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THE RECORD DOES NOT DEMONSTRATE THAT THE TOWN PLANNING BOARD TOOK THE REQUIRED “HARD LOOK” AT THE EFFECTS OF THE EMISSION OF HAZARDOUS AIR POLLUTANTS [HAPS] FROM THE PROPOSED “BIOSOLIDS REMEDIATION AND FERTILIZER PROCESSING FACILITY;” THE NEGATIVE DECLARATION WAS THEREFORE DEEMED ARBITRARY AND CAPRICIOUS (THIRD DEPT). ​

The Third Department, reversing Supreme Court’s dismissal of the Article 78 petition contesting the town planning board’s “negative declaration” regarding a proposed “biosolids remediation and fertilizer processing facility.” The record did not demonstrate that the planning board took the required “hard look” at the effects of the emissions from the facility. Instead the board relied on proposed mitigation measures overseen by the Department of Environmental Conservation (DEC):

… [T]he planning board failed to take a hard look at the project’s potential adverse impacts on air, resulting in an arbitrary and capricious negative declaration (see CPLR 7803 [3]). The voluminous record includes the planning board’s meeting minutes, recordings and other documents, all of which are devoid of evidence that the planning board “thoroughly analyze[d]” the project’s generation of 12.7 tons of designated HAPs [hazardous air pollutants] before it issued a negative declaration … . Instead, the planning board appears to have determined that, because the project’s HAP emissions were “mitigated” to fall below the 25-ton threshold for a major source, then emissions at 50% of that rate were also mitigated … . Not only is this conclusion “without sound basis in reason” — it is not clear why the planning board decided that mitigating the impact of 25 tons of HAPs would do the same for 12.7 tons of HAPs — but also “without . . . regard to the facts,” as the record confirms that the planning board never considered the potential impacts of the project’s HAP emissions at al … . * * *

… [T]he planning board’s unexplained deference to DEC’s permitting standards and periodic monitoring with respect to the impacts of the project’s emissions on air quality does not satisfy its SEQRA obligations, resulting in an arbitrary and capricious negative declaration (see CPLR 7803 [3] …). Matter of Clean Air Action Network of Glens Falls, Inc. v Town of Moreau Planning Bd., 2025 NY Slip Op 01020, Third Dept 2-20-25

Practice Point: The lead agency for a State Environmental Quality Review Act (SEQRA) declaration cannot avoid a “hard look” at the potential hazardous air pollutants (HAPS} which will be produced by a proposed facility by simply deferring to the Department of Environmental Conservation’s (DEC’s) permitting and monitoring of the facility.

 

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