STATE OF NEW YORK

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

625 BROADWAY

ALBANY, NEW YORK 12233-1010

In the Matter

- of -

a Renewal and Modification of a State Pollutant Discharge Elimination System (“SPDES”) 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 704 and 750 et seq.

-by-

Entergy Nuclear Indian Point 2, LLC and

Entergy Nuclear Indian Point 3, LLC,

Permittee.

DEC No: 3-5522-00011/00004

SPDES No. NY-0004472

INTERIM DECISION OF THE ASSISTANT COMMISSIONER

August 13, 2008

Background from DEC:

Entergy Nuclear was in the process of seeking to renew a State Pollutant Discharge Elimination System ("SPDES") permit for Indian Point 2 and Indian Point 3 (Indian Point) nuclear powered steam electric generating stations (the "Stations"). The Stations are located on the east side of the Hudson River, about 40 miles north of New York City, in the Village of Buchanan, Westchester County, New York. Indian Point 2 was license by the Nuclear Regulatory Commission in 1972 and has a capacity of 970 megawatts. Indian Point 3 was licensed by the Nuclear Regulatory Commission in 1976 and has a capacity of 980 megawatts. Indian Point 2 and Indian Point 3 are equipped with separate cooling water systems that withdraw water from the Hudson River and discharge that water back to the River through a shared discharge canal (a "once-through" cooling system). The water is taken into the cooling system, circulates past the condenser coils to absorb waste heat from operation of the generation equipment, and is discharged back to the River at a higher temperature than at the intake. The Stations withdraw up to 2.5 billion gallons of water per day from the Hudson River, through three intake structures on the shoreline. The heated non-contact cooling water is discharged to the River through sub-surface diffuser ports located along the seaward wall of the discharge canal, south of the intake structures.

In 1975, the United States Environmental Protection Agency ("EPA") issued National Pollutant Discharge Elimination System ("NPDES") permits for the Indian Point facilities.  The New York State Department of Environmental Conservation (DEC) issued a SPDES permit for the Stations in 1987. The permit was originally jointly issued to Consolidated Edison (the then-owner and operator of Unit 2) and the New York Power Authority (the then-owner and operator of Unit 3. In November 2000, the Indian Point 3 permit was transferred to Entergy Nuclear Indian Point 3. In September 2001, the Indian Point 2 permit was transferred to Entergy Nuclear Indian Point 2.

In May 1992, the DEC issued a positive declaration pursuant to the State Environmental Quality Review Act ("SEQRA).  The purpose of the positive declaration was to undertake a comprehensive environmental review of the potential adverse impacts and to assess reasonable mitigation measures.

In 2002, certain petitioners, including the Hon. Richard L. Brodsky, an assemblyman in the New York State Legislature, commenced a proceeding in Albany County Supreme Court, pursuant to Article 78 of the New York Civil Practice Law and Rules ("CPLR"), to mandate action by the Department on the Indian Point SPDES permit renewal applications (Matter of Brodsky v. Crotty, Sup. Ct., Albany County, Keegan, J., Index No. 7136-02). On April 8, 2003, upon review of the renewal application, DEC Staff proposed to modify the SPDES permit to require reduction of impacts to aquatic organisms and completion of a water quality review that would result in adjustments to certain limits in the existing SPDES permit. On May 14, 2003, the court issued an order that set a schedule requiring, among other things, that DEC Staff complete the Final Environmental Impact Statement ("FEIS") for the Stations by July 1, 2003, and issue a draft SPDES permit for the Stations by November 14, 2003. The court's order also granted a motion by Riverkeeper, Inc. to intervene. The Department accepted the FEIS on June 25, 2003. The FEIS described the project's "Potential Environmental Impacts" as follows:

Impingement takes place when organisms are trapped against intake screens by the force of the water passing through the cooling water intake structure. This can result in starvation and exhaustion (organisms are trapped against an intake screen or other barrier at the entrance to the cooling water intake structure), asphyxiation (organisms are pressed against an intake screen or other barrier at the entrance to the cooling water intake structure by velocity forces which prevent proper gill movement, or organisms are removed from the water for prolonged periods of time), descaling (fish lose scales when removed from an intake screen by a wash system), and other physical harms.

Entrainment usually occurs when relatively small benthic, planktonic, and nektonic organisms, including early life stages of fish and shellfish, are drawn through the cooling water intake structure into the cooling system. In the normal water body ecosystem, many of these small organisms serve as prey for larger organisms that are found higher on the food chain. As entrained organisms pass through a plant's cooling system they are subject to mechanical, thermal, or toxic stress. Sources of such stress include physical impacts in the pumps and condenser tubing, pressure changes caused by diversion of the cooling water into the plant or by the hydraulic effects of the condensers, sheer stress, thermal shock, and chemical toxemia induced by antifouling agents such as chlorine.

The FEIS goes on to note that historically, impacts related to CWIS have been evaluated pursuant to Clean Water Act ("CWA") Section 316(b) (33 United States Code Section 1326(b)) on a facility-by-facility basis. Section 316(b) of the statute requires that any standard established pursuant to Sections 301 or 306 of the Act and applicable to a point source discharge must require that the location, design, construction and capacity of the cooling water intake structures ("CWIS") reflect the "best technology available" for minimizing adverse environmental impact.

In order to reduce mortality of fish and aquatic invertebrates, the Stations currently operate Ristroph modified traveling screens, a fish handling and return system, two-speed pumps in Unit 2, and variable speed pumps in Unit 3. The Department has also determined that a closed-cycle cooling system is the site-specific BTA to minimize the adverse environmental impacts of the Units 1, 2 and 3 cooling water intake structures. Nevertheless, the DEC stated that Entergy could propose an alternative technology or technologies that can minimize adverse environmental impacts to a level equivalent to that achieved by a closed-cycle cooling system at the Stations.

While steps are being taken to implement BTA, Entergy would be required to schedule and take annual generation outages of no fewer than 42 unit-days during the peak entrainment season, between February 23 and August 23 of each calendar year. Under the terms of the draft SPDES permit, these fish protection outages must continue until closed cycle cooling is operational at the Stations. In addition, Entergy must continue to operate the existing fish impingement mitigation measures, including the Ristroph screens and the fish return system, and, to reduce entrainment, Entergy must reduce flows throughout the year according to a schedule specified in the permit. The draft SPDES permit would also require Entergy to continue to conduct long-term fish monitoring programs, and to pay $24 million annually into an escrow account (the Hudson River Estuary Restoration Fund), from which the DEC will draw funds for programs or projects intended to restore, protect or enhance Hudson River Estuary resources.

[Note: the 42 unit-days where Entergy would be required to schedule and take annual generation outages during the peak entrainment season between February 23 and August 23.  AAEA was granted full party status to plead our environmental justice case based on the increased air pollution that would be generated from other fossil fuel plants because of this outage.  The hearing proceeded and Norris McDonald put forward AAEA’s positions.] 

Norris McDonald, the president of the African American Environmentalist Association ("AAEA"), was the next speaker. Mr. McDonald raised concerns with respect to the adverse environmental and health effects to be anticipated if the Stations were obliged to shut down. According to Mr. McDonald, the Stations are already using best available technology to prevent fish kills. He stated that the AAEA took the position that the recommendation that cooling towers be installed is expensive, unnecessary and would only lead to the Stations' closure.

Mr. McDonald went on to say that closure of the Stations would only shift air pollution to other areas of the State, specifically, minority communities, and thus would raise a significant environmental justice issue. This speaker questioned whether environmental justice considerations had been taken into account as part of Department Staff's review of the permit, and observed that if the appropriate review had not occurred, the AAEA would consider filing an environmental justice complaint with EPA. Mr. McDonald also maintained that closure of Indian Point would result in compliance issues for the State with respect to the federal Clean Air Act State Implementation Plan ("SIP"), and emphasized that the Stations provided reliable energy without contributing pollutants that exacerbate asthma. According to Mr. McDonald, a balanced approach should be taken that would consider the environment, the health of minority communities, and the need to provide electricity for the metropolitan area. Mr. McDonald stated that the AAEA strongly opposes the recommendations in the draft permit, and asserted that closed-cycle cooling would not minimize environmental impacts because the owner of the Stations would probably close Indian Point rather than install the system recommended by Department Staff.

Issues Conference:

As provided for in the Notice, the issues conference took place on March 3, 2004 at the Esplanade Hotel in White Plains, New York. As scheduled, ALJ Villa convened the issues conference at 10:00 a.m. on that day, and ALJ Daniel P. O'Connell also presided. The Notice outlined the requirements to file petitions for either full party status or amicus status, and set February 13, 2004 as the return date for these petitions.

With a cover letter dated February 13, 2004, Riverkeeper, Inc., Scenic Hudson, Inc., and the Natural Resources Defense Council ("NRDC") (collectively referred to herein as Riverkeeper) timely filed a joint petition for full party status. The African American Environmentalist Association ("AAEA") also filed a timely petition for party status.

AAEA’s Issues for Adjudication:

As noted above, the African American Environmentalist Association ("AAEA") filed a timely petition for party status. According to the petition, the AAEA was founded in 1985 and is a national, nonprofit organization "dedicated to protecting the environment, promoting the efficient use of natural resources, enhancing human, animal and plant ecologies, and increasing African American participation in the environmental movement." IC Exh. 4, at 2. The petition stated that the AAEA has approximately 10,000 members, including approximately 1,000 members in the New York area. Id. The AAEA is "deeply concerned with any policy or measure which impacts the air quality of the communities in which it is based, or which affects the health of its members," and "seeks to include an African American point of view in environmental policy and decision-making." IC Exh. 4, at 2-3. The AAEA is particularly concerned with promoting clean air in African American communities. IC Exh. 4, at 3.

The petition stated that the AAEA sought party status to bring its unique perspective to the Indian Point permitting process, and to raise the issue of environmental justice. Id. The petition cited to the Department's Environmental Justice policy which states that:

It is the general policy of DEC to promote environmental justice and incorporate measures for achieving environmental justice into its programs, policies, regulations, legislative proposals and activities. This policy is specifically intended to ensure that DEC's environmental permit process promotes environmental justice.

Environmental Justice Policy, Policy Statement CP-29, at 2 (March 19, 2003).

In its petition, the AAEA asserted that in order to reduce impingement and entrainment of Hudson River fish, the draft permit "substantially limits" the Stations' ability to generate electricity, and might even lead to the Stations' closure. IC Exh. 4, at 1. According to AAEA, other nearby fossil fuel burning electric generation plants would then be called upon to supply electric power to the region, with a corresponding increase in air pollution and decrease in air quality in low-income and minority communities, where most such plants are sited. The AAEA argued that, as a result, the draft permit "effectively places the interests of Hudson River fish eggs and larva over the health of New York's low-income and minority communities." IC Exh. 4, at 2.

The petition went on to assert that fossil-fuel generated power plants cause adverse health effects, and contended that those adverse effects are borne disproportionately by African Americans. IC Exh. 4, at 6. The AAEA argued that any lost production from Indian Point would be replaced by in-city and other facilities concentrated in the New York metropolitan area, where a significant proportion African Americans reside. IC Exh. 4, at 8. The AAEA pointed out that the Stations are located in an affluent, primarily white area of the State, and took the position that closure of the Stations, or restrictions on Indian Point's operations, would shift the burden of air pollution to minority communities. IC Exh. 4, at 10. The AAEA noted that there are 24 power plants in the New York metropolitan area, and only a small number of those plants are located in areas not predominantly populated by minorities. IC Exh. 4, at 8.

With respect to the organization's environmental interest, AAEA stated that it is a non-profit environmental action group, with an interest relating to the statutes administered by the Department. IC Exh. 4, at 13. The AAEA indicated that it has an interest in ensuring that environmental justice is factored into the Department's decision-making, and that environmental statutes are interpreted with the Department's policy goal of promoting environmental justice. Id.

The AAEA proposed the following issues for adjudication:

1. Whether Department Staff considered all adverse environmental impacts in formulating the draft permit, including air impacts on minority communities?

2. Whether Department Staff would have issued a different permit had it adequately considered the negative impacts on air quality in low-income and minority communities which will result from any substantial reduction in generation at Indian Point 2 and 3?

3. Whether the failure to consider all adverse environmental impacts in formulating the draft permit for Indian Point 2 and 3, including air impacts in minority communities, renders the draft permit unsupportable?

In its petition, the AAEA argued that if generation at Indian Point were reduced, the shortfall would of necessity be replaced by facilities in the New York metropolitan area, and the Lovett coal-burning facility. IC Exh. 4, at 9. The AAEA cited to a November 3, 2003 report prepared by Synapse Energy Economics, Inc. for counsel to Riverkeeper, which detailed the in-city capacity available if the Stations were taken off-line. IC Exh. 4E, at 2, 5. The AAEA's petition also included an August 2002 report prepared for Entergy Nuclear Northeast by TRC Environmental Corporation. IC Exh. 4F. TRC stated in that report that it was reasonable to assume that the majority of any lost output from Indian Point would be replaced by increased generation from units in the New York City/Westchester load pocket. Id., at ES-1.

According to the TRC report, if Indian Point's lost output were to be filled by in-city power plants, carbon dioxide emissions would increase by 101%, or over 12 million tons, sulfur dioxide would increase by 106%, or over 8 thousand tons, and oxides of nitrogen would increase by 105%, or over 16 thousand tons. IC Exh. 4F, at 5-3, 5-4. Even if plants in the Hudson Valley were included, the TRC report stated that emissions of these pollutants would increase by over 50%. Id., at 5-5, 5-6. Consequently, AAEA argued, the incidences of death and respiratory and cardiovascular diseases would show a corresponding increase. IC Exh. 4, at 10.

The AAEA contended in its petition that under conservative estimates, installation of closed cycle cooling will require a ten-month shutdown of the Stations. IC Exh. 4, at 11. The AAEA argued further that in making its BTA determination, Department Staff was required to minimize or avoid other impacts to the maximum extent practicable, as set forth in the FEIS. Id., at 12. The AAEA went on to assert that despite the acknowledgments set forth in the FEIS with respect to weighing impacts, Department Staff issued the draft SPDES permit "without addressing the environmental justice impacts which its decision would entail, particularly the significant adverse impacts that will result from a shift in power production from Indian Point 2 and 3 to existing fossil-fuel facilities." Id. According to the AAEA, the Department's failure to consider other impacts violates SEQRA and renders the FEIS and the draft permit null and void. Id.

The AAEA argued that the proposed issues are substantive because those issues "call into question the legality of the DEC's FEIS and Draft SPDES Permit for Indian Point 2 and 3, raise important public health and environmental justice concerns, and challenge the Draft Permit's compliance with the SEQRA and 6 NYCRR § 704.5 requirement that in issuing a permit, DEC consider all adverse environmental impacts." IC Exh. 4, at 15 (emphasis in original).

The AAEA contended that the issues proposed are significant because they would ultimately call for a major modification of the draft SPDES permit to eliminate all provisions that would reduce generation at the Stations, including the requirement that cooling towers be installed. Id.

For its offer of proof, AAEA indicated that its President, Norris MacDonald, and its expert, John McCormick, an energy policy analyst with thirty years of experience, would present testimony to establish the negative effects of fossil fuel plants, the disproportionate effect such plant emissions have on minority and low-income communities, and the negative impact to be anticipated if the Stations are brought off-line. IC Exh. 4, at 15-16. The AAEA further stated that it intended to offer evidence that the Department failed to consider environmental justice issues when it conducted its impact assessment for the SPDES permit. Id.

At the issues conference, Entergy stated that it had no objection to the environmental interest advanced by this petitioner, nor did it object to any of the issues AAEA proposed for adjudication. IC Tr. at 201. Department Staff objected to the petition, arguing that AAEA's contentions were based upon an unrealistic scenario where the Stations would be shut down, and that nothing in the draft permit would or could cause a closure of Indian Point. IC Tr. at 199. Department Staff went on to note that the draft permit would require Entergy to provide a design for closed cycle cooling, and any understanding as to the air quality impacts to be anticipated must be informed by knowing what the particular design for the system will ultimately be. IC Tr. at 200. According to Department Staff, submission of the design would enable the Department to assess and analyze the air quality impacts for the second permit term. Id.

Riverkeeper argued that the issues identified by the AAEA failed to particularize the criteria in question in the draft permit. IC Tr. at 201. Riverkeeper asserted that the AAEA's issues were appropriate for consideration under SEQRA, noting that SEQRA contemplates that questions such as those advanced by the AAEA be raised earlier in that process. IC Tr. at 202. According to Riverkeeper, the AAEA's offers of proof with respect to the issues proposed did not identify permit conditions and indicate why those conditions were not in conformance with applicable law and permitting standards. IC Tr. at 203. Riverkeeper argued further that the AAEA's arguments with respect to outages at the Stations were merely general concerns about impacts on an unspecified population, and Riverkeeper went on to assert that the impacts were not specified. IC Tr. at 205. Finally, Riverkeeper contended that environmental justice concerns fall more within the purview of SEQRA, and should be addressed in that process, rather than in the context of non-compliance with a SPDES permit requirement. IC Tr. at 206.

In response, the AAEA argued that the Department's Environmental Justice policy specifically states that it is applicable to the permitting process, noting that allowing AAEA to participate would further the Department's goal of ensuring that the concerns of low income and minority communities are considered in permitting decisions. IC Tr. at 207. The AAEA maintained that even one outage day could result in health impacts. IC Tr. at 208. Department Staff responded that the draft permit does consider air impacts on the New York metropolitan area, and that the Department might be able to submit additional testimony in that regard. IC Tr. at 212.

Department Staff went on to point out that outages at Indian Point would not authorize replacement generators to violate the terms of their air emissions permits. Id. Department Staff contended further that the issues, as proposed, overlapped and amounted to one issue. IC Tr. at 213. Riverkeeper offered additional remarks in support of its contention that forced outages were not good policy, and that if Riverkeeper's plan for closed cycle cooling at the Stations were adopted, the risks of outages of concern to the AAEA would be substantially eliminated. IC Tr. at 225-27. Counsel for DPS reiterated that the MAPS model would provide guidance as to the potential air quality impacts of the proposals for closed cycle cooling at the Stations. IC Tr. at 227-28.

John McCormick, the AAEA's expert, stated that while he was not fully prepared to give a technical evaluation, when construction begins at Indian Point there is a likelihood that coal fired capacity will be called into service. IC Tr. at 217. Shutdowns of 42 days could increase emissions from such plants by over 1.2 million tons during ozone season, according to Mr. McCormick, including an increase in oxides of nitrogen. IC Tr. at 218-19. Mr. McCormick went on to assert that he could identify fifteen units in the New York City load pocket that could make up the lost power if Indian Point's generation were reduced. IC Tr. at 219. Moreover, the AAEA indicated that it is prepared to offer testimony to establish that the Department in fact failed to take environmental justice considerations into account in the process of arriving at the terms of the draft permit. IC Exh. 4, at 15-16; IC Tr. at 223.

In light of the uncertainty with respect to the ultimate design of a closed cycle cooling system and the air emissions impacts that could be associated with such a system, it would be inappropriate to foreclose participation by the AAEA in this process at this juncture. At the issues conference, Department Staff acknowledged that the air impacts of closed cycle cooling at the Stations cannot be fully understood until Entergy submits a design for such a system. In addition, Department Staff stated that further SEQRA review is contemplated. IC Tr. at 99. Moreover, the issues proposed by the AAEA have already been joined in connection with Entergy's disputes with Department Staff over the conditions in the draft SPDES permit, particularly with respect to Section III, issues 2 and 3 in Entergy's comments. See IC Exh. 6, at 16-17. Accordingly, the AAEA is granted full party status in this proceeding.

Pursuant to Section 624.4(b)(5)(ii), the ALJ is tasked with determining which issues satisfy the standards for adjudication, and defining those issues as precisely as possible. The issues in the AAEA's petition, while substantive and significant, essentially restate the same issue. Moreover, the petition discusses only the potential effect on air quality as the adverse environmental impact to be addressed. Therefore, the AAEA's issues will be considered as one, and the issue for adjudication at the hearing will be whether the draft SPDES permit has considered adequately the impacts on air quality if a closed cycle cooling system is installed at the Stations. This issue is substantive because, based on the AAEA's offer of proof, and upon this record, capacity may be limited by such installation. The issue is significant because, after hearing, the proposed draft permit may be modified to address air emission concerns.

The NYSDEC Commissioner's Interim Decision upholding the Administrative Law Judge's February 3, 2006 Decision, which granted "standing" to AAEA for the adjudicatory hearing process in this matter.  The ALJ standing determination was contested by several parties on the appeal to the Commissioner.  In other words, Riverkeeper and others tried to keep us out of the hearing for adjudication. In the Matter of a Renewal and Modification of a State Pollutant Discharge Elimination System (“SPDES”) permit by Entergy Nuclear Indian Point 2, LLC and Entergy Nuclear Indian Point 3, LLC, Permittee. The Interim Decision of the Assistant Commissioner, August 13, 2008.

Based upon consideration of the appeals, I hereby modify the Issues Ruling, as discussed below. By this interim decision, various issues are advanced to adjudication.

PARTY STATUS:

African American Environmentalist Association (“AAEA”) filed a timely petition for party status in this proceeding. See IC Exh 4. AAEA’s petition stated that it was seeking party status to bring its “unique perspective to the Indian Point . . . permitting process and to raise the issue of environmental justice.²⁵

AAEA argued that in order to reduce impingement and entrainment of fish in the Hudson River, the draft SPDES permit “substantially limits” the Stations’ ability to generate electricity and might lead to reduced energy production or possibly even their closure. According to AAEA, other nearby fossil fuel burning electric generation plants would then be called upon to supply electric power to the region, with a corresponding increase in air pollution and decrease in air quality in low-income and minority communities, where most such plants are located. Thus, AAEA argues, the permits would cause adverse air quality impacts and these impacts would be disproportionately borne by low-income and minority communities.

At the issues conference, both Department staff and Riverkeeper raised objections to AAEA’s petition and the issues that it raised. See Issues Ruling, at 47-48. Entergy indicated that it had no objection to the environmental interest advanced by AAEA, nor did it object to any of the issues AAEA proposed for adjudication. The ALJ granted AAEA’s petition for full party status and consolidated AAEA’s three issues into one: “whether the draft SPDES permit has considered adequately the impacts on air quality if a closed-cycle cooling system is installed at the Stations.”

Department staff, in its appeal, contends that AAEA’s concerns arise from its “erroneous assumption” that the Stations will be offline for such an extended amount of time that significant adverse air quality impacts will result. Staff asserts that only a limited number of additional days of shutdown will be necessary to implement the 42 day outage provision in the draft permit. Department staff also maintains that, in the event that generation is reduced at the Stations, any replacement generation sources must comply with their permit conditions, which establish limitations protective of human health.

AAEA, in its reply, argues that it has demonstrated an “environmental interest” in the proceeding and has raised a substantive and significant issue that supports its request for full party status in this proceeding. Entergy, in its reply, maintains that the ALJ correctly granted party status to AAEA and that AAEA has proposed a substantive and significant issue for adjudication. See Entergy Reply, at 61-62. By regulation, an ALJ’s ruling of entitlement to full party status is based on the following:

“(i) a finding that the petitioner has filed an acceptable petition pursuant to paragraphs (b)(1) and (b)(2) of [6 NYCRR 624.5];

“(ii) a finding that the petitioner has raised a substantive and significant issue or that the petitioner can make a meaningful contribution to the record regarding a substantive and significant issue raised by another party; and

“(iii) a demonstration of adequate environmental interest.”6 NYCRR 624.5(d)(1)(i)-(iii).

For purposes of party status, a potential party’s assertions cannot be simply conclusory or speculative but must have a factual or scientific foundation. See Matter of Bonded Concrete, Interim Decision of the Commissioner, June 4, 1990, at 2; see also Matter of Ramapo Energy Limited Partnership, Interim Decision of the Commissioner, July 13, 2001, at 5. Conducting an adjudicatory hearing "where 'offers of proof, at best, raise [potential] uncertainties' or where such a hearing 'would dissolve into an academic debate' is not the intent of the Department's hearing process." Matter of Adirondack Fish Culture Station, Interim Decision of the Deputy Commissioner, August 19, 1999, at 8. AAEA’s petition for party status and the contentions that it has raised meet, albeit narrowly, the regulatory standard. AAEA has raised an issue with respect to potential negative impacts on air quality in environmental justice communities that is adjudicable in the SEQRA portion of the hearing. These impacts relate to circumstances when, pursuant to the conditions in the draft SPDES permit, the Stations will be offline or will be required to reduce their generating capacity. Accordingly, AAEA shall have full party status in this proceeding. In addressing this issue in the adjudicatory proceeding, generalized and nonspecific arguments will not be sufficient. AAEA should present evidence regarding air quality impacts on specific environmental justice communities, and should address the extent to which such impacts on those communities are disproportionate. In support of its contentions, AAEA should identify those power plants that would be expected to provide replacement energy during offline or reduced generation periods and that would be the sources of negative impacts on air quality. AAEA should also identify the specific air pollutants of concern.²⁶

Footnote 25: To the extent that AAEA is relying on Commissioner’s Policy 29 (Environmental Justice and Permitting)(“CP-29"), that reliance is misplaced. CP-29 applies to permit applications received after its effective date, and in this instance, the SPDES permit application was received years prior to the effective date of CP-29. Notwithstanding the foregoing, an environmental justice issue that is raised by a party that is entitled to party status and meets the standard for an adjudicable issue (see 6 NYCRR 624.4[c] & 624.5[d]) may be considered.

Footnote 26: I note, however, that other general matters upon which AAEA proposes to offer testimony, including the negative health effects of fossil fuel plants, and the number of power plants in minority communities in the Hudson Valley/New York metropolitan area (see IC Exh 4, at 15-16), of themselves, lack sufficient specificity and do not raise any substantive and significant issues. Such testimony would be only relevant to the extent that it is directly tied to the potential negative impacts on air quality in environmental justice communities when, pursuant to the conditions in the draft SPDES permit, the stations will be offline or will be required to reduce their generating capacity.

I hereby remand this matter to Administrative Law Judge

Maria E. Villa for further proceedings consistent with this

Interim Decision. For the New York State Department

of Environmental Conservation

By: J. Jared Snyder

Assistant Commissioner

Dated: August 13, 2008

Albany, New York