Niagara Mohawk Power Corporation - Ruling, August 18, 1995
Ruling, August 18, 1995
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 BEAVER RIVER SETTLEMENT OFFER, ISSUES RULING AND ORDER OF DISPOSITIONp
| 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 |
SUMMARY
This ruling concludes that the claims by Ernest J. Wolfe, Jr, Esq. of ex parte communication and ALJ bias are unfounded. Attorney Wolfe's motions for recusal and identification of "ex parte informants" are denied.
Further, the ruling concludes that Attorney Wolfe has failed to identify any substantive and significant issue requiring adjudication with respect to the above referenced Water Quality Certification application, as modified by a proposed settlement offer.
Therefore, the proposed settlement offer made by the other participants in this proceeding, is approved. This matter is remanded to Department Staff ("Staff") for issuance of a Water Quality Certification for the Beaver River Project.
Lastly, although Applicant has indicated its reluctance to unconditionally offer the five understandings identified in Staff's May 25, 1995 letter, the ALJ strongly encourages Applicant to reconsider that position.
Background
Applicant has applied to the Department for water quality certifications for nine of its facilities. A combined legislative hearing and issues conference on the nine applications was held on August 5, 1993 in Utica, New York.
This Ruling addresses a proposed settlement regarding one of the nine applications, referred to as the Beaver River Hydropower Project (DEC Project No. 6-2240-00038/00001-9; FERC Project No. 2645). Following the issues conference, Applicant, Staff and interested persons including all intervenors, other than Ernest J. Wolfe, Jr., Esq. and those represented by Wolfe, attended a lengthy series of settlement negotiations on the Beaver River Project. This negotiation process resulted in a proposed settlement offer, which Staff filed with this Office by letter dated April 13, 1995.
The settlement offer sets forth detailed standards regarding reservoir fluctuations, minimum flows, fish passage and protection, recreational use, land transfers and conservation easements for the Moshier, Eagle, Soft Maple, Effley, Elmer, Taylorville, Belfort and High Falls Developments. Additionally, the settlement offer provides for creation of a Beaver River Fund, to be funded by the Applicant, and an Advisory Council. The Fund would be administered by Applicant and make distributions according to recommendations of the Council. More than a dozen groups representing a variety of interests are required to be invited to serve on the Council. The Fund will be used within the Beaver River Basin for furtherance of ecosystem restoration and protection, natural resources stewardship, public education, facility maintenance and research necessary to accomplish these goals.
My response to Staff's April 13, 1995 letter required Staff to clarify the position of certain intervenors, including attorney Wolfe and those represented by Wolfe, with respect to the Beaver River Settlement proposal. Staff's May 25, 1995 response indicated essentially that all intervenors other than attorney Wolfe and his clients, either support or have no objection to the Settlement offer. Staff's response also outlined five "understandings", offered by Applicant as a result of a May 11, 1995 meeting with attorney Wolfe and two of his clients, Mr. Schaab and Mr. Getman. Staff asserts these understandings are to be reduced to a side letter agreement between Schaab, Getman, Applicant and Staff, and will not become part of the proposed settlement document. Staff believes the side letter would at least resolve all issues with attorney Wolfe's two clients, Schaab and Getman.
Lastly, Staff's May 25, 1995 response contains an application (1) to set a schedule for attorney Wolfe to submit a list of proposed issues, with supporting documentation and legal justification, if any; (2) remand the Beaver River Hydropower Project proceeding to Staff for issuance of a Water Quality Certification consistent with the Settlement offer; and (3) direct that the understandings reached between Applicant, Staff and attorney Wolfe's clients, Schaab and Getman, be formalized in a separate letter agreement.
Separately, by letter dated May 13, 1995 addressed to Applicant and Staff, attorney Wolfe confirmed his May 11, 1995 meeting with Applicant and Staff, and provided his summary outline of the meeting.
The June 2, 1995 Order
By order dated June 2, 1995, I directed attorney Wolfe to provide the following information:
- Confirm whether the five enumerated understandings summarized in Staff's May 25, 1995 letter resolve all concerns of his clients, Schaab and Getman;
- Specify what issues, if any, he or his clients raise with respect to the proposed Settlement (distributed under cover of Staff's April 13, 1995 letter to this Office), and provide supporting documentation and legal justification, if any, for each such issue; and
- Confirm his continued representation of Mr Schaab and Getman.
This information was required to be received by this Office by June 23, 1995. By letter dated June 22, 1995, attorney Wolfe sought an additional "few days" to make his filing. I granted a one week extension, and attorney Wolfe made his filing by letter dated June 23, 1995, received by this Office June 30, 1995. Applicant and Staff were to respond to the attorney Wolfe filing by July 14, 1995, and each did so by letters dated and received July 13, 1995.
Separately, under cover of letter dated June 28, 1995, attorney Wolfe also sent his June 23, 1995 filing to the Governor and the Department Commissioner, seeking my recusal in this matter. By letter dated July 10, 1995, the Chief Administrative Law Judge, on behalf of the Governor and Commissioner, referred the motion for recusal and attorney Wolfe's other requests for relief (as set forth in his June 23, 1995 filing) to me for disposition.
The June 23, 1995 Wolfe Filing
The June 23, 1995 filing of Mr. Wolfe (the "Wolfe filing") evidences his misapprehension of the record in this proceeding. Attorney Wolfe has misconstrued or ignored the June 2, 1995 order. The Wolfe filing failed to provide any response to information items (1) and (3) identified in my June 2, 1995 order, and provided an inadequate response to item (2). Instead, the Wolfe filing seeks written confirmation of an oral order made by the ALJ during the August 5, 1993 combined legislative hearing and issues conference, a Demand for my recusal and a Demand that the identity of purported ex parte informants be revealed.
Additionally, attached to the June 23, 1995 filing is a May 13, 1995 letter (Wolfe to Silliman and Murphy) consisting of one page, outlining attorney Wolfe's summary of the May 11, 1995 meeting with Staff and Applicant concerning the project.
Responsive Filings of Staff and Applicant
Both Staff and Applicant responded to the Wolfe filing by letters dated July 13, 1995. Staff and Applicant refute attorney Wolfe's assertions, oppose the recusal motion and seek an order rejecting the need for an adjudicatory hearing and remanding this matter to Staff for issuance of a water quality certification consistent with the settlement offer provided under cover of Staff's April 13, 1995 letter to this Office.
Staff's July 13, 1995 filing identifies eight potential issues in the Wolfe filing:
- notice of hearing and forum selection;
- sludge deposition in Beaver Lake;
- impact upon ice formation and characteristics;
- need for environmental impact statement;
- use of herbicides;
- water level fluctuations in Beaver River
- Beaver River Fund;
- enforceability at Eagle River.
Staff, without conceding that any adjudicable issues are presented by the Wolfe filing, asserts that potential issues 2,5,6,7 and 8 are resolved by the five understandings enumerated in the May 25, 1995 letter, together with the settlement offer. However, Applicant states that it offered the five understandings conditioned upon Mr. Wolfe and his clients agreeing to either sign or not oppose the settlement offer. In light of Mr. Wolfe's continued opposition to issuance of the Water Quality Certification, Applicant states it will withdraw its side letter offer.
The Wolfe Motions
Mr. Wolfe asserts that the issues conference ALJ ordered that all factual proceedings be held in Lowville, New York. He also asserts that the ALJ ordered that Wolfe be granted subpoena power; and that he be granted power of discovery and time to interview witnesses. In fact, the issues conference ALJ stated that any hearing that will be held on the Beaver River project would be held in Lowville, New York. The ALJ further stated that prior to any such proceeding, attorney Wolfe would have subpoena power and be entitled to discovery pursuant to the Department's permit hearing regulations, 6 NYCRR Part 624 (eff. July 14, 1985 through January 8, 1994). (Issues Conference Transcript, pps. 68-69).
Mr. Wolfe has misconstrued the issues conference ALJ's statement. That statement was conditional; i.e., a hearing would be held in Lowville, in the event any hearing was scheduled. Further, the ALJ simply assured attorney Wolfe that in the event an adjudicatory hearing was scheduled, Wolfe would be entitled to discovery and would have subpoena power as set forth in the Department's permit hearing regulations. (6 NYCRR Part 624 [eff. July 14, 1985 through January 8, 1994]).
Regarding ex parte communications and recusal, Mr. Wolfe asserts that my June 2, 1995 order indicates improper communication between Staff and myself. However, the paragraphs he cites in support of his requested relief are taken out of context and misconstrued. It is clear in reading the order, that I was summarizing Staff's position as set forth in a May 25, 1995 letter, prepared by Staff attorney Keith Silliman. (Silliman to Casutto, May 25, 1995). The letter's distribution list indicates it was provided to all persons identified on the distribution list for this proceeding, including Mr. Wolfe. The paragraphs cited by Mr. Wolfe indicate by their own terms that they are a summary of Staff's position, yet Mr. Wolfe mistakenly attributes that position to me.
Further, attorney Wolfe failed to provide any meaningful response to the three areas of inquiry which I directed him to address, by the June 2, 1995 order. He has not provided any indication whether the five enumerated understandings summarized in Staff's May 25, 1995 letter resolve any or all concerns of his clients, Schaab and Getman; nor has he confirmed his continuing representation of Schaab and Getman (or others he initially represented in this proceeding).
Proposed Adjudicatory Issues
A Departmental adjudicatory hearing is intended to address "substantive and significant issues relating to any findings or determinations the department is required to make. . . " ECL 70-0119(1); See, also, 6 NYCRR 624.6(c) (eff. July 14, 1985 through January 8, 1994). "Substantive" means that the issue is not based on mere speculation, but on facts that can be subjected to adjudication. (In the Matter of Concerned Citizens Against Crossgates v. Flacke, 89 AD2d 759 [Third Dept., 1982], aff'd., 58 NY2d 919 [1983]); "Significant" means that the outcome can result in permit denial or the imposition of significant permit conditions (See, In the Matter of NYC Dept. of Environmental Protection, Chelsea Pumping Station, Third Interim Decision of the Commissioner, October 6, 1988). These definitions have been codified in the current regulation. See, 6 NYCRR 624.4(c) (eff. January 9, 1994).
The Wolfe filing completely ignores the settlement offer under review, making no reference to it or the five understandings offered by Applicant. Nor does attorney Wolfe provide supporting documentation or legal justification for any proposed issue summarily identified in the filing. For example, he has previously identified concerns regarding water level fluctuations in Beaver River and sludge deposition in Beaver Lake. Yet, the Wolfe filing totally ignores provisions of the settlement offer addressing minimum flow requirements and reservoir fluctuations. He has provided no offer of proof to show that a substantive and significant issue is raised regarding either water level fluctuations in Beaver River or sludge deposition in Beaver Lake.
Although attorney Wolfe has expressed credible concern over these issues, concern does not rise to the level to warrant adjudication. In proposing an issue for adjudication, an offer of proof must go beyond an expression of concern, and provide a basis upon which those concerns can be adjudged. In the Matter of the Applications of Ogden Martin Systems of Onondaga, Inc., et al., Interim Decision of the Commissioner, May 4, 1992; Halfmoon Water Improvement Area No. 1, Decision of the Commissioner (April 2, 1982).
Mr. Wolfe has failed to identify any substantive and significant issue with respect to the Beaver River Water Quality Certification, as modified by the settlement offer.
In sum, the record of this proceeding shows that attorney Wolfe has ignored repeated notices and inquiries from Staff seeking his participation in a lengthy settlement process involving numerous participants. Nonetheless, the June 2, 1995 order provided Mr. Wolfe with an opportunity to state his position regarding the settlement offer. Mr. Wolfe has provided an incomplete and insufficient response to the June 2, 1995 order which demonstrates either an unwillingness or inability on his part, to participate meaningfully in this proceeding.
Rulings
- Since the assertions by Ernest J. Wolfe, Jr., Esq. of ex parte communication and ALJ bias are unfounded, his motions for recusal and identification of "ex parte informants" must be denied.
- Ernest J. Wolfe, Jr., Esq. has failed to identify any substantive and significant issue requiring adjudication with respect to the above referenced Water Quality Certification application, as modified by the settlement offer.
Order of Disposition
The settlement offer is approved. The application for Water Quality Certification for the Beaver River Project is remanded to Staff for issuance of the certification. Although Applicant has indicated its reluctance to voluntarily offer the five understandings identified in Staff's May 25, 1995 letter, I strongly encourage Applicant to reconsider that position.
Appeals
This proceeding is governed by 6 NYCRR Part 624, in effect from July 14, 1985 through January 8, 1994. Although these regulations do not specifically address appeal of ALJ rulings on a recusal motion, using the current 6 NYCRR Part 624 as guidance, I authorize such appeal in this matter. See, 6 NYCRR 624.8(b)(2) (eff. January 9, 1995).
These rulings may be appealed to the Commissioner. Any appeals must be received at the Commissioner's office no later than August 30, 1995. The parties may file responses to the appeals no later than September 11, 1995. Copies of all appeals and responses must be sent to the ALJ and the other parties at substantially the same time and in the same manner as sent to the Commissioner.
/s/
Kevin J. Casutto
Administrative Law Judge
DATED: August 18, 1995
Albany, New York
TO: Distribution List
