STATE OF NEW YORK

SUPREME COURT : COUNTY OF MONTGOMERY

In the matter of the Application of OTSEGO 2000, INC.;

MOHAWK VALLEY KEEPER, by its President JOHN VALENTINE,

JOHN and MARYANN VALENTINE, Individually,

Petitioners,

For a Judgment Pursuant to Article 78 of the

New York Civil Practice Laws and Rules VERIFIED PETITION

vs. Index No. _______________

THE PLANNING BOARD OF THE TOWN OF MINDEN,

NEW YORK; and DOMINION TRANSMISSION, INC.,

Respondents.

___________________________________________________

Petitioners, by their attorneys, LIPPES & LIPPES, Richard J. Lippes, Esq., of

counsel, and Nicole Dillingham, Esq., for their Verified Petition, respectfully allege and

state:

I. INTRODUCTION

1. Petitioners are commencing this special proceeding to challenge the actions of the

Respondent Planning Board of the Town of Minden, which has approved the application

of Dominion Transmission, Inc. to allow a large expansion of its existing compressor

station located at Brookman Corners, in the Town of Minden, New York, by the grant of

a special use permit and site plan approval. Petitioners allege that the approval of the

expansion of the compressor station was done in violation of the New York State

Environmental Quality Review Act, Environmental Conservation Law 8-0101 et. seq.

(hereinafter cited as “SEQRA”), by not following the procedural and substantive

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requirements of SEQRA. 1. 1. Petitioners also allege that in approving the project and

granting a special use permit to Dominion Transmission, Inc., the Town of Minden

Planning Board failed to correctly apply the Town of Minden’s Zoning Law, and further,

its approval of the project was contrary to the Comprehensive Plan of the Town of

Minden. Because of these various violations, Petitioners seek to void the determination

by the Town of Minden Planning Board to issue a negative declaration indicating there

will be no adverse environmental consequences concerning the expansion of the

compressor station, and void the grant of the special use permit in violation of the Town

of Minden’s Zoning Law and the Comprehensive Plan, and to obtain an injunction until

such time as the Respondents fully comply with the laws at issue as more fully set forth

herein.

II. PARTIES

2. Petitioner, Otsego 2000, Inc., is incorporated in the State of Delaware and is a

501(c)3 public charity registered and operating in New York State, located in

Cooperstown, New York. Otsego 2000, Inc., has worked for more than 35 years to

protect the historic, agricultural and environmental assets of Otsego County and

surrounding areas. It is committed to the protection of agricultural and historic

properties, air and water resources, and reduction of negative climate impacts. The

proposed expansion of the Brookman Corners compressor station threatens

agriculture and organic farming, historic sites, public health and tourism, all of which

are crucial to the local economy and quality of life in the region.

3. In furtherance of its purposes, Otsego 2000, Inc. maintains that the Otsego Lake and

Mohawk Valley region and the surrounding landscapes, valleys, villages and farms

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constitute a unique confluence of historic, environmental, cultural, agricultural, rural

and scenic resources. The long-term economic wellbeing of the region and the quality

of life for its residents derive from dedicated stewardship of these resources. We

advance our mission through informed advocacy, intelligent planning, public

education, and development of sustainable economic alternatives.

4. Petitioner, Mohawk Valley Keeper, is an unincorporated association which represents

approximately 100 families who own homes, farms, and land surrounding the

Brookman Corners compressor station, including thousands of acres in the Town of

Minden and neighboring areas of Montgomery, Herkimer, and northern Otsego

Counties. The organization has a diverse membership that includes many Amish

families. Over the years, its members have purchased fallow farms and redeveloped

them into productive businesses. Mohawk Valley Keeper supports sustainable farm

practices and certified organic operations that rely on clean air, water, and soil. The

area has been identified by New York state and federal agencies for agricultural

growth and agri-tourism and contains numerous designated historic sites, including

property that directly abuts the Brookman Corners compressor station, known as Slate

Creek Farm, which is listed on the State and National Registers of Historic Places.

Mohawk Valley Keeper opposes Dominion’s expansion of the compressor station due

to its conflict with the rural, scenic, and historic character of the region and its serious

threat to public health. It brings this proceeding on behalf of its members, who will be

adversely affected by increasing toxic emissions, noise, light and other adverse

effects, and whose members live nearby or next to the site of the proposed expansion

project.

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5. Petitioners, John and MaryAnn Valentine own Slate Creek Farm, located directly

adjacent to the Brookman Corners facility. They are members of Mohawk Valley

Keeper, and John Valentine is its President. They personally restored their home at

Slate Creek Farm and secured listing of the property on both the State and National

Registers of Historic Places. Their investment in their farm and home, and their

health and quiet enjoyment of their environment is threatened by the compressor

station expansion. They are concerned about increased toxic emissions from the

compressor station, increased noise, increased lighting, and the effect that the

compressor station will have on the quiet enjoyment of their property and the

environment.

6. Respondent, the Town of Minden Planning Board, is located at 134 Highway 80, in

Fort Plain, New York, and is the lead agency to undertake SEQRA compliance

responsibilities. As such, it is responsible for assuring that the procedural and

substantive mandates of SEQRA are carried out to the fullest extent practicable.

After reviewing the Environmental Assessment Form and other documents, and after

holding a public hearing, the Town of Minden Planning Board determined that there

would be no significant adverse environmental effects caused by the expanded

compressor station, and therefore determined that an environmental impact statement

need not be drafted, as more fully described in this Petition.

7. Dominion Transmission, Inc., is a large energy transmission company headquartered

at 120 Tredeger Street, in the City of Richmond, Virginia. It is the owner of the land

upon which the proposed expanded compressor station is to be located, and will be

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the owner and operator of the expanded compressor station. As such, it is a necessary

party to this proceeding.

III. FACTS

A. BACKGROUND FACTS

8. Dominion Transmission, Inc., (hereinafter cited as “Dominion” or “DTI”), is a large

energy transmission company. The proposed expanded compressor station is part of

Dominion’s “New Market Project” to expand the carrying capacity of its existing 50-

year old pipeline, spanning 200 miles across New York State, from the southern

border of New York to Schenectady, New York. Dominion plans to increase the

capacity of this pipeline to carry an additional 112,000 dekatherms of natural gas per

day (over 100 million cubic feet per day). The gas will be extracted through the

process known as hydraulic fracturing, or “fracking,” in Pennsylvania, West Virginia

and Ohio. A connection is also proposed between the Dominion Pipeline and the

Iroquois Pipeline, which intersects at Minden, to allow gas to be moved from the

Dominion Pipeline to the Iroquois Pipeline to facilitate the future export of the gas to

Canada. To accommodate the increased capacity, the project requires new and

expanded facilities across six New York counties, including new compressor stations

in Horseheads (Chemung County) and Sheds (Madison County), and the significant

expansion of the existing compressor station in Brookman Corners (Montgomery

County).

9. Dominion first applied for a permit to build a small 7,410 horsepower compressor

station at Brookman Corners in the Town of Minden in 1999. The application for site

plan review and SEQRA compliance indicated in 1999 that the project would have

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minimal impact on community character and would not emit noxious or dangerous

chemicals or noise.

10. The compressor station permitted in 2000 operates with a single gas-fired turbine and

runs infrequently. Dominion reported that it operated only 10% of the time in the

year 2015.

B. THE CURRENT EXPANSION PROPOSAL

11. As opposed to the small compressor station built in 2000 that operates only 10% of

the time, the expansion now proposed by Dominion would more than double the

output of the original compressor. The expansion would add a second turbine, two

reciprocating engine compressors, and other equipment for a total of 18,543

horsepower and four exhaust stacks. The project would also create a connection to

the Iroquois Pipeline, which will receive three quarters of the gas from Dominion’s

New Market Project. Since the Iroquois Pipeline operates at a higher pressure, this

means that the reciprocating engines at Brookman Corners will need to run almost

continuously to move gas from the lower pressure Dominion Pipeline to the higher

pressure Iroquois Pipeline. Therefore, the project will expose surrounding residents

and communities to much higher levels of pollutants and noise than the existing

compressor station.

12. According to Dominion’s application, the expanded Brookman Corners facility will

pump 96,683 tons of greenhouse gas emissions into the air every year. This

corresponds to nearly three times more greenhouse gas emissions than if the current

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single-turbine compressor station ran continuously. However, since that turbine

currently operates only 10% of the time, the proposed expansion represents almost a

30-fold increase. If all fugitive emissions, blowdowns, and other sources were taken

into account, the facility would most certainly exceed the 100,000-ton per year major

source threshold for greenhouse gas emissions.

13. Similarly, the emissions of pollutants harmful to human health are projected to be

much higher than at the existing facility. Again, since the existing turbine operates

only 10% of the time, volatile organic chemical (“VOC”) emissions could increase by

two hundred times after the new equipment is installed. In fact, the expanded

Brookman Corners station would be by far the most polluting of all of the compressor

stations that are part of the New Market Project.

14. Dominion’s application for site plan approval was submitted to the Town of Minden

Planning Board on April 30, 2015. On June 2, 2014, Dominion submitted an

application to the Federal Energy Regulatory Commission (“FERC”) for a Certificate

Granting Construction. At the same time, New York State Facility Air Permit

Applications were submitted to the New York State Department of Environmental

Conservation. These permits have not yet been issued. An Environmental

Assessment was issued by FERC on October 20, 2015. An Order Granting

Certificate for Construction was issued by FERC on April 28, 2016, conditioned on

issuance of other permits including the New York State Department of Environmental

Conservation Air Quality Permits.

15. A Motion for Reconsideration and Petition for Rehearing of Order Issuing Certificate

was filed by Petitioners Otsego 2000, Mohawk Valley Keeper and John and

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MaryAnn Valentine with FERC on May 31, 2016. This application remains pending.

No construction has yet commenced.

IV. LACK OF SEQRA COMPLIANCE

16. The Town of Minden Planning Board designated itself as the lead agency for SEQRA

purposes. The lead agency is the agency responsible to ensure compliance with the

procedural and substantive requirements of SEQRA.

17. According to the regulations promulgated pursuant to SEQRA:

“The basic purpose of SEQR is to incorporate the consideration of

environmental factors into the existing planning, review and

decisionmaking processes of state, regional and local government

agencies at the earliest possible time. To accomplish this goal,

SEQRA requires that all agencies determine whether the actions

they directly undertake, fund or approve may have a significant

impact on the environment and, if it is determined that the action

may have a significant adverse impact, prepare or request an

environmental impact statement.” 6 NYCRR Part 617.1(c).

18. Further, the regulations indicate that:

“In adopting SEQR, it was the Legislature’s intention that all

agencies conduct their affairs with an awareness that they are

stewards of the air, water, land and living resources, and that they

have an obligation to protect the environment for the use and

enjoyment of this and all future generations.” 6 NYCRR Section

617.1(b)

19. The regulations contained at 6 NYCRR § 617.7 provide that an environmental impact

statement must be prepared if the proposed action “may include the potential for at

least one significant adverse environmental impact.” 6 NYCRR § 617.7(a)(1)

[emphasis added].

20. Conversely, to determine that an EIS will not be required for an action, “the lead

agency must determine either that there will be no adverse environmental impacts or

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that the identified adverse environmental impacts will not be significant.” 6 NYCRR

§ 617.7(a)(2).

21. The first issue that must be decided by the lead agency is whether the action is a Type

I action, an Unlisted action, or Type II action. As indicated in the regulations at

NYCRR § 617.4(a):

“The purpose of the list of Type I actions in this section is to

identify, for agencies, project sponsors and the public, those

actions and projects that are more likely to require the preparation

of an EIS than Unlisted actions. All agencies are subject to this

Type I list.

(1) This Type I list is not exhaustive of those actions that an

agency determines may have a significant adverse impact on the

environment and requires the preparation of an EIS. However, the

fact that an action or project has been listed as a Type I action,

carries with it the presumption that it is likely to have a significant

adverse impact on the environment and may require an EIS. For

all individual actions which are Type I or Unlisted, the

determination of significance must be made by comparing the

impacts which may be reasonably expected to result from the

proposed action with the criteria listed in subdivision 617.7(c) of

this Part.” 6 NYCRR 617.4(a)

22. In the instant action, the Planning Board correctly determined that the action is a

Type I action, which carries the presumption of likely significant environmental

consequences and the need to prepare an environmental impact statement.

23. The lead agency is required to apply a “hard look standard” in fulfilling its SEQRA

responsibilities, which requires an agency to:

“(1) Identify all areas of environmental concerns and

(2) Take a ‘hard look’ at the environmental issues identified;

and

(3) Provide a reasoned elaboration for the decisions that are

made, including whether or not to do an Environmental Impact

Statement.” 6 NYCRR at 617(b)

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24. There are a number of procedures that the Minden Planning Board undertook, which

are contrary to the regulatory requirements of SEQRA.

25. First of all, while the applicant prepares Part I of the Environmental Assessment

Form, in a Type I action a lead agency is required to prepare, review and analyze Part

II of the Environmental Assessment Form. If there is any indication in Part II that

particularly identified environmental concerns may have a large adverse consequence,

the lead agency must then prepare Part III of the Environmental Assessment Form,

analyzing the potential adverse environmental consequences that may ensue, and

whether or not the environmental consequence would require an Environmental

Impact Statement to be drafted. Part II and Part III of the Environmental Assessment

Form must be prepared by the lead agency.

26. However, as was clear at the Minden Planning Board meeting of August 29, 2016,

where the Negative Declaration was adopted (hereinafter cited as “Negative

Declaration” and attached hereto as Exhibit A), both Part II and Part III of the final

proposed Environmental Assessment Form were not actually prepared by the

Planning Board as lead agency. Instead counsel for the Planning Board simply

handed each Planning Board member the completed forms. Upon receiving the fully

completed Part II and Part III forms and prior to their adoption, there was no

discussion or questions offered by the members of the Planning Board, and the

Negative Declaration was immediately approved by the Planning Board without any

further review, analysis, questions, or any other consideration of the environmental

consequences of expanding the compressor station, or Part II and III of the

Environmental Assessment Form.

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27. Another manner in which the Planning Board failed the “hard look” standard required

of SEQRA review was its reliance upon the effects of the existing compressor station,

in support of the finding that the expanded compressor station will not have any

adverse effects on the environment. As previously indicated, the expanded

compressor station will be significantly greater in scope, equipment, and operation

than the existing compressor station, which is currently only in operation 10% of the

time. Therefore, the existing compressor station cannot be considered an adequate

reference point for the effects of the proposed expanded compressor station, which

not only is much larger, but also will be operated much more often and potentially

continuously.

28. In addition, in a number of the identified environmental areas, the Planning Board as

lead agency deferred its responsibility for environmental review to other agencies.

For example, any air pollution effects were improperly entirely deferred to the New

York State Department of Environmental Conservation. The Planning Board also

made repeated reference to and reliance upon the actions of FERC. While a lead

agency has the right to consider studies, documents and comments from other

agencies that have expertise concerning a particular area, they still must

independently review and analyze the areas of environmental concern, and not defer

the analyses and conclusions to another agency. This is especially true because New

York State DEC has not even issued the final air permits for this project.

29. Furthermore, as previously indicated, this proposed expanded compressor station is

necessary to bring increased amounts of gas across New York and then transfer it

from one pipeline to another, requiring other compressor stations along the entire

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pipeline route. However, the Minden Planning Board only considered the adverse

effects of the one proposed expanded compressor station at Brookman Corners,

ignoring any adverse effects of the larger pipeline project and other compressor

stations, even though the Brookman Corners compressor station is clearly only one

part of the larger project. By only considering the adverse effects of this proposed

expanded compressor station, even in the cavalier manner that they considered those

effects, the Planning Board has engaged in improper “segmentation” of the project.

30. The SEQRA regulations require that the SEQRA lead agency not only consider the

direct effect of the project under consideration, but the cumulative effects of the

project as well. Therefore, the requirement of review of cumulative effects would

also require the Minden Planning Board to consider the effects of the entire pipeline

project and additional compressor stations.

31. Therefore, in determining whether a project will have a significant effect on the

environment, the reviewing agency must consider all reasonably related long-term,

short-term and cumulative effects, including other simultaneous or subsequent actions

of which the action under consideration is a part.

32. Segmentation is defined in the regulations as “the division of the environmental

review of an action such that various activities or stages are addressed under this part

as though they were independent, unrelated activities needing individual

determinations of significance.” 6 N.Y.C.R.R. § 617.2(a-g). As indicated in the

regulations at 6 N.Y.C.R.R. § 617.3(g):

“Actions commonly consist of a set of activities or steps. The

entire set of activities or steps must be considered the action,

whether the agency decision-making relates to the action as a

whole or to only a part of it.

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(1) Ensuring only a part or segment of an action is contrary

to the intent of SEQRA. If the lead agency believes that

circumstances warrant a segmented review, it must clearly state in

its determination of significance, and any subsequent EIS, the

supporting reasons and must demonstrate that such review is

clearly no less protective of the environment. Related actions

should be identified and discussed to the fullest extent possible.”

33. There is no question that the Dominion New Market Project, which is intended to

provide for the transport of 112,000 dekatherms of additional gas per day, and deliver

much of that gas to the Iroquois Pipeline, cannot be built without all components of

the project, including expansion of the compressor station at Brookman Corners, the

construction of new compressor stations in Chemung and Madison counties, and

several other modifications elsewhere along the pipeline corridor. For example, if not

for the larger project known as the “New Market Project,” there would be no need to

connect the Dominion and Iroquois pipelines and no need for an expanded

compressor station at Brookman Corners. Clearly, each action is dependent on the

other, which is a classic situation of segmentation. Even if the review engaged in was

appropriate, the lead agency would have had to indicate that it was segmenting the

review, and why such segmentation is “clearly no less protective of the environment.”

This was not done.

34. Since the environmental review process conducted by the Minden Planning Board

completely ignored the potential impacts of the larger action, the Minden Town

Board engaged in improper segmentation of review, and failed to consider the

cumulative effects of the entire project.

35. In determining whether or not there may be significant adverse environmental

impacts, the regulations at 6 NYCRR § 617.7 list the following factors, among others,

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which if they exist, would require the preparation of an environmental impact

statement [hereinafter cited as “EIS”]:

“(i) a substantial adverse change in existing air quality, ground or

surface water quality or quantity, traffic or noise levels; a

substantial increase in solid waste production; a substantial

increase in potential for erosion, flooding, leaching or drainage

problems;

(ii) the removal or destruction of large quantities of vegetation or

fauna; substantial interference with the movement of any resident

or migratory fish or wildlife species; impacts on a significant

habitat area; substantial adverse impacts on a threatened or

endangered species of animal or plant, or the habitat of such a

species; or other significant adverse impacts to natural resources;

(iv) the creation of a material conflict with a community’s current

plans or goals as officially adopted;

(v) the impairment of the character or quality of important

historical, archeological, architectural, or aesthetic resources or of

existing community or neighborhood character;

(vi) a major change in the use of either the quantity or type of

energy;

(vii) the creation of a hazard to human health;

(viii) a substantial change in the use, or intensity of use, of land

including agricultural, open space or recreational resources, or in

its capacity to support existing uses;

(x) the creation of a material demand for other actions that would

result in one of the above consequences

(xi) changes in two or more elements of the environment, no one

of which has a significant impact on the environment, but when

considered together result in a substantial adverse impact on the

environment…” 6 NYCRR § 617.7(c)(1).

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36. Therefore, a number of impacts present in the instant case required a hard look to be

taken, and a reasoned elaboration for the decision made as to whether or not that

particular issue may cause a significant adverse environmental consequence.

37. The impacts that require the preparation of an Environmental Impact Statement,

include the following:

a. Noise Impacts – The Planning Board determined that there will be no

significant adverse environmental effects due to increased noise, and in its

Negative Declaration, the Planning Board indicated that the basis for this

determination is that “The existing compressor station has not resulted in

any noise related complaints.” The Planning Board also reviewed noise

impact information provided by Dominion, and determined that any

increased noise levels would be consistent with New York State

Department of Environmental Conservation Guidelines for assessing noise

impacts. Finally, the Planning Board indicated that the buildings and

equipment would be sufficiently buffered so that the sound generated by

the compressor engines will meet the noise limitations established by

FERC. The Planning Board also required a post construction noise survey

required by FERC to mitigate any excess noise that might occur. (See, the

“Resolution of the Planning Board of the Town of Minden issuing a

Negative Declaration pursuant to the New York State Environmental

Quality Review Act for the expansion of the Dominion Transmission, Inc.

gas compressor station located at Brookman Corners (Exhibit A, p. 3,

subdivision (c).)

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The issue of noise is a major concern of the Petitioners, due to the

rural, agricultural and quiet nature of the surrounding area. Therefore, if

there is excessive noise during the day, and particularly at night, it will

provide a significant intrusion upon the residents who live in the

surrounding area.

Moreover, the Planning Board continually relied upon the effects,

including noise effects, of the existing compressor station. However, as

indicated previously, the existing compressor station is so significantly

smaller than what is proposed, that any reliance upon the supposed lack of

noise complaints regarding the existing compressor is irrelevant to the

proposed expansion. The proposed expansion would involve additional

equipment that does not presently exist at the site, including reciprocating

engine compressors that produce low frequency noise that is particularly

disturbing to people. The Planning Board ignored these facts. Similarly, it

is improper for the Planning Board to defer studies to post-construction,

since SEQRA requires that the lead agency make an independent analysis

of potential adverse environmental consequences prior to making a

decision concerning the project, and must have all the available

information before it in order to determine whether or not there may be at

least one significant adverse environmental consequence.

Further, the Planning Board failed to apply the New York State

DEC guidelines with respect to allowable increases over ambient noise

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levels and measurement of impacts at the property line as required by the

New York State DEC guidelines and the Town of Minden Zoning Law.

Finally, regarding noise impacts, the conclusion of the Planning

Board was not supported by any empirical data or evidence because

Dominion failed to supply the data on which its noise studies were based.

The Planning Board ignored this lack of supporting data, even after

Petitioners presented evidence supplied by an independent noise

consultant that the Dominion noise studies were unreliable.

b. Lighting - Lighting, like noise, is very important for Petitioners and their

members. The lighting proposed for the compressor station is industrial

lighting that will be on all night long, and will not be sufficiently shielded to

protect the surrounding homes from significant glare intruding on their quiet

enjoyment of their property. Moreover, there are other types of lighting that

could be used, and would have been developed in an Environmental Impact

Statement, to mitigate the significant adverse consequences of the light

intrusion. However, this is an area where the Planning Board only reviewed

lighting in the context of the site plan approval, but did not review lighting in

the context of SEQRA review. Indeed, lighting was not even considered or

mentioned in the Negative Declaration, and therefore, even if the Planning

Board considered lighting, they have not provided any reasoned elaboration

why the lighting plan proposed would not have any significant adverse

environmental consequences, which is required.

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c. Vegetation and Wildlife – In the Negative Declaration, the Planning Board

indicated that the project will not have any potential significant adverse

impact to existing vegetation and potential wildlife located in the vicinity of

the project site, because the project was previously disturbed by the

construction of the existing compressor, and the expanded compressor station

will not involve significant new disturbance or interfere with the movement of

any resident or migratory fish or wildlife. Apparently, the Planning Board

came to this conclusion, again, by improperly relying on the consequences of

the existing compressor station, which as previously indicated is improper

because of the vast differences between the existing compressor station and

the proposed expansion. Moreover, the Planning Board only considered

disturbance to include the amount of new acreage (2 acres) that will be needed

for the expanded compressor station. However, they failed to take into

account the effects of the proposed expanded compressor station on flora or

fauna offsite of the disturbed area. Clearly, noise, lighting, fumes or other air

pollutants would all potentially affect any wildlife or important plants that are

nearby the site of the proposed expansion. This is especially true since there

is a jurisdictional wetland adjoining the proposed expansion, as well as the

Otsquago Creek, a class C-designated waterway, several hundred feet from

the expanded site. Moreover, the Planning Board further failed to take a hard

look at the issue, since they never did a reconnaissance of what plants or

animals may be in the vicinity of the proposed compressor station, or

otherwise whether or not such areas, for example, the wetland, would provide

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habitat for such plants or animals, which is generally the case. By not even

considering what plants or animals may be present, the Planning Board

obviously failed to take a hard look at this issue, and merely provided a

conclusion rather than a reasoned elaboration for its determination that there

will be no adverse effects on plants or animals.

d. Aesthetic and Cultural Resources – Again, the Planning Board indicated in its

Negative Declaration that the project will not impact aesthetic or cultural

resources, because the existing compressor station, in its opinion, has not

impacted any cultural or aesthetic resources and the expanded facility will not

result in any new impacts. Moreover, the only other basis for such a

conclusion is a reliance on FERC’s determinations concerning aesthetic and

cultural resources. Therefore, the Planning Board itself undertook no

independent analysis of the effects of the expanded compressor station on

aesthetic and cultural resources.

In fact, there will be significant adverse environmental effects on both

aesthetic and cultural resources. First of all, based upon the landscaping and

site plan approved, the buildings, smoke stacks and other equipment will be

visible from surrounding properties. The proposed landscaping to buffer the

facility is totally inadequate, and in fact is contrary to the requirements of the

Minden Zoning Law.

Concerning cultural resources, the Planning Board ignored a historic

site that abuts the proposed expanded compressor station site. John and Mary

Ann Valentine own Slate Creek Farm, which is located immediately adjacent

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to the proposed compressor station, and was constructed on Otsquago Creek

in 1834 by John Smith, a German immigrant. The entire 200-acre property,

including the farm and adjacent residence and outbuildings, is listed on both

the New York State Register of Historic Places and on the National Register

of Historic Places.

Historic architectural resources are particularly noted as an area that

must be reviewed by the lead agency. By not even mentioning this historic

resource, which, as indicated, abuts the site of the proposed expanded

compressor station, the Minden Planning Board has certainly failed the hard

look test by not even identifying this issue as an area of environmental

concern to be reviewed. Furthermore, there is no question that an expanded

compressor station will in fact have adverse consequences concerning this

historic resource, due to the significant changes in lighting, noise, and air

pollutants.

e. Air Pollution – The Planning Board in its Negative Declaration merely

indicated the conclusion that the project is not expected to result in significant

impacts to air quality. However, it is clear that the Planning Board did not

make an independent analysis concerning whether or not the emissions from

the expanded compressor station will cause significant adverse effects to air

quality. They merely indicated that the project will be subject to regulatory

standards promulgated and implemented by the New York State Department

of Environmental Conservation since the compressor station will be subject to

a New York State Air Facility Permit. Indeed, at the Planning Board meeting

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where the Negative Declaration was adopted, the attorney for the Planning

Board indicated that a planning board does not have the power to consider air

quality since jurisdiction for such consideration was with the New York State

Department of Environmental Conservation, and not with the Planning Board.

While this project is required to obtain an Air Facility Permit from the

Department of Environmental Conservation, this does not absolve the

Planning Board, as lead agency, from also making its own analysis to

determine whether or not there may be significant adverse environmental

effects due to air pollution. The conclusion of the Planning Board to entirely

defer consideration of air quality to the DEC is even more egregious when the

significant amount of pollutants released into the air is considered. In fact

Dominion recently disclosed plans to produce electricity from micro-turbines

at the site which were not even part of its initial application. The emissions

from the micro-turbines are expected to be more than 14,000 tons of

greenhouse gas emissions annually, in addition to other pollutants. Added to

the greenhouse gas emissions that Dominion included in its application, this

could amount to more than 111,000 tons of greenhouse gas and hazardous

chemical emissions annually.

Moreover, the emissions modeling performed by Dominion and relied

on by the Planning Board did not take into account the unique topography at

Brookman Corners. Topography and local meteorology are significant factors

that control dispersion of emissions. The Brookman Corners compressor

station is located in the center of a drainage basin formed by the Otsquago

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Valley and the larger Mohawk Valley. At night, air often stabilizes above

cooler waters of the Otsquago Creek, creating a temperature inversion that

causes heavy ground fog.

The top of the four proposed exhaust stacks at the project will be at a

lower elevation than the valley rim, which will concentrate emissions for

longer periods of time near the surface and eventually carry them downwind

to Fort Plain. This emissions plume could extend to the nearby Amish schools

and the major public school in Fort Plain, exposing children to much more

highly concentrated doses of air pollutants than should be allowed. None of

these factors were considered by Dominion in its analysis. In fact, Dominion

modeled its dispersion of pollutants based on non-representative wind patterns

for distant locations with significantly different topography.

In addition to the above, it appears that Dominion improperly withheld

key information regarding emissions associated with the planned use of

micro-turbines to generate electricity at the Brookman Corners site. According

to Dominion, it plans to install micro-turbines at Brookman Corners to

generate 4,678 megawatt-hours of electricity annually. The use of microturbines

at Brookman Corners would significantly increase emissions from the

facility, amounting to more than 14,000 tons per year of additional greenhouse

gases in addition to other pollutants, including formaldehyde, VOCs, carbon

monoxide, and nitrogen oxides that Dominion failed to disclose or include in

its air emissions modeling. The Planning Board completely ignored these

emissions and did not consider or analyze their impact them in any way.

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Therefore, the Planning Board failed to take a “hard look” at this issue,

and thereby failed to provide a reasoned elaboration for their conclusion that

there will be no significant adverse effects caused by the air pollution.

f. Impacts on Health – The Planning Board in its Negative Declaration,

indicated that the proposed expanded compressor station will not create a

hazard to public health. However, the Planning Board deferred any

independent analysis of this issue to FERC, which based its health risk

assessment only on the improperly modeled emissions, as previously

discussed. Again, the Planning Board incorrectly deferred to the New York

State DEC. The Planning Board simply assumed that the State Air Facility

Permits will assure that all air emissions will comply with state and federal air

pollutions control standards. Therefore, yet again, the Planning Board did not

independently analyze and consider whether or not there will be significantly

adverse public health concerns arising from the expanded compressor station

at the Brookman Corners site.

It is well documented that significant acute and chronic health

problems have been experienced by people living or working near compressor

stations due to elevated levels of VOCs, nitrogen oxides, carbon monoxide,

formaldehyde, ground-level ozone, particulate matter and other hazardous air

pollutants. Negative health effects of exposure to these chemicals include

cardiovascular, respiratory, and neurological damage, birth defects, cancer,

leukemia, infertility, and other impairments and ailments. Thimble Creek

Research, in a report prepared for the Madison County Department of Health

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(dated September 30, 2014), discusses these impacts at length. As discussed

in that report, 90% of individuals within two to three miles of compressor

stations experience odors and/or adverse health effects. Therefore, failure to

consider these impacts or to assume that they are being addressed by other

regulatory agencies is not sufficient to comply with SEQRA regulations.

g. Community Character – The Planning Board, in its Negative Declaration,

indicated that the project will not have an adverse impact on the character of

the community or neighborhood. The Planning Board again improperly base

this conclusion on their determination that the project is consistent with local

zoning, which it is not, as will be further explained in this Petition, and that

the existing compressor station has not had an adverse impact on the character

of the community or neighborhood and the expanded facility will not result in

any new impacts.

As previously indicated, relying on the impacts of the existing

compressor station is inappropriate due to the vast difference between the

existing compressor station and the proposed expanded compressor station. It

taxes credulity to assume that the proposed large industrial facility, sited in the

midst of rural farmland, will not have any adverse effects on the surrounding

community character. Moreover, this determination was made without having

completed a visual environmental assessment, which is required by DEC

Program Policy DEP-00-2 for SEQR review of the effects of a proposed

project on community character. Therefore, again, the Planning Board failed

the “hard look” test by relying on the existing compressor station to justify the

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expansion and failing to provide any reasonable elaboration concerning why

the expanded proposed compressor station will not have adverse effects on

community character.

38. For all of the foregoing reasons, the Minden Planning Board failed the procedural

requirements of the “hard look” standard and ignored many potential significant

adverse effects that may ensue from the expanded compressor station, which would

require the preparation of an Environmental Impact Statement.

V. THE EXPANDED COMPRESSOR STATION WILL VIOLATE THE

ZONING LAW OF THE TOWN OF MINDEN

39. The compressor station expansion was presented to the Planning Board through an

application for a special use permit as a “public utility.” The stated reason for this

was that the existing compressor station which was approved in the year 2000 was

treated as a “public utility.” However, whatever the basis for treating the initial

project as a public utility may have been 16 years ago, this is an error that should not

be repeated.

40. The current project, as previously indicated, is dramatically larger and the risks are

many orders of magnitude greater. The current project requires that it be considered

by applying the current Minden Zoning Law which was adopted on October 18, 2000,

after the approval of the existing compressor station.

41. Therefore, since the existing facility was permitted before the current zoning law took

effect, relying on the fact that it was treated as a “public utility” under the previous

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Zoning Law does not mean that the proposed expanded station would be defined as a

“public utility” under the current Zoning Law.

42. The proposed project is located in a district zoned “A” agricultural. Only principal

enumerated uses are allowed “as of right” in this district. Any other enumerated

permitted use requires a “special” permit. All other uses are “prohibited.” (Minden

Zoning Law §§ 90-80 and 90-10). The Dominion compressor station expansion is not

an allowed or special permitted use in an agricultural district. Accordingly, the

special use permit for construction at the site cannot be granted.

43. Dominion maintains that the compressor station expansion qualifies for a special use

permit under the new Zoning Law, because it is a “public utility” station, under § 90-

10 D (5) of the Minden Zoning Law. This use is defined as a facility maintained for

the provision of electricity, gas, or similar services to the “general public” and “shall

not include offices or administrative buildings.” (Zoning Law, Definitions § 90-5)

44. Significantly, the proposed expansion is not intended to provide any electricity or gas

to the “general public.” Instead, as described in Dominion’s application to FERC, it

will serve only two specified “wholesale” customers of Dominion with no provision

whatsoever for local use of the gas.

45. In further support that the expanded compressor station is not intended to provide

electricity or gas “to the general public,” the Environmental Assessment originally

submitted by Dominion to the Town of Minden for the project in the year 2000

expressly admitted that the project will have “no” effect on the community sources of

fuel or energy supply.

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46. Additionally, the current plan includes administration buildings, which are not

permitted for a facility designated a “public utility” under the Zoning Law.

47. If the project were to be considered a “public utility,” the Zoning Law expressly

provides that the facility must include a landscaped area at least 20 feet wide and that

“there shall be no equipment visible from surrounding property”. (Zoning Law, § 90-

49) The existing site does not comply with this requirement and the landscape plan

proposed by Dominion for the expanded facility fails to comply with this provision.

Thus, even if the expanded facility met the definition of a “public utility” under the

Zoning Law, it will not comply with the Zoning Law and is clearly improperly sited

in an agricultural district.

48. For all of these reasons, the Planning Board’s decision to treat this application as a

“public utility” because it was originally permitted as such 16 years ago is an error.

At most, the existing compressor station is in fact a non-conforming use of land,

which, under the new Zoning Law, “must not be enlarged or extended.” Indeed, the

law requires the gradual elimination of non-conforming uses, not their expansion.

(Zoning Law § 90-1)

49. Furthermore, the Zoning Law specifically provides that a “…non-conforming use of

land shall not be enlarged or extended beyond the area of land occupied by such use

at the time of adoption of this chapter. A non-conforming use of land may not be

moved in whole or in part to any other portion of the lot or parcel of land occupied by

such non-conforming use at the time of adoption of this chapter. (§ 90-56)”

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50. Therefore, the proposed expansion of the compressor station, and the grant of the

special use permit by the Minden Planning Board violates the Town of Minden

Zoning Law and must be voided.

VI. THE SITING AND EXPANSION OF THE PROPOSED COMPRESSOR

STATION IS INCONSISTENT WITH THE COMPREHENSIVE PLAN OF THE

TOWN OF MINDEN

51. Section 263 of the New York State Town Law requires that uses within a town must

be consistent with an officially adopted comprehensive plan of that town. The Town

of Minden has officially adopted such a Comprehensive Plan.

52. The Minden Comprehensive Plan states that land uses in the Town of Minden should

insure the continuing viability of Amish farms, agricultural land uses, historic sites,

and the rural character of the town.

53. Moreover, the Comprehensive Plan requires the avoidance of development which

does not fit with the rural character of the town, negatively impacts the environment,

creates excessive lights, glare, noise, odors, or industrial development in

inappropriate locations.

54. The Comprehensive Plan also specifically provides that all outdoor lights used for

business are to be fully shielded light fixtures, which is not the case in the lighting

plan for the proposed compressor station expansion.

55. The Comprehensive Plan further states that the Town will control ancillary land uses

associated with natural gas drilling so that, if gas drilling occurs elsewhere, the

ancillary uses will not affect Minden, including specifically “compressor stations.”

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56. Therefore, the proposed compressor station is contrary to Minden’s Comprehensive

Plan for proposed future uses of land within the Town borders. Accordingly, it

violates § 263 of the New York State Town Law.

VII. FOR A FIRST CAUSE OF ACTION: VIOLATION OF SEQRA

57. Petitioners repeat and incorporate by reference as though fully set forth herein, each

and every paragraph hereinbefore mentioned.

58. The decision to issue a Negative Declaration violated both the procedure and

substantive requirements of SEQRA, as previously indicated. The decision to issue a

Negative Declaration, and not to require an Environmental Impact Statement, was

arbitrary, capricious and otherwise in violation of the law.

59. Therefore, due to the violations of SEQRA, it is necessary to void the approval of the

compressor station expansion and to issue an injunction until such time as SEQRA is

fully complied with through the drafting of an Environmental Impact Statement.

VIII. FOR A SECOND CAUSE OF ACTION: VIOLATION OF THE TOWN OF

MINDEN ZONING LAW

60. Petitioners repeat and incorporate by reference as though fully set forth herein, each

and every paragraph hereinbefore mentioned.

61. As addressed in greater detail above, it was a violation of the current Town of Minden

Zoning Law to allow excessive noise, lights, glare, vibrations, odors and toxic

emissions to impact the surrounding properties and the community, and to treat the

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proposed expansion of the compressor station as a public utility, and to fail to

adequately screen it from view as required by the Town of Minden Zoning Law.

62. Since the proposed expansion of the compressor station is not a “public utility,” the

compressor station is a non-conforming use, which cannot be expanded or moved,

pursuant to the restrictions in the Zoning Law.

63. Since the proposed expansion of the compressor station constitutes an expansion of a

non-conforming use and violates the Zoning Law in numerous respects as set forth

above, the grant of a special use permit to Dominion to expand the compressor station

violates the Town of Minden Zoning Law, and is therefore arbitrary and capricious

and otherwise in violation of law, requiring that the special use permit be denied.

IX. FOR A THIRD CAUSE OF ACTION: INCONSISTENCY WITH TOWN

OF MINDEN’S COMPREHENSIVE PLAN

64. Petitioners repeat and incorporate by reference as though fully set forth herein, each

and every paragraph hereinbefore mentioned.

65. Since the proposed expansion of the compressor station is not consistent with the

Town of Minden’s Comprehensive Plan, it is in violation of § 263 of the New York

State Town Law, and the special use permit must be voided.

66. Petitioners have no adequate remedy of law.

WHEREFORE, due to the foregoing violations of law, it is respectfully

requested that the Court void the granting of the special use permit by the Town of

Minden Planning Board, and further issue an injunction enjoining any further approval of

the proposed expansion of the compressor station, and such injunction should issue until

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such time as an Environmental Impact Statement is drafted and SEQRA is fully complied

with. No prior request for this relief has been made to this or any other court.

DATED: Buffalo, New York

September 26, 2016

Respectfully submitted,

RICHARD J. LIPPES, ESQ. NICOLE DILLINGHAM, ESQ.

LIPPES & LIPPES Post Office Box 101

1109 Delaware Avenue Springfield Center, New York, 13468

Buffalo, New York 14209 Telephone: (917) 434-7241

Telephone: (716) 884-4800

Attorneys for Petitioners