Bangor Hydro-Elec. Co. v. Board of Environmental Protection

• Decision Date: 30 July 1991
• Docket Number: HYDRO-ELECTRIC
• Citation: 595 A.2d 438
• Parties: BANGORCOMPANY, ET AL. v. BOARD OF ENVIRONMENTAL PROTECTION.
• Court: Maine Supreme Court

Page 438

595 A.2d 438

BANGOR HYDRO-ELECTRIC COMPANY, ET AL. v. BOARD OF ENVIRONMENTAL PROTECTION.

Supreme Judicial Court of Maine.

Argued May 1, 1991.

Decided July 30, 1991.

Michael E. Carpenter, Atty. Gen., Thomas Harnett, Asst. Atty. Gen. (orally), Augusta, for appellant.

Jeffrey D. Thaler, Berman, Simmons & Goldberg, Lewiston, Joanne Freund Lesher, Boston, Mass., Todd R. Burrowes, Falmouth, for Amici Curiae Conservation Law Foundation, Maine Audubon Soc.

Robert G. Dreher, Deborah S. Smith, Sierra Club Legal Defense Fund, Inc., Washington, D.C., for amici curiae Atlantic Salmon Federation, American Rivers, and Sierra Club.

Virginia E. Davis (orally), John P. McVeigh, Joseph Donahue, Preti, Flaherty, Beliveau & Pachios, Augusta, for appellee.

Gordon H.S. Scott (orally), Eaton, Peabody, Bradford & Veague, Augusta, for Nat. Hydropower Assoc.

William Laubenstein, Sarah Verville, Augusta, for intervenor Central Maine Power Co.

Before ROBERTS, WATHEN, GLASSMAN, CLIFFORD and COLLINS, JJ.

ROBERTS, Justice.

The Board of Environmental Protection (the Board) appeals from a judgment of the Superior Court (Kennebec County, Alexander, J.) vacating the Board's denial of water quality certification for the Milford Hydroelectric Project (the Project) operated by Bangor Hydro-Electric Company (Bangor Hydro) on the Penobscot River. The principal issue on appeal is whether the Board exceeded its authority under the water classification statute, 38 M.R.S.A. § 464(4)(F)(3) (1989), ¹ in seeking to examine the fish passage and recreation facilities planned to meet designated uses, rather than limiting its certification to the Project's compliance with numerical standards for water chemistry. We hold that the Board's requests for information did not go beyond the scope of the water quality standards then applicable to the Penobscot River. 38 M.R.S.A. § 465(4) (1989). ² Bangor Hydro supplied some of this information too late to allow review and never supplied other portions of it. Accordingly, we vacate the judgment of the Superior Court and reinstate the Board's order denying certification without prejudice to Bangor Hydro's right to reapply.

I.

This litigation arises from Bangor Hydro's efforts to obtain a new, forty-year operating license for the Project from the Federal Energy Regulatory Commission (FERC) to replace a license that expired on December 31, 1990. ³ While FERC is the licensing authority under the Federal Power Act, 16 U.S.C.A. § 797(e) (Supp.1991), the state must provide certification of compliance with its water quality standards under section 401(a) of the Federal Water Pollution Control Act, 33 U.S.C.A. § 1341(a)(1986), as a prerequisite to the issuance of a license. State resource agencies also provide consultation to support FERC's decision. See 16 U.S.C.A. § 803(j) (Supp.1991).

In December, 1986 Bangor Hydro began the consultations with state agencies required for FERC relicensing. The Department of Environmental Protection (DEP) commented that the Project currently met the Class C water chemistry standards and that Bangor Hydro should coordinate its impact studies with other agencies. The Atlantic Sea Run Salmon Commission, Department of Inland Fisheries and Wildlife, Department of Marine Resources, and Penobscot Indian Nation expressed continuing concerns about plans for anadromous fish passage facilities and about the impact of the Project on water quality in the Stillwater River. These concerns remained unresolved after Bangor Hydro's second stage of consultation and meetings with the agencies in March, 1988 and November, 1988. The Penobscot Indian Nation also raised concerns about the Project's impact on recreational access to the river. On March 31, 1989 FERC accepted Bangor Hydro's relicensing application for processing subject to the provision that additional information would be furnished within 180 days on thirteen topics identified from state agency comments. Bangor Hydro was required to submit this additional information to the Board as well as to FERC.

On December 28, 1988 Bangor Hydro filed with the Board the application for state water quality certification that led to this appeal. The application relied entirely upon Bangor Hydro's FERC relicensing application to describe planned water quality protection measures. DEP circulated the certification application to the state agencies, which reiterated the concerns they had raised in the FERC consultations. On August 1, 1989 DEP forwarded these agency comments to Bangor Hydro, requesting response within thirty days. After receiving an extension to October 31, Bangor Hydro finally filed its response to the agency comments on November 13, 1989. At the same time Bangor Hydro filed a partial response to the FERC information request, due September 30. In its response Bangor Hydro requested an additional sixty days to provide its plans for fish passage facilities and an indefinite postponement of its study of the Stillwater River.

DEP notified Bangor Hydro that there was insufficient information for water quality certification and insufficient time to review the submittals before certification would be waived under a one year federal deadline. Bangor Hydro declined to withdraw its application and resubmit it to restart the one year review period. On December 13, 1989 the Board met and voted unanimously to deny water quality certification without prejudice to Bangor Hydro's right to reapply. Bangor Hydro filed a timely appeal in the Superior Court where two additional parties, Central Maine Power Company and the National Hydropower Association, were granted leave to intervene on the issue of federal preemption of the Board's authority. The court agreed with Bangor Hydro's arguments and ordered that the Board issue water quality certification. The court also entered a declaratory judgment limiting the scope of certification to the numerical water quality standards of section 465(4)(B). This appeal followed.

II.

The water standards for each class of Maine waters contain three parts: a list of designated uses, a set of numerical criteria for water chemistry (dissolved oxygen and bacteria counts), and a set of narrative criteria on the permissible level of pollutant discharges. See 38 M.R.S.A. § 465(4)(A), (B), & (C). For Class C waters the designated uses include fishing, recreation, and habitat for fish and other aquatic life, in addition to hydroelectric power generation. The statute provides that the waters "shall be of such quality that they are suitable for the designated uses...." Id. § 465(4)(A). Bangor Hydro contends that there is an irrebuttable presumption that waters are "suitable for" their designated uses if they meet the numerical criteria of section 465(4)(B) and that the Board has no charter to inquire whether the designated uses actually exist, or can exist, in a river. We disagree.

In interpreting a statute we seek first to ascertain the real purpose of the legislation, State v. Niles, 585 A.2d 181, 182 (Me.1990), discerning this purpose if possible from the plain meaning of the language. Paradis v. Webber Hospital, 409 A.2d 672, 675 (Me.1979). We cannot conclude that the designated uses included in section 465 are mere surplusage. The level of detail bespeaks a considered determination of the public interest. This legislative determination would be rendered a nullity if the agency responsible for reviewing compliance could consider only the numerical criteria and not whether the designated uses actually were achieved in a particular river. ⁴ Although there may be some ambiguity in the requirement that waters be "suitable for" the designated uses, we conclude that this language contemplates that the designated uses actually be present. Our interpretation is reinforced by the legislative history, which reveals an intent that designated uses "are supported" in water meeting the classification standards. See Report of the Joint Standing Committee on Energy and Natural Resources, on Water Reclassification 6, 10, 80 (March, 1986) (hereinafter Committee Report ).

The classification statute recognizes that all water quality standards may not be achieved at a given time and includes the intent "where water quality standards are not being achieved, to enhance water quality." 38 M.R.S.A. § 464(1) (1989). ⁵ The designated uses provide goals for the state's management of its classified waters. ⁶ We hold that it is proper for the Board to consider such goals in reviewing a forty year license for compliance with the classification standards pursuant to section 464(4)(F)(3). ⁷

We need not decide in this appeal to what extent the Board may condition water quality certification upon measures designed to promote the future attainment of designated uses. In the present posture of Bangor Hydro's application the Board has merely sought information about its planned mitigation measures. Those measures clearly bear on the attainment of the designated uses of fishing, recreation, and fish habitat. Based upon the concerns raised by several agencies on the record, the Board had adequate evidence to support a conclusion that such information should be included in its certification review. See Gulick v. Board of Envtl. Protection, 452 A.2d 1202, 1209 (Me.1982). Because Bangor Hydro did not provide the information within the time allotted for review the Board properly denied certification. Long Lake Energy Corp. v. New York State Department of Envtl. Conservation, 164 A.D.2d 396, ----, 563 N.Y.S.2d 871, 875-76 (N.Y.App.Div.1990).

III.

The arguments of Bangor Hydro and the intervenors that Board action is preempted by FERC's broad jurisdiction likewise is pretermitted by the preliminary nature of the Board's denial. In the overlapping schemes of the Federal Power Act and the Federal Water Pollution Control Act, the Board's veto is confined to the narrow question whether there is a reasonable assurance that the Project will comply with state...