959 F.2d 508 (4th Cir. 1992), 91-2905, Sugarloaf Citizens Ass'n v. F.E.R.C.
| Citation | 959 F.2d 508 |
| Party Name | SUGARLOAF CITIZENS ASSOCIATION; Karen Kalla; J. Houston Miller; Beverly Thoms; James Buchanan; Faye Buchanan; Taylorstown Community Association, Incorporated; National Trust for Historic Preservation in the United States, Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Northeast Maryland Waste Disposal Authority; Montgomery County |
| Case Date | March 13, 1992 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Fourth Circuit |
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Argued Oct. 29, 1991.
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Andrea Carol Ferster, Asst. Gen. Counsel, Nat. Trust for Historic Preservation in the U.S., Washington, D.C., argued (David A. Doheny, Vice President and General Counsel, Elizabeth S. Merritt, Associate General Counsel, Nat. Trust for Historic Preservation in the U.S., Ronald J. Wilson, Sierra Club Legal Defense Fund, on brief), for petitioners.
Thomas J. Lane, F.E.R.C., Washington, D.C., argued (William S. Scherman, General Counsel, Jerome M. Feit, Sol., Joseph S. Davies, Deputy Sol., F.E.R.C., on brief), for respondent.
Mary Fisher Edgar, Piper & Marbury, Washington, D.C., argued (Toni K. Allen,
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Norman L. Rave, Jr., Piper & Marbury, Washington, D.C., Paul A. Tiburzi, Piper & Marbury, Baltimore, Md., on brief), for intervenor Northeast Maryland Waste Disposal Authority (Joyce R. Stern, County Atty., Diane R. Kamer, Associate County Atty., Montgomery County, Rockville, Md., on brief), for intervenor Montgomery County.
Before HALL and MURNAGHAN, Circuit Judges, and HARVEY, Senior United States District Judge for the District of Maryland, sitting by designation.
OPINION
ALEXANDER HARVEY, II, Senior District Judge:
This appeal seeks a review of Orders of the Federal Energy Regulatory Commission (the FERC). By Order dated November 1, 1990, the FERC granted the application of the Northeast Maryland Waste Disposal Authority (the "Authority") which sought certification of a resource recovery facility (the "Facility" or "Incinerator") as a qualifying small power production facility (qualifying facility or "QF") under § 210 of the Public Utility Regulatory Policies Act (PURPA), 16 U.S.C. § 824a-3. By Order dated January 24, 1991, the FERC denied rehearing.
As intervenors in the FERC certification proceedings, 1 Petitioners, the Sugarloaf Citizens Association, Karen Kalla, J. Houston Miller, Beverly Thoms, James and Faye Buchanan, the Taylorstown Community Association, and the National Trust for Historic Preservation, had requested that the FERC conduct a review of the environmental impact of the Facility under the National Environmental Policy Act ("NEPA") and also of the impact of the Facility on historic structures under the National Historic Preservation Act ("NHPA"). The FERC denied these requests in its Order of November 1, 1990, ruling that certification under PURPA was neither a "major Federal action," triggering review under NEPA, nor a federal "undertaking," triggering review under NHPA. Petitioners subsequently filed a petition for a rehearing, which was also denied.
Concluding that the agency determinations were reasonable under all the circumstances, we affirm the Orders of the FERC.
I
In order to address its solid waste disposal problems, Montgomery County planned the construction of a waste-to-energy facility which would preserve resources by producing energy without consuming natural resources. The County decided to locate the Facility in Dickerson, Maryland, adjacent to an existing generating station operated by Potomac Electric Power Company ("PEPCO"). To help defray the cost of waste disposal, the Facility was designed to utilize the heat produced by incinerating waste to generate electricity which would be sold to PEPCO.
The Facility was to be owned and operated by the Authority. The Authority is an independent state agency created by the Maryland General Assembly in 1980 to assist jurisdictions like Montgomery County in the development of adequate waste disposal facilities, including those that provide for energy generation and resource recovery. The Facility was to be constructed and operated by the Authority in cooperation with the County.
Petitioners assert that Dickerson, Maryland, the planned location of the Incinerator, is an environmentally sensitive and historically unique region. The 35-acre site near Dickerson lies in Montgomery County's Agricultural Preserve, which includes the Sugarloaf Mountain Historic District. Sugarloaf Mountain is a registered National Natural Landmark. In asking the FERC to review the application under NEPA and NHPA, Petitioners expressed concerns that the Incinerator, in conjunction with the existing
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generating station operated by PEPCO, would severely impact upon the historical, cultural, and recreational resources in the area. They press those arguments here.
II
PURPA was enacted by Congress in 1978 for the purpose of encouraging the development of cogeneration facilities 2 and small power production facilities. To encourage this development, PURPA confers certain benefits on this type of facility. 16 U.S.C. § 824a-3. Qualifying facilities are exempt from most federal and state regulation of electric utilities. Moreover, a utility like PEPCO must provide electricity to such a facility and buy from such a facility electricity generated, at reasonable rates not to exceed "the incremental cost to the electric utility of alternative electric energy," pursuant to rules determined to be necessary by the FERC for the encouragement of cogeneration and small power production. 16 U.S.C. § 824a-3(b).
To achieve status as a "qualifying facility" and thereby receive PURPA benefits, a cogeneration or small power production facility cannot be owned by a person "primarily engaged in the generation or sale of electric power (other than electric power solely from cogeneration facilities or small power production facilities)" and the facility must meet "such [other] requirements ... as the Commission may, by rule, prescribe." 16 U.S.C. §§ 796(17)(C) and (18)(B). The FERC has adopted extensive rules pursuant to this Congressional directive. See 18 C.F.R. § 292.203 through § 292.206 (1990). These rules detail the size and ownership restrictions set forth in PURPA and contain technical requirements concerning the types of fuel that may be used for a small power production facility. 18 C.F.R. § 292.204 (1990). Specifically, any facility that (1) has a power production capacity of less than 80 megawatts, (2) obtains 75 percent or more of its energy input from biomass, waste or renewable or geothermal resources, and (3) is not more than 50 percent owned by one or more electric utilities or electric utility holding companies is a qualified small power producer. 18 C.F.R. §§ 292.204, 292.206 (1990).
So that the proposed Facility might qualify for benefits under PURPA, the Authority and PEPCO agreed by contract that the Authority would apply to the FERC for certification as a qualified small power producer. Certification is an optional procedure permitted by FERC regulations, whereby, upon application, the FERC will issue a certificate stating that a facility meets the criteria set forth in the regulations for a qualified small power producer. 18 C.F.R. § 292.207(b). However, the FERC regulations permit a facility to choose to by-pass the procedure for certification by the FERC and instead opt for self-certification. 18 C.F.R. § 292.207(a)(1). The regulations state that "[a] small power production facility which meets the criteria for qualification set forth in § 292.203 is a qualifying facility." Id. (Emphasis added).
On July 25, 1990, the Authority filed an application with the FERC setting forth grounds demonstrating that the Facility would meet the size, fuel use and ownership criteria for certification. Petitioners intervened on August 27, 1990, claiming that PURPA certification is subject to the requirements of NEPA, 42 U.S.C. §§ 4321 et seq., and also to the requirements of NHPA, 16 U.S.C. §§ 470 et seq. The County intervened in support of the application. Petitioners argued that, under NEPA and NHPA, the FERC was required before granting the requested certification to conduct detailed evaluations of the Facility's potential impact on the environment and also its potential effect on historic sites. In its Order of November 1, 1990, the FERC granted certification to the Facility, ruling that certification under PURPA is neither a "major Federal action" which would trigger the review requirements of
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NEPA nor a federal "undertaking" which would trigger those of NHPA. After their motion for rehearing was denied, Petitioners appealed and have now asked this Court to review the FERC's determinations. The FERC has opposed the petition for review, and has been joined in this appeal by the County and the Authority as Intervenors.
III
This Court has jurisdiction to review orders of the FERC under Section 313(b) of the Federal Power Act (FPA), 16 U.S.C. § 825l(b). Section 313(b) of the FPA provides that "the findings of the Commission as to the facts, if supported by substantial evidence, shall be conclusive." Thus, this Court may set aside FERC's Orders only if we conclude that they are unsupported by substantial evidence. Appomattox River Water Authority v. F.E.R.C., 736 F.2d 1000, 1002 (4th Cir.1984). The parties dispute the standard to be applied to an agency determination that its action is not a "major Federal action." However, the cases cited by both sides indicate that when an agency makes the threshold determination that its actions do not constitute a "major Federal action," the question concerning the...
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