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 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 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.