By Scott Brinton
Among the group were Freeport Electric Superintendent Hubert Bianco and attorney Paul Casowit. They had come to ask Molly McBride, a New York State Department of Environmental Conservation administrative law judge, to rescind a Nov. 30, 2003 deadline to permanently shut down diesel Power Plant No. 2. The DEC stipulated the deadline as part of a recently rewritten Title V operating permit for the plant.
Power Plant No. 2 caused a fury in 2001 when Merrick-Bellmore and Freeport residents decried its complete lack of pollution controls. They also presented numerous studies to show that diesel exhaust, particularly the unfiltered type that Plant No. 2 spews into surrounding neighborhoods, causes cancer.
Facing mounting pressure from the DEC and residents, Freeport volunteered last April to retire the plant and build a cleaner-burning, natural-gas plant in its place, in south Freeport, just across the Meadowbrook Parkway from Merrick.
Freeport and the DEC agreed to Nov. 30 as Plant No. 2's final shutdown date, believing the gas plant would be built by that time. Village officials, however, say that unforeseen circumstances have delayed the project. Construction was supposed to get under way this month, but to date no work has begun.
Now Freeport officials contend the Nov. 30 deadline is draconian, and they want out of it.
Casowit said last Wednesday, "Freeport will demonstrate that the [DEC]-imposed shutdown date of Nov. 30, 2003 is unreasonable in view of the overall circumstances surrounding Freeport's Power Plant No. 2."
He also said the deadline would place "an unnecessary and unreasonable economic burden on the residents of Freeport" and "increase the risk of power interruptions to the residents of Freeport and others dependent on the Long Island grid."
In an interview in March, Bianco said Freeport is committed to closing Power Plant No. 2, just not on Nov. 30. The village, he said, needs the new gas plant up and running before the diesel plant is shut down. Otherwise, Freeport could face blackouts in the event of a power shortage.
Subhead: DEC strikes back
For its part, the DEC's Long Island regional office, which rewrote Plant No. 2's Title V permit, rejects the village's request to eliminate the Nov. 30 deadline.
One department official, who did not wish to be identified, said that if the deadline is removed, there's nothing in writing that would require Freeport to retire Plant No. 2.
Besides the Nov. 30 deadline, the rewritten Title V permit states that the village must close Plant No. 2 when "commercial operation" of the new gas plant begins. The DEC official noted, though, that Freeport isn't required to build the gas plant.
Village officials volunteered to have it constructed. At the same time, they entered into what's called a purchase-power agreement with the Long Island Power Authority, for which Freeport would sell electricity from the new plant to LIPA.
If Freeport decides against building the gas plant -- and there's no Nov. 30 deadline -- then Plant No. 2 wouldn't have to close, according to the DEC official.
That would put the state and local residents back to the very beginning of the fight against diesel Plant No. 2. That's why the DEC's Long Island office is fighting hard to keep the deadline.
The DEC has gone so far as to say that if Freeport doesn't commit to closing diesel Plant No. 2, it will seek to revoke the village's Title V permit for the plant.
In a May 5 letter to Judge McBride, Franz Litz and Michelle Crew, who are both DEC attorneys, stated, "If Freeport refuses to accept ... shutdown of the diesels in time, then the permit must be revoked as it relates to the diesels. Any other result would be a clear violation of the Title V regulations and result in a certain objection to the permit by the [Environmental Protection Agency]."
After hundreds of letters and calls from residents objecting to Plant No. 2, the DEC first decided in June 2001 to rewrite the facility's Title V permit, which had previously contained no pollution limits. The new draft permit limits the plant's emissions of particulate matter (soot) and oxides of nitrogen. The State Implementation Plan for the federal Clean Air Act includes both standards.
According to the DEC, the highly polluting plant can meet neither requirement, so it must be closed.
Getting to that point, though, has been a slow, uphill battle thus far, in large part because of Freeport's troubles in identifying a firm to build the new gas plant.
Only last week, Freeport hired a developer, GFS (Greeman Pedersen Inc./Fresh Meadows Mechanical Corporation/Peter Scalamandre & Sons Inc.), to build the 47-megawatt, gas-fired power plant.
The developer of a second 47-megawatt gas plant at the Power Plant No. 2 site is yet to be named. A private energy provider is supposed to build that plant and sell its power to LIPA.
Freeport's five-year Title V permit for diesel Plant No. 2 expires in early November. The village must renew it if Plant No. 2 is to remain operational. (LIPA, though, currently provides low-cost energy to the village so that the plant doesn't have to run; it operates only during extreme power emergencies.)
Casowit told Judge McBride last week that Freeport fully intends to file a renewal application for the Title V permit. If Freeport goes through with the entire renewal process, the DEC would likely write the particulate matter and oxides of nitrogen standards into any permit that might be issued. Casowit, however, told Judge McBride that Freeport has the legal right to seek a variance, or exemption, from such requirements.
Subhead: Calls to close plant now
Last Wednesday, Tracy Peel, an air-quality specialist with the New York Public Interest Research Group, supported the DEC's position that the diesel plant must be shut down by Nov. 30.
Peel also disputed Freeport's claim that Power Plant No. 2 complies with environmental laws. Since 1998, the plant has operated in accordance with its current permit. That document, however, has no pollution standards, which is contrary to the State Implementation Plan for the Clean Air Act, making the permit "defective," according to the DEC. That's why the department rewrote the permit.
Peel believes the DEC must immediately conduct what's called a stack test on Plant No. 2, which would measure the pollution it gives off from its two smokestacks. A stack test, she believes, would prove, without doubt, that Plant No. 2 violates the law.
Peel also said, "It is unfair and legally unjustified to allow Freeport Power Plant No. 2 to continue operating in probable violation of emission standards while the permitting process runs its course." In short, she believes the plant must be shut down now.
Joseph Kralovich is president of the Old Lindenmere Civic Association in Merrick, which led the fight against Power Plant No. 2. He, too, would like to see the plant closed immediately. "They should shut it down now," he said. "It's a law. Let's get it done now."
In an interview, he also noted that there are no conditions in the rewritten Title V permit stipulating how precisely Power Plant No. 2 is to be decommissioned.
Kralovich has met several times over the past two years with state Sen. Charles Fuschillo Jr. (R-Merrick) and LIPA Chairman Richard Kessel, both of whom were instrumental in getting Freeport to close the plant. In discussions with them, Kralovich said, he was told that cement would be poured down the plant's smokestacks, or its engines would be dismantled, rendering the plant inoperable.
Neither of those options was included in the new permit, according to Kralovich.
Peel told Judge McBride that language addressing how the plant will be retired should be included in the new permit. Peel said Consolidated Edison's Hudson Avenue plant in Brooklyn was deemed shut down in 1997 when a two-inch hole was bored into the plant's piping. The hole was later repaired and the plant came back online in 2001, running as dirty as ever.
"To truly ensure compliance with applicable requirements," said Peel, the new "Title V permit must include a compliance schedule with specific actions that will ensure complete, permanent, irreversible shutdown" of Plant No. 2.
What happens next?
By Scott Brinton
Last Wednesday's public hearing over Freeport Village's diesel Power Plant No. 2 was the start of a process.
Judge Molly McBride, a New York State Department of Environmental Conservation administrative law judge, presided over the hearing at Freeport High School. The forum was what the DEC calls a legislative hearing, at which anyone from the public could offer views about the DEC's rewritten Title V permit for Plant No. 2.
The next day, Judge McBride convened an adjudicatory hearing over the plant, which was much like a court of law, with witnesses called and cross-examined.
The Village of Freeport; the DEC; Joseph Kralovich, president of the Old Lindenmere Civic Association in Merrick, and the New York Public Interest Research Group all received party status for the hearing, which allowed them to take part in the otherwise closed session.
Judge McBride heard all the evidence presented at both the legislative and adjudicatory hearings. After she renders a decision on the case -- that is, whether the Nov. 30 deadline to shut down Plant No. 2 should be rescinded -- she will offers a recommendation to the DEC commissioner, Erin Crotty. Crotty will ultimately decide the case.
