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POGLIANI v. UNITED STATES ARMY CORPS OF ENGINEERS

August 10, 2001

WALTER POGLIANI, JACQUELINE DUNN, STEPHEN DUNN, ROBERT H. BOYLE, DIMITRI SEVASTOLPOULO, IAN NITSCHKE, AND STAND TOGETHER OPPOSE POWER PLANT ("S.T.O.P.P."), PLAINTIFFS,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, DEFENDANT. ATHENS GENERATING COMPANY, L.P., PROPOSED INTERVENOR-DEFENDANT.



The opinion of the court was delivered by: Norman A. Mordue, District Judge:

  MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On June 13, 2001, plaintiffs, concerned citizens and/or property owners in or near the Town of Athens, New York, filed a complaint seeking to permanently enjoin defendant, the United States Army Corps of Engineers ("the Army Corps"), from issuing a permit to proposed intervenor, Athens Generating Company ("Athens Generating"), for construction of a 1080 megawatt gas-fired power plant in Athens, New York located in scenic Hudson River Valley. On the same date, plaintiff also filed an Order to Show Cause seeking a Temporary Restraining Order ("TRO"), pending a motion to enjoin defendant from issuing the afore-mentioned permit. By way of the TRO, plaintiffs sought an Order suspending both the permit (which was issued to Athens Generating on May 25, 2001) as well as pre-construction work on the power plant project which began on or about May 29, 2001.

Also on June 13, 2001, Athens Generating filed a motion to intervene in this action as a defendant via Order to Show Cause. On June 18, 2001, the Court conducted a hearing via telephone in connection with the parties' arguments on the TRO and deferred argument on the issue of intervention by Athens Generating pending receipt of papers by plaintiffs in opposition to said relief. The Court denied plaintiffs' TRO application orally at the conclusion of said telephone conference and by written Order dated June 28, 2001, but set the return date for plaintiffs' motion for a preliminary injunction for July 5, 2001.

II. FACTUAL AND PROCEDURAL BACKGROUND

On September 9, 1997, Athens Generating, an indirect wholly owned subsidiary of Pacific Gas & Electric Corporation ("PG&E"), commenced a state administrative proceeding by submitting a "pre-application" report, required to obtain a Certificate of Environmental Compatibility and Public Need ("certificate") for construction of a major electric generation facility,*fn1 to the New York State Board on Electric Generation Siting and the Environment ("Siting Board") under Article X of the New York Public Service Law ("Article X"). See N.Y. Pub. Serv. Law § 160 et seq.*fn2 The Siting Board and Athens Generating thereafter received public input concerning the report by way of public hearings, mail, telephone and the internet. The Siting Board and Athens Generating simultaneously engaged in a formal stipulation process which defined the appropriate "pre-application" environmental studies, which were completed by Athens Generating and its consultants. On August 28, 1998, Athens Generating filed its formal application for a certificate and the Siting Board Chair determined that the application was complete on October 22, 1998.

Administrative Law Judges from the New York State Department of Environmental Conservation ("DEC") and the New York State Department of Public Service ("DPS") were appointed to serve as Hearing Examiners. The Hearing Examiners conducted a prehearing conference and public statement hearings in November 1998 and following pre-filed testimony on all issues, held evidentiary hearings in March, April and June 1999. After a round of initial and reply briefs from various parties including some voluntary citizens' groups, the Hearing Examiners issued a 339-page recommended decision on September 3, 1999, suggesting that the Siting Board grant a certificate, subject to a number of specified terms and conditions.
Interested parties filed exceptions to the recommended decision to the Siting Board in addition to further briefs opposing the exceptions, in September and October 1999. On November 30, 1999, the Siting Board Chair requested supplemental information from Athens Generating concerning the plant's cooling technology, visual impacts, and related issues. On remand, the Hearing Examiners considered a number of issues, including the facility's proposed configuration if dry cooling technology were to be utilized. Responsive and rebuttal testimony was filed in December 1999 and January 2000. Additional hearings were held on January 26 and 27, 2000, and supplemental initial briefs and reply briefs were filed by the parties in February 2000.
The application for Article X certification filed by Athens Generating also included an application to DEC for a State Pollutant Discharge Elimination System (hereinafter "SPDES") permit for the withdrawal of water from the Hudson River for cooling purposes and the subsequent discharge of the unevaporated remainder. Based upon the determination by the Commissioner of DEC that water intake should be limited to 0.18 million gallons per day in order to satisfy "best technology available" requirements and avoid adverse impacts on Hudson River fish populations, the SPDES permit issued by DEC on June 12, 2000, effectively required that the plant utilize "dry" cooling technology as opposed to the "wet"or hybrid evaporative cooling system which was originally proposed and which would have required considerably more water.
In a 123-page opinion and order issued June 15, 2000, the Siting Board granted Athens Generating a certificate to construct the plant subject to certain conditions. As required by Article X, the Siting Board made several findings including: (1) a determination that the plant was selected pursuant to an approved procurement process and would serve the public interest (see, N.Y. Pub. Serv. Law §§ 168(2)(a)(ii); (e)); (2) adverse impacts upon the environment would be minimized and the facility would be compatible with public health and safety by virtue of the certificate terms set forth in the Siting Board approval order and the terms of permits issued by other agencies, including the DEC requirement concerning the use of dry cooling technology (see, N.Y. Pub. Serv. Law §§ 168(2)(c)(i), (ii)); (3) the plant's effect on the area's visual resources would be mitigated by lowering the height of the emission stack and cooling tower from 225 to 213 and ultimately to 180 feet, and using dry cooling to eliminate steam plumes (see, N.Y. Pub. Serv. Law § 168(2)(b)); and (4) certain waivers from the Town's zoning ordinances deemed "unreasonably restrictive" in relation to Article X's goal of promoting development of additional major power sources while at the same time balancing environmental concerns were required (see, N.Y. Pub. Serv. Law § 168(2)(d)).
By petition dated July 14, 2000, Citizens for the Hudson Valley, Inc. (an organization in which plaintiff Sevastopoulo is a founder and a principal) along with other interested parties sought rehearing, which petition was denied by the Siting Board on August 10, 2000. On September 8, 2000, the aforementioned petitioners commenced an action pursuant to Article 78 of New York Civil Practice Law and Rules and Article X seeking nullification of the certificate arguing that the Siting Board's decision granting the Certificate was arbitrary and capricious and not supported by substantial evidence. Many of the named plaintiffs in this case as well as witnesses whom have submitted evidence in support of plaintiffs' application for injunctive relief are members or supporters of Citizens for the Hudson Valley. Residents and concerned citizens in the area to be potentially impacted by construction of the Athens Generating facility created this organization to ensure the preservation of the environmental, historical, agricultural and archaeological integrity and scenic beauty of the Hudson River Valley.
Essentially these citizens are concerned about the adverse environmental consequences of potential re-industrialization of the Hudson River area which, in their estimation, has just begun to recover from previous decades of unremitted environmental abuse. As a further matter, because the Hudson River and Valley are designated as National Heritage Areas due to their historic and economic significance, plaintiffs as well as Citizens for the Hudson Valley and its supporters believe the state and federal government need to be keenly aware of and sensitive to the impact of industrial construction in the area. Of particular concern to plaintiffs is the potential degradation of heretofore undisturbed vistas or "viewsheds" from historical homes such as the Olana Mansion and State Historic Site*fn3 and other archaeological landmarks of state and national importance in the vicinity of the proposed power plant.
By order and decision dated April 12, 2001, the New York State Supreme Court, Appellate Division, Third Department unanimously upheld the Siting Board's issuance of the certificate in all respects. See Citizens for the Hudson Valley v. N.Y. State Bd. on Elec. Generation Siting and the Env't, 281 A.D.2d 89, 723 N.Y.S.2d 532 (3d Dep't 2001). In its decision, the court rejected the contention by petitioners that the Siting Board erred in its determination that Athens Generating was not required to describe and evaluate alternative sites pursuant to N.Y. Pub. Serv. Law § 164(1)(b). To the contrary, the court concluded that the Siting Board rationally determined that a private applicant, such as Athens Generating, lacking the power of eminent domain, could not be compelled to present alternative sites that it neither owned nor had an option to purchase.*fn4

This principle notwithstanding, the Siting Board had allowed petitioners in the Article X administrative proceeding to present evidence of alternative sites concerning whether the proposed power plant was in the "public interest." The Third Department determined that the record supported the Siting Board's conclusion that the alternatives offered by petitioners had "problems of their own" and that "[t]here [had] been no showing that there [was] an available, preferable site that should be developed instead of the site proposed by [Athens Generating]." Citizens for the Hudson Valley, 723 N.Y.S.2d at 538.

The court also found "substantial evidence in the record to support the Siting Board's conclusion that, considering the environmental impacts, the construction and operation of the [proposed] facility [would be] in the public interest" pursuant to Article X. Id. (citing N.Y. Pub. Serv. Law § 168(2)(e)). The court further found:
Most notably, the record does not support petitioner's contention that construction of the facility will unreasonably impact the viewshed from Olana, the renowned estate of Frederic Church, leader of what was to become known as the Hudson River School of landscape painting. As noted in the Hearing Examiners' decision, "[n]o issue has received more attention in this proceeding than the visual impact of the proposed generating plant," and the Hearing Examiners devoted more than 80 pages of their voluminous decision to that topic, with 26 pages dedicated to visual impacts on Olana alone.
We would first note that the record belies petitioner's representation that the proposed facility is "directly across the Hudson River from Olana." To the contrary, the facility is situated on the opposite side of the river, approximately 3.1 miles north of Olana and two miles inland. The distinction is significant because expert testimony indicated, and the Siting Board found, that the proposed facility would be located in Olana's north/northwest viewshed. Views in that direction "offer a basically flat horizon in the distance, and encompass a section of the Hudson River Valley in the foreground which includes topographic and land use features that are not unusual or extraordinary." The renowned views to the southwest are unaffected.
[Athens Generating] commissioned a visual impact study of the proposed facility which, consistent with the Visual Resources Assessment Procedure issued by the Army Corps of Engineers, was designed to assess the potential visibility of the proposed energy facility and its ancillary structures by comparing the differences in the landscape with and without the above-ground components of the project in place. Throughout the review, the proposed height of the three combustion turbine emission stacks was reduced from 225 to 213 and, ultimately, to 180 feet. One hundred and eighty-foot stacks not only eliminated the need for obtrusive aviation warning lights, but substantially reduced the degree to which the facility could be seen from distant vistas. In addition, the ultimate decision to utilize dry cooling technology not only minimized impacts on the Hudson River but provided the further benefit of essentially eliminating visible stack plumes, a very significant mitigation measure in light of the focus groups' conclusion that stack plumes represented the most significant visual impact of the facility. Based upon the voluminous record before it, the Siting Board ultimately concluded that "the probable visual impact of the proposed facility would be slight, and that such impact would not be significantly adverse to the interests and areas of concern identified in [Article X]." In our view, that conclusion has abundant support in the record.

Id. at 538-39.

Finally, the court found that the administrative record supported the Siting Board's determination that the proposed plant would "contribute to competition, thereby lowering electricity prices, displace less efficient plants, provide a reliable source of electricity at a time when there are projected ...

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