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Niagara Mohawk Power Corporation - Ruling (Party Status), August 12, 1996

Ruling (Party Status), August 12, 1996

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Application of the NIAGARA MOHAWK POWER CORPORATION for .401 Water Quality Certifications for Nine Hydroelectric Power Facilities:

RULING ON MOTION FOR PARTY STATUS

(August 12,1996)

Facility DEC Project No. FERC Project No.
Beaver River 6-2240-00038/00001-9 2645
E.J. West 5-4136-00016/00001-9 2318
Middle Raquette 6-4099-00006/00001-9 2320
Lower Raquette 6-4009-00006/00001-9 2330
Black River 6-2240-00038/00001-9 2569
School Street 4-6103-00027/00001-9 2539
Hudson River 5-4100-00019/00001-9 2482
Hoosic River 4-9904-00017/00001-9 2616
Oswego River 7-3500-00001/00001-9 2474

By letters dated June 25, 1996, June 26, 1996 and June 30, 1996, respectively, the County of Fulton, County of Saratoga and the Great Sacandaga Lake Fisheries Federation, Inc., have filed late petitions for party status in the E.J. West and Hudson River projects above referenced. Their applications for party status also identify two other projects, Stewart Bridge Project (FERC #2047) and the Feeder Dam Project (FERC #2554), that have not yet been the subject of a formal water quality certification hearing before this Office. Apparently, these projects are the subject of settlement negotiations in conjunction with the E.J. West or Hudson River projects. Therefore, the applications for the remaining two projects are not late, but instead, premature. By memorandum dated July 18, 1996, I limited the petitions to late applications for party status in the E.J. West and Hudson River projects and directed Applicant and Staff to respond to the three petitions. Although no response to the motions has been received, the petitioners each filed letters supplementing their petitions in late July, 1996.

Filings for party status in these actions were to be received by August 3, 1993. A combined legislative hearing and issues conference on the nine applications was held on August 5, 1993, in Utica, New York. Since that time, Applicant, Staff, Intervenors and other interested persons have entered into settlement discussions, resulting in a settlement of the Beaver River Project certification on August 18, 1995, and a settlement of the Black River Project certification on October 31, 1995. Applicant and Staff have indicated that settlement conferences will be scheduled in the remaining seven projects, using the Beaver and Black River settlements as a model. The E.J. West and Hudson River Projects are currently under discussion.

The previous settlement conferences have included all interested persons, and have not been limited to those who timely filed for party status in the above referenced administrative proceeding. Although the County of Fulton, County of Saratoga and the Great Sacandaga Lake Fisheries Federation, Inc. have demonstrated environmental interest in the projects, no petitioner has provided any explanation why party status would be a necessary pre-requisite to its participation in the E.J. West or Hudson River Project negotiations.

The County of Fulton's supplemental filing provides as an explanation for its late application for party status, that in March, 1995, the Federal Energy Regulatory Commission ("FERC") stated that the four projects would be combined for the purpose of conducting a Multiple Project Environmental Impact Statement. However, the FERC review is separate and distinct from this Department's review and does not provide an explanation warranting granting the late petition. Neither Applicant nor Department Staff have sought to amend or revise the public notice for the E.J. West and Hudson River projects to include the two additional projects that will be reviewed as a group by FERC.

The late petitioners propose no issue for adjudication and offer of proof. 6 NYCRR 624.4 As mentioned above, the previous settlement conferences have included all interested persons, and have not been limited to those who timely filed for party status in the above referenced administrative proceeding. Petitioners concede that party status is not a necessary pre-requisite to its participation in the E.J. West and Hudson River project negotiations.

Ruling

Although the County of Fulton, County of Saratoga and the Great Sacandaga Lake Fisheries Federation, Inc. have demonstrated an environmental interest in the E.J. West and Hudson River projects, no petitioner has offered a satisfactory explanation for the lateness of its motion seeking party status. Further, no petitioner proposes an issue for adjudication or offer of proof. 6 NYCRR 624.4 Lastly, petitioners concede that party status is not a necessary pre-requisite to participation in the E.J. West and Hudson River project negotiations.

For these reasons, the motions of the County of Fulton, County of Saratoga and the Great Sacandaga Lake Fisheries Federation, Inc. for party status in the Niagara Mohawk Power Corporation/E.J. West Project and Hudson River Project, are denied, without prejudice to renew.

The County of Fulton, County of Saratoga and the Great Sacandaga Lake Fisheries Federation, Inc. are encouraged to participate in the settlement negotiations in the interests of reaching a comprehensive settlement on all potential issues. In the event negotiations do not result in a complete settlement or a hearing is otherwise necessary, they may renew their respective applications for party status.

Appeals

This ruling may be appealed to the Commissioner in writing by August 27, 1996. Replies to any such appeals must be filed by September 5, 1996. All appeals and replies must be addressed to the Office of the Commissioner, NYSDEC, Room 604, 50 Wolf Road, Albany, New York 12233-1010, must include an original and two copies, and must be received by that Office by the dates indicated herein. Additionally, a copy of all such appeals, replies, briefs, and other related filings must also be sent to the ALJ's attention at the Department's Office of Hearings and Mediation Services, and to all persons indicated on the current Service List. Transmittal of documents must be made at substantially the same time and in the same manner to all persons.

/s/
Kevin J. Casutto
Administrative Law Judge

DATED: August 12, 1996
Albany, New York

TO: Distribution List
Hon. J. Raymond
Hon. A.C. Buanno
J. Smith

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