Environmental Defense Fund, Inc. v. Flacke

noted that the additional S02 emissions from a reconverted plant burning 1.5% sulfur coal would increase the regional emissions by 0.9%. Using “worst case” modeling assumptions (which “in all likelihood” overstate expected impacts) ORU’s consultants predicted an increase in sulfur deposition of 0.18% in EPA Region II (New York and New Jersey) and 0.10% in EPA Region I (New England). The sulfur deposition increase was considered “marginal” and its effects “uncertain”. During the public hearings, ORU witness Thomas Lavery discussed the findings set forth above and noted that “sulfate deposition and the S02 deposition that will be constituted by Lovett is basically negligible. So I can’t say there will be a substantial increase * * * Let’s put this all in perspective. This is a very minor source”. The FEIS noted that “[t]he calculated effect [increases in sulfur emissions] is a decrease in the PH of precipitation of less than .01 PH units * * * based on the use of a model which attempts to simulate several atmospheric processes including transformation of sulfur dioxide to sulfate, the wet and dry deposition of both sulfur dioxide and sulfate, transport by wind and mixing by atmospheric turbulence”. This change “would not be detectable by a normal laboratory pH meter.” After documenting the rate at which sulfur dioxide is converted to sulfate, the FEIS stated that “[t]he maximum increase in sulfates from the Lovett plant would occur at a distance of about 100 to 150 kilometers (60 to 90 miles) from the plant * * * Most * * * of the sulfate would end up over the ocean.” This extensive analysis satisfies the “hard look” requirement imposed by SEQRA (see Glen Head-Glenwood Landing Civic Council v Town of Oyster Bay, supra, p 492 ; ECL 8-0109, subd 2). EDF’s witnesses Lipfert and Hendry presented testimony regarding the sensitivity of the nearby Hudson Highlands region to increased acidification as well as data predicting increases in the rate of the dry deposition of sulfur within a 30-kilometer radius of the Lovett units. ECL 8-0109 (subd 2) provides that an environmental impact statement “shall * * * include copies or a summary of the substantive comments received by the agency pursuant to subdivision four of this section”. Subdivision 4 in turn notes that the purpose of the draft statement is, inter alia, to “solicit comments which will assist the agency in the decision making process”. Construing SEQRA in light of the rule of reason (see Matter of Town of Henrietta v Department of Environmental Conservation, 76 AD2d 215 ), we do not interpret this section as requiring that the FEIS summarize and respond to the testimony of every witness presented at these hearings consuming over 7,000 pages of transcript. The FEIS, after extensive analysis, arrives at the conclusion that the impact of increased sulfur deposition would be minimal. As noted by the United States Court of Appeals, Ninth Circuit, “the [environmental impact] statement need not achieve scientific unanimity on the desirability of proceeding with the proposed action” {Life of Land v Brinegar, 485 F2d 460 ,473). EDF additionally argues that the FEIS violated SEQRA by failing to address feasible alternatives. It alleges that the FEIS failed to consider EDF’s proposal that the Lovett units burn 1.5 to 2.5% sulfur coal with “full” flue gas desulfurization (hereinafter FGD) scrubbing. Although this particular proposal was not analyzed, nümerous alternatives were considered. The FEIS discussed and rejected such options as early plant retirement, new plant construction, and continued oil burning (“no action”). ORU’s initial proposal to burn 1.5% sulfur coal without FGD equipment was also analyzed, as well as three alternatives set forth by that utility: (1) burning 5% sulfur coal with full FGD scrubbing, (2) burning 1.5% sulfur coal with “partial scrubbing”, and (3) burning 0.75% sulfur coal with no FGD equipment. The FEIS rejected these proposals as they would not meet the applicable ambient air quality standards. Instead, the following options which would meet national ambient air quality standards were analyzed and approved: (1) utilization of 0.7% sulfur coal

without FGD, (2) burning 3.8% sulfur coal with 90% efficient FGD system and (3) burning 1% sulfur coal in one unit only, while monitoring the results to assure compliance with national ambient air quality standards. An environmental impact statement must include “a detailed statement setting forth * * * alternatives to the proposed action” (ECL 8-0109, subd 2, par [d]; see, also, 6 NYCRR 617.14 [b] [the environmental impact statement “should evaluate all reasonable alternatives”]; Webster Assoc, v Town of Webster, 59 NY2d 220 ; Matter of Rye TownIKing Civic Assn, v Town of Rye, 82 AD2d 474 , supra). This requirement was met by the discussion of the alternatives set forth above. All parties agreed that conversion to coal was a desirable option; the dispute centered upon the sulfur content of the coal to be used. Although EDF’s proposal was not specifically discussed, the differences in sulfur content can be viewed as a continuum of possibilities. Thus, it was not necessary to discuss every conceivable possibility, especially where EDF’s proposal was very similar to those actually analyzed. Again, the requirement that alternatives be considered must be construed in light of reason (see Matter of Town of Henrietta v Department of Environmental Conservation of State ofN. Y., supra; Commonwealth of Massachusetts v Andrus, 594 F2d 872 , 884; Grazing Fields Farm v Goldschmidt, 626 F2d 1068 , 1074). An environmental impact statement must be “analytical” but “not encyclopedic” (6 NYCRR 617.14 [b]; see, also, Vermont Yankee Nuclear Power Corp. v Natural Resources Defense Council, 435 US 519 ). Thus the environmental impact statement properly limited its discussion to the numerous alternatives listed above. With respect to EDF’s related contention that there was inadequate discussion of the acid impacts of each of the approved options, since the commissioner found that the burning of 1.5% sulfur coal without FGD would have no discernable acid impact and since EDF has conceded that the emissions increases under the approved options are less than those under the original proposal, an analysis of each of the lesser impacts from the approved options was unnecessary. EDF’s other contentions have been examined and found to be lacking in merit. As the commissioner’s determination is supported by substantial evidence and the procedural requirements of SEQRA have been adhered to, the commissioner’s determination must be confirmed. Gibbons, J. P., Bracken, Brown and Niehoff, JJ., concur.