Woolen Mill Associates v. Federal Energy Regulatory Commission

Citations: 286 U.S. App. D.C. 367; 917 F.2d 589Docket: Nos. 89-1388, 89-1389

Court: Court of Appeals for the D.C. Circuit; October 29, 1990; Federal Appellate Court

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Woolen Mill Associates (WMA) seeks judicial review of orders from the Federal Energy Regulatory Commission (FERC) that (1) licensed the City of Burlington Electric Department and the Winooski One Partnership to construct and operate a hydroelectric project on the Winooski River, and (2) certified the project as a Qualifying Small Power Production Facility. Initially, Burlington applied for a license in 1980 to refurbish an existing dam, later forming an agreement with the Partnership for the Chace Mill Hydroelectric Project, culminating in an amended application in 1986. The revised plans involved significant structural changes to the dam. Following public notification in August 1987, WMA opposed the license, citing concerns from local residents. Despite these objections, FERC issued the license on November 3, 1988, and subsequently denied WMA's petition for rehearing in April 1989. WMA also opposed the project's certification under the Public Utilities Regulatory Policies Act (PURPA) and was granted intervention in that proceeding; however, its rehearing petition was similarly denied. WMA's review petitions challenge the licensing orders on the basis that the Commission's public interest finding lacks evidentiary support and that WMA was denied due process due to the absence of a hearing and discovery opportunities. The court finds these claims unpersuasive.

WMA challenges the Commission's determination that the Chace Mill project serves the public interest under the Federal Power Act. The Act allows the Commission to license dam construction on navigable streams, requiring that projects align with comprehensive plans for waterway development and public benefits such as energy generation, environmental protection, and recreational use. The Commission concluded, based on an Environmental Assessment, that the Chace Mill facility would meet energy demands, conserve nonrenewable resources, and reduce pollution by displacing fossil fuel power. Additionally, it projected economic savings of $603,000 annually compared to alternative energy sources, with no significant adverse environmental impact or effect on WMA’s rental income. These findings are supported by substantial evidence, leading to the decision not to review the public interest conclusion.

WMA also claims due process violations due to the lack of a hearing and discovery. The Commission has discretion over whether to hold hearings, and denying a hearing is not an abuse of discretion when no material facts are disputed. WMA failed to provide sufficient evidence of disputed facts, and the record does not contradict the Commission's findings. Furthermore, WMA had opportunities to present evidence during the proceedings. Regarding discovery, WMA's requests for documents did not comply with the Commission's established Freedom of Information Act procedures, undermining its claim of deprivation. Thus, WMA's arguments for due process violations are rejected.

The Commission's handling of WMA's requests, while not accommodating, does not constitute reversible error. The Court declines to review the Commission's orders regarding the Chace Mill project and its certification as a Qualifying Small Power Production Facility under Section 210 of PURPA, amended by ECPA. This section allows certification of small hydroelectric plants without new dam construction. A 'new dam' is defined as requiring construction or enlargement of any impoundment or diversion structure, excluding repairs or the addition of adjustable devices. The Commission determined that the new concrete abutment and enlarged impoundment do not qualify as a 'new dam' because the abutment is considered 'reconstruction' and the enlargement involves adjustable bascule gates akin to flashboards. WMA argues that either the abutment or the enlarged impoundment qualifies as a 'new dam,' but legislative history indicates that the Commission has the authority to make such determinations on a case-by-case basis. The Commission's classification of the facility as existing rather than new was reasonable, as was its interpretation of bascule gates as adjustable devices. WMA's contention that bascule gates are not similar to flashboards due to their non-removable nature is unfounded, as the statute does not require similarity to include removability. Consequently, the Commission's orders are based on a permissible interpretation of the definition of 'new dam,' and the petitions for review are denied.

In 1954, a flood removed the top eight feet of a structure. An Environmental Assessment revealed several key findings: (1) The New England Power Pool anticipated average annual growth rates of 2.7% for summer peak demand and 1.7% for annual energy requirements, noting that power from the Chase Mill project would partially meet this demand and decrease fossil fuel use; (2) Proposed construction would not negatively impact the rental income or long-term rental value of WMA's building; and (3) Issuing a license for the project would not significantly affect the human environment. The Safety and Design Assessment indicated that the projected long-term levelized cost of alternative energy in the region is approximately 126.9 mills per kilowatt hour, while the project’s estimated levelized cost is 99 mills per kilowatt hour, yielding an annual economic benefit of about $603,000. Two letters dated May 23 and May 31, 1988, requested documentation related to the 'need for power' section of the Environmental Assessment and studies supporting the claim regarding the aesthetic qualities of rental units in the Forest Hills Mill apartments. Additionally, a new dam may be certified if it meets specific requirements, referencing 16 U.S.C. 824a-3(j)(1) and the case The Steamboaters v. FERC, which upheld a determination regarding the classification of dams.