Sierra Club v. Town of Torrey
| Decision Date | 07 April 2022 |
| Docket Number | Index No. 2020-5198 |
| Citation | 75 Misc.3d 523,167 N.Y.S.3d 727 |
| Parties | In the Matter of the Application of the SIERRA CLUB, Seneca Lake Guardian Inc.; Committee to Preserve the Finger Lakes Inc.; Peter Becraft; Cary Becaft; Michael D. Black; Linda Bracht; Phil Bracht; Abi Buddington; Winton Buddington; Beth Cain; Lynne Crane; Carolyn First; Lori Fischline; John Ghidiu; Barbara Gray; Neal Holtzman; Kim Holtzman; Nicole Lagreca; Christine Lanni; John Lanni; Faith Lewis; Tom Lewis; Carolyn McAllister; Gary McIntee; Eileen Moreland; Dave Murray; Leah Murray; Adam Parker; Stephanie Parker; Stevan Ramirez; Eileen Schmidlin; Ed Schmidlin, Petitioners, For a Judgment Pursuant to CPLR Article 78 of the New York Civil Practice Laws and Rules v. TOWN OF TORREY; Torrey Planning Board; and Greenidge Generation LLC, Respondents. |
| Court | New York Supreme Court |
Richard J. Lippes, Esq., Lippes & Lippes, for Petitioners
Yvonne E. Hennessey, Esq., Barclay Damon LLP, for Respondent Greenidge Generation LLC
Kathleen M. Bennett, Esq., Bond, Schoeneck & King, PLLC, for Respondent Town of Torrey
In 2014 Respondent Greenidge Generation LLC (hereinafter "Greenidge") purchased Greenidge Station (hereinafter "the plant"), an electric generating facility in the Respondent Town of Torrey. The plant had been inactive for the preceding three years, and Greenidge sought to resume plant operations by burning natural gas instead of the previously used coal.1 In order to accomplish this, Greenidge sought Title IV and Title V air permits, a renewal of its State Pollutant Discharge Elimination System permit (hereinafter "SPDES"), and an initial water withdrawal permit from the New York State Department of Environmental Conservation (hereinafter "NYSDEC"). Greenidge received the Title IV and Title V air permits from the NYSDEC in September of 2016.
On April 21, 2017, the Hon. William F. Kocher issued a decision dismissing a petition seeking to invalidate the air permits (among other requested relief). The Appellate Division, Fourth Department dismissed the petitioner's appeal as moot ("Greenidge I"). .)
In September of 2017 NYSDEC issued Greenidge a water withdrawal permit and a SPDES permit. The water withdrawal permit authorized Greenidge to withdraw up to 139,248,000 gallons of water from Seneca Lake per day; the SPDES permit allowed the discharge of 134,000,000 gallons of water per day into Seneca Lake.
On November 8, 2018, the Hon. William F. Kocher issued a decision dismissing a petition seeking to invalidate the water withdrawal permit and the SPDES permit ("Greenidge II"). Relevant to the issues herein, the court determined that the "DEC fully considered all of the potential environmental impacts of the renewed SPDES permit, including those to surface waters". ("Greenidge II", NYSCEF Docket No. 71 at page 16.) The decision was not appealed.
The plant began operating in March of 2017.
In June of 2022, Greenidge sought approval from the Town of Torrey Planning Board for necessary approvals and permits to construct a bitcoin mining facility, consisting of four buildings and related computer equipment. Greenidge sought to use the electricity generated from the plant to power the bitcoin facility. The Town of Torrey eventually issued a Negative Declaration under SEQRA and granted site plan approval.
Petitioners filed the First Amended Petition on May 21, 2021 challenging the issuance of a Negative Declaration. On July 1, 2021, Respondent Town of Torrey issued a building permit to Respondent Greenidge, and construction of the bitcoin mining facility began.
Before the Court are (1) the amended petition seeking to void the site plan approval, and enjoining Greenidge from constructing and operating the bitcoin mining facility2 ; (2) Respondent Greenidge's notice of motion to strike the affidavit of Dr. Gregory Boyer,3 (3) Petitioner's notice of motion for a preliminary injunction (filed December 3, 2021),4 and (4) Respondent Greenidge's notice of motion to dismiss the amended petition and in opposition to Petitioner's motion for a preliminary injunction.5
On June 30, 2020 Greenidge submitted an application for site plan approval to the Town of Torrey to build four structures and related utility equipment on 1.3 acres on property it owned at 590 Plant Road (hereinafter "the project"). The structures were to house computer equipment to "mine" bitcoin, using electricity generated from the Greenidge plant. Included in the application were site plans, a "Site Plan Review- Permit Application", a Full Environmental Assessment Form ("EAF"),6 and a community noise assessment conducted by Aurora Acoustical Consultants, Inc.7
Notably, the project did not require an increase in generating capacity at the plant and would use the electricity generated by the plant while it was operating under the previously issued permits.
Respondent Torrey Planning Board reviewed the application at the following meetings: July 15, 2019; August 19, 2019; September 16, 2019; October 14, 2019; July 20, 2020; and August 17, 2020.8 On September 21, 2020 Respondent Planning Board declared itself the lead agency9 and the project to be an Unlisted Action under SEQRA. The Planning Board also voted to issue a Conditioned Negative Declaration and approval of the site plan.10
On October 7, 2020 the Conditioned Negative Declaration11 was published in the New York State Department of Environmental Conservation Notice Bulletin for Region 8, requiring public comments to be submitted by November 7, 2020.12
On November 16, 2020 Respondent Planning Board considered the public comments and voted to issue a Conditioned Negative Declaration under SEQRA.13 The Conditioned Negative Declaration was filed on November 17, 2020.
Subsequently, Petitioner's filed their Verified Petition (on December 17, 2020) which noted that the Respondent Planning Board violated General Municipal Law § 239-M which required Respondent Planning Board to refer the project application to the Yates County Planning Board for review and possible approval, modification, or disapproval.14
Respondent Torrey Planning Board referred the project to the Yates County Planning Board. At a meeting conducted on January 28, 2021 the Yates County Planning Board recommended denial of the project application as presented.15
On April 19, 2021 Respondent Torrey Planning Board reviewed the project's site plan application, reviewed the Full EAF, received public comment, issued a Negative Declaration16 under SEQRA,17 and granted site plan approval.18 The required Report of Final Action was filed with the Yates County Planning Board on April 20, 2021 with an explanation of why the project was approved.19 On July 1, 2021 Respondent Town of Torrey issued a building permit, and construction of the project commenced in August of 2021.20
On May 21, 2021 Petitioner's filed their First Amended Petition alleging that the Respondent Planning Board violated SEQRA (6 NYCRR § 617 et. seq.) by failing to prepare a full environmental impact statement (hereinafter "EIS"), and in not taking the requisite "hard look" at the potential for negative, environmental impacts.21
Petitioners consists of Sierra Club (a not-for-profit conservation corporation), Seneca Lake Guardian, Inc. (a not-for-profit corporation dedicated to preserving the health of the Finger Lakes), The Committee to Preserve the Finger Lakes (a not-for-profit corporation dedicated to preserving the health of the Finger Lakes), and thirty individuals who own property either on or near Seneca Lake, or near to the Greenidge facilities. All the individual petitioners allege that due to the operation of the Greenidge plant, there exists an increased risk of harm to their health due to "harmful algae blooms" caused by the discharge of the heated water from the plant into Seneca Lake. Some of the individual petitioners also allege that they will suffer increased noise levels from the bitcoin mining operation.22
Respondents Town of Torrey and Town of Torrey Planning Board filed an Answer and raised several affirmative defenses and objections in point of law, including that the Petitioner's lacked standing, that the project was properly considered an Unlisted Action, no EIS was required, Respondents took the requisite hard look at the environmental impacts, and the decision to issue a Negative Declaration was supported by substantial evidence.23 Respondent Greenidge filed an Answer raising the same defenses.24
On June 17, 2021 Respondent Greenidge filed a notice of motion seeking to strike the affidavit of Dr. Gregory Boyer (that was attached as an exhibit to the Amended Petition) arguing that it was improper as it contained information not presented to Respondents prior to making their determination, and was irrelevant to the issue of standing.25
On December 3, 2021 Petitioners filed a notice of motion seeking a preliminary injunction to enjoin Greenidge from continuing to develop the project.26 Respondent Greenidge cross-moved to dismiss the amended petition and in opposition to Petitioner's motion for a preliminary injunction.27
Respondent Torrey Planning Board Properly Characterized the Project as an
Germane to the issues herein is whether Respondent Torrey Planning Board properly classified...
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