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New York Power Authority (Astoria) - Issues Ruling, July 19, 2001

Issues Ruling, July 19, 2001




Department of Public Service

CASE 99-F-1627 - Application by New York Power Authority for a Certificate of Environmental Compatibility and Public Need to Construct and Operate a 500 Megawatt Combined Cycle, Combustion Turbine Electric Generating Facility at its Existing Charles Poletti Power Project in Astoria, Borough of Queens.


Department of Environmental Conservation

CASE No. 2-6301-00084/00016

SPDES No. 0267503 - In the Matter of Application for a State Pollutant Discharge Elimination System Permit Pursuant to Environmental Conservation Law (ECL) Article 17 and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR) Parts 750 et seq., and Air Pollution Control permits consisting of a Preconstruction permit and a Certificate to Operate, pursuant to ECL Article 19 and 6 NYCRR Parts 200 et seq.


(Issued July 19, 2001)

WILLIAM BOUTEILLER, Presiding Examiner

KEVIN J. CASUTTO, Associate Examiner


Pursuant to Public Service Law (PSL) §165(2), the Presiding Examiner must issue an order identifying the issues to be addressed at the PSL Article X hearing. Similarly, 6 NYCRR 624.4(b)(5) directs the Department of Environmental Conservation (DEC) Associate Examiner to rule on requests for party status and to decide which proposed issues, if any, satisfy the standards for adjudicable issues set forth in 6 NYCRR 624.4(c). To satisfy these requirements, we issue the following joint ruling. The ruling identifies the issues to be the subject of an adjudicatory hearing and announces a hearing schedule.

The New York State Board on Electric Generation Siting and the Environment (the Siting Board) has before it the entire joint record in this proceeding. The DEC component of the joint record addresses the federally delegated environmental permit programs (air pollution control [the Air permit program], state pollutant discharge elimination systems [the SPDES permit program] and resource conservation and recovery [the RCRA permit program]; [collectively, the DEC component of the joint hearing, or the DEC issues]).

The State Environmental Quality Review Act, Environmental Conservation Law (ECL) Article 8 (SEQRA) and regulations promulgated pursuant thereto (6 NYCRR Part 617) do not apply to the siting of electric generation facilities.(1) Instead, PSL Article X provides for an environmental review that is at a minimum the functional equivalent of SEQRA.(2) In this report, to distinguish these issues from the DEC issues, we refer to these issues as 'Article X issues'. This is a matter of convenience, since, as we have stated above, the Siting Board may consider the entire joint record.

Project Description

In August 2000, the New York Power Authority (the Applicant or NYPA) applied for a Certificate of Environmental Compatibility and public need pursuant to PSL Article X to construct and operate a combined cycle electric generation facility (the NYPA Combined Cycle Astoria Project or the NYPA Astoria Project). The project would consist of two General Electric 7-FA combustion turbine generators, two heat recovery steam generators, one steam turbine generator, two diesel engines for emergency equipment and associated balance-of-plant systems and facilities. The primary fuel will be natural gas. Kerosene (with low 0.04% sulfur content) will be used for back up, not to exceed 30 days per year. The nominal electric generating capacity of the proposed facility will be approximately 500 megawatts (MW).

The Applicant proposes to install a carbon monoxide (CO) catalyst to reduce CO and volatile organic compounds (VOCs), and a dry low oxides of nitrogen (NOx) burner with Selective Catalytic Reduction (SCR) technology to reduce NOx. Air emissions will result from the turbines and generators. The emissions will be vented through two co-located, 250-foot high, Good Engineering Practice (GEP) exhaust stacks. The facility will not require the intake of cooling water from the East River since it will use an air-cooled condenser.

The NYPA Astoria Project would be located on a seven-acre undeveloped parcel of land next to NYPA's existing Charles Poletti Power Project, 31-03 20th Avenue, Astoria, Queens County, New York, on part of an approximately 47-acre parcel owned by the Applicant. The entire project area is zoned for heavy industrial use (M3-1). NYPA's 47-acre property is part of a 291-acre parcel formerly shared with Consolidated Edison. The property has been used since 1905 for the generation of electricity. The existing Charles Poletti Power Project began commercial operation in 1977, burning fuel oil or natural gas.

The proposed NYPA Astoria Project is bounded on the north by the existing oil storage tanks and the East River, on the east by the NRG Astoria Gas Turbine complex, on the south by the Astoria West substation, on the southwest by the existing NYPA Charles Poletti Power Facility and on the west by an open area and the Sintering Building.

Public Notice

NYPA provided public notice of the June 4, 2001 joint public statement hearing and the June 5, 2001 joint issues conference as required by the Siting Board and DEC. To satisfy the PSL Article X requirements, the Applicant published notice of the June 4, 2001 joint public statement hearing twice in newspapers that circulate in the vicinity of the proposed facility.

Regarding the DEC public notice requirements, a DEC Combined Notice of Complete Application, Public Hearing and Issues Conference (the DEC Notice) was published in the DEC's electronic Environmental Notice Bulletin on May 2, 2001 and appeared as a legal notice in the New York Post on May 2 and May 17, 2001, Newsday, Queens Edition, on May 3, May 4 and May 17, 2001, the Greek National Herald on May 8, May 9, May 17 and May 18, 2001, El Diario (Spanish-language) on May 8, May 17 and May 18, 2001 and Segye Times (Korean-language) on May 8, May 9, May 17 and May 18, 2001. In addition, copies of the DEC Notice were sent to the parties to the related PSL Article X proceeding, to the required governmental officials and to many individuals who had expressed an interest in the proposed facility.

The DEC Notice included descriptions of the proposed electric generation facility and the nature of the point sources for the anticipated waste water discharges. In addition, the Notice provided for a 33-day comment period, and advertised the schedule for a public comment (legislative) hearing and an issues conference.

The Joint Proceedings

The PSL Article X hearing concerning NYPA's request for a Certificate of Environmental Compatibility and Public Need commenced on a joint record with the DEC public comment session and pre-hearing conference in this matter. The DEC and PSL Article X public notices each advertised a joint public statement hearing on June 4, 2001 and a joint pre-hearing conference pursuant to PSL Article X and issues conference pursuant to the ECL (the joint issues conference), commencing on June 5, 2001. The issues conference was convened at the Department of Public Service Hearing Room, One Penn Plaza (Eighth Floor), New York, New York, to be continued on successive days as necessary.

The joint public statement hearing session was held on June 4, 2001 at 6:30 p.m., at New York City Public School 122, 21-21 Ditmars Boulevard, Long Island City, New York. PSL Article X Presiding Examiner Bouteiller and PSL Article X Associate Examiner Casutto co-presided during the joint public statement hearing and joint issues conference. Approximately 70 people attended the joint public statement hearing session where a total of 24 people presented oral statements, several of whom were trade unionists in support of the economic development that the project would represent during the construction phase.

Many other individuals spoke in opposition, expressing concern about the cumulative public health impact of this project and other power generation projects proposed in Astoria and the existence of several other polluting industries in Astoria, the continued operation of NYPA's Charles Poletti power generation plant that several speakers contended should have additional pollution control technology or be decommissioned and whether public need exists for this proposed generation capacity, in view of NYPA's ten sub-Article X plants that are under construction. In addition, written comments were received by mail during the public comment periods.


A joint issues conference was convened as advertised on June 5, 2001, at the Department of Public Service (DPS) offices at One Penn Plaza, Manhattan, New York. Following appearances and a discussion of procedural issues, DEC issues were discussed pursuant to 6 NYCRR Part 624. For all proposed DEC adjudicable issues, the Associate Examiner alone renders the below rulings. In the afternoon, the Article X issues were discussed pursuant to PSL §165(2). The Presiding Examiner led the discussion of proposed Article X issues, and the Examiners jointly render the rulings on proposed Article X issues.

Timely filings were received from three groups seeking DEC party status. A joint petition of the Queens Borough President (Queens) and Coalition Helping Organize a Kleaner Environment (CHOKE; together, Queens/CHOKE), dated May 15, 2001, identified one proposed issue for adjudication. Queens/CHOKE were represented by Hugh B. Weinberg, Esq., and David A. Schlissel, Senior Consultant, Synapse Energy Economics, Cambridge, Massachusetts.

A petition of New York Public Interest Research Group, Inc., (NYPIRG) dated May 16, 2001, identified three issues for adjudication. NYPIRG was represented by Lisa F. Garcia, Esq.

The DEC Staff was represented by Franz T. Litz, Esq., and Mark D. Sanza, Esq.

The Applicant, New York Power Authority, was represented by Edgar K. Byham, Esq.

During the joint issues conference session, the Examiners advised the parties and participants that if a proposed issue pertains to the federally delegated permit programs, then the DEC determination is the record decision in this joint proceeding. In this instance, such issues were limited to the DEC air pollution control program. The Examiners advised the parties that a second review of such issues under the Article X certificate review process would not be permitted. Instead, the Siting Board will make all required findings on air pollution issues based upon the resulting joint hearing record. This procedure subsequently has been adopted by Siting Boards in two other matters.(3)

Further, the Examiners directed that if an Article X party proposed an Article X issue that pertains to the federally delegated air permit program, then to preserve that issue for review in the joint proceeding that party was required to file a supplemental DEC party status petition asserting the proposed issue, according to a schedule summarized below. The three Article X parties proposing such issues are Queens/CHOKE, NYPIRG and Natural Resource Defense Council (NRDC; NRDC had not filed any DEC petition, but filed proposed Article X issues pertaining to the federally delegated air permit program). Such issues were discussed during the June 5, 2001 issues conference session under the DEC component of the joint proceeding, applying the DEC 'substantive and significant' issue identification standard.

Separately, Queens/CHOKE sought a continuation of the joint issues conference until July 24, 2001 to allow Intervenors additional time to identify DEC adjudicable issues and file supplemental DEC petitions for party status. NRDC and NYPIRG supported this request. DEC Staff also supported this request for continuation, but with a continuation only until July 12, 2001.

In view of these circumstances, the Associate Examiner granted an extension of time until June 19, 2001, to the DEC intervenors and NRDC, to file supplemental petitions for DEC party status. The DEC issues conference was continued June 26, 2001 at 10:00 a.m., at the Department of Public Service Hearing Room, One Penn Plaza, New York, New York. The primary purpose of the June 26, 2001 issues conference session was to discuss any newly proposed issues identified by the Intervenors in supplemental petitions for DEC party status. Accordingly, the participants were advised that discussion and offers of proof made during the June 5, 2001 issues conference session would constitute the joint issues conference record on such issues, except as specified in a scheduling memorandum dated June 8, 2001. (Further, the participants were advised that any issue discussed during the June 5, 2001 session, but not asserted in a DEC supplemental petition would be deemed abandoned.)

The two DEC Intervenors and one Article X party, Natural Resource Defense Council, were authorized to file supplemental petitions for DEC party status adopting and asserting certain Article X proposed issues as DEC proposed issues (the filing of an initial petition in case of NRDC, since NRDC initially had identified only Article X proposed issues). The June 5, 2001 joint issues conference was continued June 26, 2001.

The stenographic record of the June 5, 2001 and June 26, 2001 joint issues conference (and the June 4, 2001 joint public statement hearing) were received by June 30, 2001. Final filings pertinent to this ruling were due by July 17, 2001. The joint issues conference record remains open to address review of emission reduction credits, as described further below.

During the June 26, 2001 issues conference, the Applicant reported that negotiations with DEC Staff concerning draft permit conditions were continuing. The Applicant was directed to provide a status report on its acceptance of the draft permit, by July 10, 2001. Also, in response to NYPIRG's concern that emission limits might be increased because of the Applicant's continuing negotiations with DEC Staff, DEC Staff was directed to identify any such increased emission limits by July 10, 2001. On July 10, 2001, DEC Staff stated that the emissions limitation for ammonia slip when burning kerosene will be increased from five parts per million (ppm) in the current draft permit, to 10 ppm. By letter dated July 10, 2001, the Applicant has accepted the draft air permits, as modified.

The Applicant submitted manufacturer's turbine data to DEC Staff. Based upon its review of that data, DEC Staff was persuaded that greater flexibility in injecting ammonia into the selective catalytic reduction (SCR) system while burning kerosene will result in consistently lower NOx emissions rates. Intervenors NYPIRG and Queens/CHOKE have been afforded an opportunity to propose adjudicable issues regarding this increased ammonia limit, pursuant to a schedule set forth in a July 12, 2001 scheduling memorandum, but have not proposed any adjudicable issue as a result of the increased ammonia limit.

In addition, Queens/CHOKE (with NYPIRG and NRDC concurring) requested additional time to comment on the draft DEC Air permit and the Prevention of Significant Deterioration (PSD) permit. During the June 5, 2001 issues conference, the Associate Examiner denied the request to extend the comment period on the DEC Air permit.(4) Further, the Associate Examiner confirmed that this joint proceeding does not included review of the federal PSD review process. Instead, with respect to the federal PSD review process, DEC Staff acts as administrator of this program in New York, for the U.S. Environmental Protection Agency (USEPA). But, the PSD program remains a federal program that has not been delegated to New York.(5) The DEC Staff attorney agreed to provide a response to the Intervenors regarding their request to extend the PSD comment period.

Rulings on Requests for DEC Party

Status and Proposed Adjudicable Issues

Pursuant to 6 NYCRR 624.5, the parties to any adjudicatory hearing are the Applicant, the DEC Staff and those who have been granted full party status. As explained above, filings from three groups were received, all seeking full party status.

The criteria for determining whether the ALJ should grant petitions for full party status are provided in 6 NYCRR 624.5(d)(1). Queens/CHOKE and NYPIRG have demonstrated adequate environmental interest in this proceeding.

Proposed Issues for Adjudication

Standards for Ruling on Proposed Adjudicable Issues

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 a draft permit(s), 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.(6) Briefly, an issue is substantive if sufficient doubt exists about the Applicant's ability to meet the applicable statutory or regulatory criteria such that a reasonable person would inquire further. 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 beyond those proposed in the draft permit.(7)

Proposed Air Pollution Control Adjudicable Issues

Issues regarding the draft Air Pollution Control permit were proposed by Queens/CHOKE and NYPIRG in their initial petitions and supplemental filings. NRDC was afforded an opportunity to file a DEC petition for party status on the schedule set for supplemental petitions, but chose not to file a petition. The air issues below are discussed by topic, indicating which Intervenor(s) proposed the issue.

1.Alternatives and 6 NYCRR 231-2.4(a)(2)(ii)

Queens/CHOKE contend that pursuant to 6 NYCRR 231-2.4(a)(2)(ii), NYPA's Article X application must include an analysis of alternative sizes and production processes that compares the benefits of the proposed project with the environmental and social costs imposed as a result of its construction and operation in New York State. In sum, the Intervenors assert an omission in NYPA's application.

6 NYCRR 231-2.4(a)(2)(ii) provides that:

"[a]s part of a permit application for a proposed source project or proposed major facility subject to this Subpart, the applicant shall . . . (ii) submit an analysis of alternative sites, sizes, production processes, and environmental control techniques which demonstrates that the benefits of the proposed source project or proposed major facility significantly outweigh the environmental and social costs imposed as a result of its location, construction, or modification within New York State . . ."

DEC Staff contends that Queens/CHOKE has not met the DEC standard for raising an adjudicable issue, and further that Queens/CHOKE has misinterpreted the regulatory standard. Moreover, DEC Staff contends that this language repeats federal requirements of the Clean Air Act, but the USEPA has not provided guidance on how to implement this alternatives analysis. Citing In re Campo Landfill Project,1996 WL 344522 (USEPA), DEC Staff contends that the Applicant bears a very low burden to demonstrate compliance with the alternatives analysis. The Applicant, in Staff's opinion, has met that burden by addressing alternatives in the PSD Application Section 4.7 (alternative air pollution control technologies), PSD Application Section 5.3 (alternative to the proposed project), and Article X Application Section 15 (alternative sites, no action alternative, alternate project designs, repowering alternative, power block alternative, alternative stack design, alternative cooling systems and alternative sources for process water). In fact, in contradiction to this proposed issue, Queens/CHOKE conceded during the issues conference that NYPA had done 'a sterling job' of evaluating alternatives. However, Queens/CHOKE disagrees with DEC Staff's interpretation of Campo, supra. Further, Queens/CHOKE contends that they cannot assess the adequacy of NYPA's Part 231 alternatives analysis until they review the data underlying the application sections cited by DEC Staff and the Applicant.

In Matter of KeySpan Energy (Ravenswood), DPS Case No. 99-F-1625, DEC Case No 2-6304-00024/00004, Joint Ruling (April 18, 2001), the Associate Examiner acknowledged that 6 NYCRR 231-2.4(a)(2)(ii) does require a balancing analysis. But the Associate Examiner ruled that Queens/CHOKE, also a participant in that proceeding, had provided no specific information indicating any failing of KeySpan's analysis. Therefore, the KeySpan Associate Examiner ruled that no adjudicable issue had been raised in KeySpan. KeySpan Energy, Ruling, supra, at 15. In Matter of Astoria Energy, DPS Case No 99-F-1191, DEC Case No 2-6301-00647/00001, Joint Ruling (May 24, 2001), the Associate Examiner adopted a similar analysis, finding no adjudicable issue was raised by Queens/CHOKE in that proceeding. Astoria Energy, Ruling, supra, at 15.

RULING #1: In the present matter, as in KeySpan, Queens/CHOKE has not provided any specific information indicating any failing of NYPA's alternatives analysis pursuant to 6 NYCRR Part 231. Therefore, no adjudicable issue - - i.e., no omission or defect - - has been identified.

2. Non-Compliance of the Existing NYPA/Poletti Plant

NYPIRG contends that pursuant to 6 NYCRR 231-1.3, the DEC cannot issue an air pollution control permit unless the applicant certifies that all major facilities in New York and under the applicant's ownership or control are in compliance with all applicable air pollution control regulations. NYPIRG contends that NYPA is not in compliance at its Poletti facility. However, during the June 5, 2001 issues conference, NYPIRG failed to make a persuasive offer of proof on this issue. Instead, NYPIRG provided the example of a 1997 opacity exceedance that resulted in a Consent Order in March 1998. DEC Staff explained that, in applying 6 NYCRR 231-1.3, Staff considers continuing violations, but not one-time exceedances that are resolved by Consent Order or which are in settlement discussions.

Further, NYPIRG sought to review the Applicant's Opacity Exceedance Reports and NOx Quarterly Reports for the years 2000 and 2001 to determine whether any violations are indicated in the reports. Following the June 5, 2001 issues conference, the Applicant provided these reports to DEC Staff, but not to NYPIRG. Therefore, when this issue was discussed during the June 26, 2001 issues conference, NYPIRG still had not been afforded an opportunity to review these reports. On June 26, 2001 the Applicant was directed to provide the reports to NYPIRG, and did so.

NYPIRG filed a Memorandum (dated July 6, 2001), in support of its proposed adjudicable issue regarding NYPA's compliance history. The Applicant and DEC Staff each filed a response dated July 12, 2001. As the Applicant and DEC Staff state in their responses, NYPIRG presented no new factual information as a result of their review of the recent compliance filings. The only outstanding violations subject to enforcement are five NOx exceedances that occurred during the 1998 calendar year. DEC Staff and NYPA have reached a Consent Order settlement of those charges, NYPA has executed the Consent Order and it is under internal DEC review for signature by the DEC Commissioner. DEC Staff has confirmed that no final permit will be issued unless the violations have been fully resolved.

RULING #2: NYPIRG has not identified a substantive or significant issue regarding NYPA's compliance history. No adjudication is required. However, DEC Staff is directed to advise the parties to the DEC proceeding by letter when the Consent Order has been executed, or the outstanding violations otherwise have been resolved.

3. Emission Reduction Credits

In its initial petition, NYPIRG questioned the process by which emissions offsets or emission reduction credits(8) (ERCs) required for the project would be reviewed. The Associate Examiner has addressed this procedural issue previously in another matter.(9)

RULING #3: I adopt here, the procedural ruling that I made in Bowline, ALJ Ruling, at 12, Ruling #5 (March 30, 2001).

4. Monitoring and Testing Requirements

(40 CFR 70.6(c)(1))

NYPA, DEC Staff and NYPIRG agreed to meet to discuss approximately 148 monitoring and testing periods specified in the draft air permit. Following the meeting, by June 19, 2001, they were to file a statement of their position on any remaining monitoring and testing periods in dispute. Although many of these issues were resolved by negotiation, NYPIRG continued to pursue several of these monitoring and testing period issues in its supplemental petition for party status. With respect to NYPIRG's concerns about stack testing, DEC Staff explained that the draft permit requires a custom fuel monitoring schedule instead of a stack test. Lastly, in response to NYPIRG's concerns, stated during the June 26, 2001 issues conference session, DEC Staff agreed to revise the draft permit to clarify reporting intervals.

RULING #4: NYPIRG's concerns regarding monitoring and testing conditions in the draft permit have been resolved and do not present any adjudicable issue.

5. Particulate Matter

In its supplemental letter/petition of June 21, 2001 filing, Queens/CHOKE proposed one issue for adjudication, regarding particulates (PM10). The Commissioner has held that an appropriate issue for adjudication is whether a proposed Article X facility should be required to meet a lower PM10 emission rate than the rate identified in the draft permit, if an Intervenor can show that comparable facilities are obtaining the lower rate. Bowline, Interim Decision supra, at 6.

Queens/CHOKE contend that the nearby Astoria SCS power generation project, using the same GE 7FA turbines that NYPA proposes for this project, has a draft permit PM10 emission limit of 0.01 lb/mmbtu(10) with natural gas fuel, whereas the draft permit emission limit for this NYPA project is 0.015 lb/mmbtu /0.047 lb/mmbtu with natural gas fuel. DEC Staff explained that the draft permit limit for PM10 results from the Best Available Control Technology (BACT) analysis. DEC Staff contends that the BACT analyses for two similar facilities could result in different PM10 emission limitations, and that a reasonable BACT determination for a particular facility is a range of emission limits rather than a single 'correct' limit. But, here, Queens/CHOKE have identified another facility in Astoria, using the same General Electric turbines, but with a proposed PM10 permit limit lower than that proposed for the NYPA/Astoria project.

RULING #5: Queens/CHOKE have identified a substantive and significant issue requiring adjudication regarding the PM10 emission limitation in the draft permit. Even accepting DEC Staff's contention that a reasonable BACT determination for a particular facility is a range of emission limits, when two similar facilities are proposed in the same community, as here, consistency requires that the lower limitation of the BACT analysis range of emission limits applies as the limitation for both facilities. I make this ruling based upon the apparent difference in emission rates, i.e., 0.015 lb/mmbtu compared to 0.010 lb/mmbtu. The issues conference record does not contain an explanation of these apparently inconsistent particulate emission rates or their significance within the context of this project compared to other similarly configured and located Article X projects, or more broadly as compared generally to future Article X projects.

Proposed Issues Designated for Review

in the DEC Component of the Joint Proceeding

Following are rulings on issues that Article X parties proposed for adjudication in the Article X proceeding, but the Examiners identified as proposed DEC issues, relating to the federally delegated air pollution control permit program. In view of the Con Edison/East River Siting Board Order, supra, and the Bowline Siting Board Order,supra, review of an air pollution control issue by a Siting Board is foreclosed.

6. Air Quality Impact Analysis Issues

Queens/CHOKE filed its submission of proposed Article X issues, dated May 15, 2001. Queens/CHOKE identified eight topics related to air quality impact analyses, pollutant emissions analyses and selection of emissions control technologies. Generally, Queens/CHOKE stated they asserted these topics as Article X issues rather than DEC issues because they wished to preserve these topics for adjudication, following their receipt and review of documents via discovery. That is, Queens/CHOKE acknowledged on June 5, 2001 that they were not prepared to make a 'substantive and significant' offer of proof on these issues. Moreover, Queens/CHOKE acknowledged that after reviewing responses to discovery, possibly no issues would be proposed for adjudication.

However, Queens/CHOKE reserved the right to appeal to the Siting Board whether these issues procedurally should be substantively reviewed by the Siting Board separate and in addition to any DEC review. However, as stated above, two subsequent recent Siting Boards have adopted the Examiners' procedures, foreclosing review of federally delegated permit issues in the Article X proceeding.(11)

Queens/CHOKE's first three issues pertain to the Applicant's air quality impact analysis. Queens/CHOKE requested the input/output data for this modeling from NYPA, but had not yet received it. The Applicant explained that the data would be provided soon after the June 5, 2001 session, and did so. Following Queens/CHOKE's review of the data, by letter dated June 19, 2001, Queens/CHOKE withdrew these proposed issues.

NYPIRG also proposed issues regarding the Applicant's air quality impact analysis. NYPIRG explained that it asserted these issues in support of the Queens/CHOKE proposed air issues. But, further, NYPIRG contended that these air pollution control issues should be reviewed independently by the Article X Siting Board, notwithstanding the DEC/ECL review. Primarily, NYPIRG expressed concern about local adverse health effects of non-criteria pollutants. The Applicant has prepared a Multipathway Risk Assessment (MRA) addressing non-criteria pollutants of concern. Application Sections 5.5 and 5.6. The New York State Department of Health has reviewed that MRA and has not identified any deficiency or error.

Regarding alternative air pollution control technologies, NYPIRG raised unsupported concerns. For example, the Applicant proposes use of selective catalytic reduction (SCR) technology for control of NOx at this facility. NYPIRG contends that SCR may not be the best available control technology, and instead mentions SCONOx technology as an alternative. Yet, NYPIRG identified no specific concern with SCR and no proposed expert witness on this issue. SCONOx has previously been determined not to be a viable alternative technology for power plants greater than 25MW capacity.(12) NYPIRG has not provided any offer of proof that would cause reconsideration of that determination in the present matter.

RULING #6: No adjudicable issue has been raised by Queens/CHOKE or NYPIRG concerning the Applicant's air quality impact analysis for this project. Regarding fine particulates, the Siting Board, the Commissioner and New York courts have held that it is premature to isolate PM2.5 emissions in evaluating an Article X project's potential environmental impacts under SEQRA.(13)

7. Cumulative Effects of Air

Emissions From Existing Facilities

Queens/CHOKE, NYPIRG and NRDC (14) contend that the application does not account for the cumulative impacts of this project and other existing projects in Astoria. The Intervenors seek review of fine particulate matter impacts, PM2.5. NYPA contends that cumulative air quality impacts are addressed sufficiently in Article X Application Section 5.5 and PSD Application Appendix G, Section 3.2.2.

Recent decisions and orders of the DEC Commissioner, Article X Siting Boards and New York courts have held that review of PM2.5 is premature in evaluating a project's potential environmental impacts under the State Environmental Quality Review Act (SEQRA) or the PSL Article X functional equivalent of SEQRA (15).

NYPIRG also contended that a 10-mile radius cumulative impact analysis should be required for this project, pursuant to the general authority of ECL §3-0301. Staff responded that under the air pollution regulatory program, a cumulative impact analysis is not required unless a criteria pollutant exceeds its Significant Impact Level (SIL).(16)

RULING #7: Regarding cumulative impacts related to air pollution control, no adjudicable issue has been identified.

8. Neighborhood Impacts (Environmental Justice and Disproportionate Share of the Environmental Budget of Electric Generation)

Queens/CHOKE, NYPIRG and NRDC raised concerns regarding neighborhood impacts, including environmental justice and whether Northwest Queens is being asked to bear a disproportionate share of the environmental budget of electricity generation. The parties raised these concerns as proposed Article X issues, and contended that these issues should be the subject of Article X adjudication.

RULING #8: The DEC Commissioner has recently held that the applicability of environmental justice to Article X proceedings is limited to consideration of that issue in the federal Prevention of Significant Deterioration program.(17) Further, under the federal PSD program, cumulative air impact analysis was required in this case, and has been conducted by NYPA.(18)

9. Party Status Summary Ruling

RULING #9: In conclusion, upon review of the criteria for determining issues and party status, and the petitions for full party status, the Associate Examiner finds that NYPIRG failed to raise any substantive and significant issue. However, Queens/CHOKE have identified one DEC adjudicable issue regarding particulate matter emissions, addressed in Ruling #5. Therefore, Queens/CHOKE is granted party status in the DEC component of this joint proceeding. The joint issues conference record remains open to address review of emission reduction credits.


A ruling of the 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 Commissioner on an expedited basis.(19) Ordinarily, expedited appeals must be filed to the Commissioner in writing within five days of the disputed ruling.(20)

Allowing extra time due to the length of these rulings, any appeals must be received by the DEC Commissioner by 4:00 p.m. on July 30, 2001 at the following address: Office of the Commissioner, N.Y.S. Department of Environmental Conservation, 625 Broadway, Albany, New York, 12233-1010. All replies to appeals must be received by 4:00 p.m. on August 6, 2001. Any person filing an appeal or reply also must send three copies of the filing to the Associate Examiner. Participants who use word processing equipment to prepare their filings also must submit a copy of their filings to the Associate Examiner in electronic form on a 3.5 computer disk formatted in either WordPerfect for Windows 6.1, 7.0 or 8.0; or alternatively, formatted in ASCII or Rich Text Format.

Alternatively, participants may file an electronic copy via E-mail at '', to be followed by four paper copies by first class mail, postmarked by the date(s) specified above. Such alternative electronic service will satisfy fully the requirements set forth in the preceding paragraph. No filings by telecopier will be allowed or accepted. The participants shall ensure that all paper transmittals or electronic transmittals are made to all others on the DEC distribution list at the same time and in the same manner as transmittal is made to the Commissioner and/or the Associate Examiner.

Appeals should address the Associate Examiner's rulings directly, rather than merely restate a party's contentions.


In accordance with PSL §165(2), the parties had an opportunity at the June 5 conference to identify and discuss the issues they proposed for this proceeding.(21) In a letter dated May 16, 2001, NRDC listed four matters:

  1. Whether the facility proposed by NYPA satisfies the PSL §168 (2)(a) criteria for additional electric capacity needs and consistency with the state energy plan or an approved procurement process.
  2. The nature of the probable environmental impacts of the proposed facility pursuant to PSL §168 (2)(b), particularly with respect to air quality, public health, cumulative air emissions, and environmental justice.
  3. Whether the facility, pursuant to PSL §168(2)(c), will minimize adverse environmental impacts, considering the state of available technology, the nature and economics of reasonable alternatives, public health, and air quality.
  4. Whether the facility, pursuant to PSL §168(2)(e), is in the public interest, considering its environmental impacts and reasonable alternatives.

In addition to these matters, NRDC plans to participate in the issues that Queens/CHOKE and other parties raise in this proceeding.

By letter dated May 15, 2001, Queens/CHOKE presented ten items:

  1. Air quality impacts, pollutant emission analyses, and the selection of emission control technology;
  2. MAPS computer analyses;
  3. Alternative project designs and alternate project sizes;
  4. The "no action" alternative to the proposed facility;
  5. Visual impacts;
  6. Noise and vibration impacts;
  7. Neighboring community impacts;
  8. Probable environmental impacts pursuant to PSL §168(2)(b), including cumulative air emissions from electric generation facilities;
  9. Gas supply issues; and,
  10. Electrical interconnection issues.

Like Queens/CHOKE, NYPIRG identified, in its May 16, 2001 submission, various matters for the Article X proceeding:

  1. Alleged air regulation violations at NYPA's Poletti Power Project;
  2. Air quality impact analysis, pollutant emissions analysis, and the selection of emissions control technology;
  3. Visual impacts;
  4. Neighboring community impacts (including environmental justice, Queen's share of the environmental budget for electric generation); and,
  5. Pursuant to PSL §168(2)(b) the nature of the probable environmental impacts of the proposed facility in the areas of air and water quality, including the cumulative air emissions from existing facilities.

Department of Public Service Staff (DPS Staff) listed the following as the matters in its investigating in this case: the facilities' selection pursuant to an approved procurement process, visual impacts, electric and gas transmission matters, and the operation and application of state and local laws.

Finally, Local 1-2 of the Utility Workers Union of America (Local 1-2) did not provide an issues list in advance of the June 5 conference; however, at the conference it stated potential concerns about transmission and distribution system alternatives to the construction of the proposed facility. Local 1-2 also noted, for the record, that its members have not been able to negotiate a labor contract with NYPA for the Poletti Power Project.(22)

As stated above, two Siting Boards recently addressed the relationship between the Siting Board and DEC and have clarified the joint procedures used in Article X proceedings. Issues pertaining to permitting matters that are before DEC will not be reviewed as Article X issues; review of an air pollution control issue by the Siting Board is foreclosed. See, Con Edison/East River Siting Board Order, supra, and the Bowline Siting Board Order, supra. Applying that criterion here, NRDC Items 2, 3 and 4, above, are precluded from review as Article X issues. Similarly, Queens/CHOKE Items 1, 3, 7 and 8, above, and NYPIRG Items 1, 2, 4 or 5, above, are precluded from review as Article X issues.

The parties' remaining items may be developed on the evidentiary record in the Article X proceeding:

  1. The approved procurement process;
  2. MAPS computer analyses;
  3. No action;
  4. Visual impacts;
  5. Noise and vibration impacts;
  6. Gas supply issues;
  7. Electrical interconnection issues; and,
  8. Local and other laws.


In August 2000, NYPA submitted with its Article X application a motion seeking a declaratory ruling that the proposed facility was selected pursuant to an approved procurement process.(23) This matter was discussed at the June 5 conference and various parties are considering NYPA's assertions and are investigating them through discovery.

We decline to rule on NYPA's motion pending the submission of responsive pleadings from DPS Staff and any other party interested in this matter. The schedule we are adopting sets August 6 as the due date for the parties' responses to the motion. If a party plans to address on the evidentiary record any factual matters pertaining to the NYPA motion, they should inform us of their intentions to do so in the August 6 responses they submit.


The schedule for the remainder of this case is as follows:

Responses to NYPA's Declaratory

Ruling Request Due August 6, 2001

Initial Testimony (other than Applicant) August 14, 2001

Applicant's Rebuttal Testimony August 30, 2001

Hearings September 10 to 14, 2001

Initial Briefs October 10, 2001

Reply Briefs October 24, 2001

Recommended Decision November 20, 2001

Briefs on Exceptions December 7, 2001

Replies to Exceptions December 20, 2001


The Examiners' rulings concerning Article X matters may be appealed to the Secretary of the New York State Siting Board. All appeals must be in writing and be received by the Secretary at Three Empire State Plaza, Albany, New York, before 4:00 p.m. on July 30, 2001. Replies are authorized and must be received by the Siting Board before 4:00 p.m. on August 6, 2001.

Appeals should address the Examiners' ruling directly rather than merely restate a party's contentions. Parties shall serve each other by the same date their filings are required to the Siting Board. This schedule for appeals does not modify the case schedule set forth above. Appeals and replies should be submitted to the Siting Board in triplicate. (24) Telefax submissions are not allowed.


1 6 NYCRR 617.5(c)(35).

2 See, In the Matter of Athens Generating Company, LP, DEC Case No. 4-1922-00055/00001, Commissioner's Interim Decision (June 2, 2000) [Indeed, a careful review of Article X indicates that the environmental review provided for under Article X is as rigorous and thorough, and even more stringent in certain aspects, than a SEQRA review. For example, under Article X, the functional equivalent of an environmental impact statement is mandated in every case, whereas under SEQRA, an EIS would only be required in cases where a "positive declaration" or "determination of environmental significance" has been made.]

3 See, Case 99-F-64, Application by Mirant Bowline, LLC (formerly Southern Energy Company) for a Certificate of Environmental Compatibility and Public Need to Construct and Operate Bowline Unit 3, a 750 Megawatt Generating Facility in the Town of Haverstraw, Rockland County, Order Concerning Interlocutory Appeals, June 21, 2001 and Case 99-F-1314, Application of Con Edison Company of New York for a Certificate of Environmental Compatibility and Public Need to Repower its East River Generating Station located in the Borough of Manhattan, New York City, Order Concerning Interlocutory Appeals, June 22, 2001.

4 That comment period concluded with the joint public comment hearing on June 4, 2001.

5 See, generally, Bowline 3 Siting Board Order, supra, Con Ed East River Siting Board Order, supra, and In the Matter of Mirant Bowline, Interim Decision of the Commissioner, DEC Case No 3-3922-0003/00015 (June 20, 2001).

6 6 NYCRR 624.4(c)(4).

7 6 NYCRR 624.4(c)(3); also, see generally, Athens Interim Decision, supra at 3, "Standards for Adjudication".

8 6 NYCRR 231-2.1(b)(13), definition of 'emission reduction credit'.

9 See, In the Matter of Mirant Bowline, LLC, ALJ Ruling, at 12, Ruling #5 (March 30, 2001). The Applicant is required to obtain the necessary ERCs as a precondition to issuance of final permits. Pursuant to 6 NYCRR 231-2.10, the permit hearing for the major facility air permit may be a bifurcated proceeding (assuming the ERCs have not been obtained and submitted with the initial permit application) to include any comment and proposed issues relating to the Applicant's submittal of proposed ERCs and DEC Staff's review thereof. Pursuant to 6 NYCRR 231-2.10(c)(1), prior to issuance of a DEC air permit for any emission source which is part of a proposed major facility subject to the requirements of Part 231, a DEC Part 624 public hearing notice supplemental to the initial DEC Part 624 public hearing notice for the project is required. Further, the ERC component of the DEC public hearing process must occur within the time frame of the related PSL Article X proceeding. As applied to the present case, the joint record of the PSL Article X and DEC joint issues conference must be held open to include any proposed issues relating to DEC Staff's review of the ERCs within the DEC Part 624 permit hearing, essentially a bifurcated joint issues conference, and potentially, any necessary further proceedings. Bowline DEC Ruling #5 was not appealed by any party, and therefore was not addressed in the Bowline Interim Decision, supra, or the Bowline Siting Board Order, supra.

10 Million British Thermal Units.

11 Con Edison/East River Siting Board Order, supra, and the Bowline Siting Board Order, supra.

12 See, In the Matter of Mirant Bowline, DEC Issues Ruling, Ruling #14 (March 30, 2001).

13 See, Consolidated Edison East River Siting Board Order, supraat 15 (footnotes 31 and 32).

14 Since NRDC did not file a required DEC petition, NRDC has abandoned this issue.

15 See, In the Matter of Consolidated Edison (East River Project), Case 99-F-1314, Siting Board Order, June 22, 2001, page 15, footnotes 30 and 31 (citing and summarizing the decisions and orders).

16 See, generally, 6 NYCRR Subpart 231-2, DEC Air Guide 26, Guidelines on Modeling Procedures for Source Impact Analyses (Revised 12/19/96) and DEC Air Guide 36, Emission Inventory Development for Cumulative Air Quality Impacts Analysis (Issued 6/10/95); see, also, 40 CFR 51.165, Requirements for Preparation, Adoption and Submittal of Implementation Plans, Review of New Sources and Modifications.

17 See, In the Matter of Con Edison, Commissioner's Interim Decision, at 10, DEC Case No. 2-6206-00012/000021 (June 4, 2001); see, also, Con Edison Siting Board Order, supra at 27.

18 See, PSD Application, Appendix G.

19 624.8(d)(2).

20 624.6(e)(1).

21 In preparation for the June 5 conference, parties were asked to provide their proposed issues lists in mid-May.

22 Tr. 215-16. The State Department of Health is reviewing and conducting discovery concerning the NYPA proposed facility; however, it has not identified any issues for the Article X proceeding at this time.

23 PSL §§164(b), (d), and (e) distinguish applications for facilities that are selected pursuant to an approved procurement process from other applications. NYPA claims that the facility it is proposing will operate as a merchant plant in the competitive electric generation market and, as such, qualifies for this treatment.

24 Parties are allowed to submit appeals and replies electronically to the Secretary ( and the Examiners provided they are received on a timely basis and paper copies are mailed (and postmarked) to the Secretary and Examiners on the dates specified above.

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