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Epstein v. Susquehanna River Basin Commission

June 9, 2008

ERIC JOSEPH EPSTEIN, PLAINTIFF
v.
SUSQUEHANNA RIVER BASIN COMMISSION AND PPL SUSQUEHANNA, LLC, DEFENDANTS



The opinion of the court was delivered by: Judge Sylvia H. Rambo

MEMORANDUM

Plaintiff Eric Joseph Epstein, proceeding pro se, filed a petition for judicial review of a determination made by Defendant Susquehanna River Basin Commission ("SRBC" or "Commission") regarding proposals for water use submitted to the Commission by Defendant PPL Susquehanna, LLC ("PPL"). Because Plaintiff failed to timely file his petition, Defendants' pending motions to dismiss will be granted.

I. Background

A. Facts

The Susquehanna River Basin Compact ("Compact") is a federal-state compact adopted in 1970 by the United States Congress, after its enactment by the legislatures of Pennsylvania, New York, and Maryland. Pub. L. No. 91-575, 84 Stat. 1509 (1970); see 32 Pa. Cons. Stat. Ann. § 820.1.*fn1 The purpose of the Compact was to create a single entity responsible for the use, management, development, control, and conservation of the waters of the Susquehanna River. See Compact Preamble § 1. The court will describe the administrative framework of the Compact, then relate the facts pertinent to this litigation.

A. The Susquehanna River Basin Compact

The Compact created the SRBC as the entity charged with managing the waters for the benefit of all residents of the Basin. Compact §§ 1.3, 2.1, 3.1. Specifically, the SRBC shall: "develop and effectuate plans, policies, and projects relating to the water resources of the basin;" "adopt and promote uniform and coordinated policies for water resources conservation and management in the basin;" "direct the planning, development, operation, and[,] subject to applicable laws[,] the financing of water resources projects according to such plans and policies." Id. § 3.1.

The SRBC has the sole authority to approve "projects affecting the water resources of the basin," with the exception of certain projects that do not require Commission approval. Id. § 3.10. Upon submission of a proposed project, the SRBC must hold a public hearing regarding the project, preceded by due notice, "with opportunity for interested persons, agencies, governmental units, and signatory parties to be heard and to present evidence." Id. § 3.10.5. The SRBC shall approve a project if it determines that the project is not detrimental to the proper conservation, development, management, or control of the water resources of the basin and may modify and approve as modified, or may disapprove the project, if it determines that the project is not in the best interest of the conservation, development, management, or control of the basin's water resources, or is in conflict with the comprehensive plan.

Id. § 3.10.4. The Commission's determination to approve or deny a proposed project "shall be subject to . . . judicial review in any court of competent jurisdiction, provided that an action or proceeding for such review is commenced within 90 days from the effective date of the determination sought to be reviewed." Id. § 3.10.6.

B. Administrative Procedural History

PPL operates the Susquehanna Steam Electric Station ("SSES"), located in Luzerne County, Pennsylvania. The SSES uses waters from the Susquehanna River Basin. On December 20, 2006, PPL filed an application with the Commission to increase the amount of water it would be permitted to withdraw from surface waters of the Susquehanna River. On August 9, 2007, PPL filed an application with the SRBC to withdraw ground water from the river.

On July 27, 2007, Plaintiff notified the SRBC that he intended to oppose PPL's petition to withdraw additional surface water from the river.*fn2 He also objected to the failure of PPL, in 2001, to file an application for increased withdrawal of surface waters. Because PPL exceeded its prescribed water use at that time without authorization by the Commission, Plaintiff contended that the SRBC should assess financial penalties to PPL. On August 1, 2007, Plaintiff filed his opposition to the application for the increase and reiterated his argument for levying a financial penalty for PPL's unauthorized use of additional water in 2001. The SRBC responded on August 15, indicating that it would consider Plaintiff's contentions as part of the public comment on PPL's current application for an increase. It also notified Plaintiff that PPL's application would be reviewed at a public hearing that would be held on September 12, 2007. On August 31, 2007, Plaintiff informed the SRBC that he would appear at the September 12 hearing, requested data, and moved to postpone the determination on the PPL application.

On September 5, 2007, the SRBC responded to Plaintiff's August 31 missive. Enclosed with the September 5 letter was the proposed docket for the September 12 meeting and a copy of the proposed settlement agreement offered by PPL Susquehanna. Plaintiff replied to the SRBC on September 10, noting that he chose not to appear at the Commission meeting on September 12. He asked instead that the contents of his September 10 letter, reiterating the problems he perceived with the SSES project and the Commission's method of inquiry into the project, be made part of the record at the hearing.

On September 12, 2007, the SRBC met in Binghamton, New York, to consider projects proposed within the basin. The Commissioners unanimously approved the SSES increase and the ...


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