Opinion
August 12, 1985
Appeal from the Commissioner of the New York State Department of Environmental Conservation.
Determination confirmed and proceeding dismissed on the merits, without costs or disbursements.
The proceeding entitled Molinari v. Williams, which was consolidated herein, is hereby dismissed, without costs or disbursements, for failure to prosecute.
On February 2, 1981, Consolidated Edison Company of New York, Inc. (hereinafter Con Ed) applied to the New York State Department of Environmental Conservation (hereinafter DEC) for the permits needed to reconvert units two and three at the Arthur Kill Generating Plant and unit three at the Ravenswood Generating Plant from oil to coal-fired generation. Con Ed filed a draft environmental impact statement (DEIS) in which it was concluded that the installation of an FGD system would not be practicable at Ravenswood. The DEIS was reviewed in public hearings. The parties to the proceeding presented testimony concerning six coal conversion alternatives. At the conclusion of these hearings, the administrative law judge compiled a report, which, together with the DEIS, became the final environmental impact statement (FEIS). In his determination, the commissioner stated that Con Ed should be granted authority to burn coal at its Arthur Kill and Ravenswood plants upon the express condition that it install and use FGD equipment (also referred to as "scrubbers"), at each of these sites.
On or about December 12, 1983, Con Ed filed a petition with the DEC in which it asked the commissioner, inter alia, to reconsider his decision, and allow Con Ed to reconvert Ravenswood unit three and Arthur Kill units two and three to coal burning without scrubbers. The commissioner denied the petition.
In this proceeding, Con Ed contends that the commissioner did not comply with the mandates of the State Environmental Quality Review Act (ECL article 8, hereinafter SEQRA).
ECL article 8 provides that before an agency approves of any action which could have a significant effect on the environment, the agency must "prepare, or cause to be prepared * * * an environmental impact statement" (ECL 8-0109) and must make an "explicit finding" that the procedural requirements of the act have been met and "that consistent with social, economic and other essential consideration, to the maximum extent practicable, adverse environmental effects revealed in the environmental impact statement process will be minimized or avoided" (ECL 8-0109; see also, ECL 8-0109). SEQRA mandates literal compliance with its procedural requirements ( Glen Head — Glenwood Landing Civic Council v. Town of Oyster Bay 88 A.D.2d 484, 490-491). "Literal compliance is required because the Legislature has directed that the policies of the State and its political subdivisions shall be administered `to the fullest extent possible' in accordance with SEQRA (ECL 8-0103, subd 6) * * * The test of SEQRA compliance is whether the approving agency has taken a "hard look' at the relevant areas of environmental concern" ( Glen Head — Glenwood Landing Civic Council v. Town of Oyster Bay, supra, pp 490-491, 492).
It is axiomatic that we may not substitute our judgment for that of the commissioner ( e.g., Matter of Environmental Defense Fund v. Flacke, 96 A.D.2d 862; Town of Hempstead v. Flacke, 82 A.D.2d 183) but may annul a determination only if it is arbitrary and capricious, or unsupported by substantial evidence ( Matter of Environmental Defense Fund v. Flacke, supra).
We find that the determination of the commissioner is supported by substantial evidence and that the commissioner has complied with the procedural and substantive requirements of SEQRA ( see, Aldrich v. Pattison, 107 A.D.2d 258).
Testimony adduced at the hearing demonstrated that Con Ed's proposal could have serious adverse environmental effects. The sulfur dioxide emission level under Con Ed's proposed conversion without FGD systems would represent an increase of roughly eight times the existing emissions at the three plants involved, from 9,300 tons per year to 76,000 tons per year. This would increase the total sulfur dioxide emissions for the entire New York City metropolitan area by almost three times, from the present emissions level of about 40,000 tons per year to about 110,000 tons per year. Nitrogen dioxide emissions would also be greatly increased. If 2.5% sulfur coal were to be burned with 90% efficient FGD equipment at both Arthur Kill and Ravenswood (the alternative selected by the commissioner), potential increase in sulfur dioxide emissions would be reduced by over 80%, by allowing the release of only about 10,000 additional tons of sulfur dioxide from these plants.
The deposition of sulfur compounds can occur through two mechanisms, wet deposition, primarily in the form of sulfate, in which atmospheric sulfur is carried to the ground by precipitation (popularly known as acid rain) and dry deposition which occurs through direct contact of gases and particles with the ground or vegetation. There was much testimony at the hearing concerning the environmental harm caused by acid rain.
Con Ed challenges the commissioner's determination on the grounds (1) that the price of oil used by the administrative law judge and the commissioner in doing an economic analysis of the various conversion alternatives was too high in light of the rebuttal testimony presented by Con Ed, resulting in the erroneous conclusion by the commissioner that the conversion costs would be paid for out of reduced ratepayer savings instead of increased rates, and (2) that so much of the determination as found that installation of an FGD system at Ravenswood was practicable was not supported by substantial evidence.
Con Ed's contentions are not supported by the record. The administrative law judge and the commissioner both considered the "`low oil price' scenario" but decided not to rely solely on this information in their economic analysis of the conversion because it was unreasonable to assume that oil prices would remain depressed for the next few decades. This conclusion was proper, based on testimony given by Con Ed's own witnesses regarding the volatility of the international oil market and the difficulty in accurately predicting oil prices. Moreover, even the economic analyses performed by Con Ed's witnesses under the "`low oil price' scenario" revealed net savings to ratepayers over the lives of the units.
The record similarly supports the conclusion that the installation of an FGD system at Ravenswood is technologically and economically practicable, as Con Ed's own witnesses gave testimony to that effect. The commissioner recognized that there might be negative impacts which could arise from the installation of the FGD system but properly balanced them, as required by SEQRA, against the ecological destruction which would be caused by the additional sulfur dioxide emitted into the atmosphere which would occur if coal was burned without FGD systems.
As the commissioner's determination is supported by substantial evidence and the procedural requirements of SEQRA have been adhered to, said determination must be confirmed. Mollen, P.J., Gibbons, Rubin and Kooper, JJ., concur.