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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ORANGE
--------------------------------------------------------------------x \ f t T I C ~ I G 8
JEANNE AND JOSEPH VISERTA, ADRIANA
GROENESTYN,
Petitioners,
vs.
TOWN OF WA WA YANDA PLANNING BOARD
and CPV VALLEY, LLC,
Respondents.
FOR
AN
ORDER AND JUDGMENT PURSUANT
TO ARTICLE 78 OF THE CPLR
--------------------------------------------------------------------X
I
INTRODU TION
PftOCIGIGDING
INDEX NO.
VIGftiFIIGD PETITION
This is an action to vacate an approval of an Amended Site Plan granted by
respondent Town of Wawayanda Planning Board [hereinafter the Board ] to
respondent CPV Valley, LLC [hereinafter CPV ] on April22 2015 for the
construction of a major electrical generating facility [ the facility ] in the own
of
Wawayanda.
As the Board failed to require respondent CPV, the applicant, to submit a
necessary Supplemental Environmental Impact Statement [hereinafter SEIS ], as
mandated by 6 NYCRR 117.9(d)(7) in light of changes in circumstance and newly
discovered information, as set forth more fully below, this Honorable Comi should
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vacate that approval and remand the application to the Board for the conduct o a
SEIS.
II
P RTIES
1.
Petitioners Jeanne and Joseph Viserta reside at 3254 Route 6 Middletown, New
York 10940, SBL 12-1-1, within
118
mile from the site
o
the proposed activity.
Petitioners Viserta are amongst the closest residents to the proposed facility.
2. Petitioner Adriana Groenestyn resides at 29 Kirbytown Road, Slate Hill,
New
York, within 1/8 mile from the proposed activity. Petitioner Groenestyn
is
amongst the closest residents to the proposed facility.
3.
The value o petitioners properties will be considerably compromised and
diminished by the construction o the respondent CPV s generating facility and
petitioners and their families will be subjected to substantial environmental effects,
including air, water and noise pollution, to an extent far greater than others due to
their proximity to the proposed facility.
4.
Respondent Town ofWawayanda Planning Board is a Department
o
the Town
o
Wawayanda, a municipal corporation organized to conduct business in the State
o New York, and may sue and be sued for its actions.
It
is located in the County
o Orange.
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5
Respondent CPV Valley, LLC [hereinafter CPV ] is the applicant and sponsor
of the facility, though it does not currently own the separate tax parcels upon which
it has been granted site plan approval by respondent Board; it conducts business
in
the State
of ew
York, County
of
Orange, may sue and be sued herein for
its
actions and, as the sponsor/applicant, is a necessary party to this proceeding.
III. JURISDICTION
6
As the Board's most recent approval
of
the amended site plan without the
conduct of a SEIS is arbitrary, capricious and contrmy to law, this Honorable Court
has jurisdiction over this matter pursuant to Article
78 of
the CPLR.
7
As the Board approved the amended site plan on April 22, 2015, petitioners
timely bring this special proceeding.
IV. ST TEMENT OF F CTS
8. In detennining whether a proposed action may have a significant adverse effect
on the environment, the
ew
York State Environmental Quality Review Act
[hereinafter SEQRA ] sets fmth a number
of
non-exclusive criteria, see, section
617.7 (c)(1), including (iv) the creation
of
a material conflict with a community's
current plans
or
goals as officially approved or adopted ; (viii) the creation of a
hazard to human health and (x) the creation of a material demand for other
actions that would result in one
of
the above consequences.
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be sent to heat recovery steam generators [HRSGs] to produce steam to drive a
steam turbine generator. The HRSGs will include a natural gas-fired duct
burner. See, Exhibit
2
page 4.
15. However, respondent CPV did not disclose the integrated nature o this project
to the Board and its Final Enviromnental Impact Statement [hereinafter FEIS )
never took a hard look at either the cumulative effects o the projects, inclusive
o the pipeline connecting the two, or even publicly acknowledged the inter
relationship between the projects.
16. In May 2012, the Board issued an 81 page Statement ofFindings concerning
the instant project. See, Exhibit
2.
The Board later gave the applicant Site
Plan
approval premised upon this Statement o Findings.
17. This Statement o Findings followed the Board's issuance
o
a positive
declaration under SEQRA, the conduct
o
a scoping process to identifY issues to be
studied by the applicant, respondent CPV's preparation o a Draft Environmental
Impact Statement [hereinafter DEIS ), the Board's review o that draft, including
public hearings concerning the same held in 2010, respondent CPV's preparation
o a Final EIS and the Board's acceptance
o
the same.
18. In a section
o
the Statement o Findings entitled Purpose & Need, the Board
determined that [t]he project is consistent with several
o
the policy objectives set
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fmih in the 2009 New York State Energy Plan. The statement then cites th five
identified purposes, including 4. Reduce health and environmental risks
associated with the production
of
energy. Id. at page 12.
19. In late 2014, after the respondent Board issued the afore-cited Statement
of
Findings and granted respondent CPV site plan approval, CPV sought amended
site plan approval from the respondent Board.
20. Between the grant
of
site plan approval and the respondent Board's
consideration
of
the application for Amended Site Plan approval, there have been
material changes in circumstance and the discovery
of
new and highly relevant
information which required the respondent Board to direct respondent CPV
to
prepare a SEIS. See, 6 NYCRR 117.9(d)(7).
21. However, the respondent Board did not require CPV to complete such a SEIS
either su sponte or when the applicant sought Amended Site Plan approval despite
the fact that respondent Board came into possession
of
information about the
changes in circumstance and new evidence which warranted such a requirement.
22. Instead, during the process of considering the amended site plan in 2015 and
as reflected in its resolution dated April22, 2015 by which it granted approval to
respondent
CPV s
Amended Site Plan, the Board explicitly limited the nature
of
the review, repeatedly denying, at respondent's CPV's insistence, the relevance of
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newly discovered information
or
the changes in circumstances, which required a
SEIS.
23. Specifically, at the only evening
of
public hearing held on the Amended Site
Plan, the Chairwoman of he Board, Barbara Parsons, repeatedly told members
of
the public that their comments about newly discovered evidence and changes in
circumstances were out of bounds and irrelevant to the Board s deliberations. See,
Exhibit 3 for transcript
of
public hearings.
24. When members ofth public specifically demanded the conduct of an
S IS by
the applicant to review the newly discovery evidence and changed circumstances,
the Chairwoman declared this requirement off-the-table. Id. at pages 15, II 21-23,
16, II 11-17, 17, 11.21-22.
25. By their collective acts and omissions, the respondents failed to require/
perform a SEIS and took the position that conducting such a review was not
necessary. See, Exhibit 4 for Board resolution dated April 22, 2015 approving the
respondent s Amended Site Plan.
26. However, this conclusion was wrongful and a SEIS was required in this
instance for the following reasons, among others:
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A. THE NEW YORK STATE BAN ON HYDRO FRACKING
[i] fpermitted to operate, the proposed facility will use, as its primary fuel,
natural gas largely derived from hydro-fracking in the Commonwealth
of
Pennsylvania.
[ii] When the Board issued its Finding Statement in May 2012, New York
had no
declared public policy with regard to the process ofhydro-fracking, allowing the
Board to conclude that approval of this project was consistent with the energy
policy
ofthe
State
of
New York.
[iii] However, on December 16,2014, acting upon the advice ofthe New York
State Commissioners ofHealth and Environmental Conservation, and following an
extensive study by their respective departments, the Governor
of
the State of New
York, the Honorable Andrew Cuomo, declared the process ofhydro-fracking may
be sufficiently injurious to human health and safety so as to ban the process in the
State
ofNew
York, See, Exhibit 5 for A Public Health Review ofHigh Volume
Hydraulic Fracturing for Shale Gas Development, New York State Department
of
Health, December 17, 2014 Exhibit 6 Citing Health Risks, Cuomo Bans
Fracking in State, New York Times, December 17, 2014.
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[iv] In explaining the basis for this ban, the Acting Commissioner o Health, Dr.
Howard Z Zucker, stated, We cannot afford to make a mistake. The potential
risks are too great. In fact, they are not even known. Id.
[iv] The Department o Health review cited previous scientific studies which
concluded that hydro-fracking caused adverse affects upon respiratory health,
climate change and drini
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[vi] In respondent CPV's FEIS and in respondent Planning Board's initial
Statement o Findings, there
is
no discussion o the impact o the approval of this
facility on promoting and inducing hydro-fi·acking, see, Exhibit 2.
[vi] During the April 8, 2015 public hearing on the amended site plan, several
members o the public, including Shaw, Malick and Hurst, demanded that the
Board cause the applicant, respondent CPV, to study the environmental effects
o
hydro-fracking as the instant application induced and promoted that process, which
may be injurious to human health and create health hazard, thereby requiring
detailed review See, Exhibit 3 at pp. 14, II. 3-7, 22, II. 3-21, 47, II. 15-24.
[vii] In its response to these comments, see, Exhibit
7
the respondent CPV's
counsel declared that such a study was irrelevant to the approval
o
the amended
site plan.
[viii] This conclusion
is
erroneous as a matter
o
law since studying such off site
impacts is plainly required by SEQRA, has never been done in this instance and
its
completion was made more acute and critical by the change in New York
State
policy recognizing the potentially injurious and dangerous impact ofhydro
fracking, the productive process upon which the respondent CPV intends to rely.
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B.
THE NEW DECLARATION THAT THE LONG EARED BAT IS N
ENDANGERED SPECIES
[i] The original FEIS and the Board s Statement ofFindings for this project failed
to study its impact on the habitat
of
the Northern long-eared bat, though it claimed
the project would have no significant impact on the Indiana bat, See, Exhibit 2 at
pages 63-64.
[ii] On January 15, 2015, the Fish and Wildlife Service published a proposed rule
under section 4(d) of the Endangered Species Act declaring the Northern long-
eared bat an endangered species and entitling that bat to enumerated statutory and
regulatory protections See. Exhibit
8
[iii] On
April2
2015, the Fish Wildlife Service determined and declared that
the Northem long-eared bat is an endangered species, See, Exhibit 9 for relevant
federal register publication dated April 2, 2015.
[iv] By dint
of
the rule, which became effective on May 4, 2015, no one is
permitted to take such species from their natural habitats or disturb said habitats.
[v] Accordingly, a developer seeking to effect potential N01ihern long-eared bat
habitats was required to assess the impact
of
the proposed activity on this
endangered species and, more specifically, the suitability
of
any of the to-be-
disturbed habitats for this species.
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[vi] Notwithstanding this new determination of endangered species status, which
was made known at the public hearing before the Board on April 8, 2015,
respondent Board did not require respondent CPV to prepare an SEIS assessing the
impact
of
its project on this endangered species, which has historically used
the
farm lands on the project property as a habitat, see, Exhibit 3, p. 26, I 9-27,
l
22.
[vii] To date, as with regard to the promotion offracking, no study
of
the impact
of
this project, as amended, on this endangered species or its habitat has been
conducted or required.
C N WLY DISCOVERED INFORMATION ON BOG TURTLE HABIT AT
[i] The original FEIS for this project purpOiied to study its impact on the habitat
of
bog tmiles and concluded that such species do not nest or otherwise utilize the
lands as a habitat.
[ii] Since the Board s acceptance
of
the FEIS, petitioners have lea.med that the
original naturalist hired to study this issue had been terminated after expressing
preliminary conclusions contrary to respondent
CPV s
development interests, see,
Exhibit 3, p. 27,
I
23-28,
I
21.
[iii] At the April 8, 2015 public hearing, a letter suggesting the potentially
deleterious impact
of
the project on bog turtle habitat was presented to the Board,
See, Exhibit 8 hereto, which shows that [a] bog turtle habitats were found in recent
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years near the parcel and [b] the site conditions on the parcels proposed for
construction o the facility appear propitious as and for bog turtle habitats.
[iv] As with the impact on inducing the dangerous practice offi·acking and
the
impact
o
this project on the long-eared bat population, the respondent Board
refused to require the applicant, respondent CPV, to prepare a SEIS reviewing this
and take a hard look at the newly discovered evidence.
D
NEWLY DISCOVERED INFORM TION ON DELETERIOUS
HE LTH EFFECTS FROM DISCH RGE OF P RTICUL TE
M TTER FROM THE PRODUCTION PROCESS
[i] Respondent Board s May 2012 Statement o Findings concluded that the
facility s construction and operation will not result in any significant adverse
impacts to air quality. See, Exhibit 2, page 41.
[ii] However, the Statement o Findings acknowledges that the facility is
considered a major stationary source that is proposed in an attainment area for a
regulated air pollutant and, therefore, subject to the Clean Air Act s requirement
for a
Prevention
o
Significant Deterioration [PSD] permit review.
[iii] That review was to assess,
inter alia
particulate matter sized 10 and 2.5
microns or smaller [known as P w and PM
2 s]
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[iv] The Statement o Findings also acknowledges that the facility will be located
in an area
o
non-attainment for ozone and PM2.s, which subjects it to the Clear Air
Acts ' non-attainment new source review program
i
certain
o
its potential
emissions exceed a designated yearly threshold, which was also acknowledged.
[v] The Statement ofFindings concludes that the project will yield a net air quality
benefit, but acknowledges that at the time
o
its release and adoption, the project
had not yet completed regulatory agency review in conjunction with either the state
or federal PSD and non attainment new source review requirements and process.
[vi] Notwithstanding the absence o the required permits, the Statement
o
Findings cleared the project with regard to air pollution issues.
[vii] As noted, the operation o the facility discharges particulate matter which
contains dangerous substances that are tightly regulated.
[viii] Though acknowledging that federal and state regulators had not yet
completed regulatory review
o
the application, the original Statement o Findings
found that these particulate discharges would be within safe limits and would
have no injurious impact on nearby residents.
[ix] During the conduct
o
the DEIS, within lz mile
o
the site and within
the
zone
o
interest, new work force housing was erected.
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[x] Since the completion of the FEIS Harvard University School
of
Public Health
has issued a new longitudinal study showing the adverse impact
of
the release of
particulates specifically
PMzs
on human health citing statistical evidence which
showed the increased rates
of
autism in those whose mothers resided near such
facilities and were exposed to this form
of
air pollution during their pregnancies
see Exhibit 10 for study.
[xi] As with the other issues discussed in A-C above this study was presented to
the Board at its AprilS 2015 public hearing see Exhibit 3 p. 21 1. 20-22 l 2.
[xii] However the Planning Board declined to require the applicant respondent
CPV to take a hard look at this study and review the new evidence concerning the
potentially injurious effects upon human well-being
of
the siting
of
such a facility
within such close proximity to human habitation.
[xiii] Petitioners and their families are within the zone
of
danger associated with
this increased health risk and run a higher risk than previously understood or
known to suffer deleterious health effects fi·om the approval
of
the amended site
plan.
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V C USES OF CTION
S ND FOR FIRST C USE OF CTION
27. Petitioners incorporate paras. 1-26 herein as if fully restated.
28. By failing to require the completion
of
a SEIS to assess the impact
of he
factors set forth as para. 26 A-D, respondent Board acted in an arbitrary and
capricious manner contrary to SEQRA and settled law.
S ND FOR SECOND C USE OF CTION
29. Petitioners incorporate paras. 1-28 herein as
if
fully restated.
30. By failing to prepare an SEIS to assess the impact
of
the factors set fmih as
para. 26 A-D, respondent CPV violated SEQRA and settled law.
VI. PR YER FOR RELIEF
WHEREFORE, petitioners pray that this Honorable Court [a] vacate the
approval
of
the amended site plan given by the respondent Board on April22,
2015;
[b]
remand the matter
of
respondent
CPV s
application for amended
site
plan approval to that Board for the preparation
of
an SEIS which takes a hard look
at the matters referenced in para. 26 A-D above and any other matter which reflects
either a change in circumstance or new information since respondent Planning
Board s approval
of
respondent
CPV s
FEIS in 2013; [
c]
award to petitioners the
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costs and disbursements
o
this action and [d enter any other order required by
equity and/or law.
Dated: May 20, 2015
Sussman Watkins
1 Railroad A venue, Ste. 3
PO Box
1005
Goshen, New York 10924
845)-294-3991
17
Yours, etc.
ICHAEL H. SUSSMAN
Counsel for Petitioners
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VERIFIC TION
STATE OF
NEW
YORK
)
ss:s.
COUNTY OF ORANGE
)
Joseph Viserta, having been duly sworn, hereby states under pains and
penalties ofpe1jury:
1
I am the plaintiff in this matter.
2. I am an adult of legal age and reside in Orange County.
3. I have retained Sussman Watkins as my counsel in this matter.
4. I have reviewed the annexed Verified Complaint my counsel has prepared.
5. I have personal knowledge of the facts relevant to this matter and hereby verify
that the facts set forth in the annexed Verified Complaint are true and accurate
to
my knowledge and belief. /
loR
Signed and sworn to before me thisl_Q_ ofMay 2015.
7
N01fARY PUBLIC
My commission expires:
GERYL
L PRESCOTT
Notary Pubiic State ni New York
No. o· PR6 H62
Qualified ·
1
n Rockland County
1;
Commission Expires Oct. 19,2
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VERlFIC TION
STATE OF
NEW
YORK
)
) ss:s.
COUNTY OF ORANGE
)
Adriana Groenestyn , having been duly sworn, hereby states under pains and
penalties
of
petjury:
1
I am the plaintiff in this matter.
2. I am an adult
of
legal age and reside in Orange County:
3. I have retained Sussman Watkins as my counsel in this matter.
4
I have reviewed the annexed Verified Complaint my counsel has prepared.
5. I have personal knowledge
of
the facts relevant to this matter and hereby
verifY
that the facts set forth in the annexed Verified Complaint are true and accurate to
my knowledge and belief.
Signed and sworn to before me thisJ.Q_ ofMay 2015.
My
commission expires:
GERYL L PRESCOTT
Notary Public, State of New York
No. 01 PR6014620 .
Qualified in Rockland County/ \ :>
Comm•ss1on
Expires Oct. 19, 2
G
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