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Reliant Energy, LP - Order of Disposition, October 24, 2002

Order of Disposition, October 24, 2002

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
- of -
the Application of RELIANT ENERGY, LP, for §401 Water Quality Certifications for Hydroelectric Power Facilities:

ORDER OF DISPOSITION

Hoosic River Facility

DEC Project No. 4-9904-00017/00001-9

FERC Project No. 2616

[October 24, 2002]

A "Hoosic River Offer of Settlement" (dated June 2002; the "Agreement") in the above referenced matter, executed by several entities, was received by this Office on September 27, 2002(1). The New York State Department of Environmental Conservation ("NYSDEC" or the "Department") Deputy Commissioner Peter Duncan executed the Agreement on July 15, 2002.

Under cover of letter dated September 19, 2002, DEC Staff Environmental Analyst, Kent P. Sanders issued a water quality certification ("WQC") to the Applicant. Staff's issuance of the WQC was contrary to departmental procedures specified in DEC Organization and Delegation Memorandum 94-13,(the "O&D Memo"). Upon ALJ review, it appeared that a necessary party in the DEC proceeding - New York Power Authority ("NYPA") - had not executed the settlement agreement (or filed a withdrawal of its DEC petition for party status in this matter). Secondly, Staff had no authority to issue the WQC while the hearing record remained open before this Office.

Upon the ALJ's inquiry, no explanation for Staff's issuance of the WQC was forthcoming from DEC Staff or the Applicant. Under these circumstances and in view of the procedural infirmities created by Staff's actions, an issues conference session was scheduled for November 1, 2002.

However, following an exchange of papers, on October 17, 2002, NYPA filed a letter stating it has no objection to the Agreement in this matter. Additionally, by letter dated October 21, 2002, DEC Staff moved for acceptance of the NYPA letter and remand of the case to Staff, nunc pro tunc, prior to the September 19, 2002 issuance date of the WQC. With this Order of Disposition, DEC Staff's motion for retroactive relief is hereby granted.

The settlement Agreement is a stipulation that resolves all potential adjudicable issues between Reliant Energy, LP (the "Applicant"; successor in interest to the original water quality certification applicants), Department Staff and all Intervenors in the above referenced matter, in conformity with the procedures required by DEC O&D Memo.

Several other interested entities have executed the settlement since the settlement also will be submitted to the Federal Energy Regulatory Commission ("FERC") as a settlement offer in the relicensing proceeding for these hydroelectric power facilities.

The approved settlement fully resolves all possible issues with respect to the above referenced water quality certification applications and represents the litigants' willingness, subject to the terms and conditions of the settlement, to have the Department issue federal Clean Water Act §401 water quality certificates for the hydroelectric generating facilities addressed by the settlement.

Therefore, the water quality certification application above referenced hereby is remanded to Staff, nunc pro tunc, under cover of this memorandum, for further processing.

_____________/s/_____________
Kevin J. Casutto
Administrative Law Judge
Albany, New York

Dated: October 24, 2002

TO: Hoosic River Distribution List (Dated 10/18/02)

HOOSIC RIVER PROJECT
NIAGARA MOHAWK POWER CORPORATION
NYSDEC No. 4-9904-00017/00001-9
[FERC Project No. 2616]

DISTRIBUTION LIST Revised 10/18/02

JERRY L. SABATTIS
Reliant Energy
225 Greenfield Parkway
Suite 201
Liverpool, New York 13088
Tel: (315) 287-2787
Fax: (315) 461-8577

MARK SANZA, Esq.
NYSDEC, 14TH Floor
625 Broadway
Albany, NY 12233-1500
Tel: (518) 402-9222
Fax: (518) 402-9018

RICHARD ROOS-COLLINS, Esq.
Natural Heritage Institute
114 Sansome Street
Suite 1200
San Francisco, CA 94104
Tel: (510) 644-2900
Fax: (510) 644-4428

STEVE PATCH
U.S. Fish and Wildlife Service
3817 Luker Road
Cortland, NY 13045
Tel: (607) 753-9334
Fax: (607) 753-9699

GERALD GOLDSTEIN, Esq.
New York Power Authority
123 Main St
White Plains, NY 10601
Tel: (914) 390-8090
Fax: (914) 390-8038

KEVIN J. CASUTTO
Administrative Law Judge
NYSDEC Office of Hearings and
Mediation Services
625 Broadway, 1st Floor
Albany, NY 12233-1550
Tel: (518) 402-9003
Fax: (518) 402-9037

cc: HON. PAUL D. TONKO
New York State Assembly
Leg. Office Bldg., Room 626
Albany, NY 12248
Tel: (518) 455-5197
Fax: (518) 455-5435

cc: JOHN SMOLINSKY
Chief, Office of Energy
Efficiency & Environment
NYS Public Service Commission Three Empire State Plaza
Albany, NY 12223
Tel: (518) 474-5368
Fax: (518) 474-5026

1 The Agreement addresses the Johnsonville Development and the Schaghticoke Development.

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