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Ramapo Energy, LP - Ruling, February 22, 2001

Ruling, February 22, 2001


In the Matter of the Application of Ramapo Energy Limited Partnership for Permits from the Department of Environmental Conservation

DEC Application No. 3-3926-00377/00001

February 22, 2001

This ruling puts in written form the ruling which I made on the record on February 16, 2001 at the issues conference on the application of Ramapo Energy Limited Partnership for a pre-construction permit and certificate to operate for a major source of air pollutants pursuant to 6 NYCRR Subpart 201-6.1. This ruling was in response to several related motions or requests made on behalf of Rockland County.

Rockland County moved that the hearing be re-noticed to include all environmental issues, that the hearing be conducted in conjunction with the Article X hearing, and that the air permit application not be considered complete until the functional equivalent of the State Environmental Quality Review Act ("SEQRA," Environmental Conservation Law Article 8) has been complied with. Rockland County's argument considered the completion of the Public Service Law Article X review process to be the functional equivalent of SEQRA.

Following some discussion, I made a ruling on the record, which I am re-stating here.


Re-noticing by the Department of Environmental Conservation for this hearing is not necessary unless and until the applicable requirements change from those stated in the December 26, 2000 Announcement of Public Comment Period and Combined Notice of Complete Application, Public Hearing, and Issues Conference ("December 26, 2000 notice"). The issues conference proceeded on February 16, 2001 on the subject matter and under the procedures identified in the December 26, 2000 notice. Matters other than air and water permits would be within the purview of Article X for environmental review.

The schedules of hearing on the permits which are under review by the Department of Environmental Conservation and the hearing on the matters to be considered under Public Service Law Article X will be coordinated to the greatest extent possible.

The Department of Environmental Conservation is not prohibited from conducting review of air and water permit applications prior to completion of the Article X process, since Rockland County's position regarding the "functional equivalent of SEQRA"(1) omits the distinction between a Draft Environmental Impact Statement (DEIS) and a Final Environmental Impact Statement (FEIS). Under the regulations governing the Department of Environmental Conservation's review of applications for permits which include the application in question here(2), an application is not complete until (among other things) a Draft Environmental Impact Statement has been accepted by the lead agency (6 NYCRR 621.3(a)(6)). The DEC need not wait until after a Final EIS has been accepted before beginning review of an application for a DEC permit.

In the situation of Article X hearings, the Article X application (rather than the Siting Board's decision) could be considered to be the functional equivalent of a Draft EIS.

Further Discussion

Rockland County also cited ECL 70-0109.4 in support of its argument, and I stated that I would review this citation upon returning to the office. I have reviewed this section, and it does not require that the ruling which I made on the record be changed. The cited section provides that: "The time periods for a department decision on an application for a permit as specified in subdivision three of this section [ECL 70-0109.3] shall be suspended pending receipt by the department of any final environmental impact statement and any explicit findings related to a proposed project as may be required pursuant to article eight (environmental quality review) [SEQRA] of this chapter when the department is not the lead agency as that term is used in rules and regulations adopted by the department pursuant to section 8-0113 of said article."

The provision cited by Rockland County has to do with the deadlines for DEC to decide on a permit application, which deadlines are specified in ECL 70-0109.3. That subdivision sets deadlines for DEC to decide on granting or denying a permit after the application for the permit is completed or after a hearing is held. That subdivision also contains the so-called "five-day letter" process, applicable if the DEC fails to meet the deadlines.

Neither ECL 70-0109.3 nor ECL 70-0109.4 prevent DEC from conducting review of a permit application pending receipt of a Final EIS where another agency is serving as lead agency.

Susan J. DuBois
Administrative Law Judge
Albany, New York

Dated: February 22, 2001

TO:Persons on Interim Service List
Persons on Active Parties List

1 The February 25, 2000 letter from DEC Commissioner Cahill to EPA Administrator Fox, which was attached with Rockland County's letter of February 6, 2001, makes reference to the functional equivalent of an environmental impact statement (EIS) being mandated in every case under Article X.

2 Part 621 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR Part 621"), the uniform procedures for review of permit applications for permits under the Uniform Procedures Act (Environmental Conservation Law ("ECL") Article 70). Permits under ECL Article 19 (Air) and 6 NYCRR Part 201 are among the permits to which these procedures are applicable (6 NYCRR 621.2(g)).

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