Bill to Insure Against Calamity at Cargill’s Cayuga Lake Salt Mine Sails Through Senate Before Quietly Dying in Assembly

LANSING, June 15, 2024 — A bill requiring the state to set an appropriate bond to cover a potential catastrophic accident at Cargill’s salt mine under Cayuga Lake sailed through the state Senate by a 60-0 vote in the closing hours of this year’s Legislative session.

The bill (S7736B) never mentions a company by name, but instead addresses “financial security for reclamation for salt mining beneath a lake.” That doesn’t apply to anyone except Cargill.

But that measure, like several other major 2024 environmental bills, died quietly after failing to win approval in the state Assembly.

In the closing hours of the session that ended last weekend, Gov. Kathy Hochul’s announcement that she would indefinitely pause a congestion pricing toll plan for downtown New York City dominated headlines. 

The uproar spurred by her surprising reversal on congestion pricing overshadowed news about one key environmental bill that passed and another that died.

The Climate Change Superfund Act won last-minute legislative approval. If signed into law by Hochul, it would raise $3 billion a year from fossil fuel polluters to pay for the costs of mitigating flooding and other consequences of climate change. Her signature is not guaranteed.

Meanwhile, the Assembly failed to take action on the NY Heat Act, a highly contentious priority for environmentalists. The Home Energy Affordable Transition Act would have ended gas utilities’ legal obligation to serve customers and eliminated a subsidy for new gas hookups financed by existing gas customers.

“New Yorkers are … reeling from high energy bills, which are continuing to rise due to our reliance upon gas infrastructure, but the Assembly once again was the roadblock to the policy solution, the NY Heat Act,” said Liz Moran of Earthjustice. “The legislature also failed to meaningfully address lead, PFAS, or plastic pollution.”

The Cargill bill, though barely a blip on the radar screens of the state’s major environmental lobbying groups, addressed a long-simmering issue of vital importance to Finger Lakes communities.

A petition with nearly 4,000 signatures calls for Hochul to require Cargill or a future buyer of its Cayuga mine to post a $10 billion environmental bond with the state. The petition launched by the group CLEAN (Cayuga Lake Environmental Action Now) also calls for a full independent environmental review of the mine.

“An independent review will shed critical light on the on-going risks of mine collapse, lake salinization, and other damage to the surrounding land,” the petition says.

The bill that won unanimous Senate support reflected the petition’s goals. It was sponsored by state Sen. Lea Webb (D-Binghamton). Assemblymember Anna Kelles (D-Ithaca) sponsored a companion bill in the Assembly. 

“An accident within the salt mine below Cayuga Lake could have an immediate and severe impact, reducing the quality of the drinking water of about 100,000 residents and endangering the region’s $3 billion, 60,000-employee food, wine and recreational tourism economy,” Webb said in her formal justification for the bill.

Unlike the CLEAN petition, the bill would not have set a specific dollar amount for the environmental bond. Instead, it would have required the state Department of Environmental Conservation to engage an independent expert to analyze all the likely costs associated with a Cayuga mine calamity. The agency would have been required to set a bond amount that reflected the analysis.

“The independent third party would help make sure the number truly reflected what the impact is — not just leaving it to the DEC,” said Mandy Fallon, Webb’s legislative director.

The DEC currently requires Cargill to post a bond of $3.5 million — less than one one-thousandth of what the CLEAN petition urges.

The DEC declined to comment on whether its current financial assurance requirement is appropriate coverage for the risks involved. 

“Cargill is compliant with current financial assurance requirements,” the agency said Friday in a statement to WaterFront. “DEC does not comment on pending legislation.”

Cayuga Lake communities have for many years complained that the DEC has never required Cargill to prepare an environmental impact statement for the mine, even though the state’s environmental quality review act, SEQRA, requires an EIS with public review for any project that is found to have “potential impacts to the environment.” 

The DEC has argued in court against ordering Cargill to prepare and EIS. An early version of Webb’s bill, introduced last October, would have required one. However, Senate leadership objected to that provision, Fallon said. So Webb amended her bill to require an environmental review only after certain triggering events, such as a sale of the mine, or a renewal or modification of the mine’s permit.

According to published reports last summer, Cargill has hired an investment advisor to help it find a buyer for the Cayuga mine. The company has not denied that it is trying to sell it.

Also last summer, Cargill applied to the DEC for a modification of its state mining permit to allow it to store brine that leaks into the mine in Level 6 at the south end of the mine. John T. Boyd Co., Cargill’s consultant, described the site as “the abandoned S3 mains and adjacent panels.”

Brine has been leaking into the Cayuga mine at a fairly steady rate in recent years, the company acknowledges. According to Cargill’s 2023 annual report, total inflows of sodium chloride-dominant salt brine were averaging about 33 gallons per minute.  

Since 2017, that annual average has ranged from 29 gallons per minute to 36 gallons per minute.

All salt mines must contend with leaks. The challenge is to prevent the inflows from increasing so sharply that they undermine the stability of the mine.

Although DEC has not approved Cargill’s application to modify its permit to use the Level 6 storage site, the company began using Level 6 to store brine inflows last summer. Its previous brine storage site on the mine’s Level 4 is at or near capacity.

Cargill’s state mining permit expired in April, but it is allowed under state rules to continue operating indefinitely because it has applied to renew it.

The DEC declined Friday to tell WaterFront whether it has ruled Cargill’s application for a permit modification to be complete or whether it plans to hold any public hearings on the proposed modification.

In its statement, the agency said: “DEC provides rigorous oversight of this facility, including monitoring rates of inflow, conducting inspections, and engaging third-party expert review to ensure the mine remains in compliance with its permits and all laws and regulations in place to protect public health and the environment.”

Under the bill that won unanimous Senate support June 7, a permit modification would trigger an environmental impact statement.

Fallon said Webb intended to reintroduce the measure in the next legislative session.

Here’s a look at other key environmental bills in New York’s 2024 legislative session.

Passed both Senate, Assembly. Awaiting governor’s signature:

— Climate Change Superfund Act (A3351A/S2129A). This bill would require fossil fuel companies with major greenhouse gas emissions to pay into a fund that covers the cost of infrastructure aimed reducing climate change impacts. The state expects to spend billions of dollars to deal with rising sea levels, extreme weather events and flooding. 

The measure would be a step toward funding the goals of the state’s 2019 Climate Leadership and Community Protection Act (CLCPA). Disadvantaged communities would receive at least 35 percent of the spending.

“The program operates under a standard of strict liability, which means fossil fuel companies are required to pay into the fund because the use of their products caused the pollution. No finding of wrongdoing is required,” Environmental Advocates NY says in a memo touting the legislation.

— Banning fracking with CO2 (A08866/S08357). The bill would extend the state’s ban on high-volume hydraulic fracturing with water to include a ban on the use of carbon dioxide for oil and gas extraction. 

The measure came as a response to a proposal last fall to use C02 instead of water to frack thousands of new natural gas wells across the Southern Tier. 

That threat evaporated when, amid intense opposition, the Texan who touted the plan quietly withdrew before taking necessary steps to obtain an OK from state regulators.

— Pesticides bans in wetlands (A9712). The bill would allow local governments to enforce local bans on pesticides within their districts. While the DEC may allow the use of potentially harmful pesticides in state wetlands it regulates, towns and villages would have the legal authority to block that use. Many already do.

Failed to Pass:

— The HEAT Act (A4592B/S2016B). Passed Senate, not Assembly. The bill would give the state Public Service Commission the authority to synch gas utility regulation and gas planning with the state’s 2019 climate law mandates. 

The measure would remove subsidies that drive the expansion of gas systems, and end the utilities’ obligation to provide gas to customers who ask for it. 

Also, it would codify the state goal of limiting energy costs for low-to-moderate income customers to 6 percent of household income.

— Disclosure of PFAS Discharges (A3296a/S227B). The bill would have required entities with state permits to discharge industrial waste or other wastewater into state waterways to test for — and report — the presence of PFAS ‘forever chemicals” in what they release. 

Both the Senate version, sponsored by Sen. Rachel May (D-Syracuse), and the Assembly bill, sponsored by Kelles, stalled in committee.

Other bills to reduce or eliminate PFAS (polyfluoroalkyl) substances in consumer items such dental floss, cookware, textiles, menstrual products and cosmetics also failed to pass. 

— Ban frack waste on highways (A7105/S1538a). Passed Senate, not Assembly. The bill would ban the spread of drilling fluids or flowback water from oil and gas wells on New York highways to deice or suppress dust. 

The wastewater contains carcinogens like benzene and naturally occurring radioactive materials. When those contaminants run off roads during rains, they can reach streams, lakes and the water table. 

Pennsylvania prohibited the wastewater spreading on highways in 2018, and several New York counties have enacted their own bans.But New York continues to allow the practice under its euphemistically named Beneficial Use Determination (BUD) program. 

Between 2010 and 2022, 73 applicants obtained BUDs to spread brine on New York highways.

— HABs Monitoring (A8867/S8356). Passed Senate, not Assembly. The bill, sponsored by Kelles in the Assembly and May in the Senate, would require the DEC to establish a statewide data collection and monitoring program for harmful algal blooms, or HABs (cyanobacteria blooms). 

HABs thrive in warm, calm, nutrient-rich water, and climate change seems to be making matters worse. They release dangerous toxins that can compromise public drinking water, force beach closures, harm swimmers and even kill pets.  The Finger Lakes are particularly vulnerable. 

The measure would require DEC to expand its HABs mitigation efforts and establish a prevention grant program for municipalities.