Supreme Court, Yates County, April 7, 2022

Lippes & Lippes (Richard J. Lippes of counsel) for petitioners.

Barclay Damon LLP (Yvonne E. Hennessey of counsel) for Greenidge Generation LLC, respondent.

Bond, Schoeneck & King, PLLC (Kathleen M. Bennett of counsel) for Town of Torrey, respondent.

In 2014 respondent Greenidge Generation LLC (hereinafter Greenidge) purchased [*2]Greenidge Station (hereinafter the plant), an electric generating facility in the respondent Town of Torrey. The plant had been inactive for the preceding three years, and Greenidge sought to resume plant operations by burning natural gas instead of the previously used coal.^[FN1] In order to accomplish this, Greenidge sought Title IV and Title V air permits, a renewal of its State Pollutant Discharge Elimination System permit (hereinafter SPDES), and an initial water withdrawal permit from the New York State Department of Environmental Conservation (hereinafter NYSDEC). Greenidge received the Title IV and Title V air permits from the NYSDEC in September of 2016.

On April 21, 2017, the Honorable William F. Kocher issued a decision (2017 NY Slip Op 33406[U] [Sup Ct, Yates County 2017]) dismissing a petition seeking to invalidate the air permits (among other requested relief). The Appellate Division, Fourth Department dismissed the petitioners' appeal as moot. (Matter of Sierra Club v New York State Dept. of Envtl. Conservation, 169 AD3d 1485, 1488 [4th Dept 2019] [Greenidge I] ["Greenidge undertook the construction project with all the necessary permits based upon the conclusions and requirements{**75 Misc 3d at 526} of the existing SEQRA (State Environmental Quality Review Act) review. Greenidge substantially completed that construction, and we therefore conclude that petitioners' challenge to the SEQRA review became moot (see generally Matter of Riverkeeper, Inc. v Johnson, 52 AD3d 1072, 1073-1074 [3d Dept 2008], lv denied 11 NY3d 716 [2009])"].)

In September of 2017 NYSDEC issued Greenidge a water withdrawal permit and a SPDES permit. The water withdrawal permit authorized Greenidge to withdraw up to 139,248,000 gallons of water from Seneca Lake per day; the SPDES permit allowed the discharge of 134,000,000 gallons of water per day into Seneca Lake.

On November 8, 2018, the Honorable William F. Kocher issued a decision dismissing a petition seeking to invalidate the water withdrawal permit and the SPDES permit (2018 NY Slip Op 34221[U] [Sup Ct, Yates County 2018] [Greenidge II]). Relevant to the issues herein, the court determined that the "DEC fully considered all of the potential environmental impacts of the renewed SPDES permit, including those to surface waters." (Greenidge II at *16; NY St Cts Elec Filing [NYSCEF] Doc No. 71 at 16.) The decision was not appealed.

The plant began operating in March of 2017.

In June of 2020, Greenidge sought approval from the Town of Torrey Planning Board for necessary approvals and permits to construct a bitcoin mining facility, consisting of four buildings and related computer equipment. Greenidge sought to use the electricity generated from the plant to power the bitcoin facility. The Town of Torrey eventually issued a negative declaration under SEQRA and granted site plan approval.

Petitioners filed the first amended petition on May 21, 2021, challenging the issuance of a negative declaration. On July 1, 2021, respondent Town of Torrey issued a building permit to respondent Greenidge, and construction of the bitcoin mining facility began.

Before the court are (1) the amended petition seeking to void the site plan approval, and [*3]enjoining Greenidge from constructing and operating the bitcoin mining facility,^[FN2] (2) respondent Greenidge's notice of motion to strike the affidavit of Dr. Gregory{**75 Misc 3d at 527} Boyer,^[FN3] (3) petitioners' notice of motion for a preliminary injunction (filed Dec. 3, 2021),^[FN4] and (4) respondent Greenidge's notice of motion to dismiss the amended petition and in opposition to petitioners' motion for a preliminary injunction.^[FN5]

On June 30, 2020, Greenidge submitted an application for site plan approval to the Town of Torrey to build four structures and related utility equipment on 1.3 acres of property it owned at 590 Plant Road (hereinafter the project). The structures were to house computer equipment to "mine" bitcoin, using electricity generated from the Greenidge plant. Included in the application were site plans, a "Site Plan Review-Permit Application," a full environmental assessment form (EAF),^[FN6] and a community noise assessment conducted by Aurora Acoustical Consultants, Inc.^[FN7]

Notably, the project did not require an increase in generating capacity at the plant and would use the electricity generated by the plant while it was operating under the previously issued permits.{**75 Misc 3d at 528}

Respondent Torrey Planning Board reviewed the application at the following meetings: [*4]July 15, 2019; August 19, 2019; September 16, 2019; October 14, 2019; July 20, 2020; and August 17, 2020.^[FN8] On September 21, 2020, respondent Planning Board declared itself the lead agency^[FN9] and the project to be an Unlisted action under SEQRA. The Planning Board also voted to issue a conditioned negative declaration and approval of the site plan.^[FN10]

On October 7, 2020, the conditioned negative declaration^[FN11] was published in the New York State Department of Environmental Conservation Notice Bulletin for Region 8, requiring public comments to be submitted by November 7, 2020.^[FN12]

On November 16, 2020, respondent Planning Board considered the public comments and voted to issue a conditioned negative declaration under SEQRA.^[FN13] The conditioned negative declaration was filed on November 17, 2020.

Subsequently, petitioners filed their verified petition (on Dec. 17, 2020) which noted that the respondent Planning Board violated General Municipal Law § 239-m which required respondent Planning Board to refer the project application to the Yates County Planning Board for review and possible approval, modification, or disapproval.^[FN14]

Respondent Torrey Planning Board referred the project to the Yates County Planning Board. At a meeting conducted on{**75 Misc 3d at 529} January 28, 2021, the Yates County Planning Board recommended denial of the project application as presented.^[FN15]

On April 19, 2021, respondent Torrey Planning Board reviewed the project's site plan application, reviewed the full EAF, received public comment, issued a negative declaration^[FN16] [*5]under SEQRA,^[FN17] and granted site plan approval.^[FN18] The required report of final action was filed with the Yates County Planning Board on April 20, 2021, with an explanation of why the project was approved.^[FN19] On July 1, 2021, respondent Town of Torrey issued a building permit, and construction of the project commenced in August of 2021.^[FN20]

On May 21, 2021, petitioners filed their first amended petition alleging that the respondent Planning Board violated SEQRA (6 NYCRR part 617 et seq.) by failing to prepare a full environmental impact statement (hereinafter EIS), and in not taking the requisite "hard look" at the potential for negative, environmental impacts.^[FN21]

Petitioners consist of Sierra Club (a not-for-profit conservation corporation), Seneca Lake Guardian, Inc. (a not-for-profit corporation dedicated to preserving the health of the Finger Lakes), the Committee to Preserve the Finger Lakes (a not-for-profit corporation dedicated to preserving the health of the Finger Lakes), and 30 individuals who own property either on or near Seneca Lake, or near the Greenidge facilities. All the individual petitioners allege that due to the operation of the Greenidge plant, there exists an increased risk of harm to their{**75 Misc 3d at 530} health due to "harmful algae blooms" caused by the discharge of the heated water from the plant into Seneca Lake. Some of the individual petitioners also allege that they will suffer increased noise levels from the bitcoin mining operation.^[FN22] [*6]

Respondents Town of Torrey and Town of Torrey Planning Board filed an answer and raised several affirmative defenses and objections in point of law, including that the petitioners lacked standing, the project was properly considered an Unlisted action, no EIS was required, respondents took the requisite hard look at the environmental impacts, and the decision to issue a negative declaration was supported by substantial{**75 Misc 3d at 531} evidence.^[FN23] Respondent Greenidge filed an answer raising the same defenses.^[FN24]

On June 17, 2021, respondent Greenidge filed a notice of motion seeking to strike the affidavit of Dr. Gregory Boyer (that was attached as an exhibit to the amended petition) arguing that it was improper as it contained information not presented to respondents prior to making their determination, and was irrelevant to the issue of standing.^[FN25]

On December 3, 2021, petitioners filed a notice of motion seeking a preliminary injunction to enjoin Greenidge from continuing to develop the project.^[FN26] Respondent Greenidge cross-moved to dismiss the amended petition and in opposition to petitioners' motion for a preliminary injunction.^[FN27]

Respondent Torrey Planning Board properly characterized the project as an Unlisted action.

Germane to the issues herein is whether respondent Torrey Planning Board properly [*7]classified the project as an Unlisted "action"^[FN28] under SEQRA.^[FN29] Petitioners argue that the project is properly considered a Type I action; respondents argue that{**75 Misc 3d at 532} they were correct in determining the project to be an Unlisted action.^[FN30]

[1] Petitioners argue that as the project would use electricity generated by the plant, and the plant would use greater than 2,000,000 gallons of water per day, the project must be characterized as a Type I action. (See 6 NYCRR 617.4 [b] [6] [ii].)^[FN31] Petitioners' argument is predicated on a mischaracterization of what the project entails. The project consisted of building four structures, installing computer and networking equipment, and connecting those buildings and equipment to the power grid in order to use some of the electricity generated by the plant. The project did not involve the use of water from Seneca Lake. Thus, respondent Torrey Planning Board properly determined the project was an Unlisted action.

Petitioners do not have standing.

As a necessary predicate for this court to consider a claim for relief, it must be established that the petitioners have standing to maintain the instant action.

"Whether a person seeking relief is a proper party to request an adjudication is an aspect of justiciability which, when challenged, must be considered at the outset of any litigation (Matter of Dairylea Coop. v Walkley, 38 NY2d 6, 9). Standing is a threshold determination, resting in part on policy considerations, that a person should be allowed access to the courts to adjudicate the merits of a particular dispute that satisfies the other justiciability criteria (see, Comment, Standing of Third Parties{**75 Misc 3d at 533} to Challenge Administrative Agency Actions, 76 Cal L Rev 1061, 1067-1068 [1988]; see also, Warth v Seldin, 422 US 490, 498)." (Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 769 [1991].)

In support of their application, petitioners submit affidavits which purport to establish the requisite standing to bring this action. The affidavits contain allegations that the power plant water intake and discharge will have adverse impacts on the water temperature and create [*8]harmful algae blooms in the vicinity of the affiants' property.

[2] These allegations are irrelevant to a determination of petitioners' standing.

The project being considered for approval by respondent Torrey Planning Board was Greenidge's application to build four structures and related utility equipment on 1.3 acres of property it owned at 590 Plant Road. The structures were to house computer equipment to "mine" bitcoin, using electricity generated from the Greenidge plant. The project would not impact the air or water of Seneca Lake. Thus, petitioners' concerns regarding the discharge of heated water from the Greenidge plant are irrelevant, and do not establish standing.

The court agrees with respondent Greenidge that the affidavit of Dr. Gregory Boyer is not properly part of the administrative record as it was not considered by respondent Torrey Planning Board. Additionally, it is irrelevant as to issues of standing as it addresses the impact of heated water discharge into Seneca Lake. As the project being considered by respondent Torrey Planning Board did not result in heated water being discharged into Seneca Lake, Dr. Boyer's averments are not relevant. Thus, the court grants respondent Greenidge's motion to strike the Boyer affidavit.

"A reviewing court may not substitute its own judgment for that of the agency (see Matter of Jennings v New York State Off. of Mental Health, 90 NY2d 227, 239 [1997]), and its review ' "is limited to the record before the agency and proof outside the administrative record should not be considered" ' (Matter of Dolan v New York State Dept. of Civ. Serv., 304 AD2d 1037, 1039 [2003], lv denied 100 NY2d 512 [2003], quoting Matter of Piasecki v Department of Social Servs., 225 AD2d 310, 311 [1996])." (Matter of Concetta T. Cerame Irrevocable Family Trust v Town of Perinton Zoning Bd. of Appeals{**75 Misc 3d at 534}, 6 AD3d 1091, 1092 [4th Dept 2004].)

However, some of the petitioners allege that the project, specifically the operation of the computer equipment and the fans necessary to remove heat, will result in excessive noise and this noise would negatively impact the enjoyment of their property.

These allegations are sufficient to establish that the petitioners' interest in the enforcement of SEQRA to ensure the project did not generate excessive noise is within the "zone of interest" SEQRA is designed to protect. (See Society of Plastics Indus. v County of Suffolk at 773; see also 6 NYCRR 617.7 [c] [1] ["These criteria are considered indicators of significant adverse impacts on the environment: (i) a substantial adverse change in existing air quality, ground or surface water quality or quantity, traffic or noise levels"].) However, that alone does not confer standing on petitioners. Petitioners must also establish a legally cognizable interest that is negatively impacted that is different than the interest of the public at large. The allegations made by petitioners, in the light most favorable to the petitioners, are insufficient to confer standing on the petitioners to seek the relief requested.

Although the Court of Appeals has stated that the principles of standing should not be overly restrictive (see Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406, 413 [1987]), something more than the interest of the public at large must be present before standing is conferred on a person seeking to challenge an administrative determination. (Id.) Property owners in proximity to the subject property may have standing (id. at 413-414), but petitioners "may be so far from the subject property that the effect of the proposed change is no different from that suffered by the public generally." (Id. at 414 [citation omitted].)

Petitioners have failed to establish that they would suffer an environmental injury different from that suffered by the general public. (See Matter of Green Earth Farms Rockland, LLC v Town of Haverstraw Planning Bd., 153 AD3d 823 [2d Dept 2017].) None of the [*9]petitioners lives closer than 2,000 feet to the project. It cannot be said that the petitioners live in proximity to the subject property such that they have standing to challenge respondent Torrey Planning Board's site approval and SEQRA negative declaration. (Compare Zupa v Paradise Point Assn., Inc., 22 AD3d 843 [2d Dept 2005]; Matter of Burns Pharm. of Rensselaer v Conley, 146 AD2d 842 [3d Dept 1989].){**75 Misc 3d at 535}

As none of the individual petitioners have standing, petitioner organizations do not have standing.

"To establish standing, an associational or organizational group . . . 'must show that at least one of its members would have standing to sue, that it is representative of the organizational purposes it asserts and that the case would not require the participation of individual members' (New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207, 211 [2004]). Pursuant to the first requirement of the associational standing test, a petitioner must demonstrate an injury-in-fact to one or more of its members and that the injury falls 'within the zone of interests or concerns sought to be promoted or protected by the statutory provision under which the agency has acted' (id. at 211; see Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 772-773 [1991])." (Matter of New York State Psychiatric Assn., Inc. v Mills, 29 AD3d 1058, 1059 [3d Dept 2006].)

Respondent Torrey Planning Board took the requisite "hard look."

[3] Assuming the petitioners alleged sufficient allegations to establish standing, the court finds that respondent Torrey Planning Board took the required "hard look" before issuing the negative declaration for the project.

"[C]ourts may, first, review the agency procedures to determine whether they were lawful. Second, we may review the record to determine whether the agency identified the relevant areas of environmental concern, took a 'hard look' at them, and made a 'reasoned elaboration' of the basis for its determination. Court review, while supervisory only, insures that the agencies will honor their mandate regarding environmental protection by complying strictly with prescribed procedures and giving reasoned consideration to all pertinent issues revealed in the process." (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 417 [1986] [citations omitted].)

Respondent Torrey Planning Board, as outlined above, properly classified the project as an Unlisted action. Furthermore, it is clear from the administrative record that respondent Torrey Planning Board carefully assessed the possible{**75 Misc 3d at 536} environmental impacts of the project, identified areas of concern, and addressed those areas of possible concern.

Despite the project properly being classified as an Unlisted action, respondent Torrey Planning Board used the full EAF in assessing the possible environmental impacts. (6 NYCRR 617.6 [a] [3] ["For Unlisted actions, the short EAF (see section 617.20, Appendix B, of this Part) must be used to determine the significance of such actions. However, an agency may instead use the full EAF for Unlisted actions if the short EAF would not provide the lead agency with sufficient information on which to base its determination of significance. The lead agency may require other information necessary to determine significance"].) Using the full EAF, at the April 19, 2021 meeting of the respondent Torrey Planning Board its members assessed each of the 16 areas of potential environmental concerns and debated same. The Planning Board identified two areas of concern: (1) "impact on energy" (question 14), and (2) "impact on noise, [*10]odor, and light" (question 15).^[FN32]

Both the issue of potential noise from the project, and its energy use, had been discussed extensively by the Board at prior meetings. The concern about noise led to an acoustical study being conducted to determine anticipated noise levels from the project. The report, and later revisions, were submitted for consideration by the respondent Planning Board. That study was discussed by the respondent Torrey Planning Board at the July 20, 2020 meeting. A revised acoustical study was submitted to respondent on September 3, 2020. The conclusion of the study was that the project's predicted noise levels would be below the limits set by the Zoning Law of the Town of Torrey.^[FN33] The study was again reviewed by respondent Planning Board and discussed at the April 19, 2021 meeting.

The project's impact on the energy grid was also thoroughly reviewed by respondent Torrey Planning Board. As the project would not result in an increase in generating capacity at the plant, respondents properly concluded that there would not be{**75 Misc 3d at 537} a significant, environmental impact. (See Greenidge II at *16; NYSCEF Doc No. 71 at 16 ["DEC fully considered all of the potential environmental impacts of the renewed SPDES permit, including those to surface waters"].) Additionally, respondent Torrey Planning Board reviewed correspondence from the NYSDEC which stated that the plant's operations were in compliance with the previously issued air and water permits.^[FN34]

As the Court of Appeals observed in Jackson v New York State Urban Dev. Corp.:

"First, an agency's substantive obligations under SEQRA must be viewed in light of a rule of reason. 'Not every conceivable environmental impact, mitigating measure or alternative must be identified and addressed before a FEIS will satisfy the substantive requirements of SEQRA' (Aldrich v Pattison, 107 AD2d 258, 266, supra; Coalition Against Lincoln W. v City of New York, 94 AD2d 483, 491, affd 60 NY2d 805, supra). The degree of detail with which each factor must be discussed obviously will vary with the circumstances and nature of the proposal (see, Webster Assoc. v Town of Webster, 59 NY2d 220, 228). Second, the Legislature in SEQRA has left the agencies with considerable latitude in evaluating environmental effects and choosing among alternatives (see, e.g., ECL 8-0109 [8]). Nothing in the law requires an agency to reach a particular result on any issue, or permits the courts to second-guess the agency's choice, which can be annulled only if arbitrary, capricious or unsupported by substantial evidence (Aldrich v Pattison, 107 AD2d 258, 267, supra; [*11]see also, Vermont Yankee Nuclear Power Corp. v Natural Resources Defense Council, 435 US 519, 555)." (67 NY2d at 417.)

Respondent Torrey Planning Board took the requisite "hard look" at the environmental impacts of the project. The findings of the respondent Torrey Planning Board are supported by substantial evidence, and it cannot be said that the respondent's determinations were irrational.

Finally, assuming arguendo that the project was a Type I action, it is clear from the administrative record that the procedural requirements of a Type I action were followed, and respondent's issuance of a negative declaration is supported by{**75 Misc 3d at 538} the record. (See Matter of Jaffee v RCI Corp., 119 AD2d 854 [3d Dept 1986].)

Petitioners' SEQRA challenge is moot.

[4] On December 3, 2021, petitioners filed a notice of motion seeking a preliminary injunction to enjoin Greenidge from continuing to develop the project.^[FN35] Petitioners waited almost eight months after the respondent Torrey Planning Board issued the negative declaration, five months after the respondent Town of Torrey issued the building permit, and four months after construction began on the project. The court determines that petitioners failed to preserve the status quo and this issue is now moot.

" 'Typically, the doctrine of mootness is invoked where a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy' (Matter of Dreikausen v Zoning Bd. of Appeals of City of Long Beach, 98 NY2d 165, 172 [2002] [citation omitted]). Where a change in circumstances involves the substantial completion of construction, 'courts must consider several factors, including whether the challengers sought preliminary injunctive relief or otherwise attempted to preserve the status quo to prevent construction from commencing or continuing during the pendency of the litigation' (Town of N. Elba v Grimditch, 131 AD3d 150, 156-157 [2015] [internal quotation marks, brackets and citations omitted], lv denied 26 NY3d 903 [2015]). Although injunctive relief is theoretically available, as a project can be dismantled, courts consider how far the work has progressed toward completion in determining mootness (see Matter of Kowalczyk v Town of Amsterdam Zoning Bd. of Appeals, 95 AD3d 1475, 1477 [2012]). A determination of mootness is fact-driven (see Matter of Dreikausen v Zoning Bd. of Appeals of City of Long Beach, 98 NY2d at 173)." (Matter of Bothar Constr., LLC v Dominguez, 201 AD3d 1231, 1232-1233 [3d Dept 2022].)

Here, petitioners did not timely seek injunctive relief.

"The primary factor in the mootness analysis is 'a challenger's failure to seek preliminary injunctive {**75 Misc 3d at 539}relief or otherwise preserve the status quo to prevent construction from commencing or continuing during the pendency of the litigation' (Matter of Dreikausen v Zoning Bd. of Appeals of City of Long Beach, 98 NY2d 165, 173 [2002]; see Wallkill Cemetery Assn., Inc., 73 AD3d at 1190). Generally, a petitioner seeking to halt a construction project must 'move for injunctive relief at [*12]each stage of the proceeding' (Matter of Weeks Woodlands Assn., Inc. v Dormitory Auth. of the State of N.Y., 95 AD3d 747, 750 [1st Dept 2012], affd 20 NY3d 919 [2012])." (Greenidge I at 1486-1487.)

"Also significant are whether work was undertaken without authority or in bad faith, and whether substantially completed work is 'readily undone, without undue hardship.' " (Matter of Citineighbors Coalition of Historic Carnegie Hill v New York City Landmarks Preserv. Commn., 2 NY3d 727, 729 [2004], quoting Matter of Dreikausen v Zoning Bd. of Appeals of City of Long Beach, 98 NY2d at 173.)

Greenidge acted in good faith after receiving all the necessary permits and approvals to begin construction on the project. Greenidge had committed substantial funds towards the project for construction costs, supplies and materials, and the necessary computer equipment, and construction had been proceeding for four months at the time petitioners sought a preliminary injunction. The court also takes notice of the fact that in prior litigation involving these same parties, petitioners failed to timely move for injunctive relief, which led to the Appellate Division, Fourth Department dismissing a prior appeal. (Matter of Sierra Club v New York State Dept. of Envtl. Conservation, 169 AD3d 1485, 1488 [4th Dept 2019] ["Greenidge undertook the construction project with all the necessary permits based upon the conclusions and requirements of the existing SEQRA review. Greenidge substantially completed that construction, and we therefore conclude that petitioners' challenge to the SEQRA review became moot (see generally Matter of Riverkeeper, Inc. v Johnson, 52 AD3d 1072, 1073-1074 [3d Dept 2008], lv denied 11 NY3d 716 [2009])"].)

As there was unnecessary delay by petitioners in seeking the preliminary injunction, and Greenidge acted in good faith, and construction has been substantially completed, this issue is moot. (Id.; Matter of Citineighbors Coalition of Historic Carnegie Hill v New York City Landmarks Preserv. Commn.; Matter of Weeks Woodlands Assn., Inc. v Dormitory Auth. of the State of N.Y., 95 AD3d 747 [1st Dept 2012].){**75 Misc 3d at 540}

A preliminary injunction—even if not moot—is unwarranted.

Assuming petitioners' challenge to the SEQRA determination is not moot, the petitioners have failed to establish they are entitled to a preliminary injunction.

"In order to prevail on a motion for a preliminary injunction, the moving party has the burden of demonstrating, by clear and convincing evidence, (1) a likelihood of success on the merits, (2) irreparable injury in the absence of injunctive relief, and (3) a balance of equities in its favor (see Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839 [2005]; Emerald Enters. of Rochester v Chili Plaza Assoc., 237 AD2d 912 [1997])." (Eastman Kodak Co. v Carmosino, 77 AD3d 1434, 1435 [4th Dept 2010].)

Petitioners have failed to establish (assuming they have standing to do so) by clear and convincing evidence that the respondent Torrey Planning Board's determination was contrary to SEQRA and unsupported by the record. Additionally, they failed to establish that they would suffer irreparable harm should the project be completed. Their allegation of harm to Seneca Lake due to water discharge is irrelevant, and the only other possible environmental harm from the project is noise, which the record establishes would either fall below accepted levels, or the project would need to cease operations until remedied. Finally, the balance of equities favors Greenidge, as it has invested millions of dollars in the project and a delay in completing the project would have significant financial consequences. [*13]

Thus, the motion for a preliminary injunction is denied.

It is ordered and adjudged that respondent Greenidge's motion to strike the affidavit of Dr. Gregory Boyer is granted; petitioners' motion for a preliminary injunction is denied; respondent Greenidge's motion to dismiss the amended petition is granted, and the amended petition is dismissed on the merits in accordance with the above decision.

"Conditioned negative declaration (CND) means a negative declaration issued by a lead agency for an Unlisted action, involving an applicant, in which the action as initially proposed may result in one or more significant adverse environmental impacts; however, mitigation measures identified and required by the lead agency, pursuant to the procedures in section 617.7(d) of this Part, will modify the proposed action so that no significant adverse environmental impacts will result." (6 NYCRR 617.2 [h].)