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ELECTRIC GENERATING FACILITY WHICH USES HUDSON RIVER WATER TO COOL MACHINERY AND RETURNS WARM WATER TO THE RIVER WAS PROPERLY ALLOWED TO CONTINUE OPERATION UNDER RENEWED PERMITS 3RD DEPT.

The Third Department determined the two-year shutdown of electrical power generating facility, which uses Hudson River water to cool machinery and discharges warm water back into the Hudson, was not a permanent shutdown and therefore the operating permits were properly renewed by the Department of Environmental Conservation (DEC):

Contrary to petitioner’s contention, DEC was not required to hold a public adjudicatory hearing prior to issuing final … permits. It was incumbent upon DEC, after evaluating the permit applications and reviewing all comments submitted in response to them, to “determine whether or not to conduct a public hearing ‘based on whether the evaluation or comments raise substantive and significant issues relating to any findings or determinations [DEC] is required to make . . ., including the reasonable likelihood that [the permits] will be denied or can be granted only with major modifications to the project” … . The ultimate burden rested on petitioner to show that its issues were “substantive and significant” enough to warrant a public hearing … .

In that regard, while petitioner raised a number of concerns regarding the draft … permit, it also acknowledged that the draft permit was largely identical to the existing permit… , one that DEC noted had only been issued after extensive administrative proceedings and an adjudicatory hearing. Moreover, to the extent that the draft … permit modified the terms of the prior permit, those modifications reduced the impact of the station upon the river. The objection to the Title V permit amounted to the rather obvious point that a station in service would create more atmospheric emissions than one offline. DEC issued a written response to petitioner’s comments and, while it did make modifications as a result of the concerns raised, it gave no reason to believe that those concerns might have required extensive retooling of either permit or imperiled their issuance altogether. Accordingly, mindful as we are that our judgment should not be substituted for that of the agency, the determination that petitioner had failed to demonstrate the need for an adjudicatory hearing was not arbitrary and capricious … . Matter of Riverkeeper, Inc. v New York State Dept. of Envtl. Conservation, 2017 NY Slip Op 05778, 3rd Dept 7-20-17

ENVIRONMENTAL LAW (ELECTRIC GENERATING FACILITY WHICH USES HUDSON RIVER WATER TO COOL MACHINERY AND RETURNS WARM WATER TO THE RIVER WAS PROPERLY ALLOWED TO CONTINUE OPERATION UNDER RENEWED PERMITS 3RD DEPT)/HUDSON RIVER (ENVIRONMENTAL LAW, ELECTRIC GENERATING FACILITY WHICH USES HUDSON RIVER WATER TO COOL MACHINERY AND RETURNS WARM WATER TO THE RIVER WAS PROPERLY ALLOWED TO CONTINUE OPERATION UNDER RENEWED PERMITS 3RD DEPT)/DISCHARGE, WARM WATER (ENVIRONMENTAL LAW, ELECTRIC GENERATING FACILITY WHICH USES HUDSON RIVER WATER TO COOL MACHINERY AND RETURNS WARM WATER TO THE RIVER WAS PROPERLY ALLOWED TO CONTINUE OPERATION UNDER RENEWED PERMITS 3RD DEPT)

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