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Deciphering Governor Cuomo's Denial of the Competitive Power Ventures (CPV) Pre-Construction Air State Facility Permit Renewal for its Valley Energy Center Power Plant

Greetings,

Since last Friday, Toxics Targeting has been contacted by Fractivists who received an alert from a regional environmental group, entitled: "Incredible Victory! DEC Denies CPV Air Quality Permit (bold is emphasis added) - Effectively Shutting Down Fossil Fuel Plant."

The group advised citizens to thank Governor Cuomo and the Department of Environmental Conservation (DEC) Commissioner for "rejecting the CPV Air Permit (emphasis added)."

With all respect, I believe this alert fails to tell the whole story about what is going on with CPV and its Valley Energy Center power plant. That is why I write to provide my understanding of this complex matter according to multiple discussions that I had with air pollution regulatory authorities.

The Bottom Line

1) NO FINAL DECISION has been made whether the $900 Million CPV natural gas/diesel power plant will be permitted to operate;

2) DEC is simply requiring CPV to obtain a Title V "operating" permit for its facility before it can begin operation. These permits are almost always granted. I was told that DEC had not denied a single Title V permit application in the last five years; and

3) CPV has reportedly already exercised its right to request an adjudicatory hearing to challenge DEC's permit renewal denial decision.

I invite you to read the: DEC 8/1/18 Denial of CPV Valley Energy Center Air State Facility Permit Renewal.

DEC DID NOT DENY ANY CPV "AIR QUALITY PERMIT." DEC Instead Denied Renewal of a "Pre-Construction" Air State Facility Permit.

On 8/1/2013, CPV was granted a "pre-construction" Air State Facility Permit (3-3356-00136/00001) under the state regulations enforced at that time.

Pursuant to this ASF permit, CPV built its massive power plant in Wawayanda, NY that has been undergoing "shakedown" and was on the verge of full-scale operation. Now that project is on hold.

Pursuant to its ASF permit, CPV was required to obtain a U. S. Clean Air Act Title V "operating permit." Section 6.1 specifies: "A Title V permit application must be submitted to the Department within one year of commencement of operation of this facility (emphasis added)."

You can read the complicated permit: CPV VALLEY ENERGY CENTER Air State Facility pre-construction permit 3-3356-00136/00001

On 8/1/18, DEC suddenly denied CPV's January 2018 application for renewal of its Air State Facility permit which expired on 7/31/18. As a result, the agency wrote CPV that a Title V "operating permit" application must be submitted and a permit obtained "prior to operation of the facility."

This is the permit mandate currently required by DEC regulations.

CPV reportedly has already exercised its right to request an adjudicatory hearing within 30 days of receiving DEC's Permit Renewal Denial.

DEC Failed to Explain Why CPV's Air State Facility Permit Renewal Was Denied

DEC failed to explain in detail why it denied CPV's Air State Facility permit renewal. It simply stated that, "the ASF permit renewal cannot be issued because it fails to satisfy as a matter of law all applicable requirements pursuant to Title 6 of the New York Codes Rules and Regulations (6 NYCRR) subpart 201-6. See also, 6 NYCRR section 201-2.1(b)(5)."

CPV Full-Scale Operation Delay Could be Temporary

There is no indication that DEC would DENY CPV a Title V "operating permit" if an application is submitted. A 45-day review of DEC's Title V permit is required by the U. S. Environmental Protection Agency, but EPA has no authority to veto the permit. As a result, any delay in CPV's full-scale operation could be temporary.

Keep calling Governor Cuomo at 518 474 8390 to request that he adopt a statewide moratorium on all Fossil Fuel Infrastructure project approvals.

I earlier alerted Fractivists that Governor Cuomo will face intensifying political pressures down the homestretch to election day regarding fossil fuel infrastructure approvals, Legacy Toxic Site problems and Water Quality Hazards. There is no question in my mind that his CPV decision reflects deep sensitivity to voter concerns.

The bottom line is that we know exactly where Governor Cuomo stands on fossil fuel infrastructure policies because he steadfastly refuses to respond favorably to our: Coalition Letter Which Requests That Governor Cuomo Adopt a Statewide Moratorium on Fossil Fuel Project Approvals

The Governor's Use of Extremely Tricky Ploys and Ruses to Gain Political Cover After Failing to Kill Downstate Fossil Fuel Infrastructure Projects

With all due respect, Governor Cuomo has repeatedly used extremely complex ploys and ruses to gain political cover from organized enviro groups after allowing giant fossil fuel infrastructure projects to proceed in downstate New York. That is why it is unlikely that the CPV power plant has been permanently shut down.

Valley Lateral Pipeline

For example, on 8/30/2017, Governor Cuomo curried public favor by denying the Section 401 Water Quality Certification required for the Valley Lateral Pipeline to transport natural gas from the Millennium Pipeline to the CPV facility. Enviros and local activists hailed his decision, but I was absolutely certain that it was a ruse when I read DEC's denial letter.

DEC asserted that the Federal Energy Regulatory Commission (FERC) "failed to consider or quantify the downstream GHG (greenhouse gas emissions, not in the original) from the combustion of the natural gas transported by the project as part of its NEPA (National Energy Polity Act, not in the original) review." This matter had been the focus of a recent legal decision cited in the letter.

DEC also cited various state requirements to rationalize its Section 401 denial decision.

Unfortunately, DEC only has federal authority to approve Section 401 Water Quality Certifications if it determines, "that the proposed activity will not violate water quality standards." There was no reference to this critical matter in DEC's denial letter.

DEC's denial also was not issued within the one-year timeframe required by FERC. As a result, the state's denial was quickly legally overturned and the Valley Lateral Pipeline was built. There is no question that the Governor had to know this would happen.

See: Valley Lateral Decision Letter with Exhibit A (PDF) - NYSDEC - NY.gov

Algonquin Incremental Market (AIM) Pipeline

There was a similar ploy involving the AIM pipeline. On 1/23/2015, FERC approved the proposed project. On 5/5/2015, Governor Cuomo granted the Section 401 Water Quality Certification required for AIM to proceed.

Our campaign started pounding the Governor on fossil fuel infrastructure projects in late 2015. Shortly thereafter, he instructed various state agencies to write a 2/29/16 letter which requested that FERC halt construction of the AIM pipeline until the agency completed a "comprehensive safety review."

There is no requirement for FERC to conduct this review, so the agency did not fulfill the Governor's request. As a result, the AIM pipeline was built and is in operation.

Governor Cuomo continues to request that FERC halt operation of the AIM pipeline. He knows full well that there is virtually no chance this will happen. If he wanted to kill AIM, he simply could have denied the Section 401 Water Quality Certification.

Big Green Groups and local activists support his request even though it has an infinitesimally small chance of being granted.

Conclusion

Some organized enviro groups invariably sing Governor Cuomo's praises at every opportunity instead of battering him to kill all proposed infrastructure projects that would perpetuate New York's addiction to fossil fuels for decades to come.

In the CPV matter, a regional enviro group released a highly favorable and misleading public statement essentially simultaneously with the announcement of the Air State Facility permit renewal denial.

A few organized environmental groups always urge activists to "thank" the Governor even though he failed to withhold state approvals for the Spectra, AIM and Atlantic Bridge pipelines or the Cricket Valley power plant. He also failed to kill the Valley Lateral pipeline and granted an Air State Facility Permit for the CPV plant.

As I will soon explain, the differences in outcomes between Upstate and Downstate New York Fossil Fuel Infrastructure battles are stunning to behold.

For all of these complex reasons, Fractivists must take nothing for granted. We must "trust, but verify" each and every one of Governor Cuomo's environmental regulatory decisions because they will impact New York's public health long after most of us are gone.

More very shortly. Onward and upward.

Very best regards,

Walter