Orange Environment, Inc.

Mohawk Mountain Casino 20061010

Mohawk Mountain Casino 20061010

Mohawk Mountain Casino 20061010

October 10, 2006

Kurt G. Chandler
Regional Environmental Scientist
Bureau of Indian Affairs
Eastern Regional Office
545 Marriott Drive, Suite 700
Nashville, TN 37214

Re: Comments on the Final Environmental Assessment for the Mohawk raceway Casino

Dear Mr. Chandler:

I am writing as President of Orange Environment, Inc., a not-for-profit, tax-exempt organization concerned over its 24 years with protecting the integrity of the environment and communities of Orange County and its region and promoting sustainability. OEI has had standing over this time to adjudicate and litigate on behalf of the residents of Orange County on issues of major environmental import. Please consider OEI an interested party with regard to this application.

The EA completely fails to take into account impacts to Orange County due to traffic on the Rt. 17 (I-86) corridor and on radiating traffic on other Orange County roads, as well as air pollution impacts and other adverse consequences. Because more than ample evidence exists to authenticate such impacts, a Full Environmental Impact Statement is now necessary before a decision to grant the application can be reached in this matter.

Procedural Issues

First of all, I deplore the BIA’s decision to proceed with an Environmental Assessment for a project that clearly required a full Environmental Impact Statement from the start and for which other comparable casino projects in Sullivan County required a full EIS.

However, as foreseen by NEPA regulations, the preparation of an EA is an intermediary step toward the requirement for a full Environmental Impact Statement in the instance where the EA process identifies areas of significant environmental impact that have not been assessed and mitigated through the EA review and/or which require a more complete assessment than a cursory glance.

In this response to the EA, I will highlight issues that demand, under NEPA, a full review but which the instant EA abjectly fails to address. In combination with the response submitted by other interested parties to this application, Orange Environment’s comments should be considered as evidence that a full EIS is required in this matter, that no decision to allow the applicant to proceed with the project can be made given the inadequate guidance of this EA and that the proposed project in fact entails adverse environmental impacts that either require mitigation or denial of the project.

In Orange Environment’s responses to previous BIA EIS documents for Sullivan County tribal casinos, including documents prepared by this applicant, we have consistently raised adverse impacts to Orange County , New York. Despite this consistency, the Raceway EA fails to address these impacts at all. This omission, therefore, represents not only a failure to fully assess the adverse consequences of the proposed project, as required by NEPA, but it suggests a lack of will to address well establish adverse impacts and an effort to sidestep the review required under NEPA. It is clear that the applicant has deliberately avoided topics in its review that would demonstrate significant adverse effects and are hard to mitigate and therefore threatening to the project. THIS VIOLATION OF THE SPIRIT AND RULE OF NEPA IN ITSELF DEMANDS REDRESS. THE BIA CANNOT ALLOW ITSELF TO BECOME COMPLICIT IN THIS ABROGATION OF NEPA!

The fact that we are given an EA rather than an EIS—and so inadequate an EA at that— underscores the inherent confusion found in the federal impact assessment policy for casino projects by the BIA under the National Environmental Policy Act. The BIA avows that its mission is to address impacts to native clients of the agency (Franklin Keel to Edelstein, March 18, 2005, re the Stockbridge Munsee DEIS). This view entails a confusion of the agency mission, on one hand, with its obligations under NEPA, on the other. In meeting its NEPA obligations, the agency is clearly obligated to assess potentially significant adverse impacts to other communities and to the environment, as well. The BIA cannot read NEPA in a manner that diverges from the act’s intent, the interpretation of other agencies and the courts.

What then are the issues advanced by OEI for full assessment and consideration?

Issue 1: Traffic Leading to Sullivan County. October 9, 2006 marked yet another tragic automobile accident on the R. 17 corridor in Orange County with resulting delays of four or more hours on Rt. 17. An analysis of the pattern of accident delays is required because it is clear that the Rt. 17 corridor is over capacity currently for the part of the week that most corresponds to anticipated casino traffic and it is vulnerable to total shutdowns due to accidents at all times. Moreover, as we have repeatedly reconfirmed over the past two years, Rt 17 shutdowns radiate not only to secondary and tertiary roads throughout the region, shutting all mobility down. In recent accident events, the extent of the interconnection of the region’s arteries was documented. An August accident on Rt 17 in Orange County stopped traffic on the George Washington Bridge 60 miles away in New York City. It is for this reason, that even parties beyond Orange County (i.e., Rockland County) have conducted studies and expressed concern over the adverse effects of one or more Sullivan casinos.

Orange Environment, Inc. has focused on the traffic impacts ever since casino applications became active. We have paid particular emphasis to the impacts on Orange County and the larger region associated with the annual addition of perhaps twenty five million cumulative vehicle trips along the Rt. 17 corridor from a multiple casino scenario. However, even one casino will generate significant adverse effects, as the current EA demonstrates with its own modest estimate of 8,344 daily and 9,460 Sunday patrons.

The issue simply is that the gateway to the Raceway casino is Rt. 17, which serves as a transportation corridor for numerous constituencies that cumulatively comprise its flow of traffic. These subgroups of travelers include the following:

  1. Local traffic which relies on Rt 17 as the main street of Orange County. There are no redundant alternatives available to play this role.
  2. Commuter traffic which uses Rt 17 as a main thoroughfare, with the dominant traffic flow going to and from the New York Metropolitan Region via the New York State Thruway and the Harriman toll booths. Rail commuter traffic heavily uses the Harriman station, adding it to the same dynamic.
  3. Tourist and shopping traffic which heavily uses the Woodbury Commons outlet site in Harriman.
  4. Through traffic of a national scale that utilizes the Rt 17/Rt 86 corridor. The truck portion of this flow and the volume of the flow itself will increase when Rt. 17 becomes Rt. 86.
  5. Through residential traffic to growth areas of Sullivan and Pike Counties.
  6. Catskill and Pocono vacation traffic that utilizes Rt 17 particularly in summer and on weekends.
  7. Traffic to the new Bethel Woods Arts Facility that opened this summer to large crowds. Congestion on Rt. 17-B was a major issue for the Arts Center in its first season. The proposed casino sits right at the neck of 17-B and will draw traffic along the same route.

There is a traffic crisis already on Rt. 17 without the Rt. 86 conversion. The existing traffic volume due to these constituents has dropped the LOS on RT 17 to the lowest level for peak portions of the week. Traffic LOS data on the Rt 17 corridor toward Harriman and in the Thruway/17/I287 system to the south confirms multi-hour peak surge periods on Sundays and Fridays and on weekday mornings. It is now common to have lengthy waits during morning and evening commutes and extreme waits during Friday evening and Sunday evening periods. Friday mixes commuter and vacation traffic, but Sunday evening has caused similar backups reaching ten or more miles before the toll booths. Inclement weather and increasingly common accidents cause ad hoc waits along this system. This problem has not been solved by increasing speed limits, which have dramatically increased hazards of driving on Rt. 17. Additional major sources of traffic growth threaten to shut down the system so that it does not work for mobility.

The crisis is matched by traffic congestion on secondary roads throughout Orange County and by traffic dynamics on Rts 84 and 87. Likewise, these issues radiate south from Orange County to Rockland and Bergen Counties, and can certainly be felt in major intersection zones, such as that in Mahwah where Rts. 17, 287, and 87 merge.

And there is a note of deep irony in creating traffic dependent casinos up a road corridor whose level of service is failing and which will be pushed over the edge by cumulative potential casino project proposals recently under discussion.

This road system is already threatened by Orange County’s and the region’s rapid growth, by the inadequacy of mass transit options to travelers, and by the poorly thought-through Rt 86 conversion which threatens to add truck and through traffic to the system. Positive regional developments, such as Bethel Woods arts center, also have traffic impacts, as will other future growth occurring regardless of casino development. Unless the main street of Orange County can be kept flowing, our secondary and connected roads will also over congest (many already have).

These impacts translate into a variety of secondary social and economic consequences documented, in part, by past studies undertaken by the village of Goshen, the Town of Montgomery and the Southeast Orange Transportation Study. The lifeblood of our communities, our economic wellbeing, and our quality of life will quickly deteriorate with the decline of mobility on Rt. 17 and the secondary impacts to secondary roads that become chronically congested. I have, myself, in my profession as Environmental Psychologist, studied the adverse consequences of traffic congestion on quality of residential life, levels of stress, land use changes and other community indicators. I would be prepared to testify as an expert under oath to these effects. And I will scope such issues as part of the scoping of the needed Environmental Impact Statement.

Orange County’s traffic misery has been influenced by past poor planning and resultant sprawl. There is no doubt that such factors have created a baseline traffic level combined with the absence of adequate mass transportation or pedestrian-scaled communities that has led to congestion even without casinos. Without adequate planning, Sullivan County’s growth will further compound this problem, perhaps as a further induced growth impact of proposed casino projects. However, past poor planning does not remove the fact that a baseline traffic dynamic exists that will be aggravated significantly by casino traffic on a road system of finite limitations. It is incumbent upon all decision making agencies to enforce sound planning given the situation. This includes the BIA and its examination of traffic issues and the resulting decisions it issues.

Our confidence in the significance of the Orange County road impacts comes from our own analyses, those done by the Orange County Department of Planning, and a series of confirmatory analyses undertaken for NRDC. The Town of Montgomery has developed a traffic impact study for casino traffic on the Rt. 17K corridor.

All of these sources converge on a clear and uncontested conclusion: the Rt 17 corridor lacks the capacity to support the proposed casino or casinos and may lack adequate capacity for the region’s needs even absent casino traffic.

Air Pollution and Environmental Health

Our Second concern involves the fact that traffic and particularly congested traffic brings with it air pollution. And Orange County already is out of compliance with the Clean Air Act for at least two National Ambient Air Quality StandardsCozone and particulate matter. These are not abstract issues. (1)

I remind the agency that ozone in its tropospheric form is an air quality standard about which we know increasingly more over time. It is the source of respiratory distress on short term to long term timescales, elevating ozone to an issue of irreversible and irreparable nature. Every citizen of Orange County is placed at risk by these pollutants; their transport from elsewhere underscores issues of irresponsibility and disregard that have generated numerous downwind state lawsuits. Increasing local generation is unacceptable. And the casino(s) are point sources, in effect, for this enhanced generation.

Ozone affects respiratory health and is of concern for those with asthma or other illnesses, children and the aged, those whose work takes them outdoors, and those who exercise and recreate outdoors.

As a former consultant to the State of New Jersey studying the impacts of ozone exceedances, I can confirm that the human costs of an ozone prevention program based upon avoidance is extraordinary. Where you cannot reduce ambient airborne ozone, it becomes necessary to severely limit human exposure to the outdoors during summer months during exceedences for much of the daylight hours. This has a particular impact on the elderly, the young, the ill, sportspeople and exercisers, and laborers. As with stratospheric ozone holes, tropospheric ozone renders the outdoors toxic.

Likewise with particulate matter. Orange County has been notified that it is out of compliance for this NAAQS. Any activity that increases exposure to PMCand the casino project and cumulative scenarios certainly doCmust henceforth be analyzed fully, considered carefully, and perhaps modified or denied accordingly.

Particulate matter lodges in the lungs and may be associated with various diseases, including cancers. Stalled traffic will also create local excesses of carbon monoxide, hydrocarbons and other air pollutants. More globally, such traffic is a major combustion source feeding global climate change. At risk, therefore, is the health and safety of our communities as places to live. This is an issue requiring careful consideration.

As with ozone, we know increasingly more about PM health effects, and the picture is not pretty. Orange County’s own George Thurston, a professor at NYU’s Sterling Forest campus, is a co-author of the major study proving the health dangers of particulate exposure.

Other air impacts are also likely. Of course, ozone and its precursors are only one problem. SO2 is of concern given acidification in the region. CO is of concern because the conversion of the Rt 17 corridor and other roadways into parking lots for extended periods of time promises to add large pockets of CO to areas along the roadway, exposing drivers and workers and residents within the impact zone. A full analysis of all of these impacts is required. And the project cumulatively and individually needs to do an analysis of overall transportation and site related CO2 generation and other global warming gasses.

In sum the project and cumulative projects will dramatically increase PM, CO and other NAAQS and non-NAAQS exposures along the Rt. 17 corridor, on overflow secondary roads and on other key arteries. The EA fails to acknowledge and discuss these impacts and their significance for health and for the regulatory compliance status of Orange County. New York State’s responsibility to help its counties comply with the Clean Air Act under the SIP is also undermined.

Other Impacts

There are other related impacts, as well. Road maintenance costs, the costs of road widening, secondary growth impacts along the corridor, increased demand for gasoline and the secondary pollution impacts, service demands (police, fire, EMT), community costs and resulting need to increase taxation, affect on volunteer fire and ambulance organizations, etc., all must be fully assessed and considered.

The sociological, psychological and criminal justice literatures are rich in their treatment of gambling and the secondary social consequences, including criminality, addiction, etc. these impacts will affect residents of Orange County, as well as those of Sullivan, and possibly others as well.

Issues of housing adequacy are also not addressed. In a previous DEIS by the Stockbridge-Munsee, the need for housing for casino personnel was projected to by absorbed by Orange County rentals. In fact, the Orange County rental market is saturated.


It is incumbent on the applicant to address the potential for mitigating these significant adverse impacts. In the context of the Keel letter cited above, the BIA cannot step away from its obligation to assure that adverse impacts associated with this project are fully mitigated before approving the project. It is not sufficient to expect that payments by the tribes to New York State are intended to be used for mitigation, that they will be sufficient to mitigate impacts, and that these funds will in fact be used to mitigate adverse casino impacts. No state reimbursements to Orange County are currently planned and, in any case, such payments would be unlikely to mitigate the particular kinds of impacts that are of concern. Regardless of any payments to the state, the BIA is obligated to assure that mitigatory steps are in place before issuing permits or as a permit condition. The agency cannot rely on unspecified payments going into unspecified funds to address unspecified impacts. That is a mockery of NEPA.

An alternative or additional approach for adding Rt 17 capacity is by reducing current traffic streams using the highway. The restoration of the Mainline Rail Line and service in Orange County is a way to achieve this reduction while addressing air pollution. OEI raised this mitigation concept in its response to the previous Mohawk application. There is no excuse for it now not being addressed. Mass transit such as a rail connection along the Rt. 17 corridor might divert significant commuter traffic from Rt. 17, creating more capacity, and, if connection is made to Monticello, may further allow casinos to avoid traffic on a major scale. As alternatives or short run steps, the proposed project might further remove parking capacity or charge for parking or might use strong incentives for bus or rail users to induce use of mass transit. In short, the project must be prepared to divert the bulk of its clients to mass transit as a mitigation and thus prerequisite for permitting. Creation of a rail alternative is a reasonable mitigation for the project and certainly for the cumulative projects considered.

Cumulative and other Impacts

NEPA requires that long term as well as short term impacts, induced growth and cumulative impacts be considered. These obligations have not been fulfilled.

Multiple casino projects have been proposed for Sullivan County. The EA acknowledges two others beyond the Raceway project, reflecting New York legislative approvals. Other major changes have or will occur that will affect impacts of traffic and air pollution, and the other impacts discussed. Beyond casino applications, obvious cumulative effects include induced and other growth reaching build-out in the Sullivan County area, the new Bethel Woods Art Center, the I-86 conversion, the Orange County growth dynamic and gambling and other development in adjacent areas of Pennsylvania. These cumulative impacts are ignored here even though there are ample growth issues affecting cumulative traffic and air pollution and demand on other services. The applicant had a responsibility, unfulfilled, to examine these impacts.

The EA

It is already clear that this EA fails to address the highlighted issues of concern.

But what is astounding is that, given the consistency with which OEI and others have raised impacts to Orange County, they are not even mentioned in the EA.

In fact, it is of note that the EA fails to make use of studies discussed, cited and submitted in conjunction with other casino applications, including for this applicant, or readily available through the planning department of Orange and Rockland counties and from NRDC. Ample documentation of traffic impact has been produced by Sam Scwartz for NRDC and submitted to BIA previously and in conjunction with comments on this application. Likewise, the Orange County Department of Planning has made reference to its many traffic studies in previous submissions and will reference these in their current comments. These and other current documents are available as corroborating evidence for these comments. We have previously cited them and indicated that we would call Fred Budde of the Orange County Department of Planning as our witness if we were afforded a hearing to present evidence. The applicant has ignored an obvious body of evidence indicating significant adverse impacts.

In sum, the EA avoids addressing impacts to Orange County, the major gateway to the site, completely! There are other flaws with the EA.

  • No alternatives are considered that would address the potential non-casino development of the site, alternative ways to promote the legitimate interests of the Mohawk or alternative means for promoting the economic development of Sullivan County. Likewise, no alternatives are presented for getting perhaps 10 million yearly visitorsCthe bulk arriving along Rt 17 from the eastCto and from the casinos.
  • The affected environment is narrowly defined to include only the project site and the immediately adjacent areas. NEPA’s intent was much for integrative and regional.

Needed Actions

In this EA, as in other casino documents we have reviewed, positive impacts are magnified in touting the benefits of casinos while adverse impacts are shrunk when estimating the impacts. Such overt bias in NEPA documents is unprofessional and fraudulent. At a minimum, it fails to provide the needed body of information to allow decision makers to balance the impacts in arriving at a decision. In this instance, several clear courses of action are demanded.

  1. A Generic Cumulative EIS Study. As I first suggested some years ago, the BIA or a neutral agency should undertake a generic impact assessment of casino development in the Sullivan County region that will examine questions such as those posed here that applicants avoid addressing. Cumulative effects of casino development will be anticipated using actual evidence.
  2. A Full Environmental Impact Statement. Whether or not a generic study is undertaken, the EA process has indicated adverse impacts of potential significance that cannot be overlooked within the NEPA review. Rather than exiting the process after the EA, instead, a Finding of Significant Impacts is required. This step would then lead to public and interested party involvement with agencies in scoping the EIS.
  3. SEQR Compliance. Because the proposal is an action also under the New York State Environmental Quality Review Act, due process is also required in this arena. BIA cannot rest on a 1999 SEQR review for this purpose given significant changes in the project and, more importantly, in the impact conditions, including the other cumulative sources of impact.
  4. Obligation to Deny based on the Current Record.Given the current level of review, BIA is constrained in its further determination of this matter. Specifically,
    • No approval can be issued until the nature of the documented adverse traffic, air pollution and other impacts to Orange County are recognized, evaluated, and mitigated if possible.
    • Such impacts must be considered cumulatively with other projects and factors influencing traffic, air quality degradation and other adverse changes.
    • The applicant’s document fails to examine these issues of impact to Orange County.
    • The applicant’s failure does not make these substantive adverse impacts disappear. And it does not provide the BIA with an excuse to ignore them.
    • If the applicant does not demonstrate sufficient mitigations to offset these impacts, which they currently do not, you will have to deny the application.

In sum, the EA fails to fully identify impacts and to provide for their mitigation. Unless severe and likely impacts of the proposed project can be reasonably mitigated, the project should not be permitted.


Michael R. Edelstein, Ph.D.
President, Orange Environment, Inc.
Please correspond to 26 Murray Ave., Goshen, NY 10924
845 294 0751 (h), 845 294 0791 (fax), 845 800 5070 (cell), 201-684-7745 (work)

1 Although Orange County is not substantively mentioned in the EA or in Appendix L on traffic or the two appendices that make reference to Air Quality issues, a table listing NAAQS violations (1.1-15) does annotate the fact that Orange County is out of compliance for ozone, particulate matter and also CO, but the significance of this fact is never discussed in the text.