Water Front

Gov. Andrew Cuomo today strongly condemned plans for a proposed $365 million garbage-burning incinerator in Romulus, joining a groundswell of opposition that now appears insurmountable. 

“The trash incinerator project is not consistent with my administration’s goals for protecting our public health, our environment, and our thriving agriculture-based economy in the Finger Lakes,” the governor said in a statement Tuesday morning.

Circular Energy LLC, a Rochester startup with no background in waste disposal or energy production, announced its plans in November. The bulk of the garbage it would burn was to have been shipped to the former Seneca Army Depot site by truck or train from New York City.

The company tried and failed to win local support and local zoning permits. Its announced backup plan was to apply for permits from the state Board on Electric Generation Siting and the Environment under Article 10 of the state Public Service law. The siting board has qualified authority to waive local objections.

But Cuomo’s unequivocal opposition suggests that the siting board permit initiative would be another dead end.

“Importing and burning municipal solid waste in one of the state’s most environmentally sensitive areas is simply not appropriate,” the governor said. “I’m confident that the Article 10 siting board will carefully consider these impacts and reject the project application if one is ever filed.”

Circular enerG has kept its ownership and financing plans private, and it has relied on Rochester attorney Alan Knauf to serve as its public spokesman. 

Knauf did not return a phone call today seeking comment on Cuomo’s statement.

Last summer, before it unveiled its plans, Circular enerG convinced a local zoning officer to sign a letter — drafted by the company — stating that the trash incinerator would produce renewable energy. Knauf later cited that letter in his failed bid to win local zoning approval.

Romulus officials have since disavowed the zoning officer’s letter and voiced their unanimous opposition to the incinerator plan. 

Meanwhile, a group of state legislators led by state Sen. Pam Helming (R-Canandaigua) and Assemblywoman Barbara Lifton (D-Ithaca) mounted a political campaign to derail the project. 

Each sponsored legislation to remove trash incinerators from the list of energy producing facilities that may receive permits from the siting board under Article 10. 

State Sen. Tom O’Mara (R-Big Flats), chair of the Senate Committee on the Environment, co-sponsored Helming’s bill, while Assemblyman Brian Kolb (R-Canandiagua), that chamber’s minority leader, was among the backers of Lifton’s bill.

“If the Legislature proposes other solutions,” Cuomo added in his statement, “we will consider all options to protect against this proposal that is at odds with New York’s renewable energy plan and that threatens important natural resources, environmentally sensitive areas, and economic drivers in the Finger Lakes Region.”

Cuomo had been silent on the incinerator plan until today’s statement. But Cynthia Nixon, his expected challenger in the Democratic primary for governor in September, vowed to stop the incinerator, if elected.

At a press conference in Geneva late last month, Nixon asked why Cuomo hadn’t come out definitively against the project, given that is widely viewed as a threat to the tourism-based economy of the wine region.

Nixon poked at Cuomo by saying that California Gov. Jerry Brown would never allow a trash incinerator near Napa Valley, that state’s premier wine region.

Also today, Helming, Lifton, O’Mara, Kolb and others joined a press conference denouncing the Circular enerG incinerator plan. 

“This proposal belongs in a trash incinerator,” said Assemblyman Phil Palmesano (R-Corning).  

Legally, Nothing Compares With Hand Delivery

Over the past two decades, Cargill Inc. has used a series of legal maneuvers to prevent sunlight from shining on the public health and safety risks associated with its giant salt mine under Cayuga Lake.

This week the nation’s largest private company will try to keep it’s winning streak intact by exploiting a legal technicality. 

Lawyers for Cargill are expected to ask an Ithaca judge Friday  to throw out a long-gestating Article 78 lawsuit that seeks to require a full environmental impact statement on the company’s extensive mining activities because — are you ready? — the suit reached Cargill via overnight mail instead of hand delivery.

Because of that “fatal error,” the Ithaca court lacks jurisdiction over Cargill, the company argued in an April 11 court filing. 

Never mind that Cargill had received all relevant documents in the suit by Jan. 8 — less than a month after it was filed — from its New York agent for service, which had received them from petitioners by overnight delivery. Civil practice rules call for delivery — by hand — within 120 days. 

Cargill was mum about the petitioners’ slip-up until the clock ran out April 11. Then it pounced, filing a motion that asks the court for a summary judgment order that dismisses the suit.

Struck by their oversight, petitioners scrambled to hand-deliver the equivalent documents the following afternoon. But Cargill rejected them as “untimely” and returned them, according to attorney Patricia S. Naughton.

Tompkins County Judge John C. Rowley will hear oral arguments Friday (9:30 am at Tompkins County Supreme Court, 320 N. Tioga St. in Ithaca) on whether to enforce the letter of the law for Cargill or to grant a waiver of the delivery deadline to preserve the petitioners’ day in court. 

Richard Lippes, attorney for the petitioners, plans to ask for the waiver, noting they’ve been granted in other cases of clerical error that do no harm to the opposing side.

If Rowley allows the waiver, Cargill attorneys will argue that the suit still must be summarily dismissed, either on the grounds that is barred by the statute of limitations or by the doctrine of mootness.

At issue in the case is a permit the state Department of Environmental Conservation granted Cargill last August to drill an air shaft in Lansing that is an absolute necessity for significant northern expansion of the salt mine.

Cargill bought the mine in 1970. The state, which owns the lake and the salt under it, has given the company the right to mine about 13,400 acres far beneath the water’s surface under most of the southern third of the lake. The northernmost sections of that designated area have yet to be mined.

But thousands of those acres are effectively out of Cargill’s reach because of a federal mine safety law that requires that miners be able to escape within one hour. Existing shafts are too far south.

In January 2015, Cargill attorney John F. Klucsik summed up the problem in a letter to the DEC: 

“To the extent that mining continues north or through the already approved life of mine area, construction of a new air shaft at some location east of the lake would ultimately be necessary as a part of the plan to continue operations at the Cayuga Mine.”

The planned Lansing air shaft was the company’s solution.

The DEC issued the air shaft permit last summer over the objections of New York Assembly members Steve Englebright (D-Setauket) and Barbara Lifton (D-Ithaca) and mounting opposition from the City of Ithaca, several neighboring towns and a local environmental group.   

One month earlier, the Democratic legislators had called on the DEC to order a moratorium on salt mining under Cayuga Lake. They cited risks of a catastrophic mine flood or collapse that could jeopardize the lake as a source of drinking water. The geology of the Cayuga mine is quite similar to the Retsof mine in Livingston County, which collapsed and flooded in 1994, ruining an aquifer. 

Englebright is a geologist who chairs the Assembly’s Committee on Environmental Conservation. His Republican counterpart in the state Senate, Tom O’Mara (R-Big Flats), chairs the Senate Committee on the Environment. O’Mara is a law partner in Barclay Damon, the firm representing Cargill in its bid to dismiss the case.

Both legislative committees have jurisdiction over the DEC, which has repeatedly taken Cargill’s side on issues involving the mine’s potential harm to Cayuga Lake.

The agency has never required the company to prepare a closure plan for the day when the mine no longer yields sufficient financial returns. Nor has it required it to carry insurance for anywhere near the lake’s multi-billion-dollar value as a source of drinking water and as an economic driver for the local tourism industry.

And in granting the permit for the Lansing mine shaft, DEC Commissioner Basil Seggos effectively waived a provision in the State Environmental Quality Review Act (SEQRA) that mandates a full environmental impact statement (EIS) for environmentally sensitive projects. SEQRA requires a developer to prepare an EIS if its project is deemed to risk “potentially significant adverse environmental impacts.”

But that hasn’t applied to Cargill. The company has sidestepped the EIS requirement under four different governors. 

The Cuomo Administration has enabled the company to continue doing so by acquiescing to Cargill’s hotly contested request to treat three related projects separately so that it can justify waiving an EIS for each:

—  The existing 13,400 acres of salt mine reserves (authorized in 2003 or before).

—  A 150-acre salt mining tunnel under dry land that connects the existing mine with the base of the planned Lansing mine shaft (tunnel authorized in 2015, now virtually complete).

— The mine shaft itself, referred to as Shaft No. 4 (shaft permitted in August 2017, but not yet dug).

When DEC approved the mine tunnel in 2015, it went along with Cargill’s disavowal of any immediate plans for a future Lansing air shaft. The agency said in its public notice of the project: 

“All activities associated with this modification will take place underground, and there will be no additional surface development associated with this proposal.”

Petitioners consider that false advertising, a ruse on the public. Cargill had purchased the shaft site at the end of the tunnel in April 2012.

Nevertheless, by artificially separating the tunnel project from the shaft project, the DEC justified its determination that no EIS was required under SEQRA for the mine tunnel. It approved the project in June 2015. 

Four months later — only days after the statute of limitations had run out for legal challenges of the tunnel approval — Cargill applied for the mine shaft permit. The DEC granted that last August, again without requiring an EIS. 

As the DEC’s Seggos explained in an Aug. 17, 2017 letter to Lifton and Englebright: “The permit before the DEC does not approve different or additional mining operations, but is limited to the construction and use of an additional access and ventilation shaft … and will not result in any significant adverse environmental impacts.”

That DEC stance triggered the 2017 lawsuit before Judge Rowley. Petitioners contend that future mining under Cayuga Lake depends on construction of the shaft and that the DEC’s failure to consider that fact violates SEQRA. 

But Cargill argues that the court shouldn’t let petitioners use a recent decision — the granting of the shaft permit — as a vehicle to challenge earlier DEC rulings that are protected under the statute of limitations. 

In its April 11 filing, Cargill said it had spent $600 million on the Cayuga mine in full reliance of the 2003 DEC permit that expanded the mine by more than 5,000 acres. The statute of limitations for challenges to that ruling ran out in May 2003.

“The injustice to Cargill, should this investment be placed at risk now in the proceeding purportedly challenging the Shaft 4 permit, is as palpable as it is extreme,” Cargill wrote.

Likewise, the statute of limitations for challenges to the mining tunnel ran out in October 2015. So challenges to both the 2003 and 2015 DEC rulings are time-barred, the company argues.

Furthermore, the 150-acre mine tunnel is 96 percent complete, at a cost of $26 million, Cargill said. So challenging it now would be moot, the company says.

But Lippes, arguing for the petitioners, countered that the suit doesn’t challenge those earlier DEC permits. Rather it challenges the air shaft permit and the DEC’s failure to require an EIS before granting it.

While Seggos told the legislators the shaft permit didn’t involve new mining permits, Lippes argues that it is a lynchpin for future mining that entails health and safety risks to the public. The shaft, Cargill asserted in August 2016, would provide “the infrastructure and fresh air for an additional 30 years of mining at the Cayuga Mine.”

That new mining will extend north, where the bedrock separating the mine from the lake bottom tends to thin out. Scientists for the petitioners say that substantially raises risks of a breech or mine collapse similar to what occurred at Retsof, then North America’s largest salt mine, in 1994.

Any water connection between the mine and the lake threatens the quality of drinking water drawn from the the lake. The petitioners’ suit elaborated:

“Sodium levels in Cayuga Lake are more than twice as high as the level the EPA (U.S. Environmental Protection Agency) and health authorities recognize as hazardous for persons with hypertension.

“If there is a mine collapse, if the reaming of Shaft No. 4 leads to mine flooding, if the mine is intentionally flooded at decommissioning, if mine-related brine and salt dust releases into the lake continue and/or if mining-related subsidence perturbs any saline artesian aquifer under the lake, the existing salinity problems in Cayuga Lake may be exacerbated. Such outcomes would adversely affect those City of Ithaca residents who rely on lake water for their water supply.”

Cargill would prefer to avoid a court showdown over such sensitive environmental issues, so it is attempting to erect procedural roadblocks. Those efforts include its bid for a technical knockout (TKO) in court Friday. 

The legal team carrying out that mission — headed by Naughton and Kevin Roe — hasn’t changed much over the years, but the law firm that pays them has.

Cargill had long been represented by a boutique environmental law firm in Syracuse. In November, that 11-attorney firm was acquired by Barclay Damon, which bills itself as the largest law firm in upstate New York. 

Naughton and Roe, who had worked at the acquired firm, are now partners at Barclay Damon, which has some 275 attorneys. 

O’Mara is also a Barclay Damon partner. He was  named to chair of the Senate Committee on the Environment in January 2015. O’Mara has said he is careful to avoid potential conflicts of interest related regarding clients of his firm that have business before the DEC.

Are Manure Spills from CAFOs Spurring HABs Outbreaks?

The state must rewrite a portion of its manure control program for giant dairy farms because it violates federal law by outsourcing required oversight to private contractors and by imposing undue confidentiality, a state judge has ruled.

The April 24 court decision strikes down the state Department of Environmental Conservation’s general permit for large concentrated animal feeding operations, or CAFOs. 

Issued five days after President Donald Trump’s inauguration, the state’s general permit rules coincided with the administration’s push to slash regulation.

But Acting Supreme Court Justice David Weinstein found that the state’s Jan. 2017 rules violate the federal Clean Water Act, and he gave the DEC six months to fix the problems with a revised permit.

“The Court recognized that DEC cannot outsource environmental protection to private planners paid for by industrial agriculture and keep pollution prevention plans secret from the public,” said Suzanne Novak of EarthJustice, an attorney for Riverkeeper and other environmental groups that sued the DEC in March 2017.

CAFOs typically refer to dairy farms with 300 or more cows, but sometimes they house other livestock, including beef cattle, swine, horses, sheep, chickens, turkeys and ducks.

The state divides CAFOs into small, medium and large categories. It also has rules for those that discharge directly into surface waters and those that don’t.

Properly regulating large farms will be an important front in the ongoing statewide war against the rapid spread of toxic cyanobacteria, also known as HABs or blue-green algae, several experts said.

In one day, a cow can produce up to 120 pounds of manure. It is rich in nitrogen and phosphorus, which are primary fuels for so-called HABs. 

CAFOs store that manure in pits before spreading it on fields as fertilizer. If the manure is improperly applied, it tends to run off into streams and eventually into lakes, where surging nitrogen and phosphorus can promote “blooms” of cyanobacteria.

“If DEC isn’t following Clean Water Act in regulating these CAFOs the way they’re supposed to be regulated, we’ve got bigger problems than we thought we did,” said Edwin Przybylowicz, coordinator of 80 volunteers for Seneca Lake Pure Waters Association who monitor the lake for HABs outbreaks.

In recent years, HABs have been a growing menace in the Finger Lakes and other state waterbodies. People exposed to HABs can suffer skin and lung irritation and possible long-term nerve damage. HABs are life-threatening to dogs and other animals, and they place public water supplies in jeopardy.

Some but not all types of cyanobacteria need nitrogen-rich water to grow, but all of them thrive in phosophorus-rich water, Przybylowicz said.  

It is not know for certain the degree to which liquid manure spills contribute to HABs, but the link itself is generally accepted. 

Last year a large CAFO suffered two major spills, one of which reached Cayuga Lake. In 2015, Riverkeeper noted, more than 40 cases of water contamination from CAFO animal waste were documented in New York.

In February 2014 a large spill of liquid manure flowed directly into Owasco Lake, causing a visible plume. Measurements from the stream that carried the oozing manure showed phosphorus at 7,930 parts per billion, roughly 400 times the official level of concern.

That month, the chair of Owasco Lake Watershed Management Council wrote the DEC to express its dismay. “It is our understanding that this liquid manure was applied … on frozen and snow-covered ground,” the letter said. “On that day, the weather had forecasted that snow melt and significant precipitation would occur in the days following the spreading activity. Spreading manure under these conditions appears to (violate the law).”

Since that spill, Owasco has been particularly hard-hit by HABs outbreaks, and 2016 cyanotoxins were reported in the city of Auburn’s public drinking water, which is drawn from Owasco Lake. Last summer cyanotoxins were detected in the raw water Syracuse draws from nearby Skaneateles Lake.

Under the Clean Water Act, the state has the responsibility to review and approve CAFOs’ polution control programs, including manure spreading. 

Judge Weinstein found that the DEC had impermissibly waived that mandate when it allowed private contractors — the DEC calls them state-certified “AEM planners” — to act on its behalf. 

“They are private consultants retained and compensated by the CAFOs, and there is no apparent legal reason why a CAFO cannot discharge an AEM planner if it is unhappy with its review, or decline to hire one with a reputation for stringency,” Weinstein wrote in his order. “In short, AEM planners have an inherent conflict of interest…”

Weinstein also faulted the DEC for allowing CAFOs to offer public “outlines” of their nutrient management plans while permitting them “to shield the more comprehensive version of that plan from public view.”

In addition, the state’s general permit does not require the DEC’s prior review on nutrient plan changes, as called for in EPA regulations.

The EPA had repeatedly pressed the DEC to reform its CAFO regulation process in 2015, 2016 and early 2017. But state officials ignored key elements of those recommendations regarding oversight and confidentiality when they issued the general permit on CAFOs in January 2017.

Then, without explanation, the EPA reversed course. 

On May 25, 2017 — three months after the U.S. Senate had approved Scott Pruitt as President Trump’s EPA administrator — the EPA sent to DEC a two-paragraph letter that praised a public document the DEC prepared (“Frequently Asked Questions,” of FAQs) to explain its new CAFO general permit.

The FAQs “is consistent with the federal requirements,” said the brief letter from  the EPA’s Alyssa Arcaya to the DEC’s Jacqueline Lendrum. “Thank you to you and your staff for taking the time to develop this important material and for satisfying our earlier concerns.”

The DEC later cited the letter as justification for its controversial general permit and attempted to use it as ammo in its looming court battle with Riverkeeper. 

But Judge Weinstein found that the EPA letter had sidestepped, not satisfied, the EPA’s previous concerns, which had been thoroughly developed and documented. 

In his order, the judge said that because the federal agency had failed to explain its about-face he had chosen to disregard the Arcaya letter.

Judith Enck, a former EPA supervisor for New York and New Jersey, said the May 2017 EPA letter reflected a dramatic shift in EPA policy under the Trump Administration.

“This is a glaring example of Scott Pruitt’s ‘cooperative federalism,’ which he often references,” Enck said. “In practice, it means that when states are adopting policies that are not fully protective of the environment, EPA should just look away. Environmental protection and environmental enforcement are not priorities for the Trump EPA.

“I applaud the judge’s decision,” she added. “What would have happened if the environmental community did not litigate this?”

Riverkeeper filed its suit against DEC Commission Basil Seggos with several other plaintiffs: Cortland-Onondaga Federation of Kettle Lake Associations Inc., Sierra Club, Theodore Gordon Flyfishers Inc. and Waterkeeper Alliance Inc.

Asked whether the DEC planned to appeal Weinstein’s order, a spokeswoman for the agency said, the DEC “is reviewing the decision.” 

The DEC noted that the January 2017 general permit for CAFOs will remain in force for all currently covered farms until a modified permit is adopted. The agency said the court ruling applies to only 22 of the state’s several hundred CAFOs. The DEC declined a request to name them and suggested the option of filing a Freedom of Information letter.

Riverkeeper said that as many as 250 CAFOs might eventually be covered under the revised general permit.  

Meanwhile, communities that host CAFOs were eagerly awaiting stricter state enforcement.

Several of them (the towns of Camillus, Ithaca, Lafayette and Ulysses and the City of Ithaca) had filed an amicus curiae brief on behalf of the Riverkeeper plaintiffs.

“Compounding DEC’s failure to enforce the Clean Water Act,” the brief said, “municipalities are limited in the actions they can take to prevent or remedy (CAFO) environmental threats, but must … respond after the fact and absorb the costs for water treatment (and) pollution cleanup.”

Among the complaints cited by the filers:

— Ulysses (Tompkins County). In May 2016 an out-of-town CAFO owner spread 10,000 gallons of liquid manure per acre on his Ulysses property, followed by health complaints from nearby residents.

— Lafayette (Onondaga County). Local residents were not allowed to review plans for a two-million gallon lagoon for liquid manure in a residential neighborhood. Freedom of Information requests for details on the CAFOs operations and plans “have not been satisfied.”

— Camillus (Onondaga County). CAFO operators from other towns have purchased property they use for manure spreading. Odors are unpleasant and asthma sufferers have complained. State officials say the town has no authority over manure spreading practices.

— Ithaca (Tompkins County). Manure spreading fields located outside Ithaca have drained into Cayuga Lake. In February 2017, a manure spill in the town of Lansing contaminated Salmon Creek and reached Cayuga Lake. “Ithaca is concerned that CAFOs, as a major source of phosphorus loading in Cayuga Lake, contribute to the rampant growth of algae and aquatic plants in the lake.” 

The New York Farm Bureau did not respond to an email seeking comment on Weinstein’s order. 

 

GENEVA — Gubernatorial candidate Cynthia Nixon announced her opposition Thursday to two proposed industrial projects that have drawn widespread opposition in the Finger Lakes: a garbage incinerator in Romulus and a liquid petroleum gas (LPG) storage facility in Reading.

Nixon, who hopes to challenge Gov. Andrew Cuomo in the state’s Democratic primary this fall, blasted Cuomo for failing to definitively reject either project.

“California Gov. Jerry Brown would never ever allow a giant garbage incinerator to be sited in the middle of Napa Valley,” Nixon said, referring to that state’s premier wine region. “Why in the world would our governor sit idly by and allow this incinerator to be sited in the heart of the Finger Lakes?”

A Rochester company that has so far failed to secure local support for its proposed $365 million incinerator in the former Seneca Army Depot in Romulus is now seeking permits from a Cuomo Administration siting board. The governor hasn’t taken a public position on the project, which is loudly opposed by the local winery industry.

Nixon, an actor best know for her role in TV’s “Sex and the City,” said she favors pending legislation that would disqualify waste incinerators from the state’s Article 10 electric generating plant siting process. Cuomo signed a 2011 bill that made incinerators eligible for the process.

Nixon, 52, also criticized Cuomo for not killing Houston-based Crestwood’s LPG storage project at the southern end of Seneca Lake, even though the company’s permit application process has dragged on for almost nine years.

“It should never, ever have gotten this far,” Nixon said at a hotel press conference on the lake’s north end. “And when I am elected governor, I will drive a stake into the heart of this project.”

For several years, an administrative law judge within the state’s Department of Environmental Conservation reviewed evidence that the salt caverns to be used for LPG storage were not secure. But his investigation of that and other safety, environmental and economic issues has not yielded a definitive Yes or No from the Cuomo Administration on Crestwood’s permit application. 

Nixon launched her campaign for governor last month. She’s expect to try to obtain a spot on the Democratic gubernatorial primary ballot by gathering at least 15,000 signatures from party members. 

She could also win a spot on the ballot by getting 25 percent of the delegate votes at the party’s convention. But that path could be dicey, Newsday reported earlier this week, given Cuomo’s grip on the state party apparatus. 

Nixon has been hammering Cuomo on environmental and economic development issues.

Before her visit to Geneva to highlight environmental issues in the Finger Lakes, she made stops in Hoosick Falls, which has been plagued by contaminated water, and Orange County, home of the controversial CPV natural gas power plant that has been mired in a bribery scandal tied to a former Cuomo advisor. 

Polls show Nixon tailing Cuomo by a wide margin among Democrats, although the gap may be narrowing. 

A Siena College poll conducted April 8-12 showed Cuomo leading Nixon 58-27, a 31-point edge. A Siena poll conducted Mar. 11-16 had shown Cuomo with a 47-point advantage.

Nixon’s performance is seen by many as a gauge of Cuomo’s support from the Progressive wing of his party.

In September 2014, an underfunded and relatively unknown challenger exposed Cuomo’s vulnerability to challenges from the left with a strong performance in that year’s Democratic primary for governor. 

Though Cuomo won with more than 60 percent of the total vote, Zephyr Teachout carried many upstate counties, including Albany County and much of the capital region.

Teachout had taken a definitive stand against high-volume fracking for natural gas, while Cuomo had vacillated on the issue. Three months after Teachout rattled him in the primary, Cuomo announced a statewide ban on high-volume fracking.

A proposal to build the state’s largest trash incinerator in Romulus is now testing whether state government has the political will to address what is widely seen as a looming environmental disaster for the Finger Lakes.

Burning New York City municipal waste imported by truck and train into the up-and-coming wine and tourism region is intensely unpopular among the vast majority of area residents, businesses and local officials. That election-year groundswell has prompted virtually every state legislator in the heart of the Finger Lakes — including the top Republican in the state Assembly and two Republican committee chairs in the Senate — to take up the incinerator opponents’ cause.

But the fledgling bills they now sponsor face an uncertain future. 

“This is not going to be a light lift,” said Assemblywoman Barbara Lifton (D-Ithaca), co-sponsor of an Assembly bill (A10277) that seeks to disqualify waste incinerators from a permitting process that preempts local control. Lifton and others think her bill has better prospects than an identical bill in the Republican-controlled Senate.

So the acid test for the region’s attempted legislative fix will likely come in the Senate, where freshman Sen. Pam Helming (R-Canandiagua) and co-sponsor Tom O’Mara (R-Big Flats) will try to convince Senate leadership to allow the bill to come up for a vote in committee and the Senate floor. 

“Introducing a bill is easy. Passing it is hard,” said Judith Enck, former regional director for New York at the U.S. Environmental Protection Agency. “This is going to be a test for Helming. Can she convince her Republican colleagues to help her protect her district?”

Enck calls waste incineration a dying industry that has only managed to open one new plant nationally — in Florida — in the past decade. She said Helming has plenty of ammunition to argue that her Senate district, which lies between lakes Seneca and Cayuga, is a poor place for the second one. 

“I think if the bill ever comes up for a vote before the committee or the Senate floor, it will pass,” Enck added.

However, to allow such votes, Republican leaders in the Senate would need to buck stances taken by two of its traditional political allies: the Business Council of New York and the Independent Power Producers of New York (IPPNY). 

Both groups backed a 2011 law that specifically included waste incinerators in a new permitting process that shifts control for siting electric power plants away from local officials to an appointed board in Albany. 

That year, the IPPNY stressed the importance of allowing all electric power producers, regardless of fuel used, to qualify for the expedited permitting. The trade group also backed an unsuccessful 2011 bid by Covanta, one of its members, to reclassify energy produced by its seven existing waste incinerators in the state as “renewable energy.”

The IPPNY said this week it hadn’t taken a position on the 2018 incinerator bills, while the Business Council did not respond to emailed questions.  

If the trade groups object and Senate leadership quietly bows to their wishes, Helming’s Senate bill will die in the Senate Energy and Telecommunications committee without a vote.

That would be just fine with Alan Knauf, attorney for Circular enerG LLC of Rochester, the company that proposes to build the $365 million incinerator in Romulus. He said he wondered why the Finger Lakes legislators are trying to restrict permitting options for all future incinerator projects just because they object to the location of this one.

“It sounds kind of crazy, like throwing the baby out with the bathwater … to make a change like that for one project,” Knauf said.

The 2011 law revived a process of power plant siting, known as “Article 10”, that had been in place from 1992 through the end of 2002. It was authorized by a Republican bill, signed by Gov. Andrew Cuomo, intended to help wind farm projects overcome nearly inevitable local opposition and to help site new plants to replace the power lost by the closing of the Indian Point nuclear plant.

From 2003 through 2011, wind farms plans typically faced a buzz saw of local opposition based on local zoning laws and the State Environmental Quality Review Act (SEQR). Courts tended to uphold SEQR challenges.

The new Article 10 law empowered a permanent board of five state officials (plus two local officials for each proposed project) to waive overly burdensome local laws and to completely sidestep SEQR. The law also cut the size of plants that qualified for the expedited process from 80 megawatts to 25 megawatts.

The state Department of Public Service’s Board on Electric Generation Siting and the Environment is now chaired by John B. Rhodes. 

If the intended purpose of Article 10 was to expedite the siting of electric power plants, the siting board has failed. Of the 17 wind projects that have started the process, only one has been approved. Solar project applications have an 0-for-14 record.  The only other two projects it has considered are 0-for-2. So much for the fast track. 

For its Romulus project, Circular enerG initially attempted to seek local permits and to comply with SEQR. It said the first phase of its project would produce just under 25 megawatts of power — apparently disqualifying it from the jurisdiction the siting board.

Documents the company filed suggest that it was banking on a paying out a generous “host agreement” to encourage — or buy — local support. It also convinced a local zoning officer to quietly sign a letter, which Knauf helped draft, that said the project would produce renewable energy, easing its chances for zoning approval.

But public opposition to the project snowballed, and local officials who initially said they were willing to listen declared their opposition. 

In January, the company dropped its apparently futile efforts to win a local special use permit and opted instead to seek permits from the siting board. Knauf said the switch was prompted by instructions from state officials.

To qualify for siting board jurisdiction, the company rejiggered its plans for the plant, declaring that it could generate up to 80 megawatts.

Although the siting board has the authority to waive local zoning laws, that doesn’t necessarily mean it will be inclined to do so. Those local laws may in fact represent a “significant barrier” to siting board approval

Circular enerG launched its bid for siting board permits by filing a proposed public involvement plan (PIP) March 13 that included a “study area” within a five-mile radius of the proposed plant site at the former Seneca Army Depot.

On April 12, the Department of Public Service staff responded with a letter calling for major changes and additions to the company’s PIP plan — and what may be seen as an important warning shot:

“Initial indications from the Town of Romulus filed in the Public Comments of this case indicate that the Facility is not a permitted use. The PIP Plan should include a discussion of what engagement efforts the Applicant is going to undertake to overcome this significant barrier to the viability of the Project.”

The DPS staff said the company’s plan to notify all registered voters in the study area wasn’t good enough. It said Circular enerG must contact all property owners in the area, a far larger group.

The agency also asked for specifics on truck and rail routes that would be used to transport trash to the incinerator. And it called for affected municipalities to be notified. 

Knauf has acknowledged that much of the trash the incinerator would burn would probably come from New York City. But he noted that municipal waste is a commodity market driven by price and often by negotiated long-term contracts. 

He insisted that it’s impossible to say exactly where the incinerator fuel (trash) will come from. “It’s entirely possible we’ll have no trash from New York City because Waste Management has it all sewn up with a negotiated contract,” Knauf said.

But the company’s initial executive summary of plans for the project makes it clear that New York City is the target market. In describing likely truck traffic, it said: “An average distance of 254 miles (the distance from New York City to the Project Site) was assumed as a conservative measure of the distance from the source of generation of (municipal waste) to the disposal facilities.”

In a recent podcast debate with Knauf, incinerator opponent Michael Warren Thomas said, “They’re building this to solve the garbage problem in New York City.”

Thomas, a member of the Finger Lakes Wine and Business Coalition, argued that the incinerator would stifle investment in new Finger Lakes wineries. He called the plant and the associated train and truck traffic “a dagger to heart of the Finger Lakes.” 

Knauf responded by saying technological advances have dramatically reduced emissions of dioxins and mercury from waste incinerators over the past 20 years. He cited a Columbia University study.

Helming, who was recently named chair of the state Senate Committee on Children and Families, has been particularly outspoken about the Romulus incinerator proposal.

At a budget hearing in February, she said it doesn’t solve any issue for her Senate district.

“We have two landfills within 20 miles of this proposed incinerator,” Helming said. “So we don’t have any need locally. The waste is going to be trucked in from downstate, from out of state. It’s just wrong. We take more than our fair share of waste in the Finger Lakes area.”

Helming urged Gov. Cuomo to block the project in a March 9 letter that was also signed by Assembly Minority Leader Brian Kolb (R-Canandaigua) and Assemblyman Phil Palmesano (R-Corning).

Helming’s Senate bill (S8109) also has the public support of O’Mara, chair of the powerful Senate Committee on the Environment.

“I appreciate this opportunity to sponsor this legislation with Senator Helming and I join her in the fight to ensure that our local decision makers are given the authority they should rightly have on proposals and projects like this one,” O’Mara said in a statement Apr. 6.

O’Mara, who voted ‘Yes’ on the 2011 bill that included waste incinerators under the siting board’s jurisdiction, did not respond to emailed questions about that vote or his commitment to promoting S8109 in the face of likely opposition from the IPPNY and/or the Business Council of New York. 

The Senate bill has been referred to the Senate Committee on Energy and Telecommunications, which is chaired by Sen. Joseph A. Griffo (R-Rome). Griffo was one of only 3 “No” votes in the Senate on the 2011 bill.

But one Albany insider described the multi-faceted 2011 bill as a “big-ugly,” and he said the votes of O’Mara and Griffo don’t necessarily reflect their views on the narrow question of how to treat waste incinerators.

While Finger Lakes Republicans have been the more vocal in touting their bill, Assemblywoman Barbara Lifton (D-Ithaca), had a key role in drafting both the bill and its official “justification.”

She said she successfully obtained support for her bill from Assemblyman Michael Cusick (D-Staten Island), chair of the Assembly Committee on Energy. Cusick is co-sponsor of Lifton’s bill, and he is expected to call for a vote on it in his committee.

 

The memos accompanying both the Assembly and Senate bills include the following:

“Fundamentally, trash incinerators are not effective mechanisms for electricity generation, often producing less electricity than is expended to burn waste materials, and at a higher cost. They also produce toxic ash from burning a range of solid wastes which can vary widely in chemical output, making compliance with emissions and toxic waste limits difficult. These facilities are effectively solid waste landfills which contravene New York’s goals to increase recycling rates, and should not be a part of the state’s streamlined power plant siting process.”

 

 

 

 

A matching pair of new bills in the state Legislature — one sponsored by Republicans in the Senate, the other by Democrats in the Assembly — would prohibit any garbage incinerator from obtaining an operating license through the state Public Service Commission.

If enacted, the legislation would take effect immediately and torpedo a recent proposal by a Rochester company to build the state’s largest waste incinerator at the former Seneca Army Depot in Romulus.

Blowing up that Finger Lakes project is the explicit point of the Senate bill (S8109), introduced Mar. 29 by state Sen. Pam Helming (R-Canandaigua), whose district includes Romulus.

“This legislation eliminates trash incinerators from the (PSC’s) expedited state siting process and ensures that municipalities will have authority to decide, based on their own zoning laws, if a trash incinerator project moves forward,” the sponsor’s bill memo states.

A bill with a similar intent has also been introduced in the Assembly, although it had not been assigned a bill number as of late Apr. 5. According to an Assembly press release issued Apr. 4, that measure was co-sponsored by Assemblywoman Barbara Lifton (D-Ithaca) and Assemblyman Michael J. Cusick (D-Staten Island), chair of the Assembly Committee on Energy. Bianca Rajpersaud, a spokeswoman for Cusick, said the wording of Assembly bill, which was requested by Lifton, would “correlate” with the Senate bill.

Both bills target the Romulus project. Together they reflect bi-partisan support for local authority on incinerator permitting issues. However, the vast majority of introduced bills do not become law, often because the sponsors aren’t able to round up broad-based support in the full Legislature.

In November, Circular enerG LLC of Rochester unveiled plans to build a $365 million incinerator that would generate up to 50 megawatts of power by burning up to 2,640 tons of garbage a day — more than any of the state’s other 10 major trash burners.

The company, formed in January 2017, has no experience in electric power generation or waste disposal.

Most of the waste it has proposed to handle would be trucked in from the New York City area. Circular enerG said some garbage might eventually arrive by rail as well (though local railroad tracks would need an overhaul first).

While the plan appeared to many local officials to violate Romulus zoning law, Circular enerG argued that the plant deserved special consideration because it had been classified as a renewable energy project. That claim was based on a two-paragraph letter, which Circular enerG drafted and a local zoning officer quietly signed behind the backs of several members of the Romulus Town Board and the Romulus Planning Board.

The state does not recognize garbage incinerators as renewable energy projects, having denied waste industry efforts in 2011 to have them included in that category.

Initially, Circular enerG sought to obtain a special use permit from the Romulus Planning Board. That regulatory path would have involved analysis by the state Department of Environmental Conservation and required a full environmental impact statement under the State Environmental Quality Review Act. Its bid for a local permit triggered intense public opposition in and around Romulus.

In early January, the company abandoned efforts to obtain local approval after the Romulus Town Supervisor voiced opposition to the project and the Romulus Planning Board voted to disavow the zoning officer’s letter. 

Circular enerG then turned its efforts toward obtaining operating permits from the state’s Board on Electric Generation Siting and the Environment, which has legal authority to ignore local opposition under Article 10 of the state’s public service law.

“The proposed plant has been blocked by local zoning regulation and failed to receive local permits, but the state siting law could preempt municipal law and allow the plant to be constructed, if approved by the Public Service Commission,” Helming wrote in her bill memo.

Waste incinerators shouldn’t have that alternate path to obtaining operating permits, Helming said.

“Fundamentally, trash incinerators are not effective mechanisms for electricity generation, often producing less electricity than is expended to (burn) waste materials, and at a higher cost,” Helming wrote. “They also produce toxic ash from burning a range of solid wastes which can vary widely in chemical output, making compliance with emissions and toxic waste limits difficult.”

She added that the air and ash pollution from a trash incinerator located in the Finger Lakes region would damage local tourism, winery and agriculture industries. Her bill is co-sponsored by state Sen. Tom O’Mara (R-Big Flats), chair of the Senate’s Environmental Conservation Committee. O’Mara’s Senate district lies to the southwest of Romulus.

In the Assembly press release dated Apr. 4, Lifton and Cusick stressed that their Assembly bill, if signed into law, would take effect immediately and would “apply to proposed facilities which have not been issued a certificate” by the siting board. That includes the Circular enerG project.

“This bill very properly removes incinerators, as they are not really power plants, from the expedited Article 10 siting process and restores local control and full environmental review,” Lifton said in the release. Lifton’s Assembly district lies to the southeast of Romulus.

Last month, Circular enerG launched its bid for permits from the siting board by filing a required Public Involvement Plan (PIP) with the PSC.

On Apr. 3, lawyers for Earthjustice, which represents the groups Seneca Lake Guardian and the Finger Lakes Wine Business Coalition, filed a letter with the PSC claiming that the company’s PIP was inadequate and needed to be rewritten.

Among the flaws Earthjustice cited:

— While the company’s “study area” for those affected by the incinerator is a circle with a five-mile radius from the plant site, the federal Environmental Protection Agency uses a radius of 10 kilometers, or 6.2 miles, when assessing air impacts for waste incinerators.

— While the company proposes to mail informational flyers to all addresses on “the voting rolls” within its study area, that would exclude owners of many seasonal lake homes within five miles who are registered to vote elsewhere. Earthjustice also said company should systematically notify all people within the Lakeshore Landing neighborhood and the Spring Meadows Apartment Complex — both well within the company’s study area.

— While company documents suggest that incinerator would generate more than 70,000 truck trips per year, the public involvement plan does not provide detailed information on potential truck routes, which would be affected by noise and air pollution.

A spokesman for the PSC noted that the agency has 30 days to accept the company’s PIP — filed Mar. 13 — or require that it be revised. The PSC docket for the case did not show any action on the company’s PIP filing.

Alan Knauf, lead attorney for Circular enerG, did not return an Apr. 4  phone call seeking comment.

A waste incinerator proposed for the town of Romulus would have “horrific” long- and short-term consequences for the Finger Lakes region and “must be stopped,” according to the three state legislators who represent the most affected communities.
In a recent letter to Gov. Andrew Cuomo and other state officials, State Sen. Pam Helming (R-Canandaigua) and Assemblymen Brian Kolb (R-Canandaigua) and Philip Palmesano (R-Corning) urged rejection of an impending application for project permits from the State Board on Electric Generation Siting and the Environment.
“Being located only 3.9 miles from Seneca Lake and the Cayuga Shoreline, this operation would compromise the character and safety of the region for both residents and tourists and would result in devastating impacts that we simply cannot allow to occur,” the legislators said in their Mar. 9 letter.
The facility proposed by Circular enerG LLC, a year-old Rochester company with no history of waste disposal or energy production, would be the largest waste incinerator in the state.
It would import up to 2,640 tons of municipal solid waste a day — mostly from the New York City area — to be burned in a plant on 48 acres of land at the former Seneca Army Depot. The plant’s smokestack would rise 260 feet. The waste would arrive by highway — 176 tractor-trailer loads a day — or by rail — 30 rail cars per day.
When it first announced the project in November, Circular enerG said the facility would generate up to 50 megawatts of electric power from burning waste.
It is now seeking a certificate of environmental compatibility and public need under Article 10 of the state Public Service Law to generate up to 80 megawatts of power.
On Mar. 13, Circular enerG filed with the state Department of Public Service its “Public Involvement Program Plan,” or PIPP, opening a docket for a regulatory matter that is expected to grow for many months, if not years.
Since the company’s PIPP filing, more than a dozen comments have been added to the docket, many from representatives of local communities such as Romulus, Lodi, Fayette, Ovid and Geneva that have expressed opposition to the project.
In its public involvement plan filed this week, Circular enerG proposes to hold open house meetings this summer before filing its scoping document with the Department of Public Service.
The PIPP document makes numerous references to a “study area” within a five-mile radius of the proposed incinerator. Circular enerG does not provide details on why it chose to limit its study of the project’s environmental impacts to such a restricted area.
Toxic air pollutants, including mercury, lead and dioxins, would be expected to spread from the smokestack across much of the Finger Lakes region, according to Paul Connett, a waste incinerator critic who spoke at a public hearing in Romulus in January.
Wine industry officials have expressed fears that pollutants from the plant would harm vineyards far beyond the five-mile “study area.”
In November, Circular enerG had sought to obtain a Special Use Permit from the Town of Romulus Planning Board. But it withdrew that application in January in the face of stiff local opposition and turned instead to an alternative permitting process under the state Siting Board.
“The reason Circular enerG is applying under Article 10 is due to unanimous opposition from residents, businesses and local officials,” the three state legislators said in their Mar. 9 letter to Cuomo, Siting Board Chair John B. Rhodes, and others.
Helming’s state Senate district includes the Town of Romulus and the company’s proposed five-mile “study area.”
The dividing line between the state Assembly districts represented by Kolb and Palmesano lies about a half-mile north of the proposed site of the incinerator. While most of the “study area” falls in Palmesano’s district, a sizable portion also falls in Kolb’s.
Kolb is the minority leader of the state Assembly.

New York State’s authority over natural gas pipeline permitting suffered a major blow Mar. 12 when a federal appeals court ruled that the Department of Environmental Conservation — by failing to act promptly — waived its right to deny a water quality permit for a Hudson Valley pipeline project.
The decision clears the way for a 7.8-mile extension of the Millennium Pipeline linking to Competitive Power Venture’s nearly completed gas-fired power plant in Wawayanda, 70 miles northwest of New York City.
More broadly, the case may have ramifications for larger pipelines that have also had their state water permits denied by the DEC — Williams Cos.’ Constitution Pipeline and Northern Fuel Gas Co.’s Northern Access Pipeline.
The 2nd Circuit Court of Appeals handed CPV its legal victory only hours before a federal jury convicted a former senior aide to Gov. Andrew Cuomo in bribery schemes, including one allegedly aimed at gaining state approvals for the 680-megawatt plant.
Joseph Percoco now faces decades in prison for wire fraud and soliciting bribes. The same jury deadlocked in a related case against Peter Galbraith Kelly, a former CPV executive, and a mistrial was declared. Prosecutors had argued that Galbraith bribed Percoco to use his influence to get a power-purchase agreement for the gas plant, locking in the price of energy it generates.
In the wake of the jury’s decisions, MidHudson News reported that local officials were calling on Cuomo to suspend the plant’s imminent opening, pending a full investigation of state and local permit approvals his administration granted.
In addition to those calls from state Assemblyman James Skoufis (D-Woodbury), who represents Wawayanda, and Orange County Executive Steve Neuhaus, several good government groups called for new reviews of the CPV permitting process.
The high-profile criminal trial had been going on for weeks and was unrelated to the civil case before the appeals court in New York City.
The DEC had petitioned the court to hear its appeal of a Federal Energy Regulatory Commission order allowing construction of the pipeline extension in spite of the DEC’s denial of its water quality permit.
FERC, the lead regulatory agency on most gas pipeline matters, had argued that the DEC failed to issue its water permit denial within the one-year time limit specified in the federal Clean Water Act.
The DEC claimed that the clock should not start ticking on the one-year time limit until water permit applications are complete to the agency’s satisfaction. Otherwise, the DEC said, an applicant could file incomplete and inadequate information in an illegitimate bid to start the clock.
But FERC accused the DEC of stalling and said the law did not set conditions on its one-year time limit. A panel of appellate judges agreed with FERC. Judges Jose Cabranes, Debra Ann Livingston and Susan Carney declined the DEC’s petition to appeal of FERC’s order, allowing it to stand.
(Cabranes was appointed by President Bill Clinton, while Livingston was appointed by President George W. Bush, and Carney was appointed by President Barack Obama.)
A spokeswoman for Millennium said the “precedent-setting decision” affirms the Federal Energy Regulatory Commission’s interpretation of the Clean Water Act.
The DEC issued the following statement: “We certainly disagree with the decision, and are reviewing our options to determine any appropriate next steps regarding the pipeline project.”

 

Over the nine months leading up to the public unveiling of plans to build the state’s largest waste incinerator in Romulus, a lawyer for the developer worked tirelessly to get the plant classified as a “renewable energy” project before the public knew enough to object.
The state doesn’t recognize energy from trash-burning incinerators as “renewable,” so it was not a particularly easy sell for Rochester attorney Alan Knauf.
But internal emails show that Romulus Town attorney Patrick Morrell and other town officials repeatedly deferred to Knauf’s assertiveness on behalf of his client, Circular enerG LLC, a freshly-minted company with no experience in waste disposal or energy generation.
The fruits of Knauf’s labor were two letters signed by the town’s zoning officer that provided the interpretation that Circular EnerG’s $365 million plant would be classified as “renewable energy production — utility scale.”
Knauf now claims those letters are binding on the Romulus Planning Board, even though certain board members were kept in the dark about the two letters and the plans for the incinerator. He has argued that the “renewable” designation guarantees his client’s project is allowed if it obtains a special use permit.
But even if Knauf claims victory in the battle for the “renewable” label, he may have lost the war for local public support for his client’s project.
On Jan. 8, the Planning Board voted unanimously to draft a letter stating that the
the project is not “renewable” and is not an allowed use under the zoning code.
Meanwhile, Romulus Town Supervisor Dave Kaiser and other key local officials have said they oppose the project. Several neighboring towns, including Geneva, have passed resolutions against it.
Permitting for the massive plant and its 260-foot smokestack is now in the hands of the Board on Electric Generation Siting and the Environment under Article 10 of the state Public Service Law. It’s not clear yet how much weight that panel will eventually give the “renewable” label Knauf extracted — or even if widespread local opposition will be a decisive factor.
The battle to win permits for the massive plant is likely to drag on for many months, if not years, and it will bring in a whole new set of players. The courts may well have the final say.
So how did it Circular enerG come to obtain its “renewable” letters, dated March 16 and August 28?
Interviews and emails obtained under a Freedom of Information request filed by Mary Anne Kowalski of Romulus shed light on the backroom maneuvering that made them possible — all while keeping many local officials out of the loop.
Knauf drafted the first letter, word-for-word, and left a place for the zoning officer, Adam Schrader, to sign above his printed name.
Schrader told me in a recent interview that he can’t remember signing it.
“I do not recall signing the original document,” Schrader said. “I also don’t have any record or history of being asked to sign it.”
Emails show that Knauf on Feb. 20 sent a draft of the March 16 letter to Morrell with the note: “Here is the proposed interpretation my client Mike Palumbo would like to get from the town…”
Morrell’s town legal bills show that over the next two weeks he received phone calls from Town Supervisor Kaiser and Knauf labeled “Re:Flaum.” Flaum Management is Palumbo’s company, and Knauf has acknowledged that it is affiliated with Circular enerG.
On March 10, Morrell emailed Knauf: “I have reviewed your proposed interpretation letter and the town’s zoning ordinance. I am forwarding the letter to the town’s supervisor and recommending that the town’s zoning officer sign and distribute the letter as it has been presented.”
On March 22, a town clerk sent emails with copies of the signed letter to Palumbo and Schrader. The copy to Schrader included the note: “For your file.”
A month later, Knauf emailed Morrell to say that he wanted the town to officially publish the interpretation attributed to Schrader. “We want you to publish the public notice for us, which we have drafted. While we can do this on our own, it would be more appropriate for the town to do so.”
On May 5, Morrell effectively declined, emailing Knauf: “Let me know if you have any problems publishing this notice.” The May 10 notice in the Ovid Gazette noted the zoning officer’s interpretation of “renewable” but did not mention plans for a massive incinerator (or that the interpretation was written by a sponsor of the project).
Knauf would later claim that the clock began running May 10 on a 60-day window for the public to appeal the new interpretation of “renewable.”
On June 3, Knauf emailed Morrell with more details about plans for the incinerator, writing: “Here is a powerpoint showing the plant we would build. It is already built in China. Please keep this confidential.”
Attachments to several emails Knauf sent to Morrell that day included a powerpoint on a Chinese plant and a rendering of that plant labeled “Waste Incineration Power Plant.”
Circular enerG later used a version of the same rendering in documents it made public, though only after eliminating the label “Incineration” and the 2016 copyright line: “Chengdu Zingrong Group. All Rights Reserved.” (Knauf has avoided using the word incinerator. He prefers the term waste-to-energy facility.)
Less than two weeks later, Knauf wrote Morrell to ask that Schrader amend the March 16 letter he signed to clear up possible ambiguity about zoning classifications that could apply at incinerator site. “We request that you ask the zoning officer to adopt this (new) interpretation,” Knauf wrote.
Morrell once again used Knauf’s language word-for-word to prepare a second letter to amend the first, although he did add the final sentence: “Further, in addition to compliance with applicable environmental regulations noted above, all uses within the WITE and IW Districts are subject to the performance standards contained in Article IV, Section 3” of the town zoning code.
On August 10, Morrell emailed a draft of the second letter to Town Supervisor Kaiser with a copies to Thomas Bouchard, chairman of the Romulus Planning Board, and the town clerk. The email asked Kaiser to “forward the attached letter to the town’s zoning officer for his signature.”
Schrader apparently needed further prodding. On August 28, a town clerk emailed him a reminder to sign the second letter as instructed. If he had questions about it, he was urged to call “Dave (Kaiser) or the attorney (Morrell).”
Schrader said in an interview he used an auto-signer for his signature on the second letter. The signature does not resemble the signature on the first letter.
This past summer, Schrader was in the process of buying a house in Alpine, 35 miles south of Romulus, and selling a Romulus home he had purchased in 2012.
The wide gap in the $305,000 purchase price of the Alpine home and the $97,000 sale price of his home in Romulus triggered some public whispers — totally unfounded — that he might have received compensation for signing the two letters that Circular enerG was touting.
The facts don’t support that speculation. Records show Schrader had begun negotiations for the Alpine property in September 2016, four months before Circular enerG was even formed. And the June purchase of the Alpine property had not been not contingent on the sale of his Romulus property two months later.
The Romulus home is located about 3,000 feet from the site of the proposed incinerator. The buyer, Felix Flores, has said he feels Schrader should have disclosed his knowledge of those plans. Schrader said in an interview he did not feel an obligation to do so.
But Schrader said he’d had Flores’ best interests in mind when rejected a higher last-minute offer on his property — which he claims he had a legal right to accept — in order to honor the contract Flores had already agreed to.
Sue Ellen Balluff, Flores’ real estate agent and a member of the Romulus Planning Board, said she didn’t learn about the incinerator project until the public found out in November. She said that if she had known before the closing of the sale, she would have been required under real estate rules to disclose it to Flores.
Only weeks after the Schrader-Flores sale closed, several Romulus officials were invited to learn more about the incinerator project, according to an August 22 email from Morrell to Knauf.
“I spoke to the Romulus Supervisor (Kaiser) about getting a meeting together,” Morrell wrote the Circular enerG attorney on August 22. “We should be able to get two Town Board members, two Planning Board members, the zoning officer and myself together for a meeting on your project.”
Balluff apparently didn’t make the cut. She said in a recent interview that she opposes the incinerator project. Schrader said he has also turned against the project.
Circular enerG finally went public with its plans in mid-November by announcing that it was seeking a special use permit.
On Nov. 30, Knauf wrote a four-page letter to Morrell that underscored that the two Schrader-signature letters committed the Planning Board to treating his client’s project as a “renewable energy” facility.
On Dec. 12, I asked Knauf about his insistence on his client’s right to the “renewable” designation in light of the fact that the state doesn’t recognize waste incinerators as producers of renewable energy.
“How strong is your claim?” I asked.
“Strong,” Knauf answered. “It’s a strong claim….It’s already been decided. The town’s already ruled that.”
Knauf was also hopeful that the Romulus Planning Board would take the role of lead regulatory agency in the permitting process under the State Environmental Quality Review Act. On Dec. 6, Bouchard wrote the state Department of Environmental Conservation to say it was seeking that role.
Two weeks later the DEC overruled Bouchard’s request, only to be overruled itself by state the Public Service Commission and the power plant siting board.
That siting board’s decision to step in opened a new chapter in the project’s bid for regulatory approval.
On January 5, Circular enerG withdrew its request for a special use permit with the Romulus Planning Board.
In the days that followed, as public opposition at open hearings continued to mount, the Town Board considered one moratorium on Zoning Board Appeals decisions and another on incinerators. The Planning Board voted to disavow the Schrader letters. A few members of the public even called for Morrell and Schrader to be fired.
Schrader felt compelled to make his case before the Town Board, stressing that his real estate transactions were totally unrelated to Romulus zoning issues or the incinerator project. He received a generally sympathetic response.
In interviews Jan. 18 and 22, Schrader said he had once had an open mind about the incinerator project but was now opposed, primarily because of the company’s tactics.
Meanwhile, Knauf is sticking to his guns.
In a January 17 letter to Kaiser opposing a proposed moratorium, he wrote: “Circular enerG had a reasonable investment-based expectation to pursue the project, as it was, twice, determined that the project was an allowable use.”

 

 

Red flags for dangerously high levels of radioactivity appear in leachate samples from a Southern Tier landfill that accepts gas drilling wastes from Pennsylvania, according to three expert witness affidavits filed recently in a court case challenging the landfill’s proposed expansion.
Leachate from the Hakes C&D Landfill in Painted Post contains “extremely high” concentrations of byproducts of the decay of radium-226 and radon-222, according to the affidavits.
The findings directly contradict the official stance of the state Department of Environmental Conservation, which insists that radioactivity levels in imported fracking wastes are “similar to background concentrations.”
That assertion is spelled out in a closely-held 2015 policy memo that the DEC is now citing to justify restricting public debate about the health risks of importing Pennsylvania’s fracking waste.
The DEC has not yet filed a formal legal response to the new evidence, and it maintains the policy of declining public comment on pending litigation.
The evidence may represent the strongest scientific challenge yet to the DEC’s stance, which undergirds New York State policy of continuing to accept fracking waste imports nearly four years after the state banned the high-volume fracking process that produces it.
“There is reason to believe the DEC is underestimating the amount of radioactivity deposited in and being released from the (Hakes) landfill,” said David O. Carpenter, Director of the Institute for Health and the Environment at the University of Albany. In an affidavit dated Jan. 17, Carpenter said the DEC’s declaration that permitted fracking waste imports don’t exceed background concentrations is “simply untrue.”
The DEC’s current procedures at the Hakes Landfill pose “significant risks to human health,” wrote Carpenter, a Harvard Medical School-trained physician and a former Director of the Wadsworth Center for Laboratories and Research of the New York State Department of Health. “The greatest concern is the inhalation of radon.”
The new evidence was uncovered by Raymond Vaughan, an environmental scientist from Buffalo who provided an affidavit dated Jan. 18. Vaughan reviewed leachate reports and analyses provided to the DEC by Pace Analytical Services LLC and On-Site Technical Services Inc. on behalf of Casella Waste Services, owner and operator of Hakes Landfill.
Vaughan, who holds a Ph.D in geology from the University of Buffalo, shared his findings with Carpenter and Dustin M. May, a chemist who has studied radioactivity of Marcellus shale drill cuttings with a team at the State Hygienic Lab at the University of Iowa.
In a Jan. 17 affidavit, May wrote that nine leachate samples from sections of the Hakes Landfill that have received Pennsylvania drilling wastes show “extremely high” concentrations of lead-214 and bismuth-214, byproducts from the decay of radium-226 or radon-222.
While the leachate samples taken from 2012 to 2017 showed “very low” levels of radium-226, concentrations of radon-222 were “impossible to know” without direct measurements, May wrote. He recommended further testing and predicted the radon-222 readings would be “higher than or equal to” the unusually high lead-214 and bismuth-214 readings.
Vaughan wrote this about the anomalous lead-214 and bismuth-214 readings:
“There are two alternative explanations for the mismatch between lead-214 and bismuth-214 test results and reported radium-226 test results,” Vaughan wrote. “These involve either underreported levels of radium-226 or high, unreported levels of radon-222 in the landfill leachate. The latter is more likely, but additional testing is needed to confirm this.”
It is not known whether DEC officials have taken note of the high lead-214 and bismuth-214 readings and understand their significance.
For years, those agency officials have been dismissive of public outcry over the state’s policy of accepting wastes from Pennsylvania drilling in the Marcellus shale, one of the most radioactive shale formations in the country. They have reportedly said Marcellus “drill cuttings” are less radioactive than — among other things — kitchen table counters, hospital diapers and smoke alarms.
In keeping with its conviction that imported fracking waste is benign, the DEC doesn’t bother to track it. So New Yorkers who are looking for hard government data must turn to the Pennsylvania Department of Environmental Protection. (The non-governmental group FracTracker.org also provides detailed maps and data on Pennsylvania drilling wastes.)
Officially, New York allows solid waste landfills like Hakes to accept imported drill cuttings from air- and water-based drilling fluids. But they are not supposed to accept imports of bulk drilling fluids, flowback water, filter sludge or cuttings from operations using oil-based drilling fluids.
But DEC enforcement of any distinction has been spotty, given that Pennsylvania records show Hakes and other landfills have accepted thousands of barrels of imported liquid fracking waste.
According to a June 2017 report from the Environmental Advocates of New York, five New York landfills had accepted more than 608,000 tons of Pennsylvania fracking waste through March 2017, including 23,000 barrels of liquid waste. Three continue to import the waste: Hakes, the Chemung County Landfill in Loman and the Hyland Landfill in Angelica.
In response to Hakes Landfill’s request to expand from 57.9 acres to 80 acres, the DEC required the landfill to prepare a draft supplemental environmental impact statement. But the agency said the DSEIS did not need to include an analysis of health risks related to radiation because those issues were covered and settled in the DEC’s 2015 policy memo.
The policy memo — produced without any public input and withheld from the DEC’s website — stated that radiation detectors at landfills that screen incoming trucks provide assurance that incoming drilling wastes are safe. Truck screening and leachate analysis are adequate backstops to protect public health, the agency says. Those positions are reasserted in the DSEIS prepared by the Casella-owned landfill. “The Hakes Landfill is required to operate radiation detection systems to ensure that regulated radioactive wastes are not improperly accepted for disposal,” the DSEIS says. “At no time have any drill cuttings or other wastes from the oil and gas extraction industry set off the detector alarms at Hakes Landfill…
“In addition, Hakes Landfill regularly monitors its leachate and leachate sediment for radioactivity…Again, at no time have any levels been detected that would indicate any radioactivity beyond those associated with background levels.”
But Vaughan in his affidavit points to a host of deficiencies in the methodology for using a gamma detection machine to screen waste-hauling trucks for radioactivity. “The use of a gamma monitor to infer radium-226 concentration in the incoming waste has the potential to be wildly inaccurate and cannot be considered reliable,” Vaughan wrote.
Furthermore, the Hakes monitor is not designed to screen for alpha particle emissions, by far the most dangerous radiation arriving in the waste loads.
Meanwhile, May, the Iowa chemist who studied Marcellus shale drill cuttings, found that their radioactivity consistently exceeded background levels.  May wrote that his team found that concentrations of six radioactive substances, including radium-226, tended to be 2-3 times higher in the drill cuttings — 5-8 pCi/g (average picocuries per gram) — than in regular soil found in the eastern United States. Sludge from drilling flowback could be even higher — 10 to several hundred pCi/g — he added.
The Hakes leachate samples were notable for their very high concentrations of lead-214 and bismuth-214. In nine of 79 analyzed samples, both substances exceeded 1,000 pCi/g. In one case, both exceeded 6,000 pCi/g.
Each substance has a half-life of less than half an hour — a small fraction of the time between sample collection and measurement. May and Vaughan agreed that since both are produced by the decay of radium-226 or radon-222, one or both of the latter two substances must be present in the leachate.
“The foregoing issues of high radionuclide concentrations in leachate need to be acknowledged and addressed in a transparent, deliberative and defensible manner, preferably in the context of an EIS process,” Vaughan wrote.
In November, the Sierra Club and others sued the DEC in a bid to force it to require the DSEIS to address radioactivity issues. To buttress their case, plaintiffs obtained the affidavits from Carpenter, Vaughan and May and filed a memorandum of law. The DEC and the landfill have not yet responded.
Carpenter wrote that Vaughan’s calculation that radon in air above the leachate could exceed 1 million pCi/L (average picocuries per liter) means anyone in the vicinity of the leachate is at risk. “The greatest concern is inhalation of radon,” Carpenter wrote.
“Radon will also be released into air over the landfill,” he added. “The leachate will migrate into ground water, where radon will be transported and will appear in the drinking water of people on wells and be ingested. A major hazard will come from hot water showers, where the radon is released from the water by the heat and will fill the shower stall and be inhaled.
“The radon will also migrate up from the ground water in basements of homes, where it will be inhaled by occupants.”
Carpenter concluded that the net effect of the DEC policy of allowing imports of drill cuttings and other wastes from Pennsylvania fracking operations will be that “New Yorkers will have an increased risk of cancer, especially lung and gastrointestinal cancers, an increased risk of birth defects coming from DNA damage and an increased risk of a shortened life span.”
A public hearing on the DSEIS is scheduled for 6 p.m. Feb. 13 at the Campbell American Legion Post 1279 in Campbell (8458 County Route 333). The DEC will also accept written comments on the DSEIS postmarked by Feb. 26.