6 NYCRR Part 242, CO2 Budget Trading Program, 21 NYCRR Part 507, CO2 Allowance Auction Program Assessment of Public Comments

Comments Received from May 7, 2008 to June 23, 2008

1. Comment: We feel that DEC's decision to allocate allowances to NYSERDA has not been authorized by the State legislature (Legislature). This transfer is not by contract, legislative directive, or by Governor's orders but solely by DEC rulemaking. We feel that the authority to transfer allowances in 242-5.3(3) is very broad, open-ended, and appears to retain little, if any, oversight by DEC. None of the Statutory Authority detailed in the Regulatory Impact Statement gives the DEC authority to allocate the allowances to NYSERDA. None of the authorities in the PAL provide a firm statutory basis for NYSERDA to begin a new venture of auctioning compliance allowances. (28)

Response: See Response to Comment Nos. 1 - 5 in the Initial Assessment of Public Comments (Initial APC), (Comments Received from October 24, 2007 to December 24, 2007), attached.

The rulemaking documents, DGEIS and the Initial APC make reference to the Clean Air Interstate Rule (CAIR). While CAIR is not directly associated with or material to the RGGI Program, the Department and the Authority acknowledge that the United States Court of Appeals for the District of Columbia Circuit recently issued a decision vacating the CAIR rule in North Carolina v. EPA, No. 05-1244 (D.C. Cir. July 11, 2008). This decision is not yet legally effective because the Court has not yet issued its mandate. It is also not clear at this time whether the decision will become legally effective or, of it does become effective, when that will occur. Under Federal Rule of Appellate Procedure (FRAP) 41(d)(1), the timely filing of a petition for rehearing, a petition for rehearing en banc, or motion for stay of mandate, stays the mandate until disposition of the petition or motion, unless the Court orders otherwise. Further, under FRAP 41(d)(2), a party may move to stay the mandate pending the filing of a petition for writ of certiorari in the U.S. Supreme Court. Depending on the outcome of any such petitions, the decision vacating CAIR may or may not ever become legally effective. If the decision vacating CAIR becomes legally effective, the Department and the Authority will determine whether and to what extent the rulemaking documents need to be amended to reflect such decision.

2. Comment: The proposed 100% allowance auction transforms the RGGI cap-and-trade program to a multi-billion dollar carbon tax imposed on fossil energy generators primarily for the benefit of energy efficiency providers and renewable energy suppliers. We view the RGGI auction as a potential first step toward the double-taxation of carbon emissions once federal climate legislation is enacted. The risk of such double taxation could impede investments in all fossil-based electric generation in New York, potentially including advanced clean coal technologies incorporating carbon capture and sequestration.

With one of the nation's most aggressive renewable energy portfolio standards, New York already is diversifying its electric energy supply portfolio to benefit higher-cost renewable energy sources at the expense of lower-cost conventional generation. New York consumers will bear the burden of even higher electric rates when compliance is achieved with state RPS requirements, whether the renewable energy is obtained from New York suppliers or in the form of certificates from Texas and other states with substantial renewable potential. Similarly, costs for the proposed 100% auction will be passed along to ratepayers, even if no real emission reductions result from the program due to leakage or other factors. (25)

Response: See Response to Comment Nos. 1, 5, 19 and 26 in the Initial APC, attached. See also Response to Comment No. 1.

3. Comment: The 100% auction requirement will be evaluated by prospective investors in new fossil-based generation in New York and in other RGGI states in light of the risks of a "double carbon tax" resulting from the enactment of federal climate legislation. All of the principal climate bills before Congress include auction requirements, typically on an increasing scale over time.

In effect, the overlay of federal and RGGI auction rules would expose generators to double liability for each ton of CO₂ emissions that must be purchased at auction. With an assumed $5/ton RGGI price and a $25/ton federal price, total allowance costs per ton would be $30/ton of CO₂, or roughly $30/MWh for a new clean coal plant before any recovery of capital, fuel, and other operating costs. (25)

Response: See Response to Comment Nos. 22, 42 and 530 in the Initial APC, attached. See also Response to Comment No. 84.

4. Comment: We examined the potential adverse impacts of such a double taxation scheme in an analysis of the generation economics of three permitted coal units in Illinois, submitted as part of CEED's December 24, 2007, comments on New York's proposed auction rules. Using five different regulatory scenarios, including an Illinois state carbon auction covering 85% of allowances and S. 280 (2007 McCain-Lieberman bill), this analysis shows that all three permitted units would be competitive under S. 280 relative to EIA's projections of regional power market prices. However, all three units would be uncompetitive in regional markets with the addition of an Illinois auction.

In addition, analysis of the economic competitiveness of a hypothetical unit achieving 80% carbon removal and storage showed that such a unit could not compete in regional power markets under the combined weight of federal and state auction requirements. These findings raise concerns about the future prospects for investments in advanced coal generation technologies in New York and other RGGI states. While we applaud New York's support for the construction of new IGCC and oxycoal capacity in Upstate New York, including the potential use of auction proceeds to support carbon reduction technologies, the prospect of double carbon taxation even for plants with sequestered emissions may chill future generating capacity investment plans, further aggravating New York's projected reliability shortfalls in 2012 and later years.

Response: See Response to Comment Nos. 22, 23 and 43 in the Initial APC, attached.

5. Comment: The 100% auction requirement in proposed Part 242-5.1 constitutes a significant new revenue source for New York State that, like the RGGI program itself, has not been explicitly authorized by the Legislature. We reserve comment on the underlying legality of the RGGI program itself, and as implemented by New York and other States. However, we also wish to note the magnitude of the proposed revenue stream created by Part 242, in light of the prohibitions of Article XVI, Section 1 of the Constitution of the State of New York, as amended. Section 1 provides, in part, that:

"The power of taxation shall never be surrendered, suspended or contracted away, except as to securities issued for public purposes pursuant to law. Any laws which delegate the taxing power shall specify the types of taxes which may be imposed there under and provide for their review."

We disagree with the Department's assessment of the nature of the revenues to be generated through the RGGI auction process. The Department argues that these revenues do not constitute a tax. (NYS Register May 7, 2008, at 29). We note the companion May 7th NYS Register notice by NYSERDA establishing rules and procedures for the RGGI auction accounts, which describes the process.

We respectfully submit that this description of the CO₂ Allowance Auction Program - 1) the distribution of emission allowances into an Energy Efficiency and Clean Energy Technology Account; 2) the auctioning of these allowances to affected entities and other parties; 3) the deposit of auction proceeds into the EECET Account; and 4) the use of these proceeds "to promote the stated purpose of the Account, and for administrative and implementation expenses incurred" - describes in essence a system of state taxation and revenue collection and distribution that has not been explicitly authorized by the New York State Legislature. If it looks like a tax, impacts affected entities and consumers in their budgets, profitability or pocketbooks, and its proceeds are used to promote state policies and programs, it is a tax.

We similarly disagree with the Department's assertion that the emission allowances used to collect revenues pursuant to its auction program are not "permits" or "licenses" under New York law, but instead represent a "condition of an operating permit that constitutes a limited authorization to emit up to one ton of CO₂." This convoluted construction of the meaning and purpose of an "allowance" is at odds with the common understanding of "allowance" in the Clean Air Act and in the context of broader financial markets. The Congressional Research Service recently described the broad financial uses of allowances, going well beyond a "condition of an operating permit" (25)

Response: The Department's definition of an allowance as a condition of an operating permit that constitutes a limited authorization to emit up to one ton of CO₂ is fully consistent with the nature of "allowances" as defined in the Clean Air Act. Section 403(f) of the CAA states that "an allowance under this chapter is a limited authorization to emit sulfur dioxide in accordance with this subchapter. Such allowance does not constitute a property right." The Department's draft regulations echo that definition, defining a CO₂ allowance as a "limited authorization to emit" (see 6 NYCRR § 242-1.2 (11)). Further, CAA § 403(f) goes on to state that "[e]ach permit under this subchapter and each permit issued under subchapter V of this chapter for any affected unit shall provide that the affected unit may not emit an annual tonnage of sulfur dioxide in excess of the allowances held for that unit." Similarly, the Department's draft regulations provide that each CO₂ budget source must modify its operating permit issued pursuant to 6 NYCRR Parts 201 and 621 to require that the owners and operators of each CO₂ budget source and each CO₂ budget unit at the source hold CO₂ allowances in the source's compliance account at the end of each compliance period in an amount not less than the total CO₂ emissions for the control period from all CO₂ budget units at the source (see 6 NYCRR § 242-1.5).

See also Response to Comment Nos. 1-5 and 19 in the Initial APC, attached. See also Response to Comment No.1.

6. Comment: We urge the Department to seek legislative approval both for the State's participation in the RGGI cap-and-trade program, and for any proposed Part 242 allowance auction procedures. Other states such as Maryland, New Hampshire and Massachusetts have sought and obtained express legislative authority for their participation in RGGI. (25)

Response: See Response to Comment No. 1 in the Initial APC, attached.

7. Comment: The Revised New York RGGI Proposal constitutes taxation in contravention of the New York State Constitution; taxes can only be created by direct and unambiguous legislative action. (14)

Response: The RGGI Proposal is for a cap-and-trade program, which is a separate and distinct market-based regulatory approach from a carbon tax. Under a cap-and-trade program such as the Proposal, the Department has fixed the quantity of CO₂ emissions reductions through the establishment of a cap and has created an exchangeable quantity-based instrument that CO₂ budget sources can buy or sell up to the established cap. Under the RGGI cap-and-trade program, the Department has not imposed specific emissions limits on each individual source, but rather the Department has capped emissions across a group of sources and is requiring each source, as a condition to its operating permit, to obtain emissions allowances in an amount not less than the source's total CO₂ emissions for the applicable control period. Under a cap, the quantity of emissions reductions is fixed, but not the price. On the other hand, a carbon tax fixes a price, but not the emissions reductions, and requires each source covered by the tax to pay that fixed price to the government, unlike cap-and-trade where the price fluctuates depending on the market.

See also Response to Comment No. 19 in the Initial APC, attached.

8. Comment: The compelling nature of the climate change issue cannot trump the constitutional provisions vesting the Legislature with the exclusive authority to create taxes and control appropriations. (14)

Response: See Response to Comment Nos. 1 - 5 and 19 in the Initial APC, attached. See also Response to Comment No. 1.

9. Comment: The Revised New York RGGI Proposal would constitute a tax since both DEC and NYSERDA have repeatedly demonstrated that revenue generation is a primary objective of the Revised Proposal. (14)

Response: The primary objective of the RGGI Proposal is pollution control, not the generation of revenue for the sake of generating revenue.

See also Response to Comment Nos. 1 - 5 and 19 in the Initial APC, attached. See also Response to Comment No. 1.

10. Comment: The Revised New York RGGI Proposal regulations also exceed both DEC and NYSERDA's statutory authority because, although the Legislature has never authorized NYSERDA to issue or sell regulatory licenses/permits, the Proposal purports to empower NYSERDA to auction CO₂ allowances, which constitute licenses/permits under New York State law. (14)

Response: See Response to Comment No. 5 in the Initial APC, attached.

11. Comment: The Revised New York RGGI Proposal regulation exceeds DEC's statutory authority because DEC lacks statutory authority to transfer licenses/permits (such as the CO₂ allowances) to other governmental entities for ultimate issuance or sale. (14)

Response: See Response to Comment No. 5 in the Initial APC, attached. See also Response to Comment No. 193.

12. Comment: The Regulatory Impact Statements for the Revised New York RGGI Proposal contravene SAPA by not including the projected costs of the Proposal to the affected facilities, notwithstanding that recorded and reported RGGI allowance purchase and sale transactions that occurred prior to the Revised New York RGGI Proposal provide a valid basis to project the costs of the Proposal to such facilities. (14)

Response: See Response to Comment No. 8 in the Initial APC, attached. See also Response to Comment No. 193.

13. Comment: The DEC and NYSERDA are without the requisite statutory enabling authority insofar as the Proposal provides for the sale of regulatory licenses/permits that are necessary for the affected electric generating facilities to operate, and the sale proceeds of which would far exceed the cost of administering the Revised New York RGGI Proposal. (14)

Response: See Response to Comment Nos. 5 and 19 in the Initial APC, attached.

14. Comment: The Revised New York RGGI Proposal is unconstitutional because it amounts to regulatory policymaking. In the absence of legislative policymaking on the subject, New York State's policy response to climate change cannot be established by executive agencies or public authorities such as NYSDEC or NYSERDA (14)

Response: See Response to Comment Nos. 1 and 3 in the Initial APC, attached. See also Response to Comment No. 1.

15. Comment: Without any legislative expression of statewide policy addressing global climate change, including local reductions of CO₂ emissions, the Revised New York RGGI Proposal violates the constitutional separation of powers. (14)

Response: See Response to Comment Nos. 1 and 3 in the Initial APC, attached. See also Response to Comment No. 1

16. Comment: To the extent that DEC relies on Environmental Conservation Law Article 19 as the basis for the Revised New York RGGI Proposal, the Proposal would also contravene statutory requirements that all interstate air pollution control agreements be submitted to the Legislature for ratification prior to regulatory implementation. (14)

Response: See Response to Comment Nos. 1, 3 and 15 in the Initial APC, attached. See also Response to Comment No. 1.

17. Comment: The general air pollution control authority under ECL Article 19 does not authorize NYSDEC to establish statewide climate change policy. (14)

Response: See Response to Comment Nos. 1 and 3 in the Initial APC, attached. See also Response to Comment No. 1.

18. Comment: The New York State Constitution prevents the Legislature from delegating the authority to create or impose taxes to an administrative agency. NYSERDA is not authorized to create taxes. (14)

Response: See Response to Comment Nos. 1 - 5 and 19 in the Initial APC, attached. See also Response to Comment Nos. 1 and 7.

19. Comment: The Proposing Agencies (DEC and NYSERDA) may not rely on previous grants of statutory authority to arrogate the Legislature's exclusive policymaking powers. Because the Revised Proposals are not based on any legislative expression of statewide climate change policy, the revised regulations are unconstitutional. (14)

Response: See Response to Comment Nos. 1 - 5 and 19 in the Initial APC, attached. See also Response to Comment No. 1.

20. Comment: Just as Boreali could not use its general statutory authority to regulate any matters affecting the preservation of public health, to promulgate a comprehensive regulatory scheme limiting tobacco smoking in public without some legislative authority specifically directed at the subject, DEC may not use its general authority to regulate air pollution under ECL Article 19 to promulgate a comprehensive regulatory scheme addressing climate change through a forced increase in energy costs and redistribution of wealth towards a select group of private entities. Likewise, NYSERDA may not use its general authority to promote safe, dependable, renewable and economic energy sources as a basis to establish New York's climate change policy. (14)

Response: See Response to Comment Nos. 3 and 4 in the Initial APC, attached. See also Response to Comment No. 1.

21. Comment: DEC stated that the allocation of allowances for NYSERDA to auction amounts to an adjustment in the way NY government is addressing the problem of air pollution. The Companies submit that such a change in state-wide governmental policy may not be implemented without debate in and consideration by the Legislature. (14)

Response: See Response to Comment Nos. 1 - 5 in the Initial APC, attached. See also Response to Comment No. 1.

22. Comment: If the Proposal does not impose a tax, the Proposal is ultra vires because the Department and NYSERDA lack the statutory authority to create fees. The Department is powerless to establish fees unless and until the Legislature has delegated broad fee-making authority to the agency. (Liao, 74 NY2d at 510)

ECL Article 72-0201(1)(a) states that "notwithstanding any general or special law to the contrary, all persons who require a permit or approval pursuant to a state environmental regulatory program, or who are subject to regulation under a state environmental regulatory program shall submit a fee as authorized under this article annually to the Department." Under this section, the Department is only authorized to collect the specific fees created by the Legislature. (14)

Response: In accordance with ECL Section 72-0201 (1)(a), all generators that have compliance obligations under the Program will have Article V permits that require payment of a permit fee separate and apart from the Revised Proposal. This fee was specifically created by the Legislature and is not a new requirement of the Revised Proposal.

See also Response to Comment Nos. 5 and 19 in the Initial APC, attached.

23. Comment: The Revised Proposal has been intentionally designed to generate a level of revenue orders of magnitude greater that the Revised Proposal's projected administrative/regulatory costs. That the Revised Proposal is designed to generate an annual surplus of at least $120 million to fund other governmental general welfare programs establish that the Revised Proposal is a tax. The Revised Proposal amounts to an unconstitutional administrative tax, and as a result, the auction provisions of the Proposal are illegal, void ab initio and may not be finalized and implemented. (14)

Response: See Response to Comment Nos. 5 and 19 in the Initial APC, attached.

24. Comment: The APC argues that the Revised Proposal does not constitute a tax because the hundreds of millions of dollars of administrative revenues are "merely incidental occurrence" to the Revised Proposal's primary objective of air pollution reduction. This reasoning is unsound in several respects. The APC does not quote any actual text from Mobil Oil Corp. or Einsfeld in support of its definition of taxes. The New York Tax Law contains numerous provisions, that while expressly identified as "taxes" are also clearly designed to deter undesired conduct. The Revised Proposal would still constitute a tax since both DEC and NYSERDA have repeatedly demonstrated that revenue generation is the primary objective of the Revised Proposal. (14)

Response: Revenue generation is not the primary objective of the Program. The primary objective of the Program is to stabilize (cap) and then reduce CO₂ emissions from fossil-fuel fired power plants thereby enhancing the quality of life and the environment for all New Yorkers.

See also Response to Comment No.19 in the Initial APC, attached.

25. Comment: The Allowance Program has been designed with the specific intent of generating surplus revenues to fund EECET spending programs. (14)

Response: See Response to Comment No.19 in the Initial APC, attached.

26. Comment: In his February 12, 2008 testimony before the Legislature's Joint Budget Hearing on Environmental Conservation, NYSERDA's former President, Paul Tonko, said that the Proposal would trade and sell CO₂ allowances in order to secure additional revenue, which then can be invested in programs which would help further reduce greenhouse gas emissions. He estimated that some $35 million in revenues could be derived from sale of CO₂ allowances. (14)

Response: Upon information and belief, Mr. Tonko's use of the phrase "in order to," if actually uttered, was not meant as an explanation of the objective of the program, but rather as an explanation of NYSERDA's role in the effort, which is to auction the allowances and use the proceeds for the purposes set forth in Part 242 and Part 507. In the sense used by Mr. Tonko, NYSERDA will auction the allowances "in order to" secure the funds for investment in those programs, as is contemplated by both Part 242 and Part 507.

27. Comment: The APC contains numerous statements demonstrating that revenue generation to fund EECET spending programs is one of the primary objectives of the Revised Proposal. (14)

Response: We disagree with the Commentor's characterization of statements that may be contained in the Initial APC. See also Response to Comment Nos. 1, 5, 19, 130, 143 and 146 in the Initial APC, attached.

28. Comment: NYSERDA's non-budgetary disposition of funds generated by the revised Auction Proposal is an unconstitutional usurpation of legislative power. The Revised Proposal empowers NYSERDA to tax, and then to determine the appropriate disposition of hundreds of millions of private dollars transformed into governmental funds by administrative fiat and without input from the Legislature. (14)

Response: See Response to Comment Nos. 1 - 5, 19 and 281 in the Initial APC, attached. See also Response to Comment No. 1.

29. Comment: At the February 12, 2008 Joint Budget Hearing On Environmental Conservation, Assemblyman Kevin Cahill expressed the opinion of many that the Legislature ought to be involved in the process of determining what happens to the allowances, whether, if they are property that belongs to the State of New York, then the alienation of that property ought to be something that's subject to some sort of legislative process. (14)

Response: See Response to Comment Nos. 1 - 5 and 19 in the Initial APC, attached. See also Response to Comment No. 1.

30. Comment: The advisory group of stakeholders who would counsel NYSERDA on how to best utilize the EECET Funds, would be comprised of many of the same entities that stand to benefit from NYSERDA's distribution of revenues. NYSERDA cannot be delegated with the constitutional responsibility to determine the most prudent use of governmental funds according to NYSERDA's set of objectives or visions of policy. (14)

Response: See Response to Comment Nos. 1 - 5, 19, 161, and 273 in the Initial APC, attached. See also Response to Comment No. 1.

31. Comment: Establishment of a tax rate through the regional value of allowances at auction and based on a minimum allowance price violates the New York State Constitution. Based on the minimum reserve price and number of allowances to be auctioned, the Revised Proposal ensures NYSERDA of at least $115,526,097.00 of tax revenue in just the first year of the program. Considering more recent projections using contemporary assumptions and the recent forward market price for 2009 RGGI allowances, total tax revenues are likely to be substantially higher. (14)

Response: The primary purpose of the Revised Proposal is to reduce air pollution, not to raise revenues. Therefore, the Revised Proposal does not establish a tax rate through the value of allowances at auction. Moreover, there is no guarantee that all of the allowances made available at an auction will actually be sold and, therefore, no level of revenue is "ensured."

See also Response to Comment Nos. 1-5 and 19 in the Initial APC, attached.

32. Comment: The Revised Proposal violates NYS Constitution provision prohibiting giving or loaning State money or credit. The July 30, 2007 Snyder letter includes a calculation of the administrative costs of the Revised Proposal that exceeds the projections in the Revised RIS by $1.4 million. Exhibit 32 (Agency Heads meeting) explains the discrepancy which identifies "the costs for the first year of the RO are projected to be approximately $1.4 million, which NY has committed to fund. This is consistent with the language in the Snyder letter which requests a loan from SBC in the amount of $1.4 million. Under the Revised Proposal, the funds necessary to repay this loan of the SBC would be taken from the revenues to be generated by the allowance auction. This transfer of governmental monies to fund operations of a private corporation violates the constitutional prohibition on giving or loaning state credit or money to any private corporation or association, or private undertaking. (14)

Response: The Revised Proposal does not give or loan any State money or credit to any private corporation. On August 28, 2007, the Public Service Commission (PSC) issued an order, In the Matter of the Systems Benefits Charge III, CASE 05-M-0090 (SBC III), pursuant to which the Authority made available up to $3 million in SBC funds for RGGI-related implementation. Of this $3 million, $1.4 million was to be used for "Regional Organization" (RO) - i.e., RGGI, Inc. - costs, and all of the funds were to be restored with interest to the SBC account using proceeds of allowance auctions. Thus, it is SBC III, not the Revised Proposal, which provides the funding mechanism for RGGI, Inc.

Regardless of the precise nature of the SBC funding arrangement, there is no violation of the New York State Constitution's provision prohibiting giving or loaning State credit or money to any private corporation. Although RGGI, Inc. is a private corporation, it is not receiving any loan or gift; instead, RGGI, Inc. is receiving money for services performed pursuant to its contractual relationship with the State. Such an arrangement, in which a private corporation receives governmental monies to perform specific services pursuant to a contract, is typical and does not violate any constitutional provision.

See also Response to Comment No. 17 in the Initial APC, attached.

33. Comment: The Revised Proposal does not identify the use of allowance revenues for the purpose of funding RGGI, Inc. The ongoing and future funding of RGGI, Inc. from revenues to be generated by the allowance auction violates the New York Constitution's prohibition on giving or loaning state credit or money. DEC has agreed to commit New York to unilaterally fund RGGI, Inc's administrative costs for the first 3 years of its operation. (14)

Response: The Revised Proposal, at 21 NYCRR 507.4(c), provides that allowance revenues will be placed into a segregated Energy Efficiency and Clean Energy Technology (EECET) Account. According to the Revised Proposal, at 6 NYCRR 242-5.3(a)(3) and 21 NYCRR 507.4(d), the EECET Account may be used for, among other things, reasonable administrative costs associated with the Program. This would include the use of allowance revenues for the purpose of funding RGGI, Inc.

Regarding the issue of the State Constitution's prohibition on giving or loaning state credit or money, see also Response to Comment No. 32 and Response to Comment No. 17 in the Initial APC, attached.

34. Comment: Under section 1 of article III of the Constitution of the State, the Legislature's licensing and permitting authority may not be delegated to actors who are neither chosen by nor responsible to the State government. Fink, 302 NY 216. (14)

Response: Allowances themselves are not permits or licenses, but rather a condition of an operating permit that constitutes a limited authorization to emit up to one ton of CO₂. The actual operating permit will continue to be issued by the Department, as appropriate, pursuant to 6 NYCRR Parts 201 and 621. Thus, the Revised Proposal does not delegate any licensing and permitting authority whatsoever, including to actors who are neither chosen by nor responsible to the State government.

See also Response to Comment Nos. 5 and 65 in the Initial APC, attached.

35. Comment: In contrast to the delegation of regulatory power to foreign actors in Kantrowitz, 10 Misc.2d 677 (1958), the Legislature has never approved DEC's delegation of its permitting/licensing power to out of state administrative agencies in the Revised Proposal or ratified the MOU. (14)

Response: The allowances themselves are neither permits nor licenses. See Response to Comment No. 34 and Response to Comment Nos. 5 and 65 in the Initial APC, attached.

Regardless, under the Revised Proposal, no authority of any kind is delegated to out of state administrative agencies. Any and all of the Department's permitting and licensing power that exists prior to the finalization of the Revised Proposal will be retained upon finalization of the Revised Proposal.

Moreover, the MOU is merely a non-binding document that sets forth the principles of the RGGI Program, and as such does not require ratification by the Legislature. See also Response to Comment No. 2 in the Initial APC, attached.

Through the regional RGGI program being implemented by the Revised Proposal, the Department and the Authority are both cooperating with other states in an effort to address global climate change. This cooperation with other states with respect to air pollution is already directly authorized by the Legislature in ECL § 19-0301(2)(d). See also ECL § 3-0301 and Response to Comment No. 2 in the Initial APC, attached. As such, the Department and the Authority do not need additional approval by the Legislature to work collaboratively with other states in the region to address climate change by stabilizing and then reducing anthropogenic emissions of carbon dioxide from CO₂ Budget Sources in New York in an economically efficient manner.

36. Comment: The Revised Proposal would delegate the power to issue permits (in the form of CO₂ allowances) enforceable in NYS to administrative agencies from foreign states. Given that these foreign administrative agencies are neither chosen by nor responsible to the Legislature or people of NYS, DEC's delegation of permitting authority to those agencies violates the NYS Constitution. (14)

Response: The CO₂ allowances are neither permits nor licenses. While an allowance issued by another participating state may generally be used for purposes of compliance with the Revised Proposal, the Department still retains the authority to terminate or limit the authorization to emit, and each CO₂ Budget Source must at all times comply with all provisions of the Revised Proposal, as well as its operating permit issued by the Department. Therefore, while the Department and the Authority are cooperating with other states in the implementation of the RGGI program, they are not delegating any authority to foreign administrative agencies. See also Response to Comment Nos. 34 and 35 and Response to Comment Nos. 5 and 65 in the Initial APC, attached.

37. Comment: If DEC is correct and the RGGI MOU is not an interstate air pollution control compact, the attempted delegation of permitting and licensing authority to administrative agencies from foreign states in the Revised Proposal violates the NYS Constitution. (14)

Response: See Response to Comment Nos. 1 and 34-36. See also Response to Comment Nos. 1-5 and 19 in the Initial APC, attached.

38. Comment: NYSERDA is an agency as the term is defined by SAPA section 102 (1). SAPA also defines license as including the whole or any part of an agency permit, certificate, approval, registration, charter or similar form of permission required by law. (SAPA 102(4)) Under this definition, the CO₂ allowances NYSERDA would sell at auction are permits/licenses. NYSERDA is not authorized to engage in licensing of any kind. Thus, the Revised Proposals are ultra vires because NYSERDA cannot engage in the licensing activities incorporated therein. (14)

Response: See Response to Comment No. 5 in the Initial APC, attached.

39. Comment: The Revised Proposal is also ultra vires because NYSERDA is authorized under its operating statutes to sell only real and personal property and the CO₂ allowances NYSERDA would sell at auction are neither real nor personal property. (14)

Response: See Response to Comment No. 1 in the Initial APC, attached.

40. Comment: DEC lacks the statutory authority to deed CO₂ allowances/licenses to NYSERDA for sale at auction. The CO₂ allowances created by the Revised Proposal constitute licenses under the definitions supplied in SAPA 102(4). Likewise, the CO₂ emissions allowances constitute permits under UPA, wherein a permit is defined as "any permit, certificate, license or other form of department approval issued in connection with any regulatory program referred to in ECL 70-0107" ECL 70-0105(4). (14)

Response: The Department has the statutory authority to allocate CO₂ allowances to the Authority pursuant to the Department's broad authority under ECL § 3-0301. The CO₂ allowances do not constitute licenses under SAPA or permits under the UPA. See also Response to Comment Nos. 1 and 5 in the Initial APC, attached.

41. Comment: Under both UPA and DEC's authorizing regulations, the Revised Proposal's CO₂ allowances are "minor permits" 6 NYCRR 621.4(g) (2). The Revised Proposal would have the process for issuing CO₂ emissions allowance permits governed not by DEC's regulations but by NYSERDA's. This amounts to a clear violation of UPA and ECL 19-0302. (14)

Response: The CO₂ allowances are not permits. Moreover, collaboration between the Department and the Authority is not only allowed pursuant to the Department's and the Authority's statutory authority, it is encouraged. See also Response to Comment Nos. 1 and 5 in the Initial APC, attached.

42. Comment: The Revised New York RGGI Proposal is based on two constitutionally inadequate sources of authority: first, a RGGI Memorandum of Understanding ("MOU") signed by Governor George Pataki in December 2005 - but never authorized or ratified by the Legislature - and, second, the Legislature's previous general grants of statutory operating authority to NYSDEC and NYSERDA - statutes that have nothing to do with climate change, RGGI or the manner in which the Proposal seeks to regulate and address climate change. (14)

Response: The RGGI MOU is not a source of authority for the revised proposal. Instead, the RGGI MOU is merely a non-binding document that sets forth the principles of the RGGI Program. See also Response to Comment No. 2 in the Initial APC, attached.

The Revised Proposal is based on several sources of statutory authority for the Department and the Authority, referenced in the Revised RIS. While these sources do not specifically mention climate change, RGGI, or the cap-and-trade method, all of these items fall within the broad statutory authority for the Department and the Authority. This broad statutory authority provides, among other things, that the Department may use all available methods to prevent and control air pollution from the generation of electricity, and that the Authority may do all things necessary or convenient to carry out its corporate purposes, which includes the development and encouragement of energy efficiency and clean energy technologies. See also Response to Comment No. 1 in the Initial APC, attached.

43. Comment: Because the Legislature has heretofore repeatedly tried and failed to articulate a statewide climate policy, DEC and NYSERDA may not declare through administrative fiat that such a policy exists. (14)

Response: The Revised Proposal does not itself constitute a statewide climate policy. The Revised Proposal is but one of many efforts the State is currently taking to reduce greenhouse gas emissions statewide. For example, the PSC Renewable Portfolio Standard (RPS), which requires that 25 percent of the electricity purchased in New York State be obtained from renewable energy sources by 2012, and Energy Efficiency Portfolio Standard, which has as its goal a 15 percent reduction in energy usage by 2015, both will help to reduce the state's emissions of GHGs.

See also Response to Comment Nos. 3 and 6 in the Initial APC.

44. Comment: Because Congress had established a federal policy to prevent climate change, and had never curtailed EPA's power to treat GHGs as air pollutants, EPA could regulate GHGs under the CAA even if Congress had not established specific emissions standards. The critical distinction between Mass v. EPA and DEC's current attempts to regulate CO₂ emissions through the proposed Revised Proposal is that, unlike Congress, the Legislature has never expressed a statewide policy objective with respect to prevention of global climate change. (14)

Response: See Response to Comment Nos. 1 and 3 in the Initial APC, attached. See also Response to Comment No. 1.

45. Comment: Whether or not CO₂ may be a regulated as an air pollutant under the CAA or under the ECL Article 19 has no bearing on the authority for governmental auctioning of allowances to the highest bidder, the cornerstone of the Revised Proposal. EPA's broad authority to promulgate emissions standards does not empower it to raise revenue by selling emissions allowances and DEC is unable to point to any precedent that would provide EPA with the authority to auction allowances without an explicit statutory enactment. (14)

Response: The Department and the Authority's authority for auctioning allowances are independent of any authority under the CAA. The Department and the Authority referenced the EPA's broad authority under the CAA in the Initial APC because Article 19's definition of an "air pollutant" is even broader than the "capacious definition" of an "air pollutant" under the CAA. Moreover, the Department's authority with respect to such "air pollutants" is broader than that granted to the EPA by the CAA. Whether or not the EPA has the authority to auction allowances without an explicit statutory enactment is irrelevant to the Department and the Authority's authority to do so under its own broad statutory authority.

Regarding the general statutory authority for the Revised Proposal, which includes the authority to auction allowances, see also Response to Comment Nos. 1, 3, and 5 in the Initial APC, attached. See also Response to Comment No. 1.

46. Comment: DEC may not finalize the Proposal in the absence of a clear directive from the State Legislature regarding the means for addressing climate change that would authorize DEC's preferred policy of auctioning allowances to raise revenue for the EECET spending programs. (14)

Response: As described in the Revised Regulatory Impact Statements, the Department and the Authority have the statutory authority to implement the Revised Proposal, even in the absence of a clear directive from the Legislature regarding climate change. See Response to Comment Nos. 1 and 5 in the Initial APC, attached.

Moreover, the primary purpose of auctioning allowances is not to raise revenue for the EECET Account, but rather to deter and curb CO₂ emissions. See Response to Comment No. 19 in the Initial APC, attached.

47. Comment: The Revised Proposal exempts the vast majority of statewide sources of GHGs and CO₂ emissions, not because those sources do not contribute to climate change, but for other, non-scientific considerations. The task of weighing competing economic and social interests to achieve policy objectives is the Legislature's alone. (14)

Response: As acknowledged by the commentor, the Revised Proposal is not a comprehensive regulatory scheme addressing global climate change, but rather is the regulation of one air pollutant, CO₂, from one category of sources, electricity generators with a nameplate capacity equal to or greater than 25 MW. The Revised Proposal contains several exemptions for various reasons, each of which are described in the Regulatory Impact Statements, the Initial APC, and elsewhere in this document. Contrary to the commentor's assertion, the task of weighing competing economic and social interests is a frequent duty for all administrative agencies exercising the authority granted by the Legislature.

See also Response to Comment Nos. 1 and 4 in the Initial APC, attached.

48. Comment: Just as in Boreali v. Axelrod, 71 NY2d 1 (1987), the Department may not use its general authority to regulate air pollution under ECL Article 19 to promulgate a comprehensive regulatory scheme addressing global climate change. Under Boreali, the regulations are more likely to constitute impermissible policy making where an administrative agency writes on a clean slate, creating its own comprehensive set of rules without benefit of legislative guidance. (14)

Response: See Response to Comment No. 3 in the Initial APC, attached. See also Response to Comment No. 1.

49. Comment: Over the last two years, there have been at least 16 separate bills introduced in the Legislature that attempt in some way to establish a statewide policy with respect to New York's response to climate change and or reductions in CO₂ emissions. Of those 16 bills, all but two have failed to pass and neither of those established as statewide global climate change policy. Thus, the Legislature has yet to reach agreement on how best to approach the challenges presented by climate change. (14)

Response: None of the bills introduced in the Legislature sought to authorize the Revised Proposal; similarly, none of the bills attempted to limit the Department's or the Authority's authority to implement the Revised Proposal. Moreover, even if the Legislature has yet to reach agreement on establishing a statewide global climate change policy, the Revised Proposal does not seek to establish a statewide global climate change policy. The Revised Proposal merely represents the regulation of one air pollutant, CO₂, from one category of sources, electricity generators with a nameplate capacity equal to or greater than 25 MW.

See also Response to Comment Nos. 1and 43 and Response to Comment Nos. 3 and 6 in the Initial APC, attached.

50. Comment: That A7367 was intended by the Legislature to assist in the future creation of a comprehensive Climate Action Plan confirms that the Legislature has not yet articulated a statewide climate change policy. Spitzer's veto message claimed that the Office of Climate Change in the budget which was approved by the Legislature would render the Climate Change Task Force unnecessary because he had previously created the OCC. Under the separation of powers inherent in the New York State Constitution, it is the Legislature, not the executive branch administrative agencies, or sub offices of agencies such as OCC that is exclusively responsible for developing New York's policy with respect to climate change. (14)

Response: The Revised Proposal is merely one regulatory action pursuant to the Department and the Authority's statutory authority. It does not represent New York State's comprehensive policy with respect to climate change.

Moreover, the Department's Office of Climate Change is not exclusively responsible for developing the State's policy with respect to climate change. The State's comprehensive approach to climate change includes not just efforts to reduce greenhouse gas emissions from electric generating units, like the Revised Proposal, but also, for example, efforts to increase energy efficiency and use of renewable energy sources. Many of these other efforts are being undertaken by or in conjunction with other administrative agencies, and with the approval of the Legislature.

See also Response to Comment Nos. 1, 43 and 49 and Response to Comment Nos. 3 and 6 in the Initial APC, attached.

51. Comment: Under the fourth Boreali factor, even if the Revised Proposal implicates special expertise or technical competence, DEC had no greater institutional competence in the relevant areas than the Legislature. (14)

Response: Both the Department and the Authority have substantial technical expertise in areas relevant to the Revised Proposal. Regardless of the Legislature's institutional competence in the relevant areas, the Legislature has given the Department and the Authority the authority to implement the Revised Proposal through several grants of statutory authority.

See also Response to Comment Nos. 4 and 5 in the Initial APC, attached.

52. Comment: The manner in which CO₂ allowances would be issued and sold under the Revised Proposal violates the provisions of SAPA and the UPA. (14)

Response: Because the allowances are not themselves permits or licenses, the manner in which they would be issued and sold does not violate any provision of SAPA or the UPA.

See also Response to Comment No. 5 in the Initial APC, attached.

53. Comment: NYSERDA has no statutory authority to issue/sell regulatory licenses such as the CO₂ allowances. The Legislature has authorized NYSERDA to sell only real or personal property. (14)

Response: The allowances are not regulatory licenses. Instead, the allowances represent a condition of an operating permit that constitutes a limited authorization to emit up to one ton of CO₂.

See also Response to Comment Nos. 1 and 5 in the Initial APC, attached.

54. Comment: The failure of NYSDPS and, thus, NYSDEC and NYSERDA, to adequately assess the impacts on reliability does not comport with the provisions of the State Environmental Quality Review Act ("SEQRA") and the State Administrative Procedures Act ("SAPA"). (14)

Response: Reliability was adequately assessed as indicated in the Response to Comment No. 35 in the Initial APC, attached.

55. Comment: The Revised New York RGGI Proposal contravenes the SEQRA because the SDGEIS does not choose among alternatives that mitigate adverse effects to the maximum extent practicable and does not provide a reasoned elaboration of the basis for its determination. As a result, the SDGEIS does not comply with SEQRA's comprehensive substantive and procedural requirements. (14)

Response: Alternatives are identified and assessed in section 5.0 of the SDGEIS. The comment does not indicate if there was a specific alternative that was identified but omitted. However, the SDGEIS includes the range of reasonable alternatives including the no action alternative. The specific choice of alternative occurs in the findings statement [6 NYCRR §617.11(d)]. The findings statement is issued after the completion of the final environmental impact statement. The findings will set forth the reasoned basis for the particular decision.

56. Comment: The Revised New York RGGI Proposal contravenes the SEQRA because the SDGEIS does not take the required "hard look" at the potential adverse environmental effects of the Proposal (most notably an increase in transported air pollution from upwind states due to emissions leakage, including to specific locations within regions purportedly "capped" by federal programs) and was published before alternatives and final action to mitigate those environmental effects were determined. (14)

Response: See Response to Comment No. 434 in the Initial APC, attached. Leakage-related impacts are also assessed in section 6.5 of the SDGEIS and in the final leakage report, "Potential Emissions Leakage and the Regional Greenhouse Gas Initiative," which is incorporated by reference attached to the SDGEIS. Leakage mitigation is assessed in section 7.2 of the SDGEIS and in the final leakage report referenced above.

The rulemaking documents and the Initial APC make reference to CAIR. While CAIR is not directly associated with or material to the RGGI Program, the Department and the Authority acknowledge that the United States Court of Appeals for the District of Columbia Circuit recently issued a decision vacating the CAIR rule in North Carolina v. EPA, No. 05-1244 (D.C. Cir. July 11, 2008). This decision is not yet legally effective because the Court has not yet issued its mandate. It is also not clear at this time whether the decision will become legally effective or, of it does become effective, when that will occur. Under Federal Rule of Appellate Procedure (FRAP) 41(d)(1), the timely filing of a petition for rehearing, a petition for rehearing en banc, or motion for stay of mandate, stays the mandate until disposition of the petition or motion, unless the Court orders otherwise. Further, under FRAP 41(d)(2), a party may move to stay the mandate pending the filing of a petition for writ of certiorari in the U.S. Supreme Court. Depending on the outcome of any such petitions, the decision vacating CAIR may or may not ever become legally effective. If the decision vacating CAIR becomes legally effective, the Department and the Authority will determine whether and to what extent the rulemaking documents need to be amended to reflect such decision.

CAIR is not directly associated with or material to the Program since NO_x and SO₂ emissions are already capped by the NO_x SIP Call and Clean Air Act Title IV. These federal programs reduce the potential for emissions increases that might result from leakage since they impose a federal cap on NO_x and SO₂. Notwithstanding this, if some leakage were to occur, it will most likely result in increased operation of marginal units, which tend to be natural gas generation in upwind states. Coal is typically base loaded.

See also Response to Comment Nos. 257, 269 and 403. See also Response to Comment Nos. 29, 176, and 260 in Initial APC, attached.

57. Comment: The proposed program violates SEQRA. The Proposal is an action under SEQRA. Because the Department chose to issue the SDGEIS before several key elements of the Proposal were finalized, and before several potential areas of environmental concern had been adequately analyzed, the Proposal has not been subject to the hard look required under SEQRA. The SDGEIS does not include analysis of areas of environmental concern relating to potential adverse impacts of the action itself - the Proposal. (14)

Response: The commentator appears to be referring to the Final Auction Report and the Final Emissions Leakage Report. These reports were both finalized prior to the publication of the revised rules and the SDGEIS and were fully considered within these documents.

58. Comment: The SDGEIS does not adequately and accurately address the probable environmental impacts associated with leakage, because the so-called "final report" on leakage mitigation measures acknowledges that the analysis contained therein is ongoing. The SDGEIS's incomplete analysis does not constitute a "hard look" at the leakage issue.

Without Maryland included in the previous leakage analysis, that analysis is invalid and establishes a failure to satisfy the hard look standard.

Although the SDGEIS identifies leakage as a potential adverse environmental impact, it only discusses possible and speculative leakage mitigation measures that "could" be implemented or may be adopted in the future. SEQRA has been violated by not conditioning final promulgation of the Revised Proposal on any specific and enforceable leakage mitigation measures.

The SDGEIS should include discussion of the implementation of a national GHG reduction program as a potential emissions leakage mitigation measure, and identify such implementation as an alternative. (14)

Response: Leakage has been thoroughly assessed. The Department does not agree that its leakage analysis is flawed because more information may be developed in the future. The commentor does not substantiate how Maryland's non-inclusion in the initial report is relevant. Establishment of a federal cap-and-trade system for carbon emissions would be a positive development and a long overdue one on the part of the national government but the Department has no authority to compel the federal government to adopt one. At the same time, there is little indication that such a system is imminent despite the fact that climate change is one of the most significant environmental challenges of our time.

See Response to Comment Nos. 1, 56 and 57, Section 6.5 of the SDGEIS and Response to Comment Nos. 434-37 in the Initial APC, attached.

59. Comment: The Department's decision to forego "scoping" of the SDGEIS further exacerbates SEQRA deficiencies. The Department itself has repeatedly extolled the virtues of scoping in its publications and its absence here contravenes Department policy. Contrary to the original Assessment of Public Comments, the RGGI Stakeholder process cannot be substituted, post hoc, for true scoping because it did not comply with the strict procedural requirements of SEQRA. (14)

Response: See Response to Comment Nos. 434-47 in the Initial APC, attached, and pages 12 and 15 of the SDGEIS. Development of RGGI and the associated SEQR process have been subject to extensive public input as indicated on pages 12 and 15 of the SDGEIS. See also Response to Comment No. 1.

60. Comment: The SDGEIS does not list as part of the action or otherwise include the approval by the PSC of the Department's request to borrow $3 million from the Authority-administered SBC fund to support RGGI, Inc. The SDGEIS's treatment of the $3 million loan to RGGI, Inc. is wholly inadequate in terms of addressing any potential environmental impacts raised by the transfer, and constitutes impermissible segmentation under SEQRA. (14)

Response: NYSERDA's contract with RGGI, Inc. is discussed as part of the action in the SDGEIS at pages 127-128. NYSERDA's contract with RGGI, Inc. does not by itself have a potential environmental impact. The RGGI program, which is the beneficiary of such funding, and its environmental impacts are assessed in the DGEIS, SDGEIS and herein.

Commentor No. Commentor

1 ROY WOOD, EASTMAN KODAK COMPANY
2 CHRISTOPHER TRABOLD, BROOKLYN NAVY COGEN PARTNERS
3 ALANAH N. KEDDELL, ADIRONDACK COUNCIL
4 MICHAEL MINNOLERA, INDECK-CORINTH LIMITED PARTNERSHIP
5 JACKSON MORRIS, ENVIRONMENTAL ADVOCATES
6 DONALD NEAL, CALPINE CORPORATION
7 CARL CARLSSON, SUEZ ENERGY
8 RADMILLA MILETICH, INDEPENDENT POWER PRODUCERS OF NEW YORK
9 SETH ABRAMS
10 SUSAN LYONS
11 WENDY LOVINGER
12 BRUCE MILLER, VILLAGE OF PORT JEFFERSON
13 JOHN FLUMERFELT, CALPINE CORPORATION
14 ROBERT J. ALESSI, DEWEY & LEBOEUF ON BEHALF OF AES AND DYNEGY
15 BRIAN JONES, NORTHEAST GREENHOUSE GAS COALITION
16 CHRISTOPHER TRABOLD, BROOKLYN NAVY COGEN PARTNERS
17 MARGARET POWELL, CONSTELLATION ENERGY
18 DAVID B. APPLEBAUM, FPL ENERGY
19 DON NEAL, CALPINE CORPORATION
20 ALANAH N. KEDDELL, ADIRONDACK COUNCIL
21 CARL CARLSSON, SUEZ ENERGY
22 JACKSON MORRIS, ENVIRONMENTAL ADVOCATES
23 ROBERT D. TEETZ, NATIONAL GRID
24 JOHN D. HOLSAPPLE, ENVIRONMENTAL ENERGY ALLIANCE OF NEW YORK
25 EUGENE M. TRISKO, AMERICAN COALITION FOR CLEAN COAL ELECTRICITY
26 MICHAEL E. VAN BRUNT, COVANTA ENERGY
27 ROBERT M. LOUGHNEY, COUCH WHITE. LLP ON BEHALF OF MULTIPLE INTERVENORS
28 WILLIAM L. FANG, EEI
29 ALADDINE JOROFF, GOODWIN PROCTOR LLP. FOR ENTERGY CORPORATION
30 CONNIE LAUSTEN, NEW GENERATION BIOFUELS
31 LAWRENCE DEWITT, PACE LAW SCHOOL ENERGY PROJECT
32 CAROL E. MURPHY, ALLIANCE FOR CLEAN ENERGY NEW YORK
33 MICHAEL D. FERGUSON, INDECK-CORINTH LIMITED PARTNERSHIP
34 PAUL L. GIOIA, DEWEY & LEBOEUF ON BEHALF OF THE NEW YORK STATE RELIABILITY COUNCIL
35 MICHAEL J. MCADAMS, ADVANCED BIOFUELS COALITION
36 THEJU PRASAD, JAMESTOWN BOARD OF PUBLIC UTILITIES
37 GAVIN J. DONOHUE, INDEPENDENT POWER PRODUCERS OF NEW YORK
38 PAUL L. GIOIA, DEWEY & LEBOEUF ON BEHALF OF CENTRAL HUDSON GAS & ELECTRIC, CONSOLIDATED EDISON COMPANY OF NEW YORK, NEW YORK STATE ELECTRIC & GAS CORPORATION, ORANGE AND ROCKLAND UTILITIES, INC., AND ROCHESTER GAS AND ELECTRIC CORPORATION
39 EMMETT PEPPER, CITIZENS CAMPAIGN FOR THE ENVIRONMENT
40 THOMAS COATES, NRG ENERGY, INC.
41 STEPHANIE TYREE, WE ACT FOR ENVIRONMENTAL JUSTICE
42 RANDOLPH PRICE, CON EDISON
43 LUIS MARTINEZ MARTI, NRDC
44 SHIRLEY J. HAMILTON, NIAGARA IMPROVEMENT ASSOCIATION
45 MOLLIE LAMPI, NEW YORK INDEPENDENT SYSTEM OPERATOR
46 NED REYNOLDS, UNION OF CONCERNED SCIENTISTS
47 PEGGY SHEPARD, CLIMATE JUSTICE WORKGROUP
48 ADAIR DELAMATER
49 ADAM STEELE
50 ADAM WALTERS
51 AILEEN GRIBBIN
52 AIMEE VIENS
53 AIMEE WHITMAN
54 AL VERDINI (two submissions)
55 ALAINA OBERER
56 ALEXANDRA ORYNIAK
57 ALFRED CAMMISA
58 ALICE AVRUTICK
59 ALICIA DICKSON
60 ALINE EULER
61 ALISA COSTA (two submissions)
62 ALLISON CHADER
63 ALLISON GENTILE
64 AMANDA SCUDER
65 AMRE KLIMCHAK
66 AMY PHILLIPS
67 ANA CRUZ
68 ANDREW PYNE
69 ANDREW RANDAZZO
70 ANDREW SESSA
71 ANITA BRANDARIZ
72 ANN I. AURELIO
73 ANN LOEDING
74 ANN PILCHER
75 ANN SPRAYREGEN
76 ANNA DEMBSKA
77 ANNE HIGGINS
78 ANNE HUIBREGTSE
79 ANNE POPE
80 ANNE-MARIE FERNANDEZ
81 ANTHONY MARTIN DAMBROSI
82 ANTHONY MODAFFERI
83 AUGUSTUS FLEMING
84 B DEBORAH COHEN
85 B JOCHUM
86 B. LA ROE
87 BARBARA BOYER
88 BARBARA DUNCAN
89 BARBARA JO KINGSLEY
90 BARBARA LADD
91 BARBARA LEITERMAN
92 BARBARA LIDESTRI
93 BARBARA MENKES
94 BARBARA MONTELIONE
95 BARBARA TOBORG
96 BARTON SCHOENFELD
97 BEN-AMI FRIEDMAN
98 BERTHA KRIEGLER
99 BETSEY KECK
100 BETTINA HEMPEL
101 BETTY J. VAN WICKLEN
102 BEVERLY DRUCKER
103 BLAIR ALLEN
104 BONNIE KOSHOFER
105 BOYCE SHERWIN
106 BRENDAN PENDERGAST
107 BRIAN KREIB
108 BRIGID DRISCOLL
109 CARA CRUICKSHANK
110 CARLA HALL
111 CAROL HINKELMAN
112 CAROL SMILLIE
113 CAROLA SOLTAU
114 CAROLYN SUMMERS
115 CARYN BURTT
116 CATHE GIFFUNI
117 CE GAC
118 CELIA BRESSACK
119 CHANDRA LENCINA
120 CHARLES HAYNES
121 CHERYL CAMMER
122 CHERYL JUDGE
123 CHESTER AND KATHERINE ARMSTRONG-HARVEY
124 CHRISTA DAVIS
125 CHRISTIAN SWENINGSEN
126 CLARICE GUTTMANN
127 CONNIE WALTERS
128 CONSTANZA PALACIOS
129 CYNTHIA DEBRUIN
130 D FASSMAN
131 D. A. RANDALL
132 DANIELLA NORDIN
133 DANIELLE PACK
134 DANNY TOMA
135 DAVID BAROUH
136 DAVID BEMIS
137 DAVID CASSUTO
138 DAVID HERMANNS
139 DAVID HUTCHISON
140 DAVID PRYSTAL
141 DAVID RANDALL
142 DAVID SELBERT
143 DAVID SHEERAN
144 DAVID STRAUS
145 DAWN JOHNSON
146 DEB SGAMBELLURI
147 DEBBIE BILTONEN
148 DEBBIE BURACK
149 DEBBIE WALSH
150 DEBRA NAUMOVITZ
151 DENICE GIVEN
152 DIANA NOYES
153 DIANE CIURCZAK
154 DIANE GAERTNER
155 DIANE GUENDEL
156 DINDA EVANS
157 DONNA LENHART
158 DONNA SEYMOUR
159 DOREEN TIGNANELLI
160 DOROTHY SHAYS DANGERFIELD
161 DOUG BULLOCK
162 E HEGEMAN
163 EDMUND HOLDEN
164 EDWARD KUSH
165 EDWARD SCHREIBER
166 EILEEN ROBERTS
167 ELAINE YOUNG
168 ELEANOR BERRET
169 ELEANOR WORTH
170 ELENA ROSENBERG
171 ELIZA HEGEMAN
172 ELIZABETH CLINTON
173 ELIZABETH LYONS
174 ELIZABETH MOSTOV (2 submissions)
175 ELIZABETH PIXLEY
176 ELIZABETH STRICKLER
177 ELLEN KENNELLY
178 ELLEN KOLODNEY
179 ELLEN STOCKDALE WOLFE
180 ELLIE BECHER
181 ELSA LEVISEUR
182 ERIC NEWMAN
183 ERIK GUSTAFSON
184 ERNST MARTIN
185 ESTHER FRANCES
186 F. MICHAEL HEMMER
187 FIONA BRADY
188 FRANK DESANTIS
189 FRANK JOHNSON
190 FRANK WOOLEVER
191 FREYA GOLDSTEIN
192 FRIENDS OF THE BAY
193 G. T. GERRARD
194 GABRIELA RYAN
195 GABRIELLE KAYSER
196 GARRETT MEIGS
197 GARY BELLOWS
198 GARY MCCOOLA
199 GEORGE DILLMANN
200 GEORGE HANSEN
201 GEORGENA TERRY
202 GERALDINE AIRD
203 GERALDINE BARON
204 GINA SANTONAS
205 GINGER COMSTOCK
206 HAL SMITH
207 HARRIET HYAMS
208 HARRIET J HELMAN
209 HARRIET SHALAT
210 HARRY SOKOL
211 HARVEY WEBER
212 HELEN CHAPMAN
213 HELEN CHAYEFSKY
214 HELENA GUASTELLA
215 HELENE CONTI
216 HELGA KLESSEN
217 HENRY SMEDLEY
218 INA ARONOW
219 INGRID PETRICONE
220 IRENE MORRISSEY
221 IRENE ROCHA
222 ISABELLA KIMELMAN
223 J NEWMAN
224 J. ABERNATHY
225 J. CAPOZZELLI
226 JACKSON MORRIS
227 JAMES BROWN
228 JAMES LANDI
229 JAMES MULDER
230 JAMI OLSEN
231 JANET ALLEN
232 JANET CONNOR
233 JANET MOSER
234 JANICE BERNARD
235 JANIS MEYER
236 JASON SETLOCK
237 JAY ALBRECHT
238 JAY GASSMAN
239 JAY MUELLER
240 JEAN PALAS
241 JEFFREY KALMAN
242 JEFFREY STERLING JR.
243 JENNA KERN-RUGILE
244 JENNIE SHUFELT
245 JENNIFER COLEMAN
246 JEREMY CARPENTER
247 JEREMY SCHNEIDER
248 JERI CHERASKIN
249 JESSICA GOODY
250 JILLIAN JOSEPH
251 JIM BACON
252 JIM BIXLER
253 JIM COLUMBIA
254 JO ANN ARCARESE
255 JO ANNE GORSKI
256 JOAN GINGERESKY
257 JOANN DOLAN
258 JOANN PEDERSEN
259 JOANNE JACOBS
260 JODY SCHOENFELD
261 JOE GARDNER
262 JOHN BLOUCH
263 JOHN KORDRUPEL
264 JOHN MEROLA
265 JORDAN WEINER
266 JOSE R RAMOS (4 Submissions)
267 JOSEF KOZAKA
268 JOSEF REITER
269 JOSEPH BUTERA
270 JOSEPH DANGELO
271 JOSEPH M. VARON
272 JOSEPH MONTUORI
273 JOSEPH MURRAY
274 JOSEPH O'SULLIVAN
275 JUDITH BIRD
276 JUDITH MARTIN
277 JUDY SANDFORD
278 JUDY W. SOFFLER
279 JULIE MCQUAIN
280 JULIE PARISI KIRBY
281 K HORNICK
282 KARA SPRAGUE
283 KAREN BROWNING
284 KAREN GAHL-MILLS
285 KAREN SLOTE
286 KARIN GLUTH
287 KARIN GREENFIELD-SANDERS
288 KAROLE DELANEY
289 KATE SCHMIDT
290 KATHERINE HYDE
291 KATHI BURTON
292 KATHLEEN CORBY
293 KATHLEEN DAVIS
294 KATHLEEN LINGO
295 KATHLEEN MCCARTHY
296 KATHLEEN MCCURRY-CLARK
297 KATHLEEN P. DESTEFANO
298 KATHLEEN SCHMALTZ
299 KATHLEEN WILEY
300 KATHRYN BARRY
301 KATHY DUBEL
302 KATHY SCHWAGER
303 KATHY TORIS ROWE
304 KENNETH BIRD
305 KENNETH CLARK
306 KESTAS BENDINSKAS
307 KEVIN FURLONG
308 KEVIN MILLAR
309 KIRSTEN FERGUSON
310 KRIS GILBERT
311 KRISTIN FRIEDEL
312 KRISTINA MCCARTHY
313 L. DIXON
314 LARRY TUCKER
315 LAURENCE KIRBY
316 LAWRENCE ETHAN ROZENFELD
317 LEE JAMISON
318 LEIGH OBRIEN
319 LEROY SMITH
320 LESLIE POTTER
321 LINDA KEELING
322 LINDA REENS
323 LINDA STEVENS
324 LISA CAMP
325 LISA GENGO
326 LOGAN WELDE
327 LOIS TUTINO
328 LOUIS BREITBACH
329 LUCILLE LEWIS JOHNSON
330 LUIS F. SANCHEZ
331 LYNN BARILLARI
332 LYNN DAVIS
333 LYNNE TEPLIN
334 M BUFFY HODGETTS
335 M STOCKER
336 MAKIKO PARSONS
337 MARC WEBER
338 MARGARET BARONE
339 MARGARET DAVIDSON
340 MARIA CATALINA HAYATA
341 MARIA DE NICOLO
342 MARIAN HENNEMAN
343 MARIAN INGERSON
344 MARIANNE MUKAI
345 MARILYN MANEY
346 MARION PERKUS
347 MARJORIE L. BROWN
348 MARK EHRENBERG
349 MARK GOLDFIELD
350 MARK KOPLIK
351 MARNIE ANDREWS
352 MARSHALL JOHNSON
353 MARSHALL MILLER
354 MARY HACK
355 MARY HAZIRJIAN
356 MARY NEUMANN
357 MARY NOLL
358 MARY SMITH
359 MARY WINGENDER
360 MARYANN JOHNSTON
361 MARYGRACE BROWN
362 MAURY HOPSON
363 MELANIE STANGE
364 MELISSA DECKER
365 MELISSA MCTAGUE
366 MELVIN DYSTER
367 MERIDETH GENIN
368 MERLE NEIDELL
369 MERRILL FRANK
370 MIA MOROSOFF
371 MICHAEL LAIRD
372 MICHAEL MACELHINEY
373 MICHAEL MASLANEK
374 MICHAEL ZELIE
375 MICHELE CENTANNI
376 MIKKI CHALKER
377 MISHA FREDERICKS
378 MORTON TRACHTENBERG
379 MURIEL BURROWS
380 MYLES WEINTRAUB
381 MYRON BLUMENFELD
382 N BULLOCK
383 NANCY HALLOCK
384 NANCY REYNOLDS
385 NANCY WINEGARD
386 NATHAN DIEGELMAN
387 NECOLE WITCHER
388 NEIL POWELL
389 NICOLE SAHADY
390 OAKES AMES
391 ORLANDO HIDALGO
392 OWEN FISHER
393 PAT STERLING
394 PATRICIA CARNEY
395 PATRICIA CHRISTAKOS
396 PATRICIA JAMIESON
397 PATTI KELLY
398 PAUL ANTONELL
399 PAUL OSMER
400 PETER CALLAWAY
401 PETER MITCHELL
402 PETER TANNER
403 PETER WARN
404 PHYLLIS M ANDREWS
405 PHYLLIS TIERNEY
406 R. MARTIRE
407 RACHEL LEIBOWICZ
408 RACHEL RIEMANN AKERA
409 RAGNAR MIDTSKOGEN
410 RAYMOND JOHNSON
411 REBECCA NYSTROM
412 REBECCAH GORMAN
413 REGINA WALTHER
414 RENAE BOWMAN
415 RICHARD & DENISE EDELSON
416 RICHARD & EILEEN HEANING & ROACH
417 RICHARD MAGARGLE
418 RISA SOKOLSKY
419 ROB AND MARGIE DORKIN
420 ROBBIN BLAINE LIVINGSTON
421 ROBERT CARRICART
422 ROBERT FURSICH
423 ROBERT LANGELAND
424 ROBERT MCCLURE
425 ROBERT POTRZEBA
426 ROBERT WALKER
427 ROBERTA BUNSICK
428 ROBERTA WIERNIK
429 ROBIN DE LILL STROMAN
430 ROBIN SPIEGELMAN
431 ROGER DOWNS
432 ROGER SANTERRE
433 RON WISH
434 ROSE DORN
435 ROSEMARY MACLAUGHLIN
436 RUTH SLATER
437 S. ETHERTON
438 SABINA CURTI
439 SACHA SPECTOR
440 SANDRA KISSAM
441 SANDRA PATLA
442 SARA STOPEK
443 SARAH AND ROBERT GOODWIN
444 SARAH GALLAGHER
445 SARAH JOHNSON
446 SARAH KOGEL-SMUCKER
447 SETH SILVERMAN
448 SHADI TOWFIGHI
449 SHARON GOODMAN
450 SHARON NOLTING
451 SHELDON EVANS
452 SHERI EBERLY
453 SHERRI ELLIS
454 SHIRLEY SMITH
455 SHYAMA ORUM
456 SHYLY AMARASINGHE
457 SISTER JEAN SLIWINSKI
458 STACI-LEE SHERWOOD
459 STANLEY SCHARF
460 STANLEY SPERBER
461 STEPHANIE BUCALO
462 STEPHANIE FEYNE
463 STEPHANIE GUNNING
464 STEPHEN GOYON
465 STEPHEN SAFRAN
466 STEVE HOPKINS
467 STEVE KOHN
468 STEVE LONGO
469 STEVE WEINER
470 STEVEN PLOTNICK
471 STEVEN YOUNG
472 STUART AUCHINCLOSS
473 SUN HAE KIM
474 SUSAN GOODFELLOW
475 SUSAN HOOVER
476 SUSAN KELLEHER
477 SUSAN LASALA
478 SUSAN SHARFSTEIN
479 SUSAN SHUFELT
480 SUSAN SIVELY
481 TARA COLLINS
482 TED SCOVELL
483 THE REV. NANCY UPSON LANE, PH.D.
484 THOMAS J ROWAN
485 THOMAS JUDD
486 THOMAS OVERBYE
487 THOMAS PINTAGRO
488 THOMAS V. CONNOR
489 TIBOR WEINREB
490 TIFFANY CUMMINS
491 TIM STONE
492 TIMOTHY ROSSER
493 TIMOTHY SWEENEY
494 TODD BENZIN
495 TODD SOMODEVILLA
496 TRAVIS HEATH
497 TRINA BASSOFF
498 TRISH GARDINER
499 TULLIA LIMARZI
500 TYLER HARTSHORN
501 VAL DEGRACE
502 VALERIE BERK
503 VANESSA FAVERO
504 VERA WEINTRAUB
505 VIC MAIETTA
506 VICTOR PAGLIA
507 VICTORIA BAKER
508 VIRGINIA PENCE
509 VIRGINIA PERRETTE
510 VITALAH GAYLE SIMON
511 WALTER DANIELS
512 WALTER POGLIANI
513 WALTER SIMPSON
514 WANDA CAWEIN
515 WARREN MIKULKA
516 WAYNE GERSHBERG
517 WENDY HOJOHN
518 WENDY WIDMANN
519 WILLIAM ABRANOWICZ
520 WILLIAM BURGESS
521 WILLIAM E. SAROVEC
522 WILLIAM LOWERY
523 WILLIAM MITCHELL
524 WILLIAM REEVES
525 WINFIELD CRANS
526 BARRY SPIEROGEL
527 COLLEEN MCGLONE
528 DAVID LILLY
529 ERIK WOOD
530 GENEAL LOGIE
531 JAMES HEAD
532 JAMES M. NORDLUND
533 PROF. DENISE J. TARTAGLIA
534 RAVI GROVE
535 ROBB REDDEN
536 ROBERT RUTKOWSKI
537 SARA SCHMIDT
538 STEPHEN DONNELLY
539 TINA HOROWITZ