Moreau Planning Board delays Biochar decision 45 more days

By Zander Frost, Chronicle Staff Writer

On Monday night, July 18, the Moreau Town Planning Board decided to delay a decision on an approval for the Saratoga Biochar facility for 45 days.

The meeting was contentious — a packed house carried anti-Biochar signs and audibly objected throughout.

It was filled with twists and turns.

Acting Chairman John Arnold called for order throughout the night, reminding the audience that this was not a public hearing.

First, Biochar CEO Ray Apy spoke, saying he was prepared for a decision on his application for a “carbon fertilizer manufacturing facility in Moreau Industrial Park.”

Planning Board Member Ann Purdue, Esq., read a prepared statement calling on the board to appoint an independent consultant to evaluate the project.

She was met with loud applause and shouts of thanks from the crowd.

The discussion turned to a draft approval resolution drawn up by the Planning Board’s attorney, Karla Buettner, at the board’s request last meeting.

There was some confusion from members of the board over the draft’s contents; different board members appeared to have different versions, as the draft was going through edits that day.

Board member Mike Shaver said, “As it stands, it doesn’t work for me” due to lack of language regarding odor enforcement.

Ms. Buettner said the board asked her to make the draft for discussion at the meeting, and that “we can do real-time changes” during the meeting.

Ms. Purdue made another statement highlighting what she said are new concerns about the project.

She cited updated EPA guidelines that drastically lowered the levels of PFAS considered safe in water, and said “the project may receive and store on site unauthorized waste including radioactive and hazardous waste.”

The EPA says PFAS (per- and polyfluoroalkyl substances) may be linked to harmful health effects in humans and animals.

CEO Mr. Apy contends Saratoga Biochar’s process would destroy PFAS in biosolids used in their process.

Ms. Purdue’s statement led into a motion to, in part, rescind the board’s prior negative SEQR declaration and appoint an independent expert to assess the project.

As happened at the prior meeting, no one seconded the motion, animating the crowd again.

After more discussion, Ms. Buettner said Moreau code states within 45 days of the close of the public hearing ”this board needs to make a determination or it is seen as a tacit approval.”

She said the deadline passed “last week.”

Member Mr. Shaver asked, “You’re telling us we have to vote on this tonight?”

Ms. Buettner replied, “I’m not telling you you have to do anything. I’m telling you what your code says.”

After more tense discussion, Ms. Buettner offered an alternative route, which the board ultimately took.

Ms. Buettner said, “You have the right upon written notice to the applicant to request an additional 45 days to make your determination. That’s beyond today.”

When the crowd began clapping, she spoke over them: “Please don’t clap for me.”

Planning Board Member Erik Bergman said of the draft approval resolution, “it’s not anywhere near complete. So at a minimum, I’d be looking for the 45 days to craft it out.”

Another twist in the meeting came when Charles Dumas, attorney for Biochar, said their position is, “there’s been a tacit approval of the project already.”

“We submitted a completed application long ago, and the 45 days to act on that has passed. But again, we’re here to try and do the right thing by virtue of your desire and your process,” he said.

Ultimately, Mr. Arnold said, “we need 45 more days to work out our resolution because we’re really on short notice here.”

The board also elected to provide the applicant with the current and final draft resolutions prior to the next meeting.

After the meeting, Biochar CEO Ray Apy told The Chronicle, “We’re frustrated by delays but we’ll keep working through the process.”

Does he feel the process has been fair? “Yes. Mostly, yes. Yeah, but these are not easy things to do for a small town. So I understand that.”

Would he consider legal action he doesn’t get approved?

“I have no idea. I can’t imagine — that’s the last thing I would ever want to do. I’ll leave it at that,” he said.

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The Albany Business Review, in an article the next morning headlined “Decision looms over Saratoga Biochar’s controversial fertilizer factory,” said in its first paragraph that the Biochar plant “may already be approved on a technicality, weeks before the town planning board votes on the project.”

It carried forward the contention of Biochar attorney Charles Dumas, of the Saratoga firm Lemery Greisler LLC, that “the $29-million-plus project is subject to a ‘tacit approval’ after the planning board neglected to make a decision…within 45 days after receiving the final site plan documents. Town regulations state that failure to act on a project within the prescribed period constitutes an approval.”

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