Request for Adjudicatory Hearing On Notice of Denial - Indian Point ...

(6) State statutes, regulations and criteria otherwise applicable to such
activities.
(underlining in original; italics supplied). Thus, the language of §608.9(a)(6), read in its entirety,
is consistent with the language of §401, in that it requires a demonstration of compliance with
those New York statutes, regulations and criteria that implement §§301-303, 306 and 307 of the
CWA. The Notice does not assert, nor can it, that ECL §11-0535 implements any of the
referenced provisions of the CWA, because the taking of endangered or threatened species is
regulated under an entirely separate federal statute – the Endangered Species Act. Thus, alleged
non-compliance with ECL §11-0535 is not a legal basis for denial of the Application, and Staff’s
denial of the Application on this basis is contrary to law.
Moreover, Staff’s reference to 6 NYCRR §701.11 in relation to the impingement and
entrainment of sturgeon is equally contrary to law. As discussed above, Part 701 is strictly
limited to impacts associated with the discharge of sewage, industrial waste or other wastes on
the best usages of New York waters and there is no basis to deny the Application under Part 701
due to alleged impacts of impingement and entrainment. Thus, Staff’s resort to this provision in
the context of the impingement and entrainment of sturgeon does not cure its legal invalidity.
Based upon the above, the proposed issue for resolution as a matter of law is: Whether
NYSDEC improperly denied Indian Point’s WQC, because NYSDEC cannot deny the
Application on the basis of alleged taking of endangered or threatened species in violation of
ECL Article 11 or 6 NYCRR §701.11?
6. NYSDEC Staff has not satisfied SEQRA.
In its Notice, NYSDEC Staff does not address the role of the State Environmental
Quality Review Act, ECL §08-0101 et seq. (“SEQRA”), in the processing of the Application.
However, in its Notice of Complete Application, Staff indicated that the Application was a Type
II Action and, on that basis according to Staff, not subject to review under SEQRA. In contrast,
Staff expressly concluded that the application of §704.5 to the Stations in the SPDES Permit
proceeding (among other proposed conditions) is subject to review under SEQRA, a conclusion
with which the ALJs in that proceeding and the Assistant Commissioner agreed. See, e.g.,
SPDES Proceeding, Issues Ruling, pp. 37-39; SPDES Proceeding, Interim Decision of the
Assistant Commissioner, pp. 36-41. Indeed, the parties to that SPDES Proceeding are in the
process of preparing and submitting SEQRA reports, as directed by the Interim Decision and
pursuant to a schedule established by the ALJs at this very time. For example, Attachment A,
prepared by NERA Economic Consulting and incorporated herein by reference, discusses the
potential impacts of decisions under §704.5 on electric system reliability, electricity prices, and
the ability of New York to achieve its ambitious air pollution and climate change goals.
NYSDEC Staff has offered no basis, nor explanation, of their position that the application
of §704.5 in the SPDES Permit proceeding is subject to SEQRA, while application of the very
same provision at the very same Stations is SEQRA-exempt as a so-called “Type II” action, and
we have identified no reasonable basis for concluding that Staff’s characterization is proper on
LIBB/1689589.8
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