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New York Power Authority (Astoria) - Ruling, July 30, 2001

Ruling Concerning Case Schedule, July 30, 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 30, 2001)


Our July 19, 2001 ruling in these proceedings identifies the issues that can be addressed at the evidentiary hearing that is scheduled to begin on September 10, 2001. By letter dated July 24, 2001, the Office of the President, Borough of Queens (Queens), the Coalition Helping to Organize a Kleaner Environment (CHOKE), and the Natural Resources Defense Council (NRDC) have requested several changes to the schedule.

The parties indicate that their expert consultants (and various counsel) are unavailable in late July and early August. Consequently, they request that the August 6 date for responses to the New York Power Authority's (NYPA's) motion for a declaratory ruling be moved to the date that their prefiled testimony is due.

We set August 14 as the date for the parties to submit their initial testimony; however, Queens, CHOKE and NRDC seek an additional day (to August 15) to file testimony. They propose to compensate NYPA by moving the date for rebuttal testimony also by a day (from August 30) to August 31. They claim these changes are minor, they would not alter the date set for the hearing, nor would they injure another party.

Nevertheless, NYPA opposes the proposed changes to the schedule. It points out that, when scheduling matters were discussed at the June 4 conference, the possibility of mid-July responses to the NYPA motion was raised and no party claimed to have any scheduling conflicts in the late-July and early-August timeframe.(1) It also observes that the NYPA motion has been outstanding since August 2000. Thus, it sees no need to postpone the matter any further.

We find that no party would be harmed or inconvenienced, nor would the overall schedule for these proceedings be adversely affected, by allowing all parties until August 14 to submit their responses to NYPA's motion. We had selected August 6 for some of the reasons NYPA has noted; however, the date was principally intended to distinguish the parties' legal pleadings about the approved procurement process from any factual testimony they would submit a week hence. As long as the parties clearly distinguish and separate their legal arguments from any factual evidentiary submissions, we will allow them to submit both on August 14.

With respect to the parties' proposal to move the dates for initial and rebuttal testimony by a day, this proposal has the potential to inconvenience the persons who would be working on the rebuttal submissions. The proposal provides them no advantage inasmuch as they would have the same amount of time to respond to the initial testimony. However, it could disadvantage them by requiring their work product on a date they may seek to avoid. Accordingly, the Queens, CHOKE and NRDC proposal to change the dates for initial and rebuttal testimony is denied.(2)


1 Tr. 199-202.

2 Nevertheless, the filing requirements for these dates will be modified in one respect. Electronic service is permitted on these dates as long as the parties' electronic submissions are received by day's end and their paper submissions are postmarked the following day.

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