City of Orrville, Ohio v. F.E.R.C., 97-1352

• Citation: 147 F.3d 979
• Decision Date: 30 June 1998
• Docket Number: No. 97-1352,97-1352
• Parties: , Util. L. Rep. P 14,220 CITY OF ORRVILLE, OHIO and Pike Island Hydro Associates, Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 979

147 F.3d 979

331 U.S.App.D.C. 165, Util. L. Rep. P 14,220

CITY OF ORRVILLE, OHIO and Pike Island Hydro Associates, Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent.

No. 97-1352.

United States Court of Appeals, District of Columbia Circuit.

Argued April 10, 1998.

Decided June 30, 1998.

On Petition for Review of Orders of the Federal Energy Regulatory Commission.

Carolyn Elefant argued the cause for the petitioners. Paul V. Nolan was on brief.

Larry D. Gasteiger, Attorney, Federal Energy Regulatory Commission, argued the cause for the respondents. Jay L. Witkin, Solicitor, and John H. Conway, Deputy Solicitor, Federal Energy Regulatory Commission, were on brief. Timm L. Abendroth, Attorney, Federal Energy Regulatory Commission, entered an appearance.

Before: SILBERMAN, HENDERSON and ROGERS, Circuit Judges.

KAREN LeCRAFT HENDERSON, Circuit Judge:

Pike Island Hydro Associates (PIHA) formerly held the permit, and the City of Orrville formerly held the license, for a hydroelectric project at the Pike Island Locks and Dam (the Pike Island project) on the Ohio River. PIHA challenges an order issued by the Federal Energy Regulatory Commission (FERC or Commission) that amends the license for a hydroelectric project at the New Cumberland Locks and Dam (the New Cumberland project)--a project approximately thirty miles upriver of the Pike Island project. See City of New Martinsville, W. Virginia, 73 F.E.R.C. p 62,030 (1995) (hereinafter Amending Order), aff'd on reh'g, 78 F.E.R.C. p 61,304 (1997). Orrville challenges a FERC order that denied it permission to intervene in the administrative proceeding that produced the license amendment. See City of New Martinsville, W. Virginia, 73 F.E.R.C. p 61,241 (1995) (hereinafter Intervention Order), aff'd on reh'g, 78 F.E.R.C. p 61,304 (1997). We dismiss both challenges because we conclude that (1) PIHA is not "aggrieved" by the Amending Order, (2) we lack jurisdiction to consider one of Orrville's claims regarding the Intervention Order and (3) Orrville's other claim is meritless.

I. BACKGROUND

On September 27, 1989 the Commission issued an order authorizing the award of licenses to develop hydroelectric generating facilities at sixteen dams on rivers that collectively constitute the upper Ohio River Basin. See Allegheny Elec. Coop., 48 F.E.R.C. p 61,363 (1989) (hereinafter Licensing Order ), aff'd sub nom. United States DOI v. FERC, 952 F.2d 538 (D.C.Cir.1992). Orrville was awarded the license to construct the Pike Island project. See City of Orrville, Ohio, 48 F.E.R.C. p 61,359 (1989). The City of New Martinsville, West Virginia was awarded the license to build the New Cumberland project. See City of New Martinsville, W. Virginia, 48 F.E.R.C. p 61,360 (1989). New Martinsville's license required it to continuously spill over, around or through the New Cumberland Locks and Dam a minimum of 4,000 cubic feet of water per second (ft 3/sec) from November 1 through June 30 and 15,000 ft 3/sec from July 1 through October 31. See Amending Order, 73 F.E.R.C. p 62,030, at 64,037. While the mandatory spillflows decreased the amount of water available for power generation purposes, they increased the dissolved oxygen (DO) content of the water downstream of the dam, ensuring that downstream DO levels did not fall below 6.5 milligrams per liter (mg/l)--the level below which adverse environmental impacts could be expected. See Licensing Order, 48 F.E.R.C. p 61,363, at 62,327.

On June 18, 1993 New Martinsville asked the Commission to replace the mandatory spillflows required by its license with a more dynamic alternative: real-time monitoring of downstream DO levels, accompanied by mitigative spillflows when needed to prevent levels from falling below 6.5 mg/l. While this request was pending, Orrville surrendered its license for the Pike Island project, effective October 20, 1993, citing an inability to commence construction by the deadline the license imposed. See City of Orrville, Ohio, 64 F.E.R.C. p 62,200 (1993). Shortly thereafter, PIHA applied for and received a preliminary permit for the Pike Island project, effective date February 1, 1994. ¹ See Pike Island Hydro Assocs., 66 F.E.R.C. p 62,065 (1994). The permit was issued for a period of three years, expiring "either 36 months from the effective date or on the date that a development application which is accepted for filing is submitted by the permittee, whichever occurs first." Id. at 64,173.

Subsequently, the Commission allowed PIHA to intervene in the ongoing administrative proceeding regarding New Martinsville's license, and, acceding to PIHA's request, the Commission declared the commencement of a formal amendment proceeding. Consistent with 18 C.F.R. § 2.1(a)(1)(iii)(C) (1997) and the requirements of the Federal Power Act, 16 U.S.C. § 797(e), the Commission advertised the license amendment proceeding by publishing the following notice:

Article 402 of the project license requires a continuous mitigative spillflow release of 15,000 cubic feet per second from the project during the period from July through October, to ensure maintenance of 6.5 milligrams per liter of dissolved oxygen (DO) throughout the downstream pool. The City of New Martinsville requests to substitute real-time monitoring and project operation adjustments to detect and alleviate low DO concentrations in the Ohio River downstream from the project for the continuous spillflow requirement.

Hydroelectric Applications, 60 Fed.Reg. 19,905, 19,909 (1995). The notice was published in the April 21, 1995 edition of the Federal Register and the May 3, 1995 editions of two newspapers located in the vicinity of the New Cumberland project. The notice also alerted parties wishing to intervene in the proceeding and/or comment on the proposed amendment to do so by June 2, 1995. Id.

The Commission subsequently determined that the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. (NEPA), required preparation of an Environmental Assessment (EA) before action could be taken on New Martinsville's application for a license amendment. Thus, on July 26, 1995 the Commission issued a draft EA with a request for comments, followed by a notice in the August 1, 1995 edition of the Federal Register:

A draft environmental assessment (DEA) is available for public review. The DEA is for an application to amend the license for the New Cumberland Hydroelectric Project. The application is to reduce the spillflow requirement at the project....

Notice of Availability of Draft Environmental Assessment [Project No. 6901-026 West Virginia], 60 Fed.Reg. 39,164 (1995).

PIHA commented on both the proposed license amendment and the draft EA. In September 1995 it submitted additional comments on the draft EA, analyzing certain technical data New Martinsville had failed to provide it with earlier. ² In a letter to the Commission dated September 13, 1995, PIHA complained about this and other lapses by New Martinsville in serving it with copies of documents and data submitted in support of the proposed license amendment. See Letter from Dunlevy to Secretary Cashell of 9/13/95. PIHA also noted that New Martinsville, in violation of 18 C.F.R. §§ 385.2005, 385.2010 (1997), had yet to serve PIHA with a copy of certain data submitted to the Commission and requested that the amendment proceeding be held in abeyance until PIHA was provided with a copy of, and given an opportunity to comment on, the data. Id.

While the document containing the data PIHA sought was placed in the public record on October 4, 1995, the Commission did not respond to PIHA's letter or mail it a copy of the document until November 16, 1995--exactly one month after the Director, Division of Project Compliance and Administration, issued an order approving amendment of New Martinsville's license consistent with the recommendations contained in the final EA. See Amending Order, 73 F.E.R.C. p 62,030, at 64,037-71. The final EA examined three options: (1) a "no-action" alternative, leaving the spillflow requirements of the license unchanged, (2) a licensee alternative, requiring real-time monitoring of DO levels and corrective spilling whenever downstream DO levels fell below 6.5 mg/l, and (3) a FERC alternative, mandating year-round spillflows of 4,000 ft3/sec along with continuous real-time monitoring of downstream DO levels and mitigative spilling whenever necessary to keep DO levels above 6.5 mg/l. Id. at 64,038. Because it appeared to provide the greatest assurance that downstream DO levels would not fall below 6.5 mg/l, the final EA recommended adoption of the FERC alternative. Id. The final EA did not consider the cumulative impact of each of the alternatives on development of the Pike Island project, noting that no license or license application for the project was then outstanding and observing that "preliminary hydropower permits do not constitute reasonably foreseeable actions and, therefore, cannot be given the same attention as license applications, amendments, or existing projects." Id. at 64,047-48.

Unhappy with this result, on November 15, 1995 (the day before a copy of the New Martinsville data was mailed to it) PIHA requested rehearing by the Commission, asserting five grounds for reversal of the Division Director's order. That same day, Orrville simultaneously moved to intervene and also requested rehearing. ³ In support of its intervention motion, Orrville argued that the notices of the amendment proceeding failed to apprise it (and other members of the interested public) that the amendment would adversely affect the development and operation of the Pike Island project. Further, it argued that since surrendering the license for the Pike Island project in 1993, its interest in the project had been revived, both by a fire and explosion in 1995 that damaged its sole generating facility and by proposed legislation that would allow it to seek reinstatement of its...