Thursday, February 24, 2011

Court Upholds Environmental Approval In Brockton Power Plant Case

Lisa E. Crowley
BROCKTON—Plymouth County Superior Court has upheld a Department of Environmental Protection decision that would allow an environmental permit necessary to build a 350-megawatt natural gas plant on the East Side of Brockton—one of many legal decisions and permitting questions that will be decided over the next year. Joseph Ganley, vice-president of Weber and Shandwick, a public relations firm recently hired by Brockton Power, the company seeking to build the power plant, said he believes it is the first legal decision that will be decided in the company’s favor.
““We are obviously pleased that the Court upheld the decision of the Department of Environmental Protection to grant our permit,” Ganley said. “We are confident that, as the courts review the other cases involving the project, similar rulings will follow.”
The decision was issued Feb. 4 by Associate Judge Robert C. Cosgrove.
The city has the right to appeal the decision to the Supreme Judicial Court.
Phillip Nessralla Jr., the city’s head legal counsel, could not immediately be reached for comment, however city officials, including Mayor Linda Balzotti and nearly all members of the City Council, and the city's representatives in the State Legislature, have vowed to fight the plant at every step and an appeal is expected.
There are a handful of other court cases stemming from city zoning and other permits and approvals that have been denied that Brockton Power or the City of Brockton have appealed in land and superior court.
The case began in June 2008 when Brockton Power filed a required Notice of Intent under the Wetlands Protection Act with the Brockton Conservation Commission because the XXX square-foot facility proposed for Oak Hill Way would be within 100 feet of a vegetated wetlands that borders the Salisbury River and would construct not only the power plant itself but also seven cooling towers, paved parking, roadways and a storm-water detention basin.
In Oct. 2008, the Conservation Commission denied an order of conditions-a requirement to construct the plant-- citing Brockton Power needed, and failed to file for Site Plan approval with other city boards and said the company did not submit enough information in its application about the use of wastewater and its effects on the environment when it was discharged into the Salisbury River.
In Sept. 2009 Brockton Power appealed the Conservation Commission’s decision to the DEP, which issued a superseding order of conditions overruling Brockton’s decision in March 2010.
Brockton’s Conservation Commission appealed that decision and requested a hearing with the DEP. The DEP upheld its own decision to approve the project.
In its decision, the DEP said Brockton Power did not have to apply for Site Plan review because it had requested an exemption from those local rules with the DEP and state Department of Public Utilities.
The DEP also rejected Brockton’s argument the power plant company did not provide sufficient information about the use of treated wastewater on the environment, stating Brockton Power had provided detailed information about environmental effects to the Conservation Commission and Department of Public Utilities.
Brockton’s Conservation Commission shortly after appealed the DEP’s decision to Plymouth County Superior Court.
Associate Justice Cosgrove, in his decision, stated “The DEP decided that applying for an exemption (under state law) fulfilled Brockton Power’s obligation to apply for site plan approval from the Brockton zoning authorities…The DEP’s interpretation is reasonable, and is entitled to deference from this court.”
Cosgrove also affirmed the DEP’s decision regarding information provided about the treated waste water’s environmental effects stating Brockton Power’s submission was satisfactory.
Cosgrove also said, “Furthermore, the DEP’s interpretation comports with common sense.”

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