JUST IN: CT DEEP DENIES NORWALK POWER PETITION TO INTERVENE
March 11, 2022
In brief, the CT DEEP, today, denied NRG, the owner of the Manresa property the right to intervene in these particular proceedings. You can read the entire ruling here.
DENIAL OF PETITION TO INTERVENE
Norwalk Power LLC (“Norwalk Power”) filed a Petition to Intervene (“Petition”) on February 18, 2022, seeking status as an intervening party under General Statutes § 4-177a(a) and § 22a-3a- 6 (k)(1) of DEEP’s Rules of Practice. A portion of the activities covered by the Draft Permit that is the subject of this proceeding are proposed to occur on a part of property currently owned by Norwalk Power, known as Manresa Island. The Petition alleges that as a result of this ownership and certain legal obligations due to that status, Norwalk Power has “a specific, personal and legal interest in the subject matter of this proceeding that may reasonably be expected to be adversely affected if a permit is granted.” The parties, the Department of Transportation (“DOT”) and the Department of Energy and Environmental Protection (“DEEP”) filed objections to the Petition on March 9, 2022. *1
The Petition to Intervene as a party is denied, as fully addressed below.
The Draft Permit & Manresa Island
The Draft Permit authorizes:
The removal of an existing moveable bridge (Bridge No. 04288R), including the superstructure, substructure elements, overhead contact systems, timber pier protection system and deactivate electrical and railroad submarine cables and railroad submarine cables and construct a new four span replacement bridge structure, including a 240-foot vertical lift span. (DEEP-20 p. 1).
In regard to the authorized activities at Manresa Island, the Draft Permit states that Site 10 will be used as an existing dock facility for the assembly of the replacement bridge lift spans and transfer of materials to and from the existing bridge site via barge, including the berthing of construction and material barges and safety vessels, as needed. (DEEP-20 p. 5).
*1 A hearing for Public Comment was held for this matter on February 23, 2022. Norwalk Power did not provide a public comment during the hearing and did not submit a written public comment in this matter. Norwalk Power was advised via email “if the pending intervening party wishes, it may make a public comment during the public comment portion of the hearing regarding its pending motion to intervene.” (Email from Hearing Officer, 2.22.22).
The specific conditions listed in the Draft Permit related to Manresa Island are in regard to the timing of work to allow for nesting osprey to acclimate to construction activities and conditions related to the Peregrine Falcon and Northern diamondback terrapin. (See DEEP-20 p.6). While it is important to highlight what work will occur at Manresa Island, it is also relevant to highlight what work will not occur on Manresa Island in association with this project. The Draft Permit does not allow for any in water work or dredging, or the placement of any structures or fill at the Site waterward of the coastal jurisdiction line. Additionally, based on exhibits previously admitted into the record, DEEP determined that all areas that are proposed for work on site are above any jurisdictional wetlands, and there would be no impact to any freshwater or tidal wetlands. (APP-2.2 p.1-2)
Request for Intervening Party Status
As the petitioner sought intervention under General Statues §4-117a(a) and §22a-3a-6(k)(1)(B) of DEEP’s Rules of Practice, it must state facts in the petition:
“...that demonstrate that the petitioner’s legal rights, duties or
privileges shall be specifically affected by the agency’s decision
in the contested case.” GeneralStatute 4-117a(a).
Additionally, the Rules of Practice provide for intervening party status when the request states facts that demonstrate:
(i) his legal rights, duties or privileges will or may reasonably be expected to be affected
by the decision in the proceeding, (ii) he will or may reasonably be expected to be significantly affected by
the decision in the proceeding, or (iii) his participation is necessary to the proper disposition of the proceeding.
Regs.,Conn. State Agencies § 22a-3a-6(k)(1)(B).
The Parties assert in their objections to the intervention that the Petitioner failed to satisfy the requirements of the statute, by failing to identify a legal right, duty or privilege that will be “specifically affected by the agency’s decision in the contested case.” As the DEEP notes in its objection, merely owning the property where proposed regulated activities will occur is insufficient to convey standing. Instead, there must be some nexus between the proposed regulated activity and a legal right, duty or privilege held by the property owner that is allegedly impacted. On the face of the petition, Norwalk Power does not factually assert, aside from speculative observations how it is specifically affected by the agency’s decision in this contested case. The allegations in the Petition do not appear to contest whether or not the Draft Permit complies with the relevant statutes and regulations that are the subject to this hearing. To clarify the significance of this, this hearing is solely about whether the application for the activities to be regulated complies with the relevant statutes and regulations, and there are no issues within the Petition that invoke the applicable regulatory and statutory schemes relevant in this matter. *2
The issues for this hearing are the following:
While I understand that Norwalk Power may be interested in this proceeding, and might pursue legal claims related to its ownership and control of the property, this hearing is not the venue to pursue such claims. Further, any obligations the Petitioner has under the Transfer Act are outside the scope of this hearing. I can only rule on the allegations put forth, and the Petition on its face must clearly identify how the Petitioner’s legal rights will be specifically impacted by this decision. The Petition fails to do so, and therefore, the petition to intervene as a party must be denied.
While the Petition does not meet the statutory requirements for standing as an intervening party, I nevertheless will address the allegations put forth in the Petition. The petition and the claims described below ultimately fail to establish the nexus between being the site owner and establishing how the work permitted by DEEP will specifically impact its legal rights and failed to state facts which demonstrate that it will or may reasonably be expected to be significantly affected.
Norwalk Power asserts in its Petition that it is the current owner of Manresa Island and as such, it has a specific, personal, and legal interest in the permit that is subject to this hearing. Notably, the Petition acknowledges that DOT intends to acquire parcels of this property through full and partial parcel acquisitions, as well as full or partial parcel construction easements. Therefore, if the Draft Permit is granted, presumably the DOT would have some ownership interest in this property at the time work commenced. Regardless, issues of land disputes are not relevant to this hearing, and the issuance or denial of this permit does not have bearing on land use or ownership issues.
Manresa Island includes a retired oil burning power plant, which Norwalk Power acquired from Connecticut Light and Power Company (CL&P) in 1999. Prior to that acquisition, the plant operated as a coal fired power plant, that was later converted to oil. The Petition states that the property has legacy sitewide soil, groundwater, and sediment conditions that are subject to investigation and/or remediation, and that remediation efforts are underway on the site pursuant to a Remedial Action Plan that has been approved by DEEP. It further states that the entire property is subject to the Transfer Act.