Cxm-CAA. NEW YORK STATE BOARD on ELECTRIC

Cxm-CAA.

• # NEW YORK STATE BOARD ON ELECTRIC GENERATION SITING AND THE ENVIRONMENT

In the matter of the application by Astoria Energy LLC for a Certificate of Environ- Mental Compatibility and Public Need to CaseNo. 99-F-1191 Construct and operate an approximately 1000 megawatt Generating Facility in the Astoria section of Queens County.

ARGUMENT IN SUPPORT OF APPLICATION FOR PARTY STATUS

Submitted by:

NEW YORK INSTITUTE OF LEGAL RESEARCH

. Herman A. Stuhl Chairman of the Board

David H. Klein General Counsel

Judith A. Koskella, Ph.D. Director Environmental Bureau

Post Office Box 398 Yorktown Heights, New York 10598-0398 Tel. No.: (914) 245-8400 Fax No.: (914)245-7660 E-mail: [email protected] April 4, 2001 NEW YORK STATE BOARD ON ELECTRIC GENERATION SITING AND THE ENVIRONMENT

ARGUMENT IN SUPPORT OF APPLICATION FOR PARTY STATUS

Submitted by:

NEW YORK INSTITUTE OF LEGAL RESEARCH

Introduction

In accordance with the directive of Administrative Law Judge J. Michael

Harrison, given during the hearing held on March 23, 2001 at the New York City Offices

of the State of New York Public Service Commission, the New York Institute of Legal

Research ["the Institute"] respectfully submits this argument in support of its motion for

active party status. Summary of the History of the Institute's Involvement with this Case

Practically since the filing of the pre-application report on August 31,

1999, the Institute, acting as a pro bom public advocate, to, inter alia, help present a full and complete record to the New York State Board on Electric Generation Siting and the

Environment ["the Board"] and to protect the public from what we believe to be an ill- conceived and dangerous project and, from the beginning, the applicant has steadfastly resisted the Institute's efforts.

A. Preliminary Investigation of Pre-application Report

Through our Environmental Bureau, headed by Dr. Judith A. Koskella, previously employed by the United States Environmental Protection Agency, the Institute conducted a thorough examination of the applicant's pre-application and found, inter alia:

1. Applicant's failed to extend its public involvement program so as to include

the Bronx and East Harlem, which are approximately 8500 feet from the

project site and constitute parts of the significant impact area.

2. In the pre-application period, the public and the Board did not receive proper

information from the applicant. For example, the air quality tables contained

in the pre-application report did not represent a realistic comparison between

the then proposed project and the existing Astoria generating facilities and

1 The Institute announced its interest in this project on October 14* 1999 in a letter to then Acting Secretary Debra Renner.

3 assumed, now known to be incorrect, that the Orion and NRG projects would

close down as soon as applicant's then proposed project got online.

3. The impression created by the pre-application, applicant's public involvement

program, inclusive of its web site, hand-outs and public meetings, was that the

erection of the proposed 1000 megawatt electric generating facility would

somehow improve the air quality in the Astoria community and beyond. This,

of course, is not true and the location chosen by the application was a poor

decision. The air quality in the Astoria community. East Harlem and the

Bronx has already reached unacceptable proportions with the existing Astoria

electric generating plants being considered the No. 1 operating "Dirty Power

Plant" in the State2 while Mount Sinai's Medical School considers the same

area to be "Asthma Valley," resulting in the deaths of numerous children

every year.3 Thus, the siting of any new plant in Astoria would be violative of

the principles of environmental justice.4

4. At present, the Astoria community bears the M environmental impact of

electric generating plants that support the needs of a large percentage of the

City of New York (three out of five boroughs). Simple logic, principles of

2 See November 16, 1998 report entitled "New York's Dirty Secret: the Power Plant Pollution Loophole," issued by Environmental Advocates, NYPIRG Fund, Inc. and the Pace Energy Project. 3 See, The New York Times, Sunday, October 24, 1999, Section 14 entitled "The City," where the headline is "Plans for New Power Plants Spur Fears in Asthma Valley." See, also, Luz Claudio, Ph.D., et al., "Socioeconomic Factors and Asthma Hospitalization Rates in New York City," Journal of Asthma, 36(4); 343-350 (1999) - the Mount Sinai Study. 4 The United States Environmental Protection Agency mandated fair treatment of all communities and stated that: "Fair treatment means that no group of people should bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal, and commercial operations or the execution of federal, state, local and tribal programs and policies." environmental justice and system reliability would tend to dictate that any

"needed" additional generating plants be sited closer to the communities they

service.5

5. The public involvement would have been more meaningful if the applicant

had annexed copies of all of the studies referenced therein to the pre-

application report so that the public and the Board could form their own

independent opinions as to what the studies prove instead of being forced to

accept the applicant's characterization of them.

As a result, on March 6th, 2000, the Institute issued its First Set of Concerns and Questions, a copy of which is annexed hereto and made a part hereof as Exhibit "A," showing both an in-depth analysis of the project and highlighting numerous problems with the project and its public involvement program as well as the pre-application report.

This document was completely ignored by the applicant.

5 At present, the existing electric generating plants extant in Astoria, previously owned by Consolidated Edison Company of New York, Inc. and currently owned by subsidiaries of Orion Power Holdings [which, in turn is owned by Constellation Power Source, a subsidiary of Baltimore Gas & Electric, and investment bank Goldman, Sachs & Co.], which purchased the facility in mid 1999 for $550 million, and NRG Energy, Inc [a subsidiary of Northern States Power, a Minnesota State regulated utility], which purchased its facility also in mid 1999 for $505 million, not including NYPA, supply the energy needs of Astoria, Long Island City, the upper east side of Manhattan, all of Washington Heights, all of Jackson Heights, all of Flushing, all of Corona, all of LaGuardia airport, all of Rego Park, all of Jamaica, all of Roosevelt Island, a portion of John F. Kennedy International Airport, and all of the Riverdale, Fordham, Northeast, Southeast, Central and Western portions of the Bronx. 6 On April 6, 2000, the applicant acknowledged receipt of this report. When compelled to respond by Administrative Law Judge Epstein, applicant objected to questions and provided evasive answers to others. B. The Motion to Intervene

In our Motion to Intervene and Petition to Intervene, we urged, inter alia. that:

The Institute seeks to intervene in this and other proceedings, without

public compensation, to, inter alia, review the application and present

information, views and arguments concerning the environmental

impact of the proposed project upon the air quality, water quality,

marine habitat, noise levels, visual effects, land use, dredging and

various socioeconomic considerations, including, but not limited to,

environmental justice considerations. Specifically, the Institute needs

to be heard on, inter alia, (a) whether the definition of environmental

justice includes any group, i.e., whether the building of a facility in a

rich and prosperous neighborhood would be entitled to all of the

protections of the laws and cases determining environmental justice;

(b) whether the cumulative impact of the present generating facilities

should be a factor when granting new applicants a license to build in

that area; (c) whether the pre-application phase was a condition

precedent to the filing of a formal application and whether a failure to

file a good and sufiScient pre-application and/or to conduct a patently

insufficient public outreach program (i.e., one not covering the full

significant impact area) deprives the applicant of the right to file a

formal application; (d) whether the proposed studies are sufficient to yield data required to present a full and complete record to the Board;

(e) whether the parties already provided with party status by statute offer full and adequate representation to the local community as to issues of public health and safety and the environment, (f) the applicability of a cumulative impacts analysis, (g) the records of

compliance of the applicant and its affiliates, (h) whether there has

been an adequate Health Risk Assessment of the project alone,

cumulatively with the existing neighboring projects and cumulatively

with the existing neighboring projects and the other proposed projects,

(i) whether there has been an adequate Environmental Impact Study of

the project, the project alone, cumulatively with the existing

neighboring projects and cumulatively with the existing neighboring

projects and the proposed projects, etc. We respectfully submit that

these issues are adjudicable, substantive and significant in the

application process.

The Institute possesses particular expertise in these areas and a

microbiologist previously associated with the United States

Environmental Protection Agency heads its Environmental Bureau.

Moreover, the Institute's unique knowledge of the industry and the

laws governing the industry supplement its expertise in such a manner

that it may make a major contribution of the decision making process

and the making of a full and fair record upon which a just

determination may be made. 3. It is essential that the Board hear from all interested parties concerning

the proposed project's adverse affects upon the environment of the

proposed project so that all views on the project are properly presented

to it before it is charged with its statutory decision-making

responsibilities.

4. It is important that the Institute be granted intervenor status in this

proceeding to ensure that all aspects of the proposed project are

adequately represented in that the Institute is taking, inter alia, a public

advocate position, without taxpayer cost or expense, to present the

views of those members of the public whose health and safety will be

adversely affected and to ensure due consideration for the environment

and principles of environmental justice.

5. Petitioner also seeks to intervene as a person having direct and

substantial interest in this proceeding as well as the determination

thereof, whose views in the public interest may not be adequately

represented without the granting of such intervention. Such

intervention is likely to contribute to the development of a complete

and foil record, which might not be possible without such intervention,

and is otherwise fair and in the public interest.

6. Article X states that "(t)he parties to the certification proceeding shall

include (s)uch other persons or entities as the board may at any time

deem appropriate, who may participate in all stages of the proceeding."

[PSL Section 166(m)]. The Siting Board has adopted the regulations of the Public Service Commission for Article X proceedings [16

NYCRR Section 1000.1]. The regulations permit party status to be

granted to any person "if the intervention is likely to contribute to the

development of a complete record or is otherwise fair and in the public

interest."

7. No party would be prejudiced by the granting of the within application.

8. The Department and the Administrative Law Judges have consistently

held the position, with which we do not agree, that any pre-petition

deficiencies in the drafting of the preliminary scoping statement and

the public outreach programs could be cured during the formal post-

application period. As a result, to then deny the Institute intervenor

party status during the post-application formal proceedings would also

constitute denial of the Institute's statutory right to participate during

the pre-application phase. Identified Concerns with Formal Application

Preliminary review of the applicant's formal application also raises concerns, including, inter alia:

A. The Alleged Testimony of Michael Radovich

In reviewing the formal application of this applicant, we reviewed, as a component thereof, the alleged testimony of Michael Radovich, then a Senior Mechanical

Engineer with Raytheon Engineers & Constructors, Inc., a firm that has acted as consultant to the applicant at one time. However, Mr. Radovich, the Assistant General

Counsel of Raytheon stationed at the same office [Princeton, New Jersey] and the

General Counsel of the firm that bought Raytheon would not confirm that the alleged testimony contained of Mr. Radovich was real. Since Raytheon found itself in a difficult position with a former client, it preferred to not get involved.

B. Alternative Sites Not Considered

We note that Section 164.1(b) of the Public Service Law mandates that the

application describe and evaluate "reasonable alternative locations to the proposed

facility." We believe that applicant has failed to adequately fulfill this requirement.

10 C. The Missing System Tmpact Study

In the Institute's First Set of Concerns and Questions, see Exhibit "A" hereto, at page 15, the Institute questioned whether or not the appUcant could interconnect to the grid at the Astoria East Substation and commented that the appUcant was the only entity that had submitted a pre-application report that had not previously submitted an application for interconnection to Con Ed/NYISO. The formal application was thereafter filed without a viable Electric Interconnection System Impact Study ["System Impact

Study"] to DPS and NYISO.

Argument

Since the appUcant cannot deal effectively with the issues we raise, it

seeks to criticize the Institute in an attempt to block our participation in these

proceedings. The Institute has many legitimate concerns and only some of those

concerns are discussed above. Notably, the Institute is concerned with, inter alia, the

environmental impact and socioeconomic considerations association with this project.

The Institute should be granted active party status without limitation7 to ensure that aU

aspects of the proposed project are adequately addressed and that the Board wiU have a

fiiU and complete record upon which to render its decision.

7 The statement made by Herman A. Stuhl at the recent hearing to the effect that the Institute's participation might be limited in some respects is hereby withdrawn. The Institute would like the freedom to participate whenever it deems it can make a difference.

11 The Institute is taking a Public Advocate position, without State of other funding, to present, inter alia, the views of those members of the public whose health and safety would be adversely affected and to ensure due consideration for the environment and principles of environmental justice. The granting of this application would prejudice no party and the Institute intends to participate in the proceeding without compensation.

A. Other Rulings on the Institute's Petitions to Intervene

In spite of stiff opposition, the Institute has never been denied Active

Party Status and other Administrative Law Judges, acting as Presiding Examiners, have granted the Institute Active Party Status in other Article X cases.

In Case Nos. 98-F-1885, Application of Sithe Energies, Inc., etc., and

Case No. 98-F-1968, Application filed by Ramapo Energy Limited Partnership, etc..

Administrative Law Judge Robert R. Garlin issued a Ruling on Petitions to Intervene on

September 6, 2000, which ruling, a copy of which is annexed hereto and made a part hereof as Exhibit "B," granted the Institute's petitions to intervene in both of those

projects.

In Case No. 99-F-1314, Application by Consolidated Edison Company of

New York, Inc., etc.. Administrative Law Judges Walter T. Moynihan and Rafael A.

Epstein, in granting the Institute's application to intervene there, stated that:

"The Institute observes that, under Public Service Law §166(1) (m), the parties to a certification proceeding shall include '(s)uch other persons or entities as the board may at any time deem appropriate, who may participate in all stages of the proceeding.' In addition, the Institute notes that the Board in 16 NYCRR 1000.1 has adopted the Public

12 Service Commission's regulations, of which 16 NYCRR 4.3(c) (1) allows party status for any person whose intervention 'is likely to contribute to the development of a complete record or is otherwise fair and in the public interest.'

* * *

We see no basis for Con Edison's supposition that the Legislature, in listing the types of entities that may intervene as of right, has imposed some explicit restriction on the explicit provision in §161 (1) (m) that any 'appropriate' intervention is allowable. The Institute therefore is correct that we should interpret §161 (1) (m) by reference to Rule 4.3 (c) (1) (quoted above). We are unaware of any precedent for interpreting the latter as Con Edison proposes." [footnotes omitted]

A copy of this Ruling on Motion to Intervene is annexed hereto and made a part hereof as Exhibit "C."

Clearly, applicant's objections to the Institute's participation in these proceedings have absolutely nothing to do with the law. The Institute's participation is both legal and within the public interest. The applicant is merely afraid that the

Institute's participation in this proceeding would lessen its chances of being granted a

Certificate of Environmental Compatibility and Public Need by the Board.

Respectively submitted,

NEW YORKINSTITUTE OF LEGAL RESEARCH

BY:

'A. Stuhl of the Board

13 Herman A. Stuhl Chairman of the Board

David H. Klein General Counsel

Judith A. Koskella, Ph.D. Director Environmental Bureau

Post Office Box 398 Yorktown Heights, New York 10598-0398 Tel. No.: (914) 245-8400 Fax No.: (914)245-7660 E-mail: [email protected] April 4,2001

NEW YORK INSTITUTE OF LEGAL RESEARCH POST orncc BOX 3»8 YORKTOWN HCIOHTi NCWYORK I0a»8-03BO (014) 248^400 TAX. (»!-») «4B.7e80

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March 6, 2000

Mr. William G. May Project Manager Astoria Energy LLC 85 Main Street, Suite 303 Concord, Massachusetts 01742 Re: Astoria Energy LLC - Public Service Commission gaafi Wo- 99-r-ii9i Dear Mr. May: By way of introduction, the New York Institute of Leqal Research, an intervenor maintaining strong beliefs in the sanctity of the environment and principles of environmental justice: is interested in assisting the New York State Board on Electric Generation Siting and the Environment [the "Siting Board"] to the end that electrical generating plants be erected within the State of New York in locations where there is an actual need for new generating capacity with due^ regard to the environment, environmental justice and' the aesthetics of the community. In such capacity and in accordance with Article X of the New York State Public Service Law and Section 1.12 of your Pre-Aoolication Report for the Astoria Energy LLC ["AEL"] 1000 MW eILt??c Getting Project, ^ August 30^ v^r-v state Public Service Commission, ["the Project"], we wouia Uke to e^s seme concerns and seek clarification of certain information concerning the proposed project:

f^rflt Set nf concftn• and Questions NEW YORK INSTITUTE OF LEGAL RESEARCH

1. Public invQlvement Program 1.1 We note that your proposed stipulations concede that the significant impact area of your proposed fc Project extends^ inter alia, into Manhattan and 9 the Bronx, which are apiprbximateiy 8500 feet from the Project site. Yet, you failed to include these areas within your public involvement program. Significantly, a" study conducted by a team at the Center for Children's Health arid the ft Environment at Mount Sinai School of Medicine has 9 found that the rate of hospitalizatioh bf children for Asthma in the upper porticn of Manhattan and the south Bronx has reached dpidemic proportions.1 Why did you choose to omit these areas from your public involvement program? ^ 1.2 In your Press Release dated July 26, 1999 and in your Pre-Applicatioh, you state that you "are encouraged by the initial positive response that the Astoria community which has welcomed the project'is preliminary plans." Please identify the individuals and groups within the Astoria • community which ; have welcomed the project's preliminary plans, listing representations, addresses and telephone numbers for each. 1.3 At the August 11th, 1999 public community meeting, in front of approximately one hundred (100) ' attendees, when you were asked by a member of the community to identify the individuals and groups within the Astoria community Which have Welcomed your Project's preliminary plans, you [William G. May] stated that those people were encountered at a local bar located in a restaurant, while you ^ were having one. or more drinks, and you did not remember (the date, you did not remember the name of the bar or restaurant, and you' did not remember the names of the people encountered. If you now remember, please supply this information.

l.specifically, this study found that hospitalization rates for children were as much as 21 times higher in these poorer, minority areas than the hardest-hit affluent communities and that the incidence of acute asthma attacks in children has risen 100% during the last decade. NEW YORK INSTITUTE OF LEGAL RESEARCH

2. Environmental Justice 2.1 "Environmental JusticeM nay bo defined as "the fair and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implemen- tation, and enforceii\ent of environmental laws, regulations, and policies. Fair treatment means that no group of people should bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal, and commercial operations or the execution of federal, state, local and tribal programs and policies. "•'• with this definition in mind, how do you reconcile your choice of site at a location already contain- ing a proliferation of electric generating facilities so close to both the existing Astoria facilities, which were previously owned by consolidated Edison Company of New York, Inc. ["Con Ed"] and are now owned by subsidiaries of Orion Power Holdings, Inc. ["Orion"] and NRG Energy, Inc. ["NRG"] [together the "Existing Astoria Facility" or "Existing Astoria Facilities"], the Ravenswood2 facility, located in Long Island City, Queens, and the New York Power Authority ["NYPA"], which are servicing most of New York City? We note that it has been reported in the New York Times that a team at the Center for Children's Health and the Environment at Mount Sinai Hospital School of Medicine has determined that hospitalization rates for children suffering from asthma was as much as 21 times higher in poorer, minority areas than in affluent areas. Hardest hit are children within a radius of one and one-half miles of the proposed Project. 2.2 why did you choose to omit, from the Pre-Applica- tion a section oh Environmental Justice? 2.3 In light of the fact that the Existing Astoria Facilities are considered the Mo. 1 presently operating "Dirty Poweir Plant" in the State, ac-

1.Definition courtesy of United States Environmental Protection Agency. 2.We note that the Ravenswood facility produces steam for heating and air conditioning for the luxury apartment buildings located in the upper east side of Manhattan in addition to producing electricity for other parts of the City of New York. NEW YORK INSTITUTE OF LEGAL RESEARCH

r^nhola" issued by ^nvironmentsl Advocates,

S Sr^gS^^actu^ln tSe sane .res with the attendant additional noxious emissions? •.>,.•. ••>.« Astoria. Queens conmvinity is 2.4

tllcity tor the City of New York? T^ oo how do you reconcile the erection of the 2.5

share of the negative cohse^ences of the genera ?ion of electricity for the City of New York?

TS it your position that it is fair, under the

ponSLnts a?tenSant to the production of electricity used, in all five (5) boroughs of the City of New York?1 in your Executive Sumnary of your Pr5-A?pliC5^^: ySuys?ate that "(additionally, the ^^^"^y are intended to develop a Project t^t J^ only meets the current energy needs of the area but provides a positive complement to the area in ?e^s of aesthetics and addressing f^ironmental concerns." We understand that you will be ©rect- inSfSir (4) smokestacks, each with a di?»«t«ro' ing iout v-*; DJr . >,*» feat and each with a S?££ £tSeL • &«£& ei^ty (MO) and three S^dred fifty («0) feet. How do you reconcile teese large snikestacks with the aesthetic needs

1.We note that the =*i»ting ^terl. ^^^/îdd IS^MYPA ^ct ô^rid^r^îa^nsîJ supplies power to all five (5) boroughts of the city of Mew iork. NEW YORK INSTITUTE OF LEGAL RESEARCH

of the area?1 Me also understand, that you will be 2.7.1 Seeding a building 650 Jeet long by 175 feet wide by 75 *eethigh. Is this true and, if so, fow *> you reconcile, thie large building with the aesthetic needs of the area? 0 7 2 We also understand that you will be 2-7*2 Meeting ^^(4) heat r^ boilers, each of which is 110 feer hiah. is this true and, if so, how do you reconcile these large heat recovery boilers with the aesthetic needs of the area? 973 Since you state in Section Jf7 °f 2-7-3 your pSre-Application that A*L "^ received input from the cf**•^ near the proposed site to the effect that air quality is ^ •9°in|' ^ priority concern," in figure ES-2 or Sour Pre-Application, why did you compare the Reject's Projected air emissions with an average of facilities in the "region" (inclusive of New York, New Jersey and Connecticut) instead of comparing the Project's air emissions with the Existing Astoria Facility? 2 7 4 Since you compared your PfoJ60^'8 2 projected air emissions with the Average of facilities in the "region," do you feel that the residents of the immediate Astoria community, the Bronx and East Harlem, which are part of the significant * jSbaot area, iholusive of mothers of SbSmatic 'children in emergency rooms, should be as concerned with, for example, noxious emissions in Southampton, New York, Bemardsville,

..see footnote 9 inm.^ %?sT- rtfedToS -.o^^^ S? ll^^Tr^tlt^^^ ^al determination. NEW YORK INSTITUTE OF LEGAL RESEARCH New Jersey, and Greenwich, Connecti- cut as they are with their own local air quality with the attendant negative impact upon their collective health?1 2.7.5 In lieu of figure ES-2, woul<* nc* a comparison of the Project with the Existing Astoria Facility have created a truer picture of the effect of emissions on the immediate Astoria community? 2.7.6 If Orion and NRG repower the Existing Astoria Facility so as to lower overall emissions, would such activity negate the need for AEL's proposed Project? 3. ^d for Gfinftratino Facilities at Proposed Location 3.1 Since there are more than adequate generation facilities located in the Existing Astoria Facilities to meet "local" [Astoria/ and Long Island City] capacity and energy needs and since the surplus capacity and energy generated currently supplies the upper east side of Manhattan, all of Washing- ton Heights, all of Jackson Heights, all of Flush- ing, all of Corona, all of LaGuardia Airport, all of Rego Park, all of Jamaica, all of Roosevelt Island, a portion of John F. Kennedy International Airport, all of Riverdale, all of Fordham, and all of the Northeast, Southeast, Central and Western portions of the Bronx, how is it that there is a need for the Project to be sited in Astoria, Queens where the Project capacity and energy will be used in the other locations above mentioned?

l.we note that you compare your Project to the whole region, inclusive of the States of New York, New Jersey and Connecticut and that included in the region are coal plants and oil-fired plants, all of which operate at different capacity factors. 2 We note that this area also currently houses generation facilities o^ned by NYPA as well as the Existing Astoria Facilities in addition to AEL, we also note that NYPA seeks to build an aSditionai 5oo MW plant in this area. ' Moreover, Keyspan Energy has filed an Article X Pre-Application for the erection of an additional 250 MW facility in the nearby Ravenswood power plant, .ayV'.T.--'

NEW YORK INSTITUTE OF LEGAL RESEARCH

3.2 Why did you choose to omit from the Pre-Applica- tion any topic on the justification for "need" for the Project at the proposed site? 3.3 On your web site, published in partial compliance with the requirements % of Article X, in a section labeled "Products," ,you state that your program would "replace older, less efficient and more polluting generating facilities with newer and cleaner technology." Which existing New York City generating facilities do you believe will termi- nate activities, when do you believe they will do so and upon what facts do you base that opinion? 3.4 Your handout (supplied to the public at the public meeting held on August 11th, 1999) states, under the topic heading "Why Astoria," that there is a M(n)eed for additional generation in New York City with lower emissions." Upon what facts do you rely in forming the conclusion that the current owners are not already planning to repower the Existing Astoria Facilities with either the same technology as you prop9se [F-type combustion turbines] or more efficient technology [G or H- type combustion turbines] with lower emissions than what you propose? 3.5 Since the Existing Astoria Facility and the transfer capability are adequate to handle the capacity and energy needs of Astoria and Long Island City and, as a matter of fact, the entire borough of Queens, how could there be any actual need for additional capacity at this site?1 3.5.1 On page ES-2 of the Pre-Application, you state that "(p)reliminary studies have clearly indicated that additional generat- ...Continued... which already houses electric generation facilities totaling 2,168 MW and is only approximately 11,000 feet from your Project site. l.we note that the required "need" for generation to satisfy the load of the Astoria East Substation load is approximately 300 MW. The Existing Astoria Facility already supplies present electric generation capacity of 1,713 MW and there is also a 2,530 MW transfer capability for a total of 4,243 MW -- more than fourteen (14) times the required capacity to satisfy the need for Astoria and the surrounding communities. •:.r ;rr.

NEW YORK INSTITUTE OF LEOAll RESEARCH ing capaoity in this comparatively high electrical load area will add electrical energy at a point where the system needs it." Please provide copies of those studies. 6 In your publication entitled "Astoria Energy's Srrent Events," November 1999 edition, issued ^rsuSSt to Article X of Mew Vork's ^f* *"•£<" Law as well as Section 1.12 of your Pre-Applica- tion, you state: "The site has a strategic location to the electrical interconnection it intends to serve. Immediately adja- cent to the west of the site is the con Ed Astoria East Substation which serves the Queens '.toad Pocket..' The Queens ateai is densely populated with a large electrical load that has been served by the 6on Ed. 138Jcv transmission system for years. Preliminary studies have clearly indicated that additional generating capacity in this comparatively high electrical load area will add electrical energy at a point where the system needs it. System stability is enhanced by generation siipport close to the load." Please provide a copy of such preliminary Studies. 3.6.1 IS it not true that the Existing Astoria Facility more than adequately meets "Ideal" [Astoria and Long Island City] capacity and energy needs and that the excess capacity and iehergy currently being generated by the Existing Astoria Facility is distributed to provide capaoity and energy to the upper * east side; of Manhat- tan, all of Washington Heights, all of Jackson Heights, all of Flushing, all of Corona, all of LaGuardia Airport, all of R6go Park, all Of Jamaica, a portion of John F. Kennedy International Airport, all of Roosevelt Island, all of RtojtaiJJ' jj1 of Fordham, and all of the Northeast,

l.To the same effect, see page ES-2 of the Executive Summary to the Pre-Applidation.

8 NEW YORK INSTITUTE OF LEGAL RESEARCH

Southeast, Central and Western portions of the Bronx? 3.6.2 You use the term "Queens Load Pocket." Please identity the term "Queens Load pocket?" 3.6.3 As you suggest', if. system stability is enhanced by generation support close to the load, a conclusion which cannot be veri- fied for the Project until after Project stability studies are completed, would it not be true that new generating facilities should be sized and located to service the local load "needs" and, therefore, should be located near one or more of the other load pocket areas, possibly in a grouping arrangement, determined after a full analysis, presently served by the Existing Astoria Facility, including, in the upper east side of Manhattan, in Washington Heights, in Long Island City, in Jackson Heights, in Flushing, in Corona, at La- Guardia Airport, in Roosevelt Island, in Rego Park, in Jamaica, at John F. Kennedy International Airport, and in the River- dale, Fordham, Northeast, Southeast, Central and Western portions of the Bronx to meet their load demands and none in Astoria, Queens since the Existing Astoria Facility provides more than adequate system reliability at that location?-1

1 At the present time, Con Ed, under the auspices of the Public Service Commission, is auctioning off a property in the Bronx to develop an electric generating facility to service the Bronx, a oroperty in northern Manhattan to develop an electric generating facility to service Manhattan, two properties in Williamsburg to develop electric generating facilities to service Williamsburg Brooklyn and a property in Staten Island to develop an electric P n gen^a^g ?acil?ty to Lrvice Staten ^ f;tAf ^^^^f^ are a number of developers now proposing sites in the Bronx to service the Bronx portion of the Astoria Sub-pocket so as to maintain a close proximity to the load. Although this may make sense insofar as proximity to the load is concerned, it is irre- sponsible when you consider the impact of the pollutants upon the children suffering from asthma since this area is one of the worst in the area insofar as epidemic levels of asthma in children is concerned. We also note that publicly you admitted that NEW YORK INSTITUTE OF LEGAL RESEARCH

3.6.4 How would you respond to the charge that there is no need for additional electric generation in Astoria, Queens and that, if the electric generation support be close to the need, this proposed site is mis- placed? 3 7 Will you ever provide, sell, trade or transfer the capacity and/or energy from your Project to any location other than within the City of New York? 3 8 If not, are you and your senior lender(s) prepared to guarantee this representation? 3 9 Will you ever provide, sell, trade o* transfer capacity, as an in City generator, 8

inadegaasy Q£ Mr Quality Repr^pgntati

. . Continued..

^•0 rHrt vnnr firm look at any alternative sites or analyze tLnLtoria SubTo^et" w'hich consists of the entire Borough of the Bronx Roosevelt Island, the upper east side and northern portion of Manhattan and the majority of Queens, f°r *"» ^f locations tailored to have generation support close to the load. locations raiior y Sub-Pocket is substantially serviced'from Astoria'. Interestingly, we note that in Con f-s Re rin e ^Application Report for the East River P^ 9 ^ ^n^ the East River Generating Station, Con Ed, sensitive to the upper east side wealthy and politically powerful community, Preferred not to repower their existing generating facility at East 74th S?reet because of the effect the facility would have on the neighboring residential community in terms of noise during construction Ind operation and the erection of a new smokestack and ga^system re-enforcement due to the proximity of residences, a problem also present with your proposed Project.

10 NEW YORK INSTITUTE OF LEGAL RESEARCH

Project has tie potentUl to reduce ^.1 emis-

Facility as follows: N0 emissions by almost 14,000 tons per a. ^"^xV year?

b. so2 emissions by approximately 18,000 tons per year;

c. C02 by approximately 3.5 million tons per year; and d. Particulate emissions by over 600 tons per year.

(5.05 Ib/MW), PM10 (.23 ^b/M^) , and C02 (1,794 lb/MW)? A i section 1.7 of your Pre-Application states that "?Uhe Project is assumed to operate at 80 percent caoacitv [factor] to provide a realistic assess- *en? of air contaminant emission reductions " âr?zed in Table 1-1. îng the years 199 6 and 1997. and similarly, as in prior years, cne ExLtinJ Astoria Facility has operated atan aver- ô ^nacitv factor of approximately 36%. Tne rlpoS evasions of the fxisting Astoria Facli- tv are shown on Revised Table 1-1, a copy of which i^ annexed hereto as Exhibit "B " taken from EPA Arid Rain Program Emissions Data and Con Ed s iSbmissions to the New York State Public Service Mission! Based upon the reputed emissions *Z.~Z *--ha Pvistlno Astoria Facility shown in tne Reused Tabfe 1-1, which is the only "equivalent exiting facility" relative to local residents, is ?t fair to state that the local air emissions will not be reduced by the amounts stated in Table 1- and that the emission eductions in the local

PP ?if|^ 28% of the PM,0 ^P^raotuannncreas^ 1-1 and that C02 emissions will actually increase by approximately 2%?

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NEW YORK INSTITUTE OF LEWLE^AL RESEARCH

4 4 How is yodr Table 1-1 relevant if the Existing Astoria Facility remains operational?

4.5 If there is no basis for the conclusion that the Existing Astoria Facilities wiU shut down ^after the Project gets up and running, is it fair to say that there will be no rgdUrtiona in lof^ a^ emissions and that, in fact, the Project would increase local N0y enissiohs by 263 tons per year, local SO, emissions by 115 tons per year, local PMnn emissions by. 192 tons per year and local C02 emissions by 2.9 million tons per year?

4.6 Didn't you represent in public meetings that the savings shovm in Table 1-1 are the net benefits to be derived in the local Astoria, Queens, community if you were to substitute the Project for the Existing Astoria Facility? 4.6.1 If your answer is in the negative, how did you represent potential emissions savings in the local Astoria community at public meetings? 4 ^ 5. Representations of Shut-Down of f fhA Existing ftp^H* Facility 5 1 At the August 11, 1999 community meeting, didn't you [William G. May] state, in front of approximately one hundred (100) attendees, that, when the Project gets up and running, the Existing Astoria Facilities wiil shut down because the Project will be producing cheaper electricity with less emissions, intimating that the Orion facility, owned by Orion Power Holdings, which, in turn, is owned by Constellation Power Source, a subsidiary of Baltimore Gas 6 Electric, and investment bank Goldman, Sachs & Co., purchased in mid 1999 for $550 million, as well as the MRG facility, owned by N&5 Energy, Inc., a subsidiary of North- ern States Power, a Minnesota State regulated utility, which paid also in 1999 $505 million for their facility, will shut down? If so, upon what facts did you rely in formulating that conclusion?

5.2 Have you notified any i^^:^ ele^^05fiwi« that the ejection of the Project combined with the closing of the Existing Astoria Facilities would operate to deprive the community of approximately

12 •;;•;..• r;^:*-" ••.••"•'r.-r,?,-w«-i *•.• i ,. • • *. ;• '.y:--.-f ^ "•' :••:'•••

NEW tORK INSTITUTE OF L^fe ^SEARCH A

160 jobs?1 5.2.1 If so, which labor loaders or elected officials did you notify and what were their:terip6nso&? 5.3 On page 1-22 of the JPre-Appllcation, you state ^at ".(t)he Project was supported by several representatives of trade union workers." Kindly identify these representatives, their unions and their titles, providing nailing addresses and telephone numbers, for each* 5.3.1 In each case, please indicate whether such support constituted the official position of the union involved and, if the answer is In the affirmative, provide a copy of any documentary evidence in support of such position. 6. Land Use

6.1 in the handout described in section 4.4, supra. under the topic "Why Astoria," you state that this would be an "(i)deal reutilizatlon of a brownfield site." Has Castle Oil filed all necessary permit applications and caused to be made an environmental impact study as/to the. consolidation of its Astoria facility into its Bronx facility? if so. stud862^0^** * C0Py of the environmental impact i 6.2 Why did you omit from your Pre-Application any environmental impact study, inclusive of soils studies for hazardous contaminants in the soils and possible leakage and migration of hazardous contaminants into the surrounding Astoria community, inclusive of apartment houses, single family dwellings, schools, children»s playgrounds, water

1.Considering that there are approximately 160 people employed in the Existing Astoria facility and the handout described above states that you will employ 25 people during operation (the July 26, 1999 Press Release says you will employ 30), the net loss of jobs would be about 130.

2.See linkage between the proposed Project and the Castle Oil Astoria and Bronx facilities contained in your Executive Summary to the Pre-Applicatioh at page ES-1 and Section 3.1 of the Pre- Application dealing with Liand Usia.

13 ./ NEW YORK INSTITUTE OF LEO^RESEARCH v •from the Castle Oil

|?|« a chilSrih's Playground. What other possible11,1. uses havenave been evaluated tor 6.3 this site?

6.4 castle Oil hotoTi^ BIZBXU idential areas as of rezoning for ^V^ area nenear the Williams- was recently done in t^e ^^h was converted to Sde^aT *** B -n1^ - help alleviate the housing shortage?

6.5 oid the l^d u.^ ^c^^y^^tdeê section 3.1 of J2* 5-11 terminal of Castle oil irîr^nx^^lnoluBlTe of the increased truck traffic? - êPd« Se^nl.^St ^-^fo.?^ US 6.7 oid the ri ^^-^~t^^nridiraS; ^mUU' ^thTfet^1^ ^tfe Ju ^fSo? raKlrU^n in Astoria,

7 f^]^. Line 7 , on your web site is a topio hea^ng /« Project 7*1 ??melines, ^stJipdated on July 27^ ^ ^ ^ the Administrative Completeness r^ ^ upon formal ^PP^^f" fj8^ you project the prepa- ^io^tSe SMfi^ S?Se? oJ conditions to ocl£? in September of 2000?

7 2 if you now have updated project timelines, please provide them to us.

7 3 Your handout (supplied to £e public ^ jublic 7-3 meeting held ^ At^t 11th, 1^ BZ ^ er on «(c)ommercial oP .^Yfl 5ate still accurate or is late 2002." Is this date srxx ^^ is the there a revised date ana, x* » > revised date?

14 ... *•••-—tnWft«a.049*».'tTr.-• . -J W*-»#1T<-."

NEW YORK INSTITUTE OF LEGAL-RES RESEARChi

8. Prematurity of Pra-APDlicatlon 8.1 Again, we quote from page ES-2 of the Executive Summary of the Pre-Application to the effect that "(p)reliminary "studies have clearly indicated that additional generating capacity in this comparatively high electrical load* area will add electrical energy ats a point where the system needs it." We note that you are the only entity which has submitted a Pre-Application which has not submitted an application for interconnection to Con Ed/NYISO.. 8.1.1 Without Con Ed/NYISO1s input on whether or not Con Ed/NYISO can accommodate you to interconnect with the grid at the existing Astoria East Substation as presently constituted, how could you so conclude?1 8.1.2 Upon what facts do you. rely to support your belief that Con Ed/NYISO can accommodate you to interconnect with the grid at the existing Astoria East Substation as presently constituted? 8.1.3 Have „you ..completed the load flow, short circuit and system stability studies required by Con Ed/NYISO in order for them to determine if Con Ed/NYISO can accommodate you to interconnect with the grid at the existing Astoria East Substation as presently constituted? 8.1.4 How can you Characterize the system stability studies in your Pre-Application while simultaneously seeking 45 days after filing of the Application within which to complete those seme studies?

8.1.5 At the Atlgust 4, 1999 public meeting you were asked what type of fuel you would use and that you responded that you would be using gas and that there would be no disruption of the public streets to increase system delivery. Upon what infor-

l.we note that, in your proposed stipulations, you seek 45 days after filing of the Application within which to complete these studies.

15 NEW YORK INSTITUTE OF LEGAfTRESEARCH.LTESEARCH

matioh do you rely in formulating this conclusion? 8.1.6 upon what information do you rely in formulating : the conclusion that there would be adequate gas,service to accommodate the proposed Project without reinforcements to the New Yorlc Facilities gas pipeline system, which would require construction in and disruption of the public streets?^

9. idgpfcULifiafcifiH Sit Applicant 9.1 who are the shareholders/owners of the applicant, AEL? 9.2 Who are the officers and directors of the applicant, AEL? 9.3 As to those shareholders/owners, officers and directors, what was their prior experience in similar power plant projects? 9.4 in your Press Release dated July 26, 1999, you state that "James: L. cro/le, a principal of SCS Energy" is a "former president of the Eastern ^ Energy corporation." : Where is Eastern Energy Corporation located, in what State is it incorpo- rated and what power plant projects have they done to the point of permitting, financing, building and entering into commiarcial operation? 9.5 Your handout (supplied to the public at a public meeting held on August 11th, 1999) states that SCS Energy LLC ("SCS") has four (4) ••projects under development totaling 3,000 MW of generating capacity" and "(a)11 projects are founded on initia- tives to achieve environmental and technical excellence." Please identify the four projects and for each project provide: 9.5.1 What is the primary fuel? 9.5.2 What is the size (MW) of the project? 9.5.3 What is the status of the permitting process?

l.See Executive Summary of your Pre-Application.

16 * NEW YORK INSTITUTE OF LEGAL ^RESEARCH

9.5.4 Identify the location of the project? .9.5.5 identify any environmental groups or concerned, citizens intervening, appearing or contacting the Project manager?

9.6 In your handout, identified in 6.5, suoraP you mention the involvement of SCS. Who are the shareholders/owners of SCS, who are the officers and directors, and what is their involvement with AEL and the Project? 9.7 What is the involvement of each of the following with AEL and what are their responsibilities: Frank Smith, Joseph Swift and James L. Croyle?

9.8 Has SCS, AEL* or a related party ever permitted, financed, built, operated and maintained a similar merchant energy plant and,' if so, please identify that facility? 9.9 What is the source of the financing (equity and debt) for the . proposed Project? In answering this question, please identify by name and address ekch source committed to providing such financing. We look forward to your early response. Very truly yours, NEW YORl/INSTITUTE OP LEGAL RESEARCH

by: Hern^ft A. StUhl Chairman of the Board

by: A&Ms idith A. Koskella, Ph.D. Director, Environmental Bureau HAS:JAK:jeb Copies per Attached Distribution List

17 g^Mhit ^A"

Table 1-1

Annual gmlaaion Reduction Cowparison Representativa Astoria Bmlaaion Bxlstlng Bnergy 1 Reduction paclllty LLC 1000 NA Output (MW) 1000 7,008 NA Operating 7,008 Hours' 7,008,000 NA Total Output 7,008,000 (MW) 0.07S NA NO, Kmioalon 3.91 Rate (lb/MW) 0.033 NA SO, BtniBsion 5. OS Rate (lb/MW) 0.0S5 NA PMj, BmiBslon 0.23 Rate (lb/MW) 831 NA CO, BtnisBion 1794 Rate (lb/MW) 263 13,437 NO, BmiBsiona 13,701 (Tona/year) 115 17,580 SO, End a s ions 17,695 (Tona/year) 192 614 PMn BmiaalonB 806 (Tona/year) 2,912,000 3,374,000 CO, BmisflionB 6,286,000 (Tona/year) ^ i i . '.- ^ eolaalon factor, baeaa on weighted ^erije of natuSl ga« firing (335 days) and diatillate firing (30 days).

2. Aaaume 80 percent oapaoity factor. •

BxMbitVBWO"

Revised Table.1-1

Annual Bmlsaion Reduction Compariaon Bxisting Astoria Facility (1996-1997) Astoria Average Energy Emission 1 Operating Data LLC Reduction 1,000 NA Output (MW) 1,000 80% Capacity 35.0% Factor 7,008 NA Operating 3,154 Houre' NA Total Output 3,154,000 7,008,000 (MW) NA NO, Bmiflsion 0.075 Rate (Ib/MW)1 NA SO, Emission 0.033 Ratedb/MW)' 0.33 0.055 NA PM10 Emission Rate (Ib/MW)' NA CO, Emission 831 Rate (lb/MW), 3,009 263 2,746 NOx Emissions: (Tons/year)4 1,415 SO, Emissions 1,530 115 (Tons/year)* 170 PMu Emissions 362 192 (Tons/year)' (61,365) CO, Emissions 2,850,635 2,912,000 (Tons/year)4

1. ^oToi'r. -U^V^-tori. .l-t.. .«,.,. o.p.ci. 2. y factor of 36.0%. 3. 4.

5. Astoria Plant average capacity factor. NEW YORK INSTITUTE OF LEGAL RESEARCH fnrv Bls3aiteaiifi6 fclfiS

Hon. Rafael Epstein^ ^

Three Empire State Plaza B , Albany, New tok 12223-1350

Hon. John P. Cahill commissioner of Environmental Conservation 50 lolt*oll executive Office 608 Albany, New York 12233-1500 Ms. Jeanne M. Fox r^n|ivi^-Sf Sotectlon Asency Region II 290 Broadway .«-* New York, New York 10007-1866 - •/ Hon. William R. Howell Nh?!TnEnergy Research and Deveiopment Authority corporate Plaza West __. . 286 Washington Avenue Extension Albany, New York 12203-3699 Hon. Antonia Novello Commissioner ..^-n-vi New York State Department of Heaxtn Tower Building Albany, New York 12237-0001 y Hon. Maureen o. Helmer Sew^rk State Public Service Cbmmission Three Empire st,ate Plaza . Albany, New York 12223-1360 , . ,

Hon. Debra Renner ^L^state^lio ^rvice commission ^ree Empire State PIJ", 14th floor Albany, New York 12223-1350 Hon. Claire Schulman Queens Borough President Queens Borough Hall

18 NEW YORK INSTITUTE OF LEGALLRESEARCH RESEARCH

12 0-55 Queens Boulevard Kew Gardens, New York 11424 Hon. Eliot Spitzer New York State Attorney Geneiral The Capitol Albany, New York 12224 >. Hon. Rudolph Giuliani Mayor of the City of New York City Hall New York, New York 10007 Hon. Mark Green Public Advocate for the City 6f New York Municipal Building, 15th floor North New York, New York 10007 Hon. Alan Hevesi New York City Comptroller 1 Centre Street, Room 530 New York, New York 10007 Hon. James Leonard ., Commissioner Queens County Buildings Department 126-06 Queens Boulevard .,- Kew Gardens, New York 11415 Hon. Thomas Manton Queens County Democratic Leader 45-12 Queens Boulevard, S-202A Sunnyside, New York 11104 Richard B. Miller, Esquire N. Y. c. Economic Development Corporation 110 William Street New York, New York 10038 Mr. Michael Carey Presidiant N. Y. C. Economic Developmient Corporation 110 William Street New York, New York 10038 Mr. Efraim Rivera Queens Borough Manager/Water Board Environmental protection bepartment 96-05 Horace Harding Expressway 1st Floor low rise Corona, New York 11368

19 NEW YORK INSTITUTE OF LEGAL RESEARCH

Hon. Peter Vallone Speaker New York City Council 22-45 31st Street Astoria, New York 11105 New York State Department of Labor ^ 25-15 Queens Plaza North Long Island City, New York 11101-4016

Hon. Clarence Rappleyea Chairman New York Power Authority 3 0 South Pearl Street Albany, New York 12207 Hon. Eugene W. Zeltmann President New York Power Authority 30 South Pearl Street Albany, New York 12207 Hon. dharles Schumer United States Senate / 26 Federal Plaza, 31-100 New York, New York 10279 Ms. Melinda Katz Director, Community Boards Queens Borough Hall 120-55 Queens Boulevard Kew Gardens, New York 11424 Ms. Marcie Kesner Director, Land Use, Planning and Development Queens Borough Hall 120-55 Queens Boulevard Kew Gardens, New York 11424 Ms. Ellen A. Balzarini IBEW Local 1049 74 5 Kings Highway Hauppauge, New York 11788 Katherine Kennedy, Esquire Natural Resources Defense Council 4 0 West 20th Street New York, New York 10011 Fred Zaleman, Esquire Pace Energy Project 78 North Broadway

20 NEW YORK INSTITUTE OF LEGAL A"SWEARCH '

White Plains, New York 10603

Mr. Philip Lentz Reporter J Grains New York Business 711 Third Avenue New York, New York 10017 Environmental Advocates 353 Hamilton Street Albany, New York 12210 KYPIRG Fund Inc. i 9 Murray street , , New York, New York 10007Artn Mr. Thomas Van Arsdale T-^oftl 3. IBEW, AFL-CIO 51^11 Harry Van Arsdale Jr. Avenue Queens, New York 11463 Hon. Brian McLaughlin ii New York City Central Labor CounciiCoimc 386 Park Avenue South * New York, New York 10016 1 Mr. Dennis Hughes New York State AFL-CIO 48 East 21st Street, 12th floor New York, New York 11010 Hon. Joseph Ketas Proteotlon c^Kr-PV*59-17 Junction Boulevard, rsHssJ llth floor Corona, New York 11368 Mr. Andrew Lynn ' ^norrcity'^t. of City Planning 22 Reade Street , _ -,-,4; New York, New York 10007-1216AAA

Ms. Mary Ellen Kris ' Siwe?b?k state Dept. of Environmental Conservation Region 2, Hunters Point Plaza 47-40 2lst Street ,,.-«-i Jong island City, New York 11101 *_ Susan Kath, Esquire Bureau Chief, Environmental Law

21 «.••»....,-».-—.

•• ••!.••%'•. •:''••••

NEW YORK INSTITUTE OF LEGAL ^SBRESEARCH

New York City Department of Law 100 Church Street New York, New York 10007 Ms. Annette Barbaccia Director of Environmental Coord. Office of the Mayor 1 Centre Street New York, New York 10007 Henry M. Greenberg, Esquire General Counsel New York State Department of Health Division of Legal Affairs- Two University Place Albany, New York 12203-3388 Governor George Pataki 633 Third Avenue New York, New York 10017 Business Department The New York Post 1211 Sixth Avenue New York, New York 10036 Business News Editorial United Press International 114 First Street Yonkers, New York 10704 Mr. Andrew C. Revkin Reporter The New York Times 229 West 43rd Street New York, New York 10036 Mr. David Barstow Reporter The New York Times 229 West 43rd Street New York, New York 10036

Mr. Paul Carlsen Electric Utility Weekly The McGraw-Hill Companies 2 Penn Plaza New York, New York 10121 Mr. Donald Saxman Energy Conservation News Business Communications Co., Inc.

22 -r.'.JiT" ritSrjva;-':v:.v.\

NEW YORK INSTITUTE OF LEGAL RESEARCH

25 Van Zant Street, Suite 13 I Norwalk, Connecticut 06855-1713 Mr. Mark Hand Gas Daily Pasha Publications, Inc. 1600 Wilson Boulevard, Suite 600 • Arlington, Virginia 22209-3109 Ms. Lori Burkhart The PUR Utility Weekly Public Utilities Reports, Inc. 8229 Boone Boulevard, Suite 401 • Vienna, Virginia 22182 Mr. Kennedy Maize Electricity Daily 1800 Harper's Ferry Road Knoxville, Maryland 21758 Ms. Lori Burkhart Public Utility Fortnightly Public Utilities Reports, Inc. 8229 Boone Boulevard, Suite 401 Vienna, Virginia 22182 Mr. Greg Lobsenz The Energy Daily King Publishing Group 627 National Press Building Washington, DC 20045 Mr. Peter Maloney Independent Power Report The McGraw-Hill Companies 2 Penn Plaza New Vork, New York 10121 Mr. Craig Cano Inside FERC The McGraw-Hill Companies 1200 G Street, Northwest, Suite 1100 Washington, DC 20005-3802

Mr. Robert Schweiger Power The McGraw-Hill Companies 2 Penn Plaza, 5th floor New York, New York 10121 Mr. Brian Rooney Bloomberg Business News

23 NEW YORK INSTITUTE OF LEGAL RESEARCH

499 Park Avenue, 15th floor • New York, New York 10022 Mr. Michael Burr Independent Energy 1321 South Sheridan Road Tulsa, Oklahoma 74112 Mr. George Lobsenz Electricity Daily 627 National Press Building Washington, DC 20045 * Mr. Jeff Stanfield The Energy Report Pasha Publications, Ino. 1800 Wilson Boulevard, Suite 600 Arlington, Virginia 22209-3109 * Mr. Jim Jelter Reuters News Service 199 Water Street New York, New York 10038 . / Mr. Kyle Hughias • Gannett News Service 150 State Street Albany, New York 12207 Mr. Howard Shapiro President . •• •. • • The Energy Assn. of New York State ill Washington Avenue, Suite 601 Albany, New York 12210 Environmental Defense Fund 2 57 Park Avenue South * New York, New York 10010 Mr. Carl Pope The Sierra Club of Mew York City 116 John Street, suite 3100 New York, New York 10038 Anne Alexander, Esquire Rutgers Environmental Law Clinic 15 Washington Street Newark, New Jersey 07102 • New York city Envirohmehtal Justice League 271 West 125th Street, Room 303 New York, New York 10027

24 ••' r.'Kf*..'.••«/1*m*m*** <• vmvltr* wv•

NEW YORK INSTITUTE OF LEGAL RESEARCH

New York Public Interest Research Groilp 9 Murray Street New York, New York 10007 Mr. John Cronin Hudson Riverkeeper ^ 25 Wing & Wing Garrison, New York 10524-0130 Hon. Catherine T. Nolan Member of the Assembly 879 Woodward Avenue Ridgewood, New York 11385 Hon. George Onorato New York State Senate 28-11 Astoria Boulevard Long Island City, New York 11102 Hon. Denis J. .Butler New York State Assembly 43-08 30th Avenue Long Island City, New York 11103 Ms. Giovanna Iteid District Manager Community Board No. 3, Queens County 34-33 Junction Boulevard Jackson Heights, New York 113712 Ms. Dolores Rizzotto District Manager Community Board No. 2, Queens County 43-22 50th Street Woodside, New York 11377 Hon. Vinicio Donate Chairperson Community Board No. 1, Queens County 36-01 35th Avenue Astoria, New York 11106 Ms. Lucille Hartman Assistant District Manager .. Community Board No. 1/ Queens cbuhty 36-01 35th AVenue Astoria, New York 11106 Mr. Robert Richards Chamber of Commerce 89-31 16lst Street

25 NEW YORK INSTITUTE OF LEGAL RESEARCH

Jamaica, New York 11432 Ms. Carol E. Murphy Executive Director Independent Power Producers of N.Y,, Inc. 291 Hudson Avenue Albany, New York 12210 Ms. Debra Martinez chairwoman and Executive Director N.Y.S. Consumer Protection Boar'd 5 Empire state Plaza, Suite 2101 • Albany, New York 12223 Mr. Edan Unterman President East Midtown Coalition for Sensible Development 527 Third Avenue, #139 New York, New York 10016 Ms. Mary Randazzo Office of Councilman Peter F.' Vallone • 22-45 31st Street Astoria, New York 11105 Mr. Daniel J. Kurtz Executive Vice President N.Y.C. Economic Development Corp. 110 William Street New York, New York 10028 Mr. Richard Rubin Editor Northeast Power Report 2 Penn Plaza, 5th floor New York, New York 10021 Ms. Maya Weber Editor Electric Power Daily 1200 G Street, NW Suite 1100 Washington, DC 20005 Hon. Joseph H. Boatdman Commissioner N.Y.S. Department of Transportation 5 Governor Harriman State Campus . Albany, New York 12232 Queens Borough Public Library 89-11 Merrick Boulevard

26 NEW YORK INSTITUTE OF LEGACTRESEARCH^^ESEARCH ^*

Jzunaica, New York 11432 Dr. Donald R. Davidson Commissioner N.Y.S. Department of Agriculture & Markets 1 Winners Circle Albany, New York 12235 Hon. Charles A. Gargano Commissioner Empire State Development Corporation 633 Third Avenue New York, New York 10017 Mr. George Nieves chief of Western Permits Section U.S. Army Corp of Engineers 2 6 Federal Plaza, Room 19i7 New York, New York 10278-0090 Hon. Alexander F. Treadwell Secretary of State N.Y.S. Department of State 41 State Street Albany, New York 12231-0001 ' Mr. George Stafford Director New York State Department of State Division of Coastal Resources 41 State Street, Room 820 Albany, New York 12231-0001 Hon. Daniel Patrick Moynihan United States Senate 4 05 Lexington Avenue, 62nd floor New York, New York 10174 Hon. Peter Magnani Deputy Queens Borough President Queens Borough Hall 120-55 Queens Boulevard Kew Gardens, New York 11424 . Ms. Alexandra Rosa Chief of Staff and Executive Assistant office of the Queens Borough President Queens Borough Hall 120-55 Queens Boulevard Kew Gardens, New York 11424 Mr. Michael Sinansky

27 ••••v

MEW YORK INSTITUTE dF LEGAL RESEARCH .';.•....

Queens Borough Engineer I Queens Borough Hall 120-55 Queens Boulevard Kew Gardens, New York 11424 Ms. Sue Montgomery Corey - ^i.^w New York State Community Action Association i 754 Fourth Aveinue- Troy, Kew York 12182 Hon. Carmen Arroyo New York State Assembly District 73 I 384 East 149th Street, S-608 Bronx, New York 10455 Mr. Samuel Bea, Jr. New York State Assembly 657 East 233rd Street i Bronx, New York 10466 Hon. Gary Ackerman • ^ United States House of Representatives 2243 Rayburn House Office Building •,./.. Washington, Dt: 20515 Hon. Jeffrion Aubry New York State Assembly 102-I3a Northern Boulevard Corona, New York 11368 i Mr. John Blaha President Elmhurst Chamber of Commerce 87-02 Queens Boulevard Elmhurst, New York 11373 p Hon. Michael Cohen New York State Assembly 98-08 Metropolitan AVenue Forest Hills, New York 11375 Ms. Ann Bruno i President i, 114th Precinct Community Council 2 4-42 Crescent Street Astoria, New York 11102 Hon. Bemadette Castro • S?rs!SDepIrtment of Parks, Recreation & Historic Preservation 1 Empire State Plaza

28 ^^'-Jrf^;^. .^

'•....,.•) .4i.,

NEW YORK ,NST . '^TE OF l^LRESEARC^ Albany, New Ybrk 12238 Hon. Barbara Clark New York State Assembly District Office y 97-orSpringfield Boulevard Queens Village, New Yo?k ??42d Hon. Nelson Denis New York state Assembly 248 East 119th Street New York, New York 10035 2°5;- Ja,ffrey Dlnowitz Y k State ^n73107 ?fKingsbridge Assembly Road Bronx, New York 10463 !£"• ^paae K. Duane New York state Senate nt AVenue 12t New York,Y«r? New5 York ' 10001h floor Hon. Ruben Diaz, Jr. ?^7^k ftate Assembly Bronx,Bronv tNew5atf0rd York AVenu10472« Mr. Alan Domaracki 3eLplS ISe8 ^^f-"1* »' M.ilo service Albany, New York 12223 ' Mr. Bill Donohue

New York, New York 10003 Hon. Adriano Espaillat State 8 210 I^LSherman Avenue, ^ ^Y suite A New York, New York 10^5 Hon. Stephen B. Kaufman New York State Assembly 82nd District 7 • • 2910 Bruckner Boulevard Bronx, New York 10475 Ms. Molie Lampi Pace Energy Project 122 South Swan street

29 m NEW YORK INSTITUTE OF LEGAL' RESEARCH '

Albany, New York 12210 Mr. Tom Knierim Executive Director Long island City Business Development Corp. 29-10 Thomson Avenue, 9th fIdor: Long island City, New York 11101 Hon. Ivan C. Lafayette New York State Assembly District Office 33-46 92nd Street, S1W Jackson Heights, New York 11372 Hon. Fernando Ferrer Bronx Borough President Bronx County Building 851 Grand Concourse Bronx, New York 10451 Hon. Roy M. Goodman New York State Senate 2 6th District 270 Broadway, S-2400 New York, New York 10007 ' Hon. Herman D. Farrell, Jr. New York State Assembly District 71 2541-55 Adam c. Powell, Jr. Boulevard New York, New York 10039 Hon. C. Virginia Fields Manhattan Borough President l Centre street, 19 South New York, New York 10007 Hon. Efrain Gonzalez, Jr. New York State Senate District 31 1780 Grand Concourse, 1st ilobr Bronx, New York 10457 Hon. Richard N. Gottfried New York State Assembly 64th District 270 Broadway, Room 1516 New York, New York 10007 Hon. Alexander B. "Pete" Grajinis New York State Assembly 1672 First Avenue

• i V r.*j**% f**mm ****.*. jij***,t

NEW YORK INSTITUTE OF LEGAL";: RESEARCH

New York, New York 10128 Hon. Daniel Hevesi .'. New York Senate District Office 70-17 Austin Street, Suit6 2 .'• » . Forest Hills, New York 11375

Mr. Ashok Gupta Natural Resource Defense Gounbil 4 0 West 20th Street New York, New York 10011 # Mr. J. Patrick Harrington Director Rotary Club of Queens Village 220-32 93rd Avenue Queens Village, New York 11428

A Mr. Norman Holman. senior Vice President, Director Branch Libraries The Neiw York Public Library 4 55 Fifth Avenue New York, New York 10016 - ^ Hon. Serphin Maltese New York State Senate 71-04 Myrtle Avenue . Glendale, New York 11385

Hon. Helen M. Marshall 9 New York City Council District Office 97-19 Astoria Boulevard East Elmhurst, New York 11369 Hon. Olga A. Mendez m New York State Senate w 28th District 87 East 116th Street . i • > ' New York, New York 10029-1103

Hon. Carolyn Maloney m District 14 United States House of• Represntatiyias ; 24 30 Rayburn House Qffice Building , Washington, DC 20515

Hon. Margaret Miarkey 9 New York State Assembly 84-32 Grand Avenue Elmhurst, New York 11373

31 ••<. . .1.

NEW YORK INSTITUTE OF LEGAL RESEARCH

Kr. John Pellitteri President Astoria Civic Association 26-12- 21st Street. Astoria, New York 11105 . Hon. Rose Mary O'Keefe Commissioner Community Assistance Unit/Office of the Mayor 51 Chambers Street, Room 630 New York, New York 10007 Hon. Frank Padavan New York State Senate District Office 89-39 Gettysburg Street Bellerose, New York 11426; Ms. Rdsemarie Poveromo President United Community Civic Association 33-32 81st Street Jackson Heights, New York 11370 , Hon. Peter Rivera New York State Assembly 1506.dastle Hill Avenue Bronx, New York 10462 Ms. Elizabeth Rodriguez Chairperson Community Board No. 9 1967 Turnbull Avenue Bronx, New York 10473 Hon. John A. Ravitz New York State Assembly 73rd District 251 East 77th Street New York, New York 10021 Mr. George Rodriguez Chairman Community Board No. 1 . 384 East 149th Street, Suite 320 Bronx, New York 10455 Hon. David Rosado New York State Senate 1729 Boston Road, 2nd floor Bronx, New York 10460

32 NEW YORK INSTITUTE OF LEGAL TUBEARCH ^^

Hon. Steven Sanders New York State Assembly District 63 201 East 16th Street, 4th floor New York, New York 10003 Mr. Rudolfo Sarchese President Ditmars Homeowners & Tenants Civic Association, Inc. 45-09 Ditmars Boulevard Astoria, New York 11105 Hon. Anthony S. Seminerio New York State Assembly District Office 114-19 Jamaica Avenue Richmond Hills, New York 11418 Hon. Sheldon Silver New York State Assembly 62nd District 270 Broadway, Suite 1800 New York, New York 10007 , Hon. William Scarborough New York State Assembly District Office 119-02 Merrick Boulevard . . St. Albans, New York 11434 •• • Hon. Lawrence B. Seabrook New York State Senate 33rd District 3765 White Plains- Road Bronx, New York 10467 Hon. Ada Smith New York State Senate District Office 116-43 Sutphin Boulevard Jamaica, New York 11434. Hon. Henry Stem Commissioner New York City Departmisnt bf Parks and Recreation 830 Fifth Avenue New York, New York 10021 Hon. Scott Stringer New York State Assembly 230 West 72nd Street

33 •M • • • -

EW YORK INSTITUTE OF LEGAL REslfcRcri

Mew York, New York 10023 i Hon. Brian Thompson SSi^sst^rnL Onlt/0«ice ot the Hayot 51 Chambers Street, Room 630 New York, New York 10007 Hon. Leonard Stavisky -• Kew York State Senate ,?;,... ^4-36 Willets Point Boulevard Flushing, New York 11357 i Sister Thomas, S.C. Chairlady . Mrt , \ • • - ^IZI HIS "jre t, -- "* - Bronx, New York 10459 » Hon. Keith Wright

Sh s. Ar.y Corp ot Engi«|«s . 26 Federal Plaza, Room 193/ New York, New York 10278 .

i NewDr. JohnYork HawleyState Department_i. of«<» HealtnHealth Tower Building Empire State Plaza Albany, New York 12237 I Hon. Gifford Miller New York City Council - • c

. fo^feUI^d operating Corp. ,. I^^t^na, Kew vorfe 10044 ' .,

P 0 fMS e^ Xsf^rSBide„ta Relation ' I^^Sttna, Haw York 10044

34 NEW YORK INSTITUTE OF LEGAL TBBEARCH

Queensbridge Tenants Assoolation 10-25 41 Avenue Long Island City, New York 11101 Ms. Carol Wilkins- Ravenswood Tenants Association 35-20 24th Street Long Island City, New York 11106' Ravenswood Houses 21-20 35th Aventie Astoria, New York 11106 Ms. Vickie Caramonte District Manager Manhattan Cominunity Board No. 8 505 Park Aveftue, Suite 626 New York, New York 10022 Hon. Walter McCaffrey New York City Council 62-07 Woodside Avenue Woodside, New York 11377 Hon. Paul D. Tonko New York State Assemblyman Legislative Office Building, #713 Albany, New York 12248

WIP-495

•--•••. riviiVjvijfei., ALLSTATE LtGAL SUPPLY CO, ONE COMMEHCE DRIVE, CRANFOHD NEW JtRSEV 07016

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HI N^BYORK STATE BOARD ON ELECTRldBp GENEDERATION SITING AND THE ENVIRONMENT

CASE 98-F-1885 - Application of Sithe Energies, Inc. for a Certificate of Environmental Compatibility and Public Need to Construct and Operate an 827 megawatt natural gas fired combined cycle combustion turbine generating facility (the Tome Valley Station) in the Town of Ramapo, Rockland County. CASE 98-F-1968 - Application filed by Ramapo Energy Limited Partnership for a Certificate of Environmental Compatibility and Public Need to Construct and Operate a 1,100 megawatt generating facility in the Town of Ramapo, Rockland County.

RULING ON PETITIONS TO INTERVENE (Issued September 6, 2000)

ROBERT R. GARLIN, Presiding Examiner: In my Ruling Concerning Party Status issued February 4, 2000, I concluded that "all notices of intent to become parties to these proceedings received to date have been timely filed," and that the parties filing those notices were considered parties to these proceedings under Public Service Law (PSL) §166(1). Since that time, while completion of the applications has been pending, contested petitions for leave to intervene in these proceedings have been filed by Southern Energy New York G.P. (Southern) and by the New York Institute of Legal Research (NYILR).

Southern's Petitions Southern's petitions to intervene were filed April 20, 2 000. Southern points out that it owns 1,775 megawatts of electric generating capacity, all interconnected with the same transmission system to which the proposed plants of Sithe Energies, Inc. (Sithe) and Ramapo Energy Limited Partnership (Ramapo ELP) would be interconnected. Southern asserts, therefore, that it has unique and substantial interests that might be directly affected by the outcomes in these proceedings and which would not be directly protected by other parties. CASES 98-F-1885 an^

Sithe and RAMAPO ELP oppose Southern's petitions, in their respective proceedings. Sithe argues that Southern's "only interest" in Case 98-F-1885 is whether Sithe's proposed facility "will compete against Southern Energy's facilities sooner, later, or not at all." Sithe asserts that "[t]he record does not require any contribution from Southern Energy in this regard." Sithe contends as well that Southern "must not be permitted to use the licensing process to raise a rival's costs or otherwise obstruct a competitor's efforts to obtain required licenses."1 Ramapo ELP, raising similar contentions, argues that Southern's participation in Case 98-F-1968 "should be limited to the development of the record on the issue of the impact of the Ramapo Energy Project on the . . . transmission system," and that Southern "should be required to consolidate its presentation with those of other parties with similar interests."2 As a potential user in common of transmission facilities. Southern's interest in these proceedings is clear, and its intervention pursuant to PSL §166(1} (m) is warranted. Once such intervention is granted, moreover, the intervenor "may participate in all subsequent stages of the proceeding." Accordingly, Southern's petitions to intervene are granted without qualification or limitation.

NYILR's Petitions NYILR's petitions to intervene were filed on June 21, 2000 in Case 98-F-1885 and on June 26, 2000 in Case 98-F-1968. NYILR's petitions cite, among other things, its geographic proximity to the proposed site, environmental, environmental justice, and other issues of concern to it, the credentials of its environmental bureau's director, and its potential concerns about the preapplication process. It contends in both petitions that its intervention is likely to contribute to the development of a complete record and is otherwise fair and in the public interest.

1 Sithe's Response, p. 2. 2 Ramapo ELP's Response to Southern, p. 4. -2- CASES 98-F-1885 a i^P8-F-1968 ^P

NYILR's petition in Case 98-F-1885 is not opposed; RAMAPO ELP opposes the petition in Case 98-F-1968. Ramapo ELP contends, in pertinent part, that (1) NYILR has not shown how it would qualify to be an active party under PSL §166(1)(m) and 16 NYCRR §4.3 (c) (1); (2) NYILR might raise issues that (in Ramapo ELP's view) are beyond the scope of the case, including environmental justice issues, cumulative impacts of other proposed projects, the adequacy of public involvement, and records of regulatory compliance by Ramapo ELP and its affiliates; (3) NYILR's petition for leave to intervene under PSL §166(1)(m) was not timely filed; and (4) NYILR should be entitled only to make a limited appearance in Case 98-F-1968, pursuant to PSL §166(3). • Ramapo ELP has provided no basis for denying NYILR's petition. Ramapo ELP appears to fault NYILR's petition for "fail[ing] to demonstrate how it will provide information or data or an interpretation of relevant information or data that might not be possible without its presence,"1 but such an offer of proof is generally not required by the applicable rules of procedure,2 especially where, as in Case 98-F-1968, a prehearing conference has not yet been convened. Similarly, it is too early to offer judgments about the relevance, or lack thereof, of the issues identified in NYILR's petition, and ample means exist to assure that the proceeding does not become mired in the consideration of irrelevant topics. Therefore, there is no reason, at this time, for limiting the manner in which NYILR might participate in Case 98-F-1968. Finally, NYILR's petitions are not untimely, because PSL §166(1) (m) establishes no deadline for seeking party status under that provision. Accordingly, NYILR's petitions to

1 Ramapo ELP's Response to NYILR, p. 6 2 16 NYCRR §4.3(c) (1) .

-3- CASES 98-F-1885 ar^p8-F-1968r^B8-F-1968 ^P intervene in these proceedings are granted without qualification or limitation.

(SIGNED) ROBERT R. GARLIN

•4- ALLSTATE LEGAL SUPPLY CO. ONE COMMERCE DRIVE. CRANFOHO. NEW JERSEY 07016

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o 'E x UJ NEWJ^RK STATE BOARD ON ELECTRIC H GENER^.^ON SITING AND THE ENVIRONMENT

CASE 99-F-1314 - Application by Consolidated Edison Company of New York, Inc. 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.

RULING ON MOTION TO INTERVENE (Issued August 8, 2000)

WALTER T. MOYNIHAN and RAFAEL A. EPSTEIN, Presiding Examiners: By letter dated June 21, 2000, New York Institute of Legal Research (the Institute) petitions for leave to intervene. In a response dated June 30, 2000, the applicant. Consolidated Edison Company of New York, Inc. (Con Edison), opposes the Institute's request. We are granting the petition. The Institute's expressed concerns include the source of fuel supply, environmental impacts, and socioeconomic considerations associated with the project. According to the Institute, it should be granted intervenor status to ensure that all aspects of the proposed project are adequately addressed. It says it is taking a public advocate's position to present, inter alia, the views of those members of the public whose health and safety would be adversely affected and to ensure due consideration for the environment and principles of environmental justice. The Institute asserts that granting its request would prejudice no party and that it would participate in this proceeding without public compensation. The Institute observes that, under Public Service Law §166(1) (m), the parties to a certification proceeding shall include "(s)uch other persons or entities as the board may at any time deem appropriate, who may participate in all stages of the proceeding." In addition, the Institute notes that the Board in 16 NYCRR 1000.1 has adopted the Public Service Commission's regulations, of which 16 NYCRR 4.3(c)(1) allows party status for CASE 99-F-1314 any person whose intervention "is likely to contribute to the development of a complete record or is otherwise fair and in the public interest." With respect to §166(1)(m). Con Edison responds that the Institute's intervention should be deemed inappropriate because the Institute has failed to explain the nature of its interest in the proceeding, much less establish that such interest is direct and substantial. Con Edison says the Institute has provided no factual basis to support its claims that it would contribute to the development of a complete and full record. In addition. Con Edison challenges the Institute's assertion that no party would be prejudiced by its intervention. Con Edison observes that the Institute's address in Yorktown Heights is 50 miles from the proposed project site, and argues that the Institute's participation would unfairly divert resources that the applicant should use to address issues raised by those who live near the site and government agencies that have jurisdiction over it. In Con Edison's view, the Institute's participation would-be inconsistent with the "substantial direction" the Legislature assertedly has given by enumerating potential categories of intervenors in §161(1)(a) through (1), and would be inconsistent with the statutory objective of a "unified and expedited" application process. We see no basis for Con Edison's supposition that the Legislature, in listing the types of entities that may intervene as of right, has imposed some implicit restriction on the explicit provision .in §161(1) (m) that any "appropriate- intervention is allowable. The Institute therefore is correct that we should interpret §161(1)(m) by reference to Rule 4.3(c)(1) (quoted above). We are unaware of any precedent

-2- CASE 99-F-1314 for interpreting the latter as Con Edison proposes.1 In effect, Con Edison would assign the Institute the burden of showing that it should not be excluded for failure to exhibit an "interest in the proceeding" by participating in certain pre-application activities, and the burden of showing a priori that the Institute will not offer incompetent or irrelevant testimony or otherwise unfairly burden the applicant. The reason such proof ordinarily is unnecessary under Rule 4.3(c)(1) is that, in the course of the proceeding, we have ample authority and measures at our disposal to prevent an intervenor from perpetrating procedural abuses without necessarily excluding the party from the proceeding altogether. In this case, such procedural discipline will be as applicable to the Institute as to any other party. Thus, contrary to Con Edison's argument, a grant of party status for the Institute in no way interferes with the mandate that we conduct a fair and expeditious proceeding. Accordingly, the Institute is granted intervenor status as a matter of discretion under §166(1)(m). We therefore need not address Con Edison's arguments regarding the Institute's

i As an example of denial of intervenor status for failur to demonstrate a sufficient interest. Con Edison cites only Case 98-G-1291, National Fuel Gas Distribution Corp. - Rates, Ruling on Motion to intervene (issued June 9, 1999). There, however, the finding of no sufficient interest was based on the petitioner's clear inability to contribute to the record because it already had closed. Obviously, that is not the current posture of this proceeding. 2 As the Board explained when it adopted Rule 4.3 by reference, it did so in the expectation that "presiding examiners [will be] mindful of the statutory deadline for completing a • certification proceeding" when they review requests for leave to intervene. Case 97-F-0809, Rules and Regulations of the Board on Electric Generation Siting and the Environment, Memorandum and Resolution Adopting Article X Regulations (issued December 16, 1997), mimeo pp. 2-3.

-3- I CASE 99-F-1314 • • alleged failure to demonstrate that it may intervene as of right pursuant to other subdivisions of §166(1).

(SIGNED) WALTER T. MOYNIHAN

(SIGNED) RAFAEL EPSTEIN

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