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Rochester Gas and Electric Corp. - Interim Decision, March 23, 1999

Interim Decision, March 23, 1999

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1010

In the Matter

- of -

Application of the Rochester Gas & Electric Corporation for §401 Water Quality Certification
for the Mount Morris Hydroelectric Power Facility

DEC No. 8-2436-00013/00001-9

INTERIM DECISION OF THE COMMISSIONER

March 23, 1999

INTERIM DECISION OF THE COMMISSIONER

This is an appeal by Rochester Gas and Electric Corporation (RG&E) to the ruling of Administrative Law Judge (ALJ) Kevin Casutto ordering hydro-electric generating "Station 160" water quality certification application before the Department to be restored on the hearing docket. Responses to the appeal were filed by the Department Staff and by New York Rivers United and American Rivers Inc. The appeal is now ready for decision.

Background

In 1997, RG&E withdrew its request for a water quality certification to be issued by the Department under §401 of the federal Clean Water Act. This action was based upon RG&E's withdrawal of its related Federal Energy Regulatory Commission (FERC) relicensing application for Station 160. Based upon representations by RG&E at the hearing that FERC would grant RG&E's request, and hearing no objection, the ALJ remanded the matter to staff. However, the facts subsequently changed.

As stated in the ALJ's ruling, FERC disallowed such withdrawal of the FERC relicensing application because RG&E did not have a required closure plan. See, FERC Nov. 19, 1997 letter to RG&E. Thereafter, the Staff moved and was granted its motion to restore the proceeding to the hearing docket. Thus, RG&E's §401 water quality certification application is pending before the Department, as is its relicensing application before FERC, at least until RG&E files a closure plan acceptable to FERC. Once a disposition on the FERC relicensing application is reached, the water quality certification issue can be resolved.

Discussion

Section 401 of the Federal Water Pollution Control Act (33 U.S.C.A. § 1341) requires discharges from hydro-electric generating facilities comply with the various substantive provisions of that statute. The Department issued its latest water quality certification for Station 160, however the conditions attached to the certification by Staff were not accepted by RG&E. RG&E's surrender of its FERC license as a prerequisite to withdrawal of its renewal application indicates RG&E's desire not to operate the facility, a fact not in dispute. However, FERC requires a closure plan and RG&E has yet to obtain FERC approval for its closure plan. The closure plan is the regulatory mechanism to ensure the adequacy of the environmental conditions at the site. It is not disputed that RG&E hopes to locate a purchaser for the facility, only that such activity should not relieve the permittee from its responsibility to ensure the terms of the water quality certification are met.

The Department has the authority to issue on water quality certifications. RG&E owns Station 160 and is responsible for discharges which are controlled through the § 401 water quality certification. The finality of the FERC relicensing proceedings upon which the Department Staff would depend to terminate the § 401 water quality certification has not yet occurred. Accordingly, it is reasonable and proper to restore the matter to the Department's hearing docket.

Conclusion

ALJ Casutto's ruling is affirmed.

For the New York State Department
of Environmental Conservation

/s/
By: John P. Cahill
Commissioner

Dated: Albany, New York
March 23, 1999

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