Fortunately, the New York State Department of Environmental Conservation (DEC) ruled, over the objections of Riverkeeper, that AAEA could participate in a pending environmental permit hearing. It is simply unconscionable to us that Riverkeeper and others would attempt to exclude the environmental justice issue relevant to this extremely important air quality issue. The official state record clearly shows Riverkeeper's attempt to get AAEA excluded from the process:
"Riverkeeper argued that the issues identified by the AAEA failed to particularize the criteria in question in the draft permit. According to Riverkeeper, the AAEA's offers of proof with respect to the issues proposed did not identify permit conditions and indicate why those conditions were not in conformance with applicable law and permitting standards. Riverkeeper argued further that the AAEA's arguments with respect to outages at the Stations were merely general concerns about impacts on an unspecified population, and Riverkeeper went on to assert that the impacts were not specified. Finally, Riverkeeper contended that environmental justice concerns fall more within the purview of SEQRA, and should be addressed in that process, rather than in the context of non-compliance with a SPDES permit requirement."AAEA responded:
"In response, the AAEA argued that the Department's Environmental Justice policy specifically states that it is applicable to the permitting process, noting that allowing AAEA to participate would further the Department's goal of ensuring that the concerns of low income and minority communities are considered in permitting decisions. The AAEA maintained that even one outage day could result in health impacts...Shutdowns of 42 days could increase emissions from such plants by over 1.2 million tons during ozone season, including an increase in oxides of nitrogen. Moreover, the AAEA indicated that it is prepared to offer testimony to establish that the Department in fact failed to take environmental justice considerations into account in the process of arriving at the terms of the draft permit.Fortunately, the DEC ruled:
"This issue is substantive because, based on the AAEA's offer of proof, and upon this record, capacity may be limited by such installation. The issue is significant because, after hearing, the proposed draft permit may be modified to address air emission concerns... The NYSDEC Commissioner's Interim Decision upholding the Administrative Law Judge's February 3, 2006 Decision, which granted "standing" to AAEA for the adjudicatory hearing process in this atter. Accordingly, AAEA shall have full party status in this proceeding. In addressing this issue in the adjudicatory proceeding, generalized and nonspecific arguments will not be sufficient. AAEA should present evidence regarding air quality impacts on specific environmental justice communities, and should address the extent to which such impacts on those communities are disproportionate."We thank the state for allowing us to provide evidence that urban children and elderly, the most highly impacted, will be negatively impacted if there is a negative ruling on the environmental justice issues that AAEA is defending at the upcoming hearing.