal, as conditioned by the draft permits, will conform to all applicable statutory and regulatory requirements, the burden of persuasion is on the prospective party advancing the issue to show that the proposed issue is both substantive and significant.

An issue is substantive if there is sufficient doubt about the applicant's ability to meet the applicable statutory or regulatory criteria such that a reasonable person would inquire further. To determine whether an issue is substantive, the DEC associate examiner must consider the proposed issue in light of the application and related documents, the draft permit, the content of any petitions filed for full party status and amicus status, the record of the DEC issues conference and any subsequent written arguments authorized by the DEC associate examiner. To be substantive, the issue cannot be based merely on speculation but on facts that can be subjected to adjudication. SIZE="-1"(3) In addition, an issue can be demonstrated by identifying a substantive defect or omission in the application materials. SIZE="-1" 4)

An issue is significant if the adjudicated outcome can result in permit denial, a major modification to the proposed project, or the imposition of significant conditions in addition to those proposed in the draft permit. SIZE="-1"(5)

Issues Proposed for Adjudication

A total of twenty-two issues were proposed for adjudication by five separate Intervenors. Each is discussed below.

Issues Proposed by the WCAG

The WCAG is a non-profit organization which was formed "to address concerns regarding the adverse environmental and health impacts associated with the operation of the proposed project on the surrounding communities" (WCAG Petition, p.1).

The WCAG timely filed a petition for party status for the December 6, 2001 issues conference. On this date, members of the WCAG complained that they had not had enough time to prepare. In response, the Associate Examiner granted the WCAG an additional opportunity to supplement its offer of proof on the issues raised in its petition. This supplement was timely received and discussed when the issues conference resumed on December 18, 2001. This supplement is also relied upon as a basis for this ruling.

Since none of the ten issues proposed for adjudication by the WCAG are found to meet the standards for adjudication, party status in the DEC administrative hearing process is denied, for the reasons stated below in this ruling.

Generally, the WCAG does not support its contentions with an offer of proof to show that a standard would be contravened or that the analyses, methodologies, air modeling protocols or other prescribed methods were in error or not followed. Accordingly, WCAG's contentions are framed as concerns that should be explained through an adjudicatory hearing. As previously addressed in the foregoing, such matters are not properly joined as triable issues in DEC proceedings.

DEC Issue #1: Fine Particulates (PM2.5)

The first issue proposed by the WCAG for adjudication relates to fine particulate matter or particulates smaller than 2.5 microns in size (PM2.5). The WCAG bases its assertion that this issue should be adjudicated upon three separate legal authorities: 6 NYCRR 231-2.4(a)(2)(ii), Uprose v. Power Authority of the State of New York, 729 N.Y.S.2d 42 (2d Dept. 2001), and PSL Article X. Only the first authority relates to the DEC permits, while the second and third relate to findings that must be made by the Siting Board. Accordingly, only the first authority is discussed in this ruling.

Intervenors have proposed adjudicating issues relating to PM2.5 in a number of DEC hearings regarding proposed power plants. In each case, the Commissioner has determined that issues relating to PM2.5 do not warrant adjudication.(6)

In this case, the WCAG asserts a legal argument not made in any other case to date as the justification to adjudicate this issue. WCAG states the following on page 4 of its petition.

The Project is located in Orange County, New York. Orange County is designated as either attainment or unclassified for SO2, NO2, Co, Pb, and PM-10. Although the Project is also designated as attainment for the ozone standard, the entire state of New York is located in the Northeast Ozone Transport Region (NOTR), and, therefore, is classified as a moderate ozone non-attainment area.

One of the requirements for new sources in a non-attainment area is that "....the applicant shall:... (ii) submit an analysis of alternative sites, sizes, production processes and environmental control techniques for such proposed source which demonstrates that benefits of the proposed source significantly outweigh the environmental and social costs imposed as a result of its location, construction or modification within New York State;..."(§231-2.4(a)(2)(ii)).

The WCAG contends that the PM2.5 analysis done by the Applicant, and reviewed and accepted by DEC Staff, is inadequate and Part 231 requires an analysis of the social costs of PM2.5. Since this was not done, WCAG argues, it should be adjudicated in the DEC adjudicatory hearing.

Both DEC Staff and the Applicant oppose advancing this proposed issue to adjudication. Both dispute the WCAG's legal argument that because the project's proposed location is not in attainment for one criteria pollutant (ozone), the Part 231 analysis is required for another (PM2.5). Further, WCAG asserts that since the data on PM2.5 is only now being collected to determine whether Orange County is in attainment with the standard for PM2.5, it is improper to characterize it as non-attainment. While the data on PM2.5 is being collected, the applicable standard is PM10, and Orange County is in attainment with this standard.

While certainly inventive, the Intervenor's legal argument is not convincing. There is no dispute that Orange County meets the current legal, health-based standard for particulate matter. The analysis required under Part 231 does not require the type of analysis proposed by the WCAG.

DEC RULING #1: The WCAG has failed to demonstrate that this issue is either substantive or significant. Therefore, this issue is not advanced to adjudication.

DEC Issue #2: Stack Height

The second issue proposed by the WCAG for adjudication is that the Applicant has proposed smoke stacks that are too short. It is not disputed that Good Engineering Practices ("GEP") require stacks that are 300 feet and that the Applicant has proposed constructing stacks that are 225 feet. The Applicant states that this adjustment to the stack height is proper and is the result of balancing the GEP height against the maximum height allowed by the Federal Aviation Administration ("FAA"), 264 feet, and aesthetic concerns regarding the visual impact of taller stacks. Further, the Applicant asserts that it has modeled the air pollution impacts of these proposed 225 foot stacks, evaluating both downwash and cavity issues. The results of this modeling shows that no applicable standard or significant impact level will be violated by constructing these shorter stacks. Nor will these shorter stacks put the public's health at risk.

The WCAG does not assert that any standard will be violated if 225 foot stacks are constructed. Rather, it seeks to examine the Applicant's balancing analysis and is concerned about potential localized impacts of pollution from the shorter stacks. WCAG proposes that additional modeling be done for stacks 264 and 300 feet. WCAG claims that this additional height would allow for a greater dispersion of air emissions and lessen local impacts from these emissions.

Both DEC Staff and the Applicant oppose advancing this issue to adjudication. Both assert that since there has been no offer of proof that any standard would be violated by 225 foot stacks and all required modeling has been completed and reviewed, that this issue is not substantive as defined in regulation (6 NYCRR 624.4(c)(2)). Since the issue is not substantive, it does not meet the standards for adjudication.

DEC Ruling #2: Since WCAG has not alleged that the stacks proposed by the Applicant will cause a violation of any standard, the issue is not substantive. This issue is not advanced to adjudication.

DEC Issue #3: Cumulative Impacts

The third issue proposed by the WCAG for adjudication is that the proposed power plant, when combined with existing and planned facilities in the area will have a negative impact on air quality. The WCAG acknowledges that the air modeling of the impacts of the proposed power plant would not violate any regulatory criteria or significant impact level. However, if other existing or proposed sources of air pollution were considered, then the results of the modeling would change. "The WCAG seeks to evaluate the adequacy and accuracy of the entire cumulative impact analysis and present evidence regarding discrepancies" (WCAG petition, p.7).

Both DEC Staff and the Applicant oppose advancing this issue to adjudication. The Applicant contends that because the WCAG has failed to allege an inability to comply with any applicable standard or make a sufficient offer of proof, this proposed issue is not substantive, and therefore does not meet the standard for adjudication.

DEC Ruling #3: Again the WCAG has failed to allege that the proposed plant will violate any applicable regulatory criteria and therefore, under DEC regulations, it has failed to assert a substantive issue. This issue is not advanced to adjudication.

DEC Issue #4: Opacity/Condensation Plumes

The fourth issue proposed by the WCAG for adjudication is that its consultants will evaluate the "visual analysis of all steam/vapor plumes from the project. This analysis shall include the potential visual impact of secondary particulate formation associated with ammonia slip. The potential for opacity/condensation plume entrainment associated with down wash will also be examined" (WCAG petition, p.7).

DEC Staff and the Applicant oppose advancing this issue to adjudication because it is not substantive in that there is no allegation that any standard would not be met.

DEC Ruling #4: WCAG has failed to propose a substantive issue. This issue is not advanced to adjudication.

DEC Issue #5: Inclusion of Non-combustion Air Emissions/Accidental Release Plan

The fifth issue proposed for adjudication by the WCAG is really a series of proposed studies and analyses. WCAG proposes to review: 1) the Applicant's accidental release planning, 2) whether the appropriate model was used, and 3) the emergency response plan (WCAG petition, p.9). The WCAG states that the community is concerned about the storage of chemicals at the site of the proposed power plant, especially ammonia to be used in the air pollution control equipment. As a result of these proposed reviews, the WCAG asserts that the Applicant may be forced to modify its handling operations and storage volumes for these chemicals.

DEC Staff and the Applicant oppose advancing this issue to adjudication because it is not substantive in that there is no allegation that any standard is being breached. The Applicant asserts it has considered the effects of any accidental release and included the results of its analysis in the Application. In addition, the specifics of an emergency response plan will be developed with the local emergency responders within the year before the proposed facility becomes operational.

DEC Ruling #5: WCAG has failed to propose a substantive issue. This issue is not advanced to adjudication.

DEC Issue #6: Analysis of Start-up Conditions

The sixth issue proposed for adjudication by the WCAG is another proposed review of information contained within the Application. This review would assess the accuracy of the projected number of start-up events, because if these are underestimated then the expected emissions of air pollutants could also be underestimated. Further, the WCAG proposes to analyze appropriate provisions for minimizing and monitoring start-up events for purposes of permit conditions.

DEC Staff and the Applicant oppose advancing this issue to adjudication because it is not substantive in that there is no allegation that any standard is being breached. The Applicant asserts that the application analyzed the emissions during start-up events and the draft air permit contains numerous conditions regarding these events. DEC Staff asserts that the permit conditions will not allow any exceedences of any air quality standard or regulation.

DEC Ruling #6: WCAG has failed to propose a substantive issue. The WCAG bears the burden of persuasion that there is a problem with the air permits such that an air quality standard would not be met. Proposing a study to examine whether such a problem exists is not enough. This issue is not advanced to adjudication.

DEC Issue #7: Air Modeling

The seventh issue proposed for adjudication by the WCAG is another proposed study. This study would review that the correct procedural techniques and input assumptions were utilized to determine whether the Applicant's air modeling accurately depicts the dispersion of emissions from the proposed facility's stacks.

DEC Staff and the Applicant oppose advancing this issue to adjudication because it is not substantive. The WCAG has made no assertion that there is any problem with the Applicant's air modeling.

DEC Ruling #7:Again, WCAG has failed to propose a substantive issue. This issue is not advanced to adjudication.

DEC Issue #8: Environmental Justice

The eighth issue proposed for adjudication by the WCAG is a legal argument similar to its proposed issue #1, discussed above. Citing the same legal authority as in issue #1, 6 NYCRR 231-2.4(a)(2)(ii), the WCAG asserts that this section of law requires the preparation of an Environmental Justice Analysis and that the Applicant failed to do so. This analysis should include information to show that the proposed project would not disproportionately adversely affect low income and minority communities. The WCAG contends that the failure to include such an analysis in the application raises this proposed issue to adjudication.

The Applicant was required to conduct an environmental justice analysis in order to meet the permitting requirements for its Prevention of Significant Deterioration (PSD) permit (40 CFR 124). The Applicant has completed such analysis. Both DEC Staff and the Applicant argue that since this analysis was done pursuant to a federal requirement, it cannot be adjudicated in a state administrative forum. The WCAG agrees, but asserts that a state requirement, Part 231, requires a separate analysis which is adjudicable in a state forum.

Both DEC Staff and the Applicant oppose advancing this issue to adjudication and assert that the WCAG's contention that Part 231 requires a separate environmental justice analysis is in error. They cite the recent decision of ALJ O'Connell in March, 2001, In the matter of the Application of Con-Edison East River which held that Part 231 does not require an environmental justice analysis separate from the PSD one.

DEC Ruling #8: The WCAG has failed to demonstrate that state law requires an Environmental Justice Analysis in addition to the one prepared pursuant to federal law. This issue is not advanced to adjudication.

DEC Issue #9: Fugitive Air Impacts During Construction

The ninth issue proposed for adjudication by the WCAG is another study. In this instance, the WCAG proposes to evaluate all construction activities for fugitive dust creation and based upon the results of this study, propose construction engineering and work practices that will minimize dust creation that may result in revised permit conditions.

Both DEC Staff and the Applicant oppose advancing this issue to adjudication. The Applicant asserts that the draft PSD permit contains conditions for controlling dust from trucks, roadways, and stockpiled materials and prohibits the burning of waste onsite.

DEC Ruling #9: The WCAG has failed to assert that there is a deficiency in the permit conditions for controlling dust, therefore, this proposed issue is not substantive. This issue is not advanced to adjudication.

DEC Issue #10: Alternative Control Technologies

The tenth and final issue proposed for adjudication by the WCAG is that the Applicant's choice of technologies to control emissions of nitrogen oxides ("NOx") is not the one that produces the Lowest Achievable Emission Rate ("LAER"), as required by the federal Clean Air Act. The Applicant has chosen to use Selective Catalytic Reduction ("SCR) as LAER for NOx. The WCAG asserts that an alternative technology, known as SCONOx, may be the technology that would achieve the lowest emission rate and thus should be used to meet the LAER requirement.

Both the Applicant and DEC Staff oppose advancing this issue to adjudication because it is speculative and SCONOx has been rejected in other, recent Article X permit hearings. In addition, the Applicant contends that it did an independent LAER review when preparing its application and did consider using SCONOx technology, but determined that the technology did not produce LAER. Accordingly, SCONOx was rejected. The WCAG does not assert that any technological developments have occurred since July 13, 2001, when the Commissioner determined that SCONOx was not LAER for a power plant (In the matter of the Application of Ramapo Energy Partnership, Interim Decision).

DEC Ruling #10: The WCAG has failed to make an adequate offer of proof that SCONOx technology has advanced during the recent months to where it could be considered LAER. This issue is not advanced to adjudication.

Issues Proposed by Orange Environment

Orange Environment (OE) is a nonprofit membership organization which has been in existence for twenty years. Its mission "is to protect the environmental integrity and communities of the Orange County region and to promote a sustainable future" (OE Petition, p.1).

OE timely filed two petitions for party status. The first petition proposed two issues for adjudication which were discussed at the December 6, 2001 issues conference. At the close of this issues conference, OE requested and was granted additional time to supplement its offer of proof. This submission was timely received and discussed at the December 18, 2001 issues conference.

OE's second petition was filed in response to a later notice regarding the Emission Reduction Credits (ERCs) to be used at the facility. OE proposed one issue for adjudication in its second petition. This issue was discussed at the December 18, 2001 issues conference.

However, as discussed below, none of the issues proposed by OE are found to meet the standard for adjudication in the DEC administrative hearing process. Therefore, OE is denied party status.

DEC Issue #11: Alternatives

The first issue proposed by OE involves the alleged failure of the Applicant to examine alternative ways to address the demand for electricity that would be produced by the proposed facility. OE argues that a comprehensive energy plan should be developed, that fossil fuel plants should not be constructed, that more efficient technologies that depend upon renewable resources should be used, that conservation should be encouraged, and that decentralized power plants should be built. Further, OE "argues that, after September 11, there is a new emerging social contract for weighing the behavior of private citizens and corporations as they relate to the nation's defense and ability to provide for fundamental requisites, such as power" (OE Petition, p.3). OE makes policy arguments and does not assert that the proposed facility will violate any applicable regulatory standard or criteria.

OE makes a passing reference to 6 NYCRR 231-2.4(a)(2)(ii) [see DEC issues 1 & 8, above] as requiring DEC Staff to consider alternative sources of power. However, OE makes no offer of proof regarding this issue.

Both DEC Staff and the Applicant oppose advancing this issue to adjudication because this proposed issue and sub-issues are broad questions of public policy. The Applicant points out that OE does not address any provision of the draft permits, make any offer of proof that the proposed project will not comply with any applicable standard, or challenge any of the Applicant's analyses.

DEC Ruling #11: OE is only raising policy questions regarding alternatives and these policy questions go well beyond this single proposed power plant. This issue is neither significant nor substantive, as those terms are defined and used in 6 NYCRR 624. This issue is not advanced to adjudication.

DEC Issue #12: Cumulative Impacts

The second issue proposed by OE relates to the cumulative impacts of the proposed facility with existing and other proposed sources of air pollution. OE asserts that the "decision about whether and how to permit this facility must rest on an understanding of the cumulative effect on air quality and health within the micro-region to be primarily impacted. The permit might be denied or modified given this consideration on the effect of public and ecological health" (OE Petition, p.4). OE does not assert that the proposed facility will not comply with any applicable regulatory standard or criteria.

Both DEC Staff and the Applicant oppose advancing this proposed issue to adjudication. The Applicant faults OE's petition for not making any offer of proof that the proposed facility would fail to meet any existing regulatory standard or criteria.

DEC Ruling #12: OE has not proposed a substantive issue, as that term is defined and used in 6 NYCRR 624. This issue is not advanced to adjudication.

DEC Issue #13: Emission Reduction Credits

The third issue proposed by OE relates to the Emission Reduction Credits (ERCs) obtained by the Applicant for use at the proposed facility. Specifically, OE objects to the fact that the ERCs acquired by the Applicant come from Pennsylvania. OE asserts that it would have been better for air quality around the plant if the ERCs had been purchased locally. OE also asserts that the ratio of 1:1.15, which requires the Applicant to purchase 1.15 tons of ERC for every ton used, is not adequate. OE suggests that the Applicant be required to purchase an additional 25% more ERCs and retire them. OE does not assert that the Applicant has not satisfied any applicable law or regulation, rather that what it is proposing would better protect public health.

Both the Applicant and DEC Staff object to advancing this issue to adjudication. The Applicant and DEC Staff assert that the source of the ERCs is not improper nor illegal and contend that OE has failed to raise a substantive issue.

DEC Ruling #13: OE has not alleged any violation of any regulation or standard. This proposed issue is not substantive and is not advanced to adjudication.

Issues Proposed by the Town of Wawayanda

The proposed project is to be located in the Town of Wawayanda (Town). The Town timely submitted a petition for party status which proposed issues for adjudication related to the following two topics:

  1. Air Quality; specifically with respect to pollutant loadings, multiple facilities, monitoring and Permit Conditions.
  2. Surface and ground water quality.

At the issues conference, the Town proposed five issues relating to air quality and one relating to water quality. None of the other parties nor the ALJ had been put on notice that the Town planned to propose these issues.

Upon review, none of the issues proposed by the Town meet the standards for adjudication. Therefore, the Town's request for party status is denied.

DEC Issue #14: Adequacy of Receptor Grid

The first issue proposed by the Town relates to the adequacy of receptor grid and air quality analysis undertaken by the Applicant. The Town raises two sub-issues: the distance from the proposed plant that the Applicant analyzed should have been 20 and not 15 kilometers; and, the radials used should have been less than ten degrees. Both of these bases for the Applicant's air quality modeling were agreed to by the Applicant, DEC Staff and reviewed by US EPA. A copy of the protocol was sent to the Town in February, 2001, although it apparently was never shown to the Town's experts.

The Town does not assert that these elements of the modeling protocol violate any state or federal guideline or standard, nor does the Town allege that the modeling was done in violation of the protocol. Rather, the Town asserts that had the protocol been different, and a larger area used to assess impacts and smaller radials used, more information would have been made available.

Both DEC Staff and the Applicant oppose advancing this issue to adjudication. Both assert that the air modeling was done properly, in accordance with all applicable laws and guidance, and that the Town has not asserted otherwise. Therefore, the Town has not raised a substantive issue.

DEC Ruling #14: The Town has not alleged any deficiency in the Applicant's air modeling protocol, rather that it would be desirable to have done the air modeling differently because it would have provided additional information. This issue does not meet the standard for adjudication and is not advanced.

DEC Issue #15: Understandability of Air Analysis

The second issue proposed by the Town relates to the understandability of the air analysis, specifically that the Applicant failed to include maps plotting each of the receptors used in the modeling. The Town does not dispute the modeling methodology or point to a regulatory requirement that a map such as the one the Town seeks be included in the application. Rather, the Town asserts it would help the public understand the analysis if such a map were included.

Both DEC Staff and the Applicant oppose advancing this issue to adjudication because the Town has failed to assert that this issue is substantive.

DEC Ruling #15: While the Town may believe that an additional map would be useful to include in the application, it has not pointed to any requirement that one be provided. This issue is not substantive and not advanced to adjudication.

DEC Issue #16: Waiver of Pre-construction Monitoring

The third issue proposed by the Town is that it wasn't reasonable to waive the pre-construction monitoring requirement. This preconstruction monitoring requirement is created by the federal Clean Air Act and found in the PSD requirements.

The waiver in question was granted to the Applicant by US EPA by letter dated May 15, 2001 (contained in Appendix C of the Applicant's PSD permit application). DEC Staff only acts as US EPA's agent for the PSD program because it has not been delegated. Thus, DEC Staff and the Applicant argue, questions regarding the reasonableness of waiver cannot be adjudicated in a state forum. Even if the issue could be heard in a DEC adjudicatory hearing, DEC Staff and the Applicant argue that the Town has failed to show that the alleged unreasonableness does not comply with any applicable standard and, therefore, is not a substantive issue.

DEC Ruling #16: This issue is beyond the jurisdiction of the DEC hearing process because it relates to an action taken by the USEPA. Even if the issue were within the jurisdiction of the DEC hearing process, the Town has failed to show this proposed issue is substantive. This issue is not advanced to adjudication.

DEC Issue #17: Providing the Air Analysis in Electronic Form

The fourth issue proposed by the Town relates to a complaint that the Town did not receive the air analysis in electronic form. The Town admits that it never asked for it in electronic form and immediately upon hearing the Town's request, the Applicant offered to provide the requested information.

DEC Ruling #17: There is no dispute remaining. This issue is not advanced to adjudication.

DEC Issue #18: Impacts on National Parks

The fifth issue proposed by the Town is that the Applicant failed to complete visibility analysis for a series of properties owned by the National Park Service along the Delaware River within 100 kilometers of the site. The Town acknowledged that these properties are not Class I areas (as the term is used in the PSD section of the CAA) and therefore, this analysis is not required by either federal or state law. However, since DEC Staff required a visibility analysis for two state parks (Hyland Lake State Park and August Mountain State Park) which are closer to the proposed project, the Town argues that DEC Staff should have also required this analysis for these federal park properties.

DEC Staff and the Applicant oppose advancing this issue to adjudication because this analysis is not required. Further, the visibility analyses for the state parks showed no exceedences of Class I pristine limits, therefore, it is logical to expect that there will be no visibility problems at the federal properties, located further away.

DEC Ruling #18: The Town has failed to show that this proposed issue is substantive. This issue is not advanced to adjudication.

DEC Issue #19:

The sixth issue proposed for adjudication by the Town relates to claims by the Town that the diagrams contained within the application depict the direct discharge of uncontrolled stormwater into wetlands, which violates the draft SPDES permit.

Since the Town had not put anyone on notice that it would raise this issue at the issues conference, neither DEC Staff nor the Applicant were prepared to respond on December 6, 2001. The ALJ directed the parties to confer about this issue and report back. The parties complied and at the December 18, 2001 issues conference it was reported that an agreement in principle had been reached on this issue and that final engineering diagrams were pending.

DEC Ruling #19: There is no remaining dispute on this issue. This issue is not advanced to adjudication.

Issues Proposed by Mrs. Carol Moore

Mrs. Moore timely filed a letter requesting party status in the DEC hearing. While her letter lacked many of the required contents of a petition for party status and did not identify any issues proposed for adjudication, she did appear at the DEC issues conference and proposed two issues. No party objected to her petition, rather all discussion revolved around the merits of her proposed issues.

Mrs. Moore and her husband own land immediately adjacent to the site of the proposed project. She describes herself as not an expert on these issues. She expressed her willingness to work with the WCAG, however, she did not wish to consolidate her issues with the WCAG and asked to proceed as a party, on her own. She stated that she would not be presenting any expert testimony at a possible future adjudicatory hearing.

DEC Issue #20: Effects of Acid Rain

The first issue proposed for adjudication by Mrs. Moore is the effect of acid rain resulting from the emissions of the proposed plant on crop failure, vehicle damage, deteriorating buildings, and its effect on the dairy industry. Mrs. Moore does not identify any deficiencies in the application or failures on the part of the Applicant to comply with applicable law.

Both DEC Staff and the Applicant oppose advancing this issue to adjudication. The Applicant states that issues regarding acid rain are addressed, specifically Section 6.10 of the application addresses the acid rain issue and Section 7.6.2 addresses the effect of the proposed facility on soils and vegetation. DEC Staff states that the impacts of the proposed facility have been analyzed and found to be well below any level of concern and there is no allegation that this analysis is in any way flawed.

DEC Ruling 20: The issue of the effects of acid deposition from the proposed plant are not advanced to adjudication because the issue is neither substantive nor significant.

DEC Issue #21: Inversion

The second issue proposed for adjudication by Mrs. Moore is the impacts that may occur when pollution from the proposed plant is trapped in a colder layer of air close to the ground by a warmer layer of air above. As Mrs. Moore describes it, this creates a "triple decker poison sandwich." This problem is compounded by other sources of air emissions in the area.

Both DEC Staff and the Applicant assert that the application has analyzed the emissions that will be released from the proposed plant and anticipated the conditions that may lead to inversion. All the air pollution modeling has failed to reveal any problems associated with inversion.

DEC Ruling 21: The issue of inversion of pollutants from the proposed plant are not advanced to adjudication because the issue is neither substantive nor significant.

Issue proposed by the City of Middletown

The City of Middletown (City) is immediately adjacent to the site of the proposed facility. The Applicant proposes to get its potable water from the City as well as its water supply for cooling. While the contract for the supply of cooling water has not been finalized, the Applicant proposes to take treated sewage effluent from the City's wastewater treatment plant and use it for cooling purposes. The cooling water would then be returned to the City's wastewater treatment plant for disposal.

The City filed a late petition for party status and at the December 6, 2001 issues conference proposed one issue for adjudication in the DEC administrative process.

DEC Issue #22:

The issue for adjudication proposed by the City of Middletown is really more a concern than an issue. The City is concerned about the air quality review completed by the Applicant, especially as is relates to a major commercial district and minority communities located near the proposed plant. The City requested two months to conduct its own air quality studies.

Both DEC Staff and the Applicant oppose advancing this issue to adjudication. The Applicant asserts that the Applicant is complete, and therefore no delay is justified. Further, that the vague concerns of the City do not raise a substantive and significant issue.

DEC Ruling 22: This issue is really a request for additional time to undertake additional studies to identify whether issues exist or not. The time constraints placed on the Examiners do not allow for a delay such as requested here. No specific issue has been identified that could be advanced to adjudication.

Discussion of Party Status

Since none of the parties seeking full party status has raised an adjudicable issue, all requests for party status are denied. Further, since there will be no adjudication, the DEC administrative hearing process is concluded. Accordingly, both petitions for amicus status are moot.

Appeals of DEC Issues Ruling

A ruling of the DEC Associate Examiner to include or exclude any issue for adjudication, a ruling on the merits of any legal issue made as part of an issues ruling, or a ruling affecting party status may be appealed to the DEC Commissioner on an expedited basis and should be filed to the DEC Commissioner within five days of the disputed ruling (6 NYCRR 624.8(d)(2); 624.6(e)(1).) I am providing that any appeals of DEC Rulings 1-43 above must be in writing and received by the DEC Commissioner (Office of the Commissioner, NYS Department of Environmental Conservation, 50 Wolf Road, Albany, New York, 12233-1010) before 4:00 p.m. on January 18, 2002. Replies are authorized and must be received by the DEC Commissioner before 4:00 p.m. on January 25, 2002. Appeals should address the ALJ's ruling directly rather than merely restate a party's contentions. Parties shall serve each other by the same dates as filing is required in the Commissioner's office. This appeals schedule does not modify the schedule set forth in the established hearing schedule dated March 12, 2001. Appeals and replies must be submitted to the DEC in triplicate, with two of the three copies to ALJ Garlick. No faxes or e-mail submissions will be allowed or accepted.

Albany, New York
January 11, 2002

/s/
P. Nicholas Garlick
Administrative Law Judge and
Associate Examiner

6 NYCRR §624.4(c)(4). §624.4(c)(2). Also see Matter of Superintendent of Fish Culture, Interim Decision, August 19, 1999, which was affirmed in the Decision and Judgment In the Matter of Upper Saranac Lake Association, Inc., et al. v. John P. Cahill, Commissioner, et al., (Supreme Court, Albany Co., Index No. 6027-99), March 24, 2000.

Matter of Concerned Citizens Against Crossgates v. Flacke, 89 AD2d 759 (3rd Dep't., 1982), aff'd, 58 NY2d 919 (1983). Matter of Oneida County Energy Recovery Facility, Interim Decision, July 27, 1982; Matter of Halfmoon Water Improvement Area, Interim Decision, April 2, 1982; Matter of Broome County Department of Public Works, Commissioner's Decision, June 11, 1984.

6 NYCRR §624.4(c)(3). Matter of Consolidated Edison Company of New York, Inc. (East River), DEC Commissioner's Decision, August 16, 2001 (DEC Case No. 2-6206-00012/000021).

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