MOREAU — Plans continue to move forward for the much-debated Saratoga Biochar Solutions facility in the Moreau Industrial Park, but the Clean Air Action Network of Glens Falls is still hoping to bring the project to a halt, or at least slow it down, through the court system.
The company behind the carbon-fertilizer factory that hopes to turn biosolids into a product safe for land application, is currently closing in on submitting all the necessary components for their air and solid waste permits from the New York State Department of Environmental Conservation. The DEC is expected to release draft permits this spring and open a public comment period before any applications are approved.
The project, first introduced in May 2021, was approved by the Moreau Planning Board, despite public outrage, in August 2022. However, the Clean Air Action Network, or CAAN, quickly filed an Article 78 with the Saratoga County Supreme Court of New York in September.
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An Article 78 proceeding is used to appeal the decision of a New York state or local agency to the New York courts. However, CAAN also named Saratoga Biochar Solutions and CEO Raymond Apy in the lawsuit as well.
After hearing oral arguments from both sides on March 27, Judge Richard A. Kupferman granted a motion dismissing Apy from the lawsuit, which CAAN consented to in February, as they agreed there was no basis to sue Apy. His lawyer Robert Lippman, who also represents the company, requested Apy’s legal fees to be paid by CAAN, but the judge denied that request.
CAAN, represented by Todd Ommen of the Pace Environmental Litigation Clinic in White Plains, filed the Article 78 petition hoping a judge would overturn the Planning Board’s negative delaration on the State Environmental Quality Review, or SEQR.
According to the DEC, SEQR requires all local, regional, and state government agencies to equally examine the environmental impacts along with the social and economic considerations for a certain project during their discretionary review.
CAAN’s lawsuit claims that despite “initially resolving to obtain one or more experts to examine potential environmental impacts, this action was never taken.”
Clean Air group sues Moreau Planning Board, Biochar Solutions over proposed fertilizer plant
Clean Air group sues Moreau Planning Board, Biochar Solutions over proposed fertilizer plant
The Clean Air Action Network of Glens Falls has filed an Article 78 lawsuit against the Moreau Planning Board and Saratoga Biochar Solutions and its CEO, Ray Apy, seeking to block the company from establishing in the Moreau Industrial Park.
“Without any education on these issues outside of the applicant’s one-sided reports and communications with he Planning Board, the Planning Board failed to make an educated determination on the potential significant impacts,” the court document states.
The neighbors
Neighbors to the proposed facility site on Farnan Road off of Bluebird Road in the town of Moreau, Mary Clear and Rojana Padron, both submitted sworn affidavits, along with the meeting minutes and other evidence CAAN handed over for the judge to review.
Clear stated the Biochar factory would be located 700 feet from her property line and less than 1,600 feet from her home of almost 40 years.
“I am extremely concerned about potentially toxic substances and pollutants that may be emitted from the Saratoga Biochar facility. Through my involvement with CAAN, I have done considerable research on biosolids and their potential to contain PFAS and heavy metals,” Clear’s statement reads.
She said she is not only concerned for the health of her husband and herself, but also lowering the value of their property purchased as a “forever hme” in 1985.
“It is frustrating that the town is not taking a closer look at the potential harmful environmental and health effects this facility may create. Our little town is no stranger to contamination,” Clear also expressed in her statement.
Padron’s residence on 13 acres would be the closest home to the proposed factory, which would receive waste from Casella Organics at a rate of up to 50 trucks a day.
Her biggest concern centers around the facility being the first of its kind in New York, after being rejected in multiple other counties before coming to Moreau.
“It deeply concerns me to know that this facility would be the first of its kind in New York and in our town, close enough to homes, schools, apartments and businesses. It will affect not only the residents of Moreau, but Hudson Falls, Fort Edward and other towns,” Padron’s statement read.
Padron’s husband spoke at the March 29 informational meeting Saratoga Biochar Solutions held in Hudson Falls to voice his concern again, but also to thank the company for providing more information and answering questions.
Planning Board response
In October 2022, Karla Williams Buettner, Moreau’s attorney, requested an extension until January 2023 on behalf of Biochar’s lawyer Lippman.
On Jan. 31, Buettner filed a 14-page motion with the court, which begins by denying most of the allegations in the petition paragraph by paragraph.
She goes on to state reasons for dismissal of the Article 78.
“The Planning Board had no legal obligation to address each and every objection the petitioner raised so long as its decision is based on substantial evidence in the record, is not arbitrary and capricious or an abuse of discretion and is not otherwise illegal. As such, the Verified Petition should be dismissed,” the response states.
The town’s attorney listed the lengths the board went to review the proposal and subsequently approve it.
“(They) reviewed the project for over a year, discussing it at no less than 12 meeings, including two public hearings and a special meeting with experts from the NYDEC, reviewing thousands of pages of submissions, plans, drawings, engineering reports, opinions from the Town Water and Highway Superintendents, the Town Designated Stormwater Engineer and public comment, as well as oral presentations made by the parties and their representatives,” the document reads.
Buettner went on to defend the board stating “the decisions, both the negative declaration and the site plan approval with conditions, were supported by substantial evidence.”
The attorney also addressed the lack of an external expert being hired during the projects review, claiming that after learning the what it would entail to enlist a private expert, the Planning Board instead chose to hold a meeting with DEC experts.
According to the documents, the Planning Board met for four hours on March 7, 2022 to review the SEQR before reaching the negative declaration, meaning it would not have a significant ipact on the people or surrounding environment.
Town Zoning Administrator Jim Martin also submitted a sworn affidavit stating he assisted the board members with their review and attended every meeting.
SBS responds
Among the documents submitted to the court by Moreau’s attorney on Jan. 31 was a response from Lippman representing Saratoga Biochar Solutions.
In the 17 pages, the lawyer lays out the reasons for dismissing the lawsuit, including discrediting the neighbors’ statements, the location of CAAN and the timeliness of the petition.
“The Court of Appeals has held that challenges under SEQRA are required to be brought within four months of the end of the SEQRA process, not when a permit or license or approval is granted,” the document states regarding the timing. “Since the petition was filed two and a half months after the statute ran, it is untimely and should be dismissed in its entirety.”
Lastly, Lippman argues that the Planning Board did comply with the SEQR process and gav the project thorough review before granting approval.
The petition is currently still under review.