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Rochester Gas and Electric Corp. - Ruling, December 11, 1998

Ruling, December 11, 1998

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Application of the ROCHESTER GAS & ELECTRIC CORPORATION for §401 Water Quality Certification for the Mount Morris Hydroelectric Power Facility

- by -

RULING

[12/11/98]

[Station #160; DEC Project No. 8-2436-00013/00001-9; FERC Project No. 2596]

This application for water quality certification was remanded to Department Staff on November 20, 1997, at the request of the Applicant, Rochester Gas & Electric Corp. ("RG&E"). The application is related to RG&E's 30-year Federal Energy Regulatory Commission ("FERC") relicensing application for the facility. By letter dated November 10, 1997, RG&E requested to withdraw its application for water quality certification ("WQC") for the above referenced project ("Station 160"), based upon its withdrawal of the related FERC relicensing application. At the time, neither Department Staff nor any Intervener objected, and the case was remanded to Staff.

However, FERC did not allow RG&E simply to withdraw its relicensing application. Instead, FERC advised RG&E by letter dated November 19, 1997 (nine days after RG&E's letter seeking to withdraw its WQC application before this Department) that FERC was disallowing RG&E's license withdrawal application for Station 160 until after FERC review of an application to surrender the license for the project. An application to surrender the FERC licence must include an anticipated closure plan. Since the expiration of RG&E's 30-year license in 1993, FERC has issued successive interim annual licenses to RG&E. The facility continues to operate under successive interim annual licenses.

In March 1998, RG&E filed with FERC a formal application for surrender of the current annual license. FERC has solicited public interest in the project by inviting any prospective new owner to express an intention to submit a license application and, subsequently, file such an application. This process may result in issuance of a new license to a successor, issuance of a non-power license or decommissioning of the project. In the event of a new license, the license applicant would also have to apply to NYSDEC for a water quality certification.

By letter dated November 4, 1998, Department Staff made a motion to restore RG&E's Station 160 water quality certification application before this Office, due to the continuing FERC proceeding. Responses to Staff's motion for restoration were due by November 29, 1998. RG&E filed a response in opposition, and the Natural Heritage Institute filed a response in support.

By letters dated September 14, 1998 and November 24, 1998, RG&E provided a status report on the ongoing FERC licensing proceeding, background information on the project and legal argument in opposition to the motion. RG&E asserts that it does not intend to operate the project any longer than required to wind up its tenure there. RG&E has filed a closure plan with FERC, and continues its efforts to locate a purchaser for the project. But in the meantime, RG&E continues to operate the project.

The Natural Heritage Institute supports Staff's request for relief. The Institute asserts that the November 1997 remand to Staff was based upon RG&E's representation that it had withdrawn its FERC application. It is now clear that FERC has disallowed RG&E's license withdrawal application and is continuing the relicensing proceeding. Accordingly, the Institute asserts that RG&E's application for WQC should be restored and remain pending until RG&E's FERC licensing application has been withdrawn or otherwise concluded through issuance of a new license to a successor, issuance of a non-power license or decommissioning of the project.

RG&E makes several arguments that restoration of its WQC application will serve no purpose. However, those arguments do not overcome the fact that the WQC remand to NYSDEC Staff was premised upon RG&E's withdrawal of its FERC relicensing application. FERC has disallowed RG&E's withdrawal and the relicensing application remains before FERC. Further, RG&E will suffer no prejudice if the WQC application is restored. In the process of reaching a disposition on the FERC relicensing application, the WQC application will necessarily be resolved.

Staff's motion to restore this matter to the Office of Hearings and Mediation Services' docket is granted. Department Staff is directed to forward the files to this Office.

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

Dated: December 11, 1998

TO: RG&E Mt. Morris Dam Distribution List

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