On December 23, 1998, New Milford Energy, (NME) LLC applied to the Connecticut Siting Council (Council) for a Certificate of Environmental Compatibility and Public Need (Certificate) for the construction, maintenance, and operation of a 500-megawatt (MW) natural gas-fired combined cycle electrical generation facility, associated switchyard, and transmission interconnection in New Milford, Connecticut.

The 28-acre site located within a 145-acre parcel initially appears to be well suited for the proposed development. The site is zoned industrially; traversed by the high pressure Iroquois natural gas pipeline; near to other industrial and commercial development, including the Nestle Manufacturing Plant; served by Route 7, a major transportational artery through New Milford and western Connecticut; located near high-voltage electric transmission lines that serve the Rocky River pumped storage hydroelectric facility; and is in the location of a former rock quarry operation on highly disturbed terrain. These factors were significant reasons for selection of the site for the proposed facility.

Although these factors are obvious and remain largely undisputed, after careful review, the Town of New Milford's Inland Wetlands (TNMIWC) and Zoning Commissions (TNMZC) issued orders denying the proposed electric generating facility, pursuant to Connecticut General Statutes (CGS) §16-50x. The TNMIWC found that the proposed project would have adverse impacts to wetlands, a watercourse, and the vegetative and wildlife communities within the area. The TNMIWC based their decision in part on a lack of complete information for: site specific designs, prudent and feasible alternatives, specifics for water supply, secondary impacts to wetlands and watercourses, clearing limits for the transmission interconnection, accurate descriptions and locations of wetlands and regulated areas, and infrastructure requirements for the Town of New Milford (Town). The TNMZC voted to deny an application for a special permit, site approval, and an excavation permit due to concerns regarding: exhaust stack heights; site plan compliance; incomplete information for air dispersion modeling, fogging and icing, noise, water demands, wastewater composition, effects on the Housatonic River, groundwater contamination, and chemical storage and spills; incomplete A2 survey; terrain modeling; water reserve and discharge capacities; water use; water discharge; and future plant decommissioning.

On April 1, 1999, the Council received an appeal by NME to the municipal orders issued pursuant to CGS §16-50x. The Council consolidated all appeals within the application process, which allowed issues raised in the appeal to be examined.

The Council and the Town share many of the same ideals: to provide reliable services, protect the environment and the community, and to encourage economic development. The Council, pursuant to its legislative charge, must evaluate and consider the cumulative benefits and impacts of this proposed facility on the state, as well as on the local community.

The proposed project would provide several benefits including the in-state generation of power to meet increasing demand; the probable replacement of more polluting and costly fossil-fueled generating units in the New England Power Pool (NEPOOL) service area; and the diminished need to import power into the region given the transmission import constraints within the NEPOOL system.

Indeed, under present conditions, there may be an approximately 2390-MW capacity deficit within NEPOOL by the year 2002; however, the Council has already issued Certificates for new natural gas-fired electric generating facilities in the state, with a cumulative output of approximately 2392 MWs in the municipalities of Milford (Docket 187), Killingly (Docket 189), Meriden (Docket 190), and Oxford (Docket 192). Additional facilities have already been approved and some are under construction elsewhere, totaling 8294 MW of new generation throughout New England. Applications for new natural gas-fired electric generating facilities with a total capacity of approximately 30,000 MW are expected, not only in the state, but throughout the NEPOOL system. With these facilities in place, it is not likely that demand will exceed capacity. While the development of these facilities is now a function of the competitive power market, there is no sense of urgency for the development of these facilities, nor is there any reason to compromise environmental standards necessary to protect the community.

The Town would benefit economically and by the potential extension of the sewer lines along Route 7, the extension of an existing water line, cleanup of the site, and property tax relief provided by NME. However, these benefits are limited, could potentially be provided by any entity seeking to develop the site, and are not unique to the development of an electric generating facility.

Fire protection systems for the proposed facility would be designed in accordance with fire codes, and would consist of a fire suppression system with water tankage and auxiliary pumps, detection systems, and an emergency response plan to be developed in conjunction with the local fire department. Consequently, we find that the facility would be safe. We also find that the Candlewood Lake Dam would not be threatened by the proposed facility.

We are concerned that the facility site offers only one realistic accessway to the facility. An alternative accessway was identified, but this accessway would involve clearing and grading up a steep slope on the flank of Candlewood Mountain. A secondary accessway to the site, while not a requirement or sufficient reason for denial of the project, would be preferable in the event that a sudden hazard or accident required multiple access for evacuation or emergency management.

Traffic associated with the construction and operation of the proposed facility would primarily consist of vehicular trips for construction, material and equipment delivery, and operating staff. While we are concerned that the congested state of Route 7 could hamper an emergency response, we also believe that the proposed facility traffic would have an additive incremental, long-term effect on traffic patterns and volumes during normal facility operation.

Notwithstanding the inherent safe design of the proposed equipment, these concerns regarding the safety and emergency management response at the facility, the lack of secondary access to the facility, and access to the site from Route 7 are significant, could compromise emergency response operations, and might jeopardize public safety.

We also question whether the proposed facility would be too visible thereby compromising scenic resources. Indeed, the 80-foot generation buildings, the 110-foot heat recovery steam turbine buildings, the 120-foot air-cooled condensers, and the 213-foot stacks would be visible to a wide area; even though the existing topography from the former quarry would help to reduce visibility. Few, if any power plants can be totally screened and invisible to public view, and some visibility must be accepted. While the visibility of the stacks from areas on Candlewood Lake might be possible, we do not find this limited visibility to be substantial or reason to deny the proposal. Nonetheless, we are disappointed that the facility and steam plumes from the facility stacks would affect scenic resources associated with Candlewood Lake, Candlewood Mountain, and the Housatonic Range Trail between this attractive mountain ridge and lake. We are also concerned that the proposed transmission line structures were not included in visual modeling and their effects on scenic resources may have been underestimated. Although the applicant offered to reduce the height of the proposed 120 to 180-foot structures, the construction of this overhead electric transmission line in Housatonic Valley may have a significant visual effect. These visual impacts would be most unfortunate and are a significant concern to the Council.

We also analyzed the amount of potable water the proposed facility would use, and agree that the dry-cooling system maximizes water conservation; United Water Connecticut has adequately demonstrated the ability to provide water to the facility for a 20-year period; and that on-site tankage for water storage can contribute to an effective water management plan to minimize impact on the community. Still, we remain concerned that this diversion of potable water to the facility would be significant and would require diligent management to avoid subjecting the public to 1) an insufficient supply of water during times of peak use in periods of extended drought and 2) a contaminated supply of water from necessary reliance on wells that now show signs of commercial pollution.

The dry-cooled system proposed to be used by the facility would essentially eliminate ground-level fogging and icing. Steam plumes from the facility stacks are indeed likely, but are not expected to make frequent ground contact. Nonetheless, any contribution of fogging in this valley is a concern to the Council.

Information regarding the discharge of wastewater from the proposed facility has been speculative and is uncertain. While the option of using the New Milford Sanitary Sewer System is clearly favored by the applicant and the Council, the applicant has not pursued this option. Furthermore, the applicant's proposal of a second option to install an on-site leaching field for domestic waste and a discharge pipe through an abutting property to enable the discharge of plant waste to the Housatonic River is problematic. We question the construction of the outfall structure on the Housatonic River and the applicant's ability to receive permitting for this discharge from the Connecticut Department of Environmental Protection (DEP). There is, however, little in the record at this time that has convinced us that this discharge, or any other option for the discharge of facility waste into the Housatonic River is justified and environmentally acceptable.

We do not expect any effects on the historic, architectural, or archeological resources of the State. Although a State endangered plant species and a State plant species of special concern were identified on the proposed site, neither of these plants would be directly impacted by the proposed project. Furthermore, habitat and wildlife on the site have been severely limited by the former quarry operation.

Although the site is a highly disturbed former quarry, we are very concerned over issues regarding on-site water resources and inland wetlands, land use, zoning, noise, and local air pollution.

Noise from the proposed facility would be controlled by enclosures, noise attenuation equipment such as silencers and buffers, and distance to receptors. We have some faith in the ability of the industry to attenuate excessive noise; however, we have not been convinced that the applicant has considered the full extent of noise from this facility on sensitive receptors. Much of the applicant's analysis has been based on proprietary modeling and vendor guarantees that include the potential need for additional noise mitigation after the commencement of facility operation. We are further concerned that the reflection of noise off the face of the quarry located immediately adjacent to the facility has been underestimated, and may increase noise levels emanating from the facility into the Housatonic River Valley. Indeed, at least one property would not likely meet State Noise Standards and would require the applicant's purchase for compliance. The purchase of this property has not been executed and may not be executed because another party holds the right of first refusal. We are also concerned that prominent discrete tonal noise would radiate from numerous fans, pumps, motors, and the turbines themselves. Such tonal noise requires the State Noise Standard to be 5 dBA more stringent than if tonal noise did not exist. We believe the applicant failed to adequately address the sources of this tonal noise, effects of noise on the community, and compliance with State Noise Standards. Furthermore, the applicant's pledge not to operate the facility commercially until the facility can comply with noise standards is a speculative assertion; we must base our decision on evidence that proves the facility can comply with existing noise regulations and standards.

The Council is aware that air quality in Connecticut is in need of improvement which will be possible through the replacement of older oil and coal-burning generation plants with new efficient gas-fired generation plants. As older plants are displaced, nitrogen oxides, carbon monoxide, sulfur dioxide, hydrocarbons, and particulate matter will decrease improving both state and regional ambient air quality and the health of Connecticut residents. We support this potential change for improvement, but we cannot overlook local ambient air quality to obtain this goal.

The proposed facility would substantially meet the goals of improving regional air quality in the tri-state area; however, we question NME's decision to locate the proposed facility in a topographically complex area subject to downwash that would produce locally high concentrations of pollutants. These downwash conditions, caused by complex terrain, have become an object of public focus and an important element of the Council's deliberations.

We have reviewed and analyzed several mathematical and physical fluid models that have been employed to predict stack emissions, downwash conditions, and projected ambient air quality during operation of the facility. These models and the witnesses that testified in support of the modeling have been impressive. Indeed, this hearing has been a forum of national air modeling experts. These models, however, do not reach the same conclusions. Nonetheless, we believe that the areas of disagreement are relatively small and help to reinforce our conclusion that emissions from the operation of this facility would either exceed or would be close to exceeding ambient air emission standards including Prevention of Significant Deterioration (PSD) standards for Particulate Matter 10 microns or less in size (PM₁₀).

Compliance with this standard may be possible with or without additional modification of the proposed air quality control equipment by the DEP and the Environmental Protection Agency (USEPA), that administer these Clean Air Act (CAA) requirements. Indeed, some downwash that exceeds PSD PM₁₀ levels might be accepted as technically exempt because it would occur on property under the control of the applicant. Nonetheless, pursuant to CGS § 16-50p, the Council is bound to uphold a standard that requires the balancing of air emission impacts against the benefits provided by the facility. In this case, we don't believe that the benefits associated with the project would exceed the impact associated with local degradation of air resources.

We accept that this facility would use advanced technology, that emission trading would provide overall improvements to regional air quality, and that the proposed fuel is of high quality; still, the location of the facility turbines at the site elevation of 265 feet, 3000 feet east from the 991-foot peak of Candlewood Mountain is a poor choice for a 500-MW power plant.

While the operation of this facility has not been proposed to use oil or any other fuel as a secondary back-up fuel, we agree with the DEP that compliance with air emission standards while operating on oil during periods when natural gas is not available would be difficult without significant technical changes to the facility, including the use of 500-foot stacks. We could order the installation of equipment to enable the burning of oil during gas curtailment, but these changes would be significant and questionable, and further would require full disclosure for comment by the parties and intervenors and members of the public. This difficulty and possible inability to burn oil is symptomatic of a facility located in an aquifer protection area where oil storage may be precluded, and in a valley that lacks the ability to disperse air pollutants without significant downwash conditions; and problematic of a facility that will not have enhanced reliability offered by two separate and independent fuels.

We believe that enhanced reliability provided by a second source of fuel provides an important public benefit to insulate the facility from unscheduled outages due to temporary shortages of natural gas. Such outages are a possibility due to the uncertainty of the gas transmission system's capability to deliver gas at sufficient pressure to the proposed facility without interruption.

We are also concerned that the location of the facility at the proposed site may result in competition for limited air emission PSD increments that are available in this area. The competition for emission increments is a normal and healthy function of the market. However, the development of this facility would require the Council to override local orders that have been issued consistent with local and regional plans for development. Absent justification that would support the override of local orders at this time, NME would be provided with an advantage for development not available to other industry. This advantage to NME would inappropriately and unfairly discourage economic development of other industry by denying such industry equal access to limited PSD increments for operation.

These concerns regarding air emissions from the facility, while not the only elements that we must consider, are very significant. The operation of the facility would be limited to only one fuel, potentially sacrificing enhanced reliability; would cause downwash conditions that would result in a deterioration of ambient air quality; might violate air quality standards at certain locations during certain weather conditions; would use large available increments of PSD PM emissions levels unfairly curtailing future economic development; and would add limited public benefit to the local area through the provision of infrastructure for water and sewer lines needed to serve the facility, property taxes that would be provided to any host municipality, and cleanup of the site that would be required by any entity seeking to develop the site.

The decisions by the TNMZC and TNMIWC to deny permits to the applicant weigh heavily with the Council. The facility clearly exceeds height limitations established by the Town, and it appears that the applicant made no effort to increase setbacks at a ratio prescribed by the Town to increase the height allowance. While the proposed facility could never achieve full compliance with height restrictions, the applicant has established a pattern of disregard to local regulators in what would appear to be reliance on the Council to override local orders. Indeed, much of the information in this case, including questions regarding noise, visibility, emergency management, and air and water quality may have only been made public through this contested case proceeding held in accordance with State law.

This pattern of local disregard has been further reinforced by the applicant's poor response to the local TNMIWC. Requests for site specific information regarding the locations of inland wetlands, stream courses, and runoff were not provided by the applicant in a manner that we feel timely or proper. Notwithstanding these concerns, our primary purpose is not to judge the performance of the applicant before the Town's commissions, but to conduct this proceeding de novo, to consider if development of the facility would be in compliance with the policies of the State; and then to resolve appeals filed by the applicant, that seeks to revoke local orders.

In this case, we find the local commissions' expectations for the submittal of information for their review, compliance with height restrictions, and inland wetlands and watercourse setbacks to be reasonable and support the TNMZC and TNMIWC decisions regarding the applications for permits. Indeed, the Regional Plan of Development envisions lower density neighborhood development on this site with plans to encourage heavy development to more central locations. This is not a flawed concept. The TNMIWC seeks to protect inland wetlands including the Rocky River. While the rock quarry has substantially impacted the buffer to a portion of this river, the Town cannot be faulted for seeking to reestablish this buffer and correct the existing violation for the protection of this important water resource. This too is not a flawed ideal.

Based on the record in this proceeding we find that the cumulative effects associated with the construction, operation, and maintenance of the electric generating facility at the proposed site, including effects on the natural environment; ecological integrity and balance; public welfare; scenic and recreational values; forests and parks; air and water; and wildlife are significant, in conflict with the policies of the State concerning such effects, and are sufficient reason to deny the proposed project. We find the proposed facility to be incompatible with the site. We further find that the proposed facility is not essential or necessary for the reliability of the electric power supply of the state or for a competitive market for electricity. If the proposed plant is not built, Connecticut residents will not be without power. If there is an actual need for more power, the market will respond, and another power plant will be built somewhere by someone, here in Connecticut or elsewhere. We don't need this plant at this location at this time. The market risk of overbuilding power plants is on the proponents; but the environmental risks are on the public and in particular the residents of New Milford. That being so, the Council must be very selective in the siting of a plant of uncertain need and limited benefit, that by its very nature has environmental risks. Therefore, we will not issue a Certificate for the construction, operation, and maintenance of the proposed natural gas-fired electric generating facility at the proposed site located near the intersection of Route 7 and Rocky River Road in New Milford, Connecticut.