Orange Environment, Inc.

OEI Letter to the Town of Thompson Planning Board

OEI Letter to the Town of Thompson Planning Board

OEI Letter to the Town of Thompson Planning Board

November 4, 2004

Town of Thompson Planning Board
4052 Route 42
Monticello, N.Y. 12701
66-Acre Fee-to-Trust Acquisition and Casino Project, Sullivan County, New York

I am writing as President of Orange Environment, Inc., a not-for-profit, tax-exempt organization concerned over its 21 years with protecting the integrity of the environment and communities of Orange County and its region and promoting sustainability.

I wish to reiterate an issue raised in my letter of last week. The matter of our standing as an interested party in this matter remains unaddressed.

As for the FEIS released since then, I want to also reiterate my comments, since the FEIS incorporates the grossly inadequate responsiveness summary and the voluminous documentation provided further fails to address or mitigate the impact that we raised in reviewing the DEIS.

At this point, you have four choices.

  1. You can proceed and issue this FEIS, even though it clearly fails to meet the minimum requirements of SEQR and NEPA in establishing a basis for the weighing of impacts in making a decision on the application. That decision leaves open your efforts to legal challenge and harms your credibility as representatives serving in your community’s interest.
  2. Alternatively, you can send this FEIS back for revision until the comments made by OEI and others are fully addressed.
  3. You can order a supplemental impact statement to be completed before decisions are addressed. This Supplemental DEIS would address, at a minimum, all impacts to Orange County, New York, from the proposed project and other cumulative impacts.
  4. As OEI has already demanded, you can proceed to administrative hearings for the purpose of resolving factual disputes between this FEIS and expert testimony demonstrating significant adverse and unmitigated impacts upon Orange County and its residents.

Under the circumstances, the third approach would be the easiest to start with, since a full review of the issue will, in our review, demonstrate the impacts on Orange County that our intervention is based upon. No administrative hearing may then be necessary. Therefore, I recommend that you order a supplemental study and review of the proposed action pursuant to NEPA and SEQR.

In conclusion, I will quote from my recent letter on the inadequacy of your responsiveness summary and the need for an administrative hearing should you fail to address this failure of the FEIS.

“The Responsiveness Summary that we reviewed is so clearly unresponsive to the issues we and others raised during the review of the DEIS, that there is clearly a substantive failure as well as a procedural one.

In our June 23 testimony, submitted in writing on that date, OEI called for the lead agency(ies) to hold an administrative hearing in order to resolve factual discrepancies between the DEIS and SDEIS presented by the applicant and expert evidence referred to and cited in our testimony (and subsequently submitted directly to you by Orange County and Goshen). The adjudication is required in order to properly inform decision makers about adverse impacts of granting the casino permits, impacts that would require that the application either be denied, mitigated, or that would have to be consciously traded off in the agency(ies) balance of social, environmental and economic impacts. Unless a factual record is presented, a proper decision under NEPA or SEQRA cannot be achieved.

In the Responsiveness Summary, the matter of adjudication is dismissed on pages 7 and 8 in words that imply that the respondent did not understand what procedural issues are involved. An adjudicatory hearing is required when there is a dispute over information the outcome of might determine whether a permit should be granted or not, or if granted, significantly modified. This situation pertains in the current matter. OEI is quite aware of the difference between a legislative and administrative hearing. You have held the former. The latter is now demanded. Our call for this hearing cannot be dismissed as part of a Responsiveness Summary. Rather, to dismiss our demand, you must find that there is no dispute of substance that would influence the outcomes of the permit decision. You have not done so. Nor, given the incongruence of evidence, can you.

In our testimony, we principally discussed the adverse impacts on regional traffic, the attendant air pollution resulting from these impacts, and related secondary impacts. We assert that it is neither prudent nor legal for you to issue casino licenses without considering these and other documented impacts.

Subsequent to the hearing, three parties from Orange County attempted to submit testimony, Planning Commissioner David Church, Goshen Mayor Scott Wohl and County legislator Jeffery Berkman. In particular, the first two of these parties specifically cited expert reports that factually contradict the DEIS and SDEIS and support OEI’s position that adverse impacts will occur due to this project.

The involved agencies have apparently refused to receive the testimony from these parties, citing lateness of submission. On that matter, as I was present at the hearing, I confirm Church, Wohl and Berkman’s assertions that the submission date was extended at the meeting. Accordingly, you are in error in denying entry to the record for these submissions.

However, regardless of whether you eventually enter these submissions directly to the record, you must consider them as corroboration of OEI’s testimony. As a result, as we asserted in our testimony given and submitted at the DEIS hearing,

  1. significant adverse impacts are identified by experts who can testify at an administrative hearing and which corroborate our claim that there will be significant adverse effects to the roads and air of Orange County (and therefore the life, commerce and health of our citizens) and that no permits can be issued until the nature of these impacts is recognized, evaluated, and mitigated if possible. If no sufficient mitigations are forthcoming, you will have to weigh the adverse effects on Orange County against any benefits in properly reaching your decision as to whether to issue or not the requested permits. We believe that the extreme extent of impact may well impede you from reaching a favorable decision for the applicant.
  2. these impacts are not recognized by the applicant’s documents, which examine the issues of impact to Orange County only superficially and which then smiss them. These conclusions are clearly self serving and unprofessional. Where any methodology or justification for the conclusions is cited, significant methodological problems remove any validity or reliability from the data. The applicants findings are therefore without scientific merit.
  3. there is a factual conflict over whether significant adverse effects will be caused by this project or not. Resolution of this conflict is necessary in order to achieve the level of informed decision contemplated by NEPA and SEQRA.

Unless adverse traffic and related air and other impacts are mitigated in this project, we argue that these impacts are of sufficiently severe and significant weight as to require denial of the permit. Such impacts must be considered cumulatively with other projects and factors influencing traffic, air and other adverse changes. Competent experts stand ready to present evidence to support our claim. It remains for you to create an adjudicatory hearing to resolve these issues.

We will be pleased to work cooperatively to bring about a serious and helpful hearing. However, we will not stand by and allow you to disregard matters of grave importance to residents of Orange County that stand to be harmed by the proposed project. The absence of an understanding of these impacts will prevent your agencies from achieving the proper balance between environmental, social and economic impacts.”

Please act on our petition to be considered an interested party. And we look forward to notice either of a decision to conduct a full supplemental review of the issues we have raised and/or to hold an adjudicatory hearing on this matter. Thank you. Sincerely,

Michael R. Edelstein, Ph.D.