For the reasons discussed below, we will grant Southern's application. Notice and Intervention Notice of Southern's filing was issued December 10, 1990, and was published in the Federal Register on December 19, 1990 (55 Fed. Reg. 52,082). The 45-day protest period expired on January 24, 1991.4 Arcadian Corporation (Arcadian) filed a timely motion to intervene and a protest. Southern filed an answer in opposition to Arcadian's motion to intervene and a petition for waiver of section 284.223(a) of the Commission's regulations.5 Answers to protests are prohibited unless otherwise ordered by the decisional authority." Because Southern's answer does not contain any material information necessary to support our determination in this order, we will not admit the answer. Background Air Products owns an anhydrous ammonia plant located in New Orleans, Louisiana. Southern and Air Products executed a service agreement dated September 19, 1990 (Service Agreement), pursuant to which Southern provides firm transportation for up to 15,000 Mcf of natural gas per day (5,475,000 Mcf per year). Southern commenced transportation for Air Products on October 1, 1990, in accordance with the automatic 120-day authorization of section 284.223(a) of the Commission's regulations. The 120-day self-implementing period for this service expired on January 28, 1991. Because a protest remained outstanding on that date, Southern was required to cease transporting for Air Products; however, resumption of the service was authorized by the Commission's order of March 1, 1991. Arcadian alleges that Southern's direct service to Air Products constitutes unlawful discrimination because Southern has refused to provide direct transportation service for Arcadian. It claims that it is a similarly situated shipper, in that both are industrial end-users located on Southern's pipeline system, both use natural gas for the production of anhydrous ammonia, and both are connected to a local distribution company. Arcadian asks the Commission to deny Southern's prior notice request and to treat it as an application for certificate authorization pursuant to section 7(c) of the Natural Gas Act (NGA). Arcadian argues that Southern should not be permitted to provide the service to Air Products until it has satisfied Arcadian's outstanding request for the same kind of service. Arcadian also requests an evidentiary hearing to resolve the issues it raises. We are denying Arcadian's request for a hearing in this proceeding because the same allegations of undue discrimination are being considered by the commission in Docket No. CP90-1391-000 in response to a complaint filed by Arcadian on May 17, 1990, against Southern. We are also denying Arcadian's protest because Southern's blanket transportation service for Air Products is required by the public convenience and necessity. Section 157.205 of the Commission's regulations provides that if a protest is filed in a proceeding pursuant to section 284.223(b) and is not withdrawn or otherwise resolved, the request will be treated as an application for section 7 authorization. However, because we are denying Arcadian's protest and in view of our general policy of not granting case-specific section 7(c) transportation certificates for services that may be rendered under a pipeline's blanket certificate,10 we will authorize Southern to provide the transportation services described in its prior notice request under its Part 284 blanket transportation certificate, as proposed. This proposal qualifies as a categorical exclusion from otherwise required environmental assessments and impact statements pursuant Before Commissioners: Martin L. Allday, Chairman; Charles A. Trabandt, On November 20, 1990, the Commission Contrary to Enviro Hydro's argument, these issued an order denying Enviro Hydro's appeal of the dismissal of its license application for Wallace Canyon Creek Water Project No. 7941, to be located in Placer County, California, within Eldorado National Forest. The Director, Office of Hydropower Licensing (Director), dismissed the application because Enviro Hydro had not informed the Commission within 90 days of the denial of water quality certification for the project of what action it had taken in response to that denial. On appeal, the Commission held that Enviro Hydro had not made an adequate showing of good cause to waive the 90-day deadline. In a timely request for rehearing, Enviro Hydro argues that there is, in fact, good cause to waive the deadline and that the Commission should, therefore, grant rehearing and reinstate its application. In support of its request, Enviro Hydro argues that it has diligently pursued water quality certification for the project and has expended considerable resources in doing so; that all revisions to the project were made in response to requests by the California State Water Resources Control Board (State Water Board) and that there were no "additions" to the project; that the State Water Board has violated its civil rights in another case, prompting it to file suit against the Board; that the 90-day time limit is not a mandate; and that it relied on Commission staff advice in telefaxing a May 14, 1990 letter which it alleges met the 90-day requirement.2 11 18 C.F.R. § 380.4(22) (1990). 1 53 FERC 61,214 (1990). 2 As we noted in our November 20, 1990 order, the letter in question did not state that Enviro Hydro had appealed the March 8, 1990 certification denial or had filed a new certification request. Thus, it did not meet the 90-day requirement, and the fact that Enviro Hydro may have relied on Commission staff advice regarding the method of filing is irrelevant. assertions are insufficient to establish a showing of good cause for waiving the 90-day requirement in the circumstances of this case. As we made clear in our order of November 20, 1990, the Director's March 28, 1990 letter put Enviro Hydro on notice that it had 90 days within which to advise the Commission that it had either appealed the certification denial or reapplied for certification; otherwise, its application would be dismissed. Instead of heeding this warning, Enviro Hydro waited until several weeks after the Director actually dismissed its license application to reapply for water quality certification for the project. The fact that the State Water Board requested the project revisions that led to the need for a new water quality certification does not justify Enviro Hydro's failure to appeal the certification denial or to reapply for certification. It is irrelevant why the project was modified or whether any "additions"3 were made; what is important is that the State Water Board determined that the modified project would involve a new discharge requiring a new certification. Enviro Hydro has since reapplied for certification and, presumably, could have done so before, rather than after, the Director dismissed its license application.4 Finally, the relevance to this case of Enviro Hydro's difficulties with the State Water Board in another case, prompting it to file suit against the Board, is not readily apparent. 3 Enviro Hydro asserts that, contrary to the Commission's statement, there were no "additions" to the project. We are unable to locate any Commission statement to that effect. Nevertheless, as noted above, it is irrelevant to the issue of whether the modified project would involve a new discharge requiring a new certification. 4 Enviro Hydro reiterates its argument that it showed diligence in its efforts to respond to the State Those difficulties are not described in any significant detail, leaving us to speculate about what bearing they might have (if any) on this case. In any event, Enviro Hydro has not suggested that those difficulties would have prevented it from reapplying for water quality certification before, rather than after, the Director dismissed its license application. For all the foregoing reasons, Enviro Hydro has not demonstrated that it was diligently pursuing water quality certification for the project. In these circumstances, there is no basis for a finding of good cause to waive the 90-day requirement. The Commission orders: The request for rehearing in this proceeding of Enviro Hydro, Inc. is denied. Commissioner Trabandt dissented with a separate statement attached. Commissioner Langdon concurred with a separate statement attached. Charles A. TRABANDT, Commissioner, dissenting. I dissented to the majority's November 20, 1990 order denying appeal because I believe that strictly adhering to the 90-day requirement articulated in City of Harrisburg, Pennsylvania, 45 FERC ¶ 61,053 (1988) is simply too harsh given the competing interests involved in this and similar proceedings. The majority, in the instant order, has adopted a "strict" policy of requiring a license applicant who has been denied water quality certification to file its appeal of that denial or new certification request within 90 days of the denial. from the California State Water Board. Enviro Hydro, Inc. (Enviro) has done much to comply with the Commission's regulations. It has a singular problem with the State Water Board and has made attempts to resolve differences with the Board.' Indeed, it "undertook the cost and expense of reapplying to the Water Board" for water quality certification. See, request for rehearing of order at 3. As I pointed out in my previous dissent, the 90-day requirement was instituted to give the Director of the Commission's Office of Hydropower Licensing a reference when he periodically reviews the status of pending applications. If, after 90 days from the date of 401 certificate denial, the Director finds nothing in the application file to indicate further pursuit of the 401 certificate, the Director is free to assume that the applicant has given up pursuit of its Commission license as well. This policy was to serve an administrative need to have only "live" applications on file at the Commission, thereby reducing the chance that staff would waste man-hours on applications that were not being appropriately pursued. In addition, it cleared the way for other potential applicants who, presumably, would be more ready, willing, and able to file and pursue a clean and more complete application on the site. There is not even a hint of that possibility in the instant case. In its request for rehearing, Enviro points out that it has "engaged continuously and diligently for the past several years in attempting to meet a never-ending set of obstacles interposed by the California State Water Resources Control Board." Why, then, do we expect others to have an easier time in meeting the "challenge" of acquiring water quality certification from the State Water Board for this site?2 If we don't, why is the majority adopting such a strict policy in the instant case? This decision certainly clarifies [The next page is 61,909-3.] There is much that an applicant must go through in order to secure an acceptable license application at the Commission. There also appears to be much an applicant must go through to acquire water quality certification (Footnote Continued) Water Board's concerns about the economic feasibility of the project, which formed the basis for the Commission staff's inquiry concerning that subject. However, as we noted in our November 20, 1990 order, Enviro Hydro's efforts on this subject do not constitute efforts to work with the Board on developing an adequate certification request. 1 It is instructive to note that Enviro is not the only entity having difficulty obtaining water quality certification from the California State Water Board. Several others have had similar difficulties obtaining certification from the Water Board. See, e.g., Joseph Martin Keating, 47 FERC ¶ 61,170, reh'g denied, 49 FERC 61,343 (1989), rev'd, Joseph M. Keating v. FERC, No. 90-1080, (D.C. Cir. March 8, 1991); North Star Hydro Ltd., June 18, 1990 letter to Pete Bontadelli, Director, State Department of Fish and Game, from Dr. Roy McDonald, General Partner, questioning the propriety of a May 24, 1990 memorandum to the Water Board requesting denial of water quality certification, and any future application for water rights, in order to resolve an apparent property entitlement dispute between the Department of Fish and Game and North Star Hydro Ltd.; J. Mark Nielsen, 50 FERC ¶ 61,367 (1990). 2 There is troubling evidence that Enviro's treatment by the Water Board may be something less than equitable. The California Water Board purportedly has alleged that Enviro's project was not "economically feasible". This allegation is curious for at least two reasons: (1) the allegation "flies-in-the-face" of the facts inasmuch as Enviro had, at the time of this allegation, already secured the necessary financing from a bank, and (2) this, to me at least, seems to be a matter well outside the scope of water quality certification concerns. how the Commission will deal with similar circumstances in the future. Is the Commission really willing to adopt a no exceptions policy in the midst of a national effort to increase generation of electricity from renewable resources, including hydroelectric power. The majority's order answers this question with an unequivocal yes. Clearly, the facts in the instant case show that we have an applicant who wants to construct a 4.5-MW project in California, an area that needs the power. The majority's response in the instant order is to adopt yet another legalistic technicality as an excuse for preventing a potentially worthwhile project from proceeding to a license and, hence, to construction and operation. Strictly adhering to the 90-day requirement will frustrate continued interest in the project due to the lost time and additional costs involved with refiling with the Commission. As I stated before, balancing the interest of ensuring discipline with respect to the Commission's filing procedures and the interest of ensuring an adequate energy supply in regions with clear need compels a different result in the instant case. For these reasons, I dissent. Jerry J. LANGDON, Commissioner, concurring. The Commission's order of March 20, 1991,1 denies Enviro Hydro, Inc.'s request that we waive the 90-day deadline for either appealing the California State Water Resources Control Board's denial of water quality certification or reapplying for certification. The Director's letter of March 28, 1990, explicitly put Enviro Hydro on notice of the 90-day requirement. The fact that Enviro Hydro failed to reapply or appeal during that period makes it difficult for me to support a waiver on the basis of good cause shown. In his dissent, Commissioner Trabandt states that the majority's action here is merely using "yet another legalistic technicality as an excuse for preventing" the project from being licensed (emphasis added). It is possible, of course, to have honest differences of opinion as to what constitutes good cause for waiving the deadline. However, I am puzzled by the ad hominem implication that the other four Commissioners are engaged in some sort of ongoing effort to stifle hydro development. Our track record does not suggest any such motivation, and speaking for myself, I certainly do not have as a goal the stifling of such development. I see no reason why one Commissioner should impute such a motive to others. [¶ 61,316] El Paso Natural Gas Company, Docket Nos. RP88-44-000, RP85-58-017, RP88-202-000, RP89-57-000, CP88-700-000, RP88-184-000, RP89-132-000, RP90-81-000, TM90-3-33-000, CP88-434-000, RP88-185-000, CP88-203-000, CP88-270-000, TA85-1-33-000, TA88-1-33-000, TA88-3-33-000, TQ89-1-33-000, TM89-1-33-000, CP88-244-000, CP89-483-000, CP89-1722-000, CP90-1034-000, CP90-1084-000, CP90-1269-000, CP90-1281-000, CP90-1600-000, CP89-896-000, CP89-1540-000, and CP88-433-000; El Paso Production Company and El Paso Natural Gas Company, Docket Nos. CI87-290-000 and CP87-553-000; People of the State of California, et al. v. El Paso Natural Gas Company and El Paso Natural Gas Company v. Pacific Gas and Electric Company and Order Accepting in Part and Modifying in Part Amended Offer of Settlement (Issued March 20, 1991) Before Commissioners: Martin L. Allday, Chairman; Charles A. Trabandt, I. Background Table of Contents II. Settlement Offer III. Comments on Settlement Offer 154 FERC ¶ 61,315 (1991). |