(Credit: Steve Thurston, 2022)
Ray Apy, CEO of Saratoga Biochar Solutions, center, watches the proceedings of the Moreau Town Planning Board in August 2022.
The Clean Air Action Network of Glens Falls plans to file an Article 78 lawsuit to stop Saratoga Biochar’s town-approved plans to build a carbon fertilizer manufacturing facility in Moreau’s Industrial Park. New York State code Article 78 considers the ways in which a person or group may sue public bodies.
“I think we are going to sue,” Tracy Frisch told FoothillsBusinessDaily.com Sunday Sept. 4.
Frisch founded the Clean Air Action Network of Glens Falls in 2019. The group has until Sept. 24 to file the lawsuit.
On Aug. 25, the Moreau Town Planning Board approved with conditions Saratoga Biochar’s $44-million plant off Bluebird Road. The board had also made a “negative declaration” under the State Environmental Quality Review Act (SEQRA), last March, meaning the board believed the project would present no significant, environmental impacts.
[Read our coverage of Biochar's track to approval here.]
In August, CAAN retained the services of Pace Environmental Litigation, with Todd Ommen, their managing attorney. The Pace Environmental Litigation Clinic represents public interest environmental groups free of charge.
Ommen focused on that negative declaration in his Aug. 23 letter to the town: “The Planning Board’s conclusion that the facility will not have any potential significant adverse environmental impacts appears deeply flawed, and it is evident that the Planning Board has not yet complied with the State Environmental Quality Review Act (‘SEQR’).”
A SEQR review considers not just the ecological impacts that may occur, but the impacts on the lived environment. The questions the board must consider during a SEQR review cover many areas from the effects on groundwater and air quality to the effects of additional traffic or noise pollution on nearby homes and businesses.
People who have worked against the Biochar plan have said that the SEQR review came before a public hearing on the plan, so the board took little public input before the negative declaration.
“The way the whole SEQR process was done was a real travesty,” Frisch said. “How anyone with a straight face can say that there are no potential significant environmental impacts from bringing up to 720 tons a day of sewage sludge to be burned by pyrolysis to be made into biochar is beyond comprehension.”
“If the Article 78 lawsuit…is victorious, the town would be directed to revisit SEQRA,” she wrote in a subsequent email. “If the town planning board made a positive declaration [that Saratoga Biochar could have significant environmental impacts], the company would have to produce an Environmental Impact Statement, which would examine all sorts of potential environmental impacts as well as alternatives to the project, including no project at all.
“There is no reason that Moreau should be the site of a processing facility for up to 15% of the state’s sewage sludge, mostly from Nassau County, NYC and its suburbs, the mid Hudson Valley — as well as western CT and western MA. The town does not have a wastewater treatment plant and most residents are on septic,” she wrote.
The company has long held that dried biosolids, not raw sewage, will be the “feed” for the plant, along with wood waste. Biosolids are the end product of wastewater plants, taken and dried at those facilities. They will be transported in a covered truck to the Moreau facility once it is operating. The company has been adamant that the facility will not burn the biosolids but extract gas and burn the gas.
Contacted via email for comment, Saratoga Biochar CEO Raymond Apy said, “We believe the Moreau Planning Board's handling of our application was very thorough and that they followed the correct, legal process, leaving little or no room for a complainant to find material fault.
“If Tracy Frisch decides to proceed with a lawsuit, we believe she will have a long and very expensive uphill battle with little chance of winning,” he wrote.
Apy continued, “This project is going to happen, and the outcome is going to be excellent, despite the inaccurate and undeservingly negative claims made against it.
“New York needs innovative solutions to its serious and growing biosolids disposition problem, capable of operating at large scale, and it needs them now. We offer that solution in that we address ALL the problems associated with biosolids, whereas Tracy Frisch and her cohorts are fast becoming part of the problem,” he wrote.
Article 78 would require that the lawsuit moved against the Town of Moreau and its planning board, not against Biochar directly. Moreau Town Supervisor Todd Kusnierz didn’t respond to a request for comment.