Attorney Extracted ‘Renewable Energy’ Label for Proposed Incinerator, But at a High Price

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.KnaufPDFREADY
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.READYSchoolCrowdJan7
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?SchraderREADY
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.”READYFeb20
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.READYPalumbopdf
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.”MorrellREADY
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.”READYAlreadyBuiltinChinaJune3
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.”READYChineseRenderingpdf
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.READYNewRendering
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.FloresREADY
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.”SueEllenREADY
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.READYSchraderTownBoardJan17
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.”

 

 

DEC Overlooks Red Flags for Radioactivity in Landfill Leachate

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.READYCarpenterREADY
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.READYHakespdf
“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.READYRayVaughanpdf
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.READYDecayChartpdf
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.READYDEC
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.READYFrackWasteChart2
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.READYCasella “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.READYMaypdf
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.

WHAT RADIOACTIVITY? Hakes Landfill Wants More Fracking Waste Imports

The state Department of Environmental Conservation this week formally invited oral and written comments on the proposed expansion of a Steuben County landfill that imports fracking waste from gas drilling operations in Pennsylvania.READYHakespdf
It’s a safe bet that any public responses that touch on health risks due to radioactivity will be officially logged in and then totally disregarded.C & D Hakes Landfill - Google Maps
That will clear the way, previous commenters have argued, for the Hakes Landfill to continue to operate as a de facto radioactive waste dump seven miles northwest of Corning.
The DEC has already made up (or closed) its mind on the question of whether allowed Marcellus Shale fracking wastes might be dangerously radioactive: They’re not. The agency’s reasoning is spelled out in a September 2015 policy memo that opponents of fracking waste imports uncovered by a Freedom of Information Law (FOIL) request.
In August, the DEC doubled down. The agency approved a scoping document prepared by Hakes C&D Disposal Inc. that excluded radioactivity as a reviewable issue in a draft supplemental environmental impact statement, or DSEIS, the company prepared for its proposed expansion from 57.9 acres to 80 acres.READYDrillcuttingspdf
“Drill cuttings are screened prior to disposal and must pass through radiation detectors,” the DEC-approved scoping document said. “No drill cuttings loads have triggered radiation detectors. The disposal in the landfill is safe and environmentally sound.”
That’s the landfill’s stance, and the DEC is buying it despite glaring scientific shortcomings that have inspired howls of protest and a lawsuit.
The landfill’s scoping document acknowledges that the majority of previous comments “assert that radioactivity will not be managed properly and that the wastes being received at the Hakes Landfill should be characterized as radioactive waste, not solid waste.”
The document then brushes off those concerns, saying: “These questions have been raised and previously addressed in a statewide manner by the established program policy on drill cuttings (as spelled out in the Sept. 18, 2015 DEC memo).”
That’s the background behind the DEC’s Jan. 10 announcement that it had accepted the Hakes DSEIS and would entertain oral comments on it on Feb. 13 at the Campbell American Legion Post 1279 in Campbell (8458 County Route 333). It will also accept written comments postmarked by Feb. 26.READYRachelpdf
In November, the Sierra Club and others filed suit against the DEC and the landfill for “improperly excluding radioactivity issues from the analysis of environmental impacts” of the proposed Hakes expansion, in violation of the State Environmental Quality Review Act. The petition, filed in the Supreme Court of Steuben County by attorneys Rachel Treichler of Hammondsport and Richard Lippes of Buffalo, seeks to have the company’s DEC-approved scoping document annulled.READYLippespdf
The September 2015 DEC policy memo that serves as the basis for excluding radioactive issues from the Hakes DSEIS was maintained in virtual secrecy, the lawsuit alleges.
The memo “was adopted without public input or comment and is not posted on the DEC website or otherwise made available to the public,” the lawsuit says. “Petitioners had to file FOIL requests to obtain the policy memorandum.”
The memo says drill cuttings from the Marcellus Shale “contain naturally occurring radioactive material, though the radioactivity is similar to background concentrations.”
Even so, the memo calls for radiation detectors at landfills that import Marcellus drilling waste, and it sets out standards for how landfills should operate them.
But the DEC fails to specify whether those detectors screen for alpha, beta or gamma radiation. It is a crucially important omission.READYLudlumpdf
The primary health threats from Marcellus drill cuttings are the cancer-causing alpha and beta emissions from radium and radon. The Hakes radiation detector, a Ludlum 375 series area monitoring system, is described in Ludlum company literature as a “gamma monitor.”
Gamma rays can penetrate the metal sides of waste delivery trucks, but the dangerous alpha and beta particles cannot. So they go undetected.
Alpha particle radiation can’t even penetrate skin. But when the particles are ingested or breathed in, they settle in the bones, lungs and other internal organs and cause cancer. Radon is the second leading cause of lung cancer in the United States, after cigarette smoking. Alpha particles from radon can become airborne in dust from landfills or seep into groundwater.
The scoping document stated that lab tests of leachate from the Hakes Landfill had not revealed elevated levels of radioactivity. But the Sierra Club lawsuit said the scoping document failed to address the the group’s reporting of Radium-226 levels as high as 180 pCi/L (picocuries per liter) in Hakes leachate.
(The U.S. EPA’s maximum allowable contamination level for Radium 226 and 228 combined is 5 pCi/L.)READYDEC
The lawsuit said the Hakes Landfill appears to be one of only three New York State landfills that continue to import fracking waste, based on data from the Pennsylvania Department of Environmental Protection (PADEP). The DEC doesn’t systematically track it.
The other two Southern Tier frack waste importers are the Chemung Landfill east of Elmira and the Hyland Landfill in Angelica, about 80 miles to the west.
Drawing from Hakes Landfill sources, the lawsuit says the proposed landfill expansion would add more than 2.5 million cubic yards of disposal capacity, enough to extend the life of the landfill by five to 10 years. The expansion would not alter the facility’s permitted disposal rate of 1,494 tons per day.
Hakes is authorized to accept drill cuttings from air and water-based drilling fluids. But it is prohibited from taking bulk drilling fluids, flowback water, filter sludge or cuttings from operations using oil-based drilling fluids.
However, PADEP records show Hakes took 332 barrels of liquid fracking waste from Pennsylvania between 2010 and 2017, the lawsuit says.
Imports of fracking waste from Pennsylvania have continued after New York’s 2014 ban on high-volume horizontal fracking, and they remain controversial.
On several occasions, state legislators have attempted to ban the fracking waste imports, but Republicans in the state Senate have successfully blocked those efforts.
In April 2014, the Senate Committee Environmental Conservation voted 7-6 along party lines to kill a bill to ban frack waste imports.READYO'MaraPdf
Sen. Tom O’Mara (R-Big Flats) cast one of the deciding votes. The Hakes and Chemung landfills, which accept the vast majority of the state’s fracking waste imports, are located in his Senate district. Hakes is owned by Casella Waste Systems, which operates the Chemung facility.READYCasella
In January 2015, O’Mara was appointed chair of the Senate’s Environment Committee, which oversees the DEC. The DEC’s policy memo followed in September.
(I explored O’Mara’s role in the preserving New York’s fracking waste imports in a magazine-length story for DCBureau.org in 2016.)

 

Incinerator Permits to Be Decided by Electric Generation Siting Board

Circular enerG LLC Withdraws Application of Local Special Use Permit

The mysterious Rochester company that plans to build the state’s largest waste incinerator at the former Seneca Army Depot in Romulus abruptly withdrew its application for a local permit Jan. 5, but it’s not walking away from the controversial project.EnckPDF
As a result of the surprise move, the fate of Circular enerG LLC’s proposed $365 million trash burner now rests with a state board that governs the placement of electric power plants.
The siting board operates under Article 10 of the state Public Service Law, which emphasizes public participation and rigorous environmental review.
Those issues were hot topics at a forum at the Romulus Central School auditorium Sunday afternoon. Between 300 and 400 people attended, and most strongly opposed plans to place an incinerator less than a mile from the school.
The keynote speaker, Paul Connett, predicted that a new toxic ash dump would have to accompany the Romulus plant, and he warned that local dairies and wineries would suffer from toxic air emissions.
“You could not have chosen a place in the United States that would put more dioxins in the food chain,” Connett told the crowd.ConnettPDF
Connett has has successfully opposed dozens of incineration proposals worldwide since the 1980s. He urged forum attendees Sunday to get involved in the fight because, he said, public participation defeats incinerator proposals.
“I think in the end, you’ll win,” said Judith Enck, a former regional director of the U.S. Environmental Protection Agency. She said the fight in Romulus could become a springboard for a push to convince Gov. Andrew Cuomo to establish a state moratorium on new trash incinerators.
Circular enerG was formed early last year, and it has no experience in waste disposal or energy generation. The company’s attorney, Alan Knauf, has said it is “associated with” Flaum Development in Rochester, but he has declined to provide a full list of partners or investors.
Connett characterized Circular enerG as “front men who can promise anything because they don’t expect to ever operate it.”
He said that if they do manage to secure the necessary permits to build, they will sell out — most likely to Covanta, a New Jersey company that dominates the U.S. waste incineration market and owns or operates seven of New York State’s 10 trash burning plants.
The proposed Romulus plant would burn up to 2,600 tons a day, most of it arriving from outside the Finger Lakes region by truck or train. It would eventually generate up to 50 megawatts of power.
Initially, Circular enerG appeared to be trying to sidestep the authority of the Article 10 panel, the Board on Electric Generation Siting and the Environment.KnaufPDFREADY
Knauf said late last year that he’d hoped that the Romulus Planning Board would act as lead regulatory agency on his client’s application and then grant it a special use permit as a “renewable energy producer.” He touted the project as an environmentally-friendly alternative to piling trash in landfills.
But on Dec. 20, the state Department of Environmental Conservation overruled the Romulus Planning Board by saying it intended to assume the lead agency role, unless the Department of Public Service asserted its authority under Article 10.
An executive summary Circular enerG released in November seemed to be written to discourage intervention by the siting board. It said the incinerator would initially generate “less than 25 megawatts” of electricity — the threshold level that triggers application of Article 10. It was only a second phase, due to begin operating in 2023 and boosting the plant’s generating capacity to 50 megawatts, that would trigger siting board involvement, according to the Circular enerG document.
State officials may have concluded that the project’s phases, as described, did not exempt it from siting board authority.
Knauf’s Jan. 5 letter announcing the withdrawal of the special use permit referred to the incinerator as a “renewable energy project” and quoted one provision from Article 10 that implied that local input would be given far less weight.BurnsPdf
But Willard Burns, an environmental lawyer from Ovid, took issue at Sunday’s forum.
“The (Knauf) letter tries to no-so-subtlety say, ‘Your local laws are pre-empted by this Article 10.’ But that’s wrong,” Burns told the crowd. “It’s not pre-empted. There are provisions …. that do provide for the possibility of some pre-emption of the local laws. But I don’t think they’re going to apply in this case. The Planning Board is going to have a big role.”
Burns also urged the Planning Board to promptly clear up a controversy related to letters and public notices that purported to declare that the proposed incinerator would be classified as “renewable energy production” under the town’s zoning laws.
Eight months before Circular enerG went public with its plans, Romulus Zoning Officer Adam Schrader wrote a letter to a Flaum Development official that stated that a so-called waste-to-energy project would be classified as “renewable energy production.”
The letter, dated March 16, 2017, to Michael Palumbo of Flaum Management, also stated that the zoning code’s prohibition against “noxious or injurious” use would not apply if the facility “substantially complies” with regulations.MorrellREADY
Romulus Town Attorney Patrick Morrell said he and Schrader prepared a public notice, dated May 10, 2017, announcing Schrader’s “interpretation” of “renewable energy production” under the town zoning code. Morrell said no member of the Town Board, the Planning Board or the Zoning Board of Appeals were consulted in the published notice process.
Schrader sent Palumbo a second letter on his “interpretation” in August, followed by a second public notice in September.
Knauf has said the letters and the notices bind the town to the “renewable” designation, which may be useful in winning permit approvals.
But the state does not recognize waste incinerators as “renewable” energy producers, and several members of the Town Board and the Planning Board disagree with Schrader’s interpretation and believe he lacked authority to provide it officially.DavidKaiserREADY
“I feel like we’ve been duped,” Town Supervisor Dave Kaiser said Sunday, referring to the Schrader letters. Kaiser said he understood that neither Schrader nor Morrell drafted the letters that Schrader signed.
Asked whether Knauf was involved in drafting the letters, Kaiser said: “Absolutely.”
Another twist to the “renewable” designation controversy came late last month when it was revealed that Schrader sold a Romulus home roughly 3,000 feet from the site of the proposed incinerator and moved more than 30 miles south to Schuyler County.SchraderhomesREADY
Court records show he sold his Romulus property to Felix Flores for $96,000 on August 10. Two months earlier, records show, Schrader paid $305,000 for a four-bedroom home on more than 200 acres of land in Alpine.
Flores said Schrader did not mention before the sale closing that a waste incinerator project was in the works. Schrader has not returned phone calls to his cell phone.
The real estate agent who represented Flores in the home purchase in August, Sue Ellen Balluff, is a member of the Romulus Planning Board.
Balluff said in an interview Jan. 3 that she did not learn about the incinerator proposal until November. She said she has been adamantly opposed to the project.SueEllenREADY
She declined to say whether she believed Schrader had a legal obligation to inform Flores of the plan before selling him the property.
“If I had had an inkling, I would have been required to disclose and would have disclosed (to Flores),” Balluff said.
Burns, the attorney from Ovid, said he believed the Romulus Planning Board could largely defuse the Schrader letter controversy by simply writing a letter stating that Schrader lacked authority to provide a binding opinion on what constitutes renewable energy production.
Tom Bouchard, chairman of the Planning Board, said the panel would take up the issue when it meets in the school auditorium at 7 pm today.
“We’re going to talk about the letters,” Bouchard said Sunday. “We need to clarify.”
Knauf’s Jan. 5 letter stated that he planned to attend tonight’s meeting

Romulus Incinerator Plan Called a Grave Threat to Finger Lakes Dairy and Wine Industries

The dairy, wine and tourism industries of the Finger Lakes have good reason to fear toxic air pollutants if the state’s largest waste incinerator is built as planned in Romulus, a prominent industry critic warned this week.PaulConnettREADY
Mercury, lead and dioxins would spew from its 260-foot smokestack and settle on farms, vineyards and Seneca and Cayuga lakes, polluting local milk, wine and fish, said Paul Connett, a Cambridge-educated chemist who has successfully opposed dozens of proposed waste incinerators worldwide since the 1980s.
Milk from grazing cows would be particularly vulnerable to dioxins — potent, long-lasting carcinogens — while the lakes would act as giant catch basins for mercury that tends to accumulate in fish, he said.
“Dioxin monitoring in the U.S. is pathetic … They monitor one to three times a year, with advance notice,” Connett said in an interview Jan. 5. “It’s such a con trick played on the American public.”
To be effective, he said, regulation must include strict thresholds for toxic emissions, conscientious monitoring and consistent enforcement. While the U.S. falls far short, Europeans tend to be better. For example, in Germany and Belgium, where incinerators are widely used as an alternative to landfilling waste, continuous air sampling is required, he added.
Connett is scheduled to speak against the proposed Romulus plant at 3 pm Sunday, Jan. 7, at the Romulus Central School Auditorium. He said the project has both local and national implications.
“They’ve only built one new waste incinerator in the U.S. since 1997,” he said. “This project would breath new life into a dead industry.”ConnettQuoteREADY
Developers have proposed a $365 million waste incinerator at the former Seneca Army Depot in Romulus. The plan was unveiled in November by Circular enerG LLC, a Rochester company with no track record in waste disposal or energy generation.
The plant would burn up to 2,600 tons of trash a day — more than any of the state’s 10 existing trash incinerators — and produce up to 50 megawatts of electricity. Most of the trash would be delivered from outside the region by truck or train.
“This is a commercial venture which is going to bring into your community thousands of tons of waste from distant communities that are happy to pay,” Connett said. “Their willingness to pay a lot of money to get rid of that waste is the inverse image of what it’s doing to the value of your community.”
Alan Knauf, attorney for Circular enerG, has touted the project as an environmentally-friendly alternative to piling trash in landfills. He said true environmentalists should support it. The company has promised to strictly abide by all state and federal regulations.RomulusCrowdREADY
But those assurances haven’t satisfied opponents from around the Finger Lakes. Geneva’s town board has passed a resolution against the project, and Connett’s talk is sponsored by local chapters of the Sierra Club, Seneca Lake Guardian and the Finger Lakes Wine Business Coalition, among others.
Turnout at Connett’s talk Sunday afternoon and at a public hearing before the Romulus Planning Board the following evening (at the same school auditorium at 7 pm, Jan. 8) may reflect the intensity of that opposition.
Judith Enck, a former regional director of the U.S. Environmental Protection Agency with supervisory authority over New York and New Jersey, will introduce Connett Sunday.
Aside from his B.A. in Natural Sciences from Cambridge, Connett holds a PhD in Chemistry from Dartmouth. He lives in Binghamton, where he is chairman of the Fluoride Action Network, a group opposed to fluoridation of municipal water supplies.
In August 2016, Connett spoke against plans for a medical waste incinerator at a packed high school auditorium in New Milford, Pa., 25 miles south of Binghamton.
The project was called off last February.

 

Romulus Zoning Officer Sold Home 3,000 Feet From Proposed Incinerator Site

Felix Flores said he had no idea when he bought his Romulus home in August that plans were in the works to build the state’s largest waste incinerator roughly 3,000 feet away.FloresREADY
“I made my offer in June or July and paid almost full (asking) price,” Flores said in telephone interview Dec. 22. “It was a good location.”
Flores said he’d never met the seller, Adam Schrader, who didn’t attend the closing. Neither did Flores know that Schrader, the Town of Romulus zoning officer, had issued a controversial “interpretation” of local law months earlier that gave incinerator developers a chance to obtain a special use permit from the Romulus Planning Board.
In November, Circular enerG LLC went public with plans to seek such a permit to build a waste incinerator that would burn up to 2,640 tons of trash a day within the former Seneca Army Depot. It would feature at 260-foot smokestack and handle up to 238 trucks a day. Eventually, it could produce up to 50 megawatts of electricity.SchraderREADY
Schrader had helped set the stage eight months earlier.
On March 16, he wrote a letter to Earl Martin and Michael Palumbo (now an incinerator proponent) stating — in response to their question — that a “waste-to-energy” project at the former depot would be classified as “Renewable Energy Production” and that it would not violate a local provision banning “noxious or injurious” use if it complied with environmental regulations.
Schrader supplemented those interpretations in a second letter to Martin and Palumbo on August 28, and those interpretations were memorialized in published public notices in May and September.
Without the “renewable” designation, the proposal would not be eligible for the special use permit, and it would face the all-but-insurmountable obstacle of winning a series of variances to the town’s strict zoning code.
Schrader’s conclusions have come under heavy fire following Circular enerG’s unveiling of its intentions.
“That’s his (Schrader’s) interpretation,” William Karlsen, vice chair of the Romulus Planning Board, said in an interview Dec. 22. “I’m going to say that interpretation is not correct. The Planning Board and the Zoning Board of Appeals will have their vote on that.”FloresHomeTimelineREADY
Two days earlier, Willard Burns, an attorney from nearby Ovid, urged the Romulus Town Board to flatly reject the incinerator proposal as a clear violation of several provisions in the local zoning code. The board deferred to the Romulus Planning Board, which is reviewing the special use permit application.
Burns argued that Schrader has no legal authority to rule on what is “renewable energy” under the local zoning code. His authority applies to enforcement, not interpretation, he added. It is the Zoning Board of Appeals that “shall clarify doubt as to the precise meaning of any word used in this law.”
But Alan Knauf, Circular enerG’s attorney, said the “renewable energy” question is settled. “The town’s already ruled on that,” Knauf said.
The public notices may have established that. They were prepared by Schrader and Patrick Morrell, the Romulus Town Attorney, without input from the Romulus Town Board, the Planning Board or the Zoning Board of Appeals, Morrell said in an interview Dec. 22.
Asked whether Schrader’s interpretations were now binding on the town, Morrell said he had not yet decided.
By awarding “renewable energy” status to a proposed waste incinerator, Schrader did what the state of New York has long refused to do, notably in high profile cases in 2004 and 2011.
In 2011, Covanta, which owns or operates seven of the 10 waste incinerators in New York State, sought to have waste incinerators included in the state’s “Renewable Portfolio.” Environmental groups howled in protest and Covanta’s bid was denied.
The state Department of Environmental Conservation “(did) not take a position directly on the merits of Covanta’s petition” to win “renewable” status.
But it did provide detailed testimony on the significant air pollution created by waste incinerators in New York. For example, the DEC found that waste incinerators generated “up to 14 times more mercury than the coal plants when these two sources provide the same amount of electricity.” They also emit lead, dioxins and other potent carcinogens, the agency noted.
Burns, the Ovid lawyer, said Schrader’s conclusion that waste incinerators are not “noxious” is not supported by the plain meaning of the word.
“The Merriam Webster dictionary’s main definition of ‘noxious’ is ‘physically harmful or destructive to living beings,’ and it gives two examples: ‘noxious waste’ and ‘noxious fumes’,” Burns wrote in a Dec. 18 letter to the Romulus Town Board and Planning Board.FlaumSignREADY
Schrader could not be reached for comment at his office Friday. He did not respond to a voice message left on his personal cell phone.
Flores said Schrader did not disclose the prospect of a waste incinerator during sale negotiations this past summer. He said he was not happy about that omission. He said he and his wife planned to actively oppose Circular enerG’s waste incinerator bid.
Deed records show Flores paid $96,000 for his property August 10, providing Schrader a 60% gain on his 2012 purchase price of $60,000.
Records also show Schrader has moved to Alpine, about 35 miles south of Romulus.

 

DEC Asserts Authority Over Environmental Review of Romulus Incinerator Project

Town of Romulus Planning Board Overruled

State regulators are contesting a bid by officials in the Town of Romulus to seize the crucial “lead agency” role in analyzing a proposal to build the state’s largest trash incinerator at the former Seneca Army Depot because potential environmental impacts “are not primarily local.”SenecaArmyDepotREADY
The lead agency has legal authority to establish the scope of the environmental review given a project, including whether to allow or cut off public participation.
The $365-million Romulus project, proposed by a secretive LLC with no track record in waste incineration, has intense opposition in Romulus and across the region. The Finger Lakes Wine Business Coalition has spoken against it, and the Geneva Town Board has passed a resolution in opposition.
Geneva’s action came after the Town of Romulus Planning Board stated Dec. 6 that it intended to assume the lead agency role under the State Environmental Quality Review Act, or SEQR. But it was effectively overruled Wednesday by the state Department of Environmental Conservation.Unknown
In a Dec. 20 letter to Planning Board Chair Thomas Bouchard, the DEC’s Scott Sheeley wrote that the DEC planned to take the lead agency role — unless the state Public Service Commission asserts its right to oversee the project.
The PSC regulates electric power generation. If it steps in on the grounds that the incinerator plans to generate more than 25 megawatts of power, the project review would be exempt from SEQR, Sheeley said. If the PSC doesn’t step in, the DEC intends to take control, he added.
The Romulus Planning Board has until Jan. 20 to contest the DEC’s stance.
The plant, which would feature a 260-foot smokestack, would accept up to 2,640 tons of garbage a day. That’s nearly half the volume limit at the state’s largest landfill in Seneca Falls, 11 miles to the north.
Even before the Romulus Planning Board, the DEC and the PSC decide the jurisdictional question, the Town of Romulus could simply reject the project as a violation of its zoning laws, according to an attorney from nearby Ovid.KnaufPDFREADY
Willard R. Burns, the attorney, noted in a Dec. 18 letter to Romulus officials that Romulus zoning law prohibits:
— “The storage, processing or transloading of any waste materials, except for food processing or agricultural waste and marketable recyclable materials….
— “Open burning of rubbish, garbage, treated lumber or other materials causing noxious odors, residue or fumes.”
Burns told the Town Board Dec. 20 that it had no need to spend money on a lawyer or engineer to study the incinerator proposal. He said it could simply declare it an unacceptable zoning violation and kill the project.
Town Supervisor David Kaiser acknowledged that the explicit zoning language Burns cited was added in 2015 after the Cuomo Administration proposed the former Seneca Army Depot as a place to send refuse left behind by Hurricane Sandy.
But Kaiser said the Town Board was deferring to the Town Planning Board on Circular enerG LLC’s request for a special use permit for the trash incinerator.
Circular enerG, which is associated with Flaum Management in Rochester, has taken steps to neutralize potential snags created by the zoning law.SchraderREADY
In March, Michael Palumbo of Flaum Management obtained a letter from Town of Romulus Zoning Officer Adam Schrader stating the proposed incinerator would be classified under Romulus Zoning Law as “Renewable Energy Production.”
As a result of that classification, the Schrader letter stated, “the facility would be an allowed use if a special use permit was approved by the Romulus Planning Board.”
On Aug. 28, Schrader wrote a second letter to Palumbo and Earl Martin of Seneca Dairy Systems that added that the incinerator would not be prohibited under the zoning law as “noxious or injurious” so long as it complies with environmental regulations.
Burns argued to the Town Board Dec. 20 that Schrader lacked authority to issue those determinations. He said the zoning law assigns interpretation of the zoning law to the Zoning Board of Appeals, not the zoning officer.
Pat Morrell, attorney for the Town of Romulus, declined to say whether Schrader’s letters were binding. He said he would need to research the law.
But Alan Knauf, attorney for Circular enerG, said he doubted Schrader’s conclusion that the incinerator qualified as a “renewable energy” project could be seriously challenged. “It’s a strong claim,” Knauf said in a telephone interview Dec. 20. “It’s already been decided. The town’s already ruled on that.”
New York State does not recognize the energy generated from burning waste as “renewable” energy, despite lobbying efforts by the incinerator industry to have it qualify.OnondagaREADY
In 2011, Covanta asked the state to include so-called waste-to-energy plants in its Renewable Energy Portfolio. But environmental groups rose up in opposition and the effort failed.
Covanta owns or operates seven of the 10 waste incinerators in New York State. The company gave Knauf a tour of its plant in Niagara in November. At a Romulus Planning Board meeting Dec. 4, an official from a Covanta-operated incinerator in Onondaga County invited board members to tour its facility.DerethGlanceREADY
The invitation was issued by Dereth Glance, executive director the Onondaga County Resource Recovery Agency, or, OCRRA, which owns the plant that Covanta operates. She did not return a phone call this morning to explain her interest in the Romulus proposal.
Knauf said he wasn’t aware that Covanta also operated the Onondaga facility.
When asked if Covanta might invest in or operate the Romulus plant, Knauf said: “We are not associated with Covanta, although you did make a good suggestion that they might be an operator. They’re not a sponsor of (Circular enerG’s) project.”

DEC, Cargill Sued Over Cayuga Salt Mine

Towns of Ithaca and Ulysses Among the Challengers of a Permit Allowing Construction of an Air Shaft in Lansing

Charging that drinking water drawn from Cayuga Lake is imperiled by the state’s lax oversight, the Town of Ithaca and other nearby municipalities have filed suit to challenge a permit allowing Cargill Inc. to expand its salt mining under the lake.
The Article 78 lawsuit, filed Dec. 13 in state Supreme Court of Tompkins County, names Cargill, the state Department of Environmental Conservation and the state Office of General Services as defendants.
Other plaintiffs include the City of Ithaca, the Town of Ulysses and the Village of Union Springs, nine individuals and the group CLEAN, or KarenMapReadyCayuga Lake Environmental Action Now.
The suit asks the court to void a permit granted by the DEC in August that allows Cargill to dig an air shaft in Lansing that would connect to a tunnel linking to the main section of Cargill’s sprawling salt mine under the lake. The suit asks for an injunction blocking construction of the shaft.
In granting the permit, the DEC held that the so-called “Shaft No. 4” was an independent project that didn’t directly impact future mining and therefore did not require a full environmental impact statement.CargillMiningOperationsREADYT
The suit claims that Shaft 4 is an integral part of Cargill’s plan to continue mining operations northward under the lake “for an additional 30 years.” Plaintiffs allege that the one-mile tunnel was also part of that long-term plan, even though the DEC inaccurately advertised the tunnel project as unrelated to any future air shaft at its terminus.
In fact, the air shaft would be needed to meet federal mine safety rules that would apply to any significant sub-lake expansion of the mine in Cargill’s northern reserves. The state OGS is a named defendant because it leases sub-lake mineral rights to Cargill.
The suit claims that the DEC violated the State Environmental Quality Review Act, or SEQR, when it separated the three projects — Shaft 4, the one-mile tunnel and mine expansion to the north — and used that separation to justify waiving a full environmental impact statement on any of them.
At stake in the case, the suit says, is “the ecological health of Cayuga Lake and the closely associated ecotourism in the entire Cayuga Lake region, as well as the health and drinking water supplies of its citizens.
CLEAN, which took the lead in developing the lawsuit and inviting municipalities to participate, said its scientific experts are concerned that the Cargill mine could flood. Those risks stem from either a potential breach while mining northern sections, where the bedrock separating the mine from the lake thins out, or from drilling Shaft 4 itself. Cargill said both those risks are under control.
The suit said any future flooding of the mine would likely worsen Cayuga’s existing problem of high salinity.InsidemineREADY
“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,” the suit says.
“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.”
The suit says 96% of the residents in the Town of Ithaca get water from Cayuga, more than 19,000 people. Some Ulysses residents also use Cayuga for drinking water, while Union Springs residents do not.

The suit seeks judgment under Article 78 of the New York Civil Practice Laws and Rules.
Shawn Wilczynski, manager of the Cargill Cayuga mine, did not immediately respond to an email requesting comment on the suit, although the company may not have been served with court papers yet. A spokesperson for the DEC said the agency does not comment on pending litigation.

SHOW TIME! Calls Mount for End to Secrecy at Cargill’s Cayuga Salt Mine

The Cuomo Administration faces mounting pressure from activists, town boards and state legislators to fully apply state environmental law to Cargill’s giant salt mine under Cayuga Lake.
A legal showdown in court looks inevitable.CargillMiningOperationsREADYT
For decades, the state has allowed the nation’s largest private company to use its best judgement in conducting sub-lake mining operations. It has never required a full environmental impact statement for the seven-mile, 10,000-acre-plus project, and it has zealously kept details of the growing risks under lock and key.
In recent weeks, calls have intensified for details on the science behind the dangers involved — if not for a total ban on all salt mining under the lake.
The biggest concern is the rising risk of a catastrophic mine flood. As Cargill pushes north into sections where the bedrock buffer to the lake thins out, chances for a breach are seen as increasingly likely. Independent scientists say a mine flood could trigger a disastrous mix of super-salty brine from the mine with the lake itself, jeopardizing Cayuga’s status as a drinking water source for 31,000.KarenMapReady
Although the state has required the company to post a security deposit of $3.5 million, that would likely be a tiny fraction of the bill taxpayers would be stuck with if things got ugly and Cargill bolted. The state has never required a closure plan.
Since September, the towns of Ithaca, Ulysses, Trumansburg, Danby, Aurora, Caroline, and Union Springs have passed resolutions supporting a lawsuit aimed at forcing a full public airing of the geologic risks.
Meanwhile, State Assembly members Barbara Lifton (D-Ithaca) and Steve Englebright (D-Setauket) have called for the state Department of Environmental Conservation to halt all permitting for mining under the lake. They want all future salt mining to be conducted under dry land.
In two letters to the DEC earlier this Fall, the legislators raised the specter of the 1994 collapse of Retsof, the largest salt mine in North America, near Geneseo, where geologic forces are strikingly similar to those under Cayuga.
When the Retsof roof gave way, water from an aquifer rushed in. Land above the mine sank several feet, damaging houses, roads and bridges. Some private wells produced salt water or simply went dry.
The DEC has all but brushed off any Retsof parallels.
The state permit for Cargill’s Cayuga mine expired Nov. 1, but the DEC allows mining to continue. It’s all perfectly legal, the agency notes, because Cargill has applied for an extension.InsidemineREADY
The granting of that indefinite grace period is ironic, activists argue, in light of evidence the company has been violating the terms of the expired permit.
Emails between DEC officials confirm that Cargill ignored permit-required 1,000-foot setbacks from geological “anomalies” — sections too dangerous to mine.
In a Feb. 2, 2016 email, the DEC’s Simone Rodriguez asked the DEC’s Steve Army and Christopher Lucidi to confirm that an internal report showed Cargill had mined within 1,000 feet of the “Frontenac Point Anomaly.” That report indicated that “NW2 probably shouldn’t have been mined” because it violated “permit condition 9a,” she wrote.
“You are correct,” Army replied minutes later. “NW2 was advanced into the 1000’ setback, and yes, it is the same setback mentioned in the permit.”
Another email from Cargill mining engineer Dave Plumeau to the DEC’s Army and Lucidi explained that the company had switched to larger mine pillars out of concern about weakness in the roof. “This design provides better support for the overburden and creates lower stress changes within the strata above the mine,” Plumeau wrote on Nov. 4, 2016.
If Cargill has been violating setback requirements and changing pillar designs without first obtaining or even seeking permission from the DEC, then any state permit renewal must include a detailed environmental review, according to John Dennis, a member of the steering committee of the group CLEAN, or Cayuga Lake Environmental Action Now.DennisREADY
Dennis laid out his argument in an Oct. 9 letter to DEC Commissioner Basil Seggos and the directors of DEC Regions 7 and 8, the jurisdictions that oversee the Cargill mine.
Any switch from “yielding pillar” mine design to “large pillar” design involves safety tradeoffs that are widely acknowledged within the industry, and it merits thorough analysis, Dennis wrote.
Setback violations aren’t trivial either, Dennis said. “The issue of whether DEC-mandated setbacks are binding requirements … or ‘recommendations’ that Cargill is free to ignore is another example of an issue that needs detailed review,” Dennis wrote.
If Cuomo’s environmental regulators ignore Dennis and rubber stamp Cargill’s mine permit renewal, CLEAN promises to sue to force a rigorous public environmental review.
The Town of Ulysses, which borders the lake and the mine on the west, supports CLEAN’s planned legal initiative.
In a resolution enacted Nov. 14, the town said the DEC must scrupulously follow the State Environmental Quality Review Act, or SEQR, when considering permit renewal. So far, the risks to Cayuga Lake (and Ulysses’ drinking water) “have not been property reviewed and vetted under SEQR.”AnomaliesREADY

The Ulysses resolution expressed the town’s willingness to join a lawsuit that seeks to force the first draft environmental impact statement under SEQR rules since Cargill bought the mine in 1970.
But the DEC is under no deadline to resolve the mine permit renewal. It routinely allows companies to operate for years under expired permits, especially if a renewal threatens to open up a can of worms.
Far more pressing is the question of whether the DEC will be dragged to court to defend a controversial permitting victory it awarded Cargill in August. The deadline to sue in that case falls next week.
The permit allows Cargill to drill — without any special environmental review —an 14-foot wide air shaft in Lansing that connects to the northern end of the mine.
Under federal regulations, miners must be able to evacuate a mine within one hour. Cargill employees working 2,000 feet underground at the northern end of the mine are now almost an hour’s drive from the nearest air shaft. Cargill is bumping up against the federal time limit. The new air shaft, known as Shaft 4, would provide them a safety margin. It would also enable the company to expand mining to the north without tripping over the federal regulation.LiftonREADYEnglebrightREADY
In a July 13 letter, Lifton and Englebright, a geologist who chairs the Assembly’s Environmental Conservation Committee, explicitly warned DEC Commissioner Seggos not to grant the Shaft 4 permit because it would “directly or indirectly, lead to (further) salt mining under the lake.”
Seggos dismissed their concerns. In his written response to the legislators Oct. 17, he said the air shaft “does not immediately impact the mine or mining operations.”
Members of CLEAN contend that Cargill shrewdly laid the groundwork for the assertion that Shaft 4 has nothing to do with mining operations.READYSeggos
First, in 2015 it sought permission to mine a narrow, one-mile strip of 150 acres that links the main mine to the spot where Shaft 4 would be drilled. That application disavowed any connection to a future air shaft that might eventually be built at its terminus.
“All activities associated with this modification will take place underground, and there will be no additional surface development associated with this proposal,” the DEC’s April 2015 public notice stated. Two months later the DEC approved the expansion.LogoREADY
The following summer, when Cargill published plans for Shaft 4, it insisted that the air shaft project had nothing to do with mining operations.
That prompted Rob Mackenzie of Trumansburg to complain to the agency that the company had purposely separated the projects to sidestep an environmental review.
“The DEC and the public were badly misled by Cargill in its application to mine the 150 acres necessary to reach the subsurface location where Mine Shaft 4 is now located,” Mackenzie wrote in November 2016.
Meanwhile, CLEAN began to cite the conclusions of several independent geologists, including Raymond Vaughan of Buffalo and Richard Young of Geneseo, that mine flooding and lake salinization were real threats if Cargill’s mining continued its northward march under a gradually thinning mine roof. In fact, they argued, the drilling of the shaft itself might lead to dangerous mine flooding.
Both of those areas of concern are overblown, according to Lawrence M. Cathles III, a Cornell professor in the Department of Earth and Atmospheric Sciences.
In two lengthy and technical open letters to Gov. Andrew Cuomo this past summer, Cathles said the DEC was perfectly justified in approving the Shaft 4 project without a special environmental review.
A website emblazoned with Cornell’s seal links to those open letters dismissing the risks cited by CLEAN, the towns and the state legislators. “Natural flow through Lake Cayuga and the slow nature of mine collapse means that flooding of the Cayuga mine does not pose a significant risk of lake salinification,” the website states.CathlesREADY
Cathles is no stranger to scientific debates with political overtones. At the height of the fracking debate in 2012, he skirmished for months with fellow Cornell scientists Robert Howarth and Tony Ingraffea (now retired) after ripping their landmark article on fugitive methane emissions from natural gas drilling. Cathles has also expressed skepticism about orthodox stances on climate change.
By publicly wading into the controversy over the Shaft 4 permit, Cathles lent intellectual heft to Cargill’s argument and provided Seggos political cover to grant the permit without an environmental review.
The company was pleased by Seggos’ decision, saying it enhanced ventilation and safety for its miners.WilczynskiREADY
“Cargill followed the rigorous environmental review process established by the DEC,” said Shawn Wilczynski, the mine’s manager. “We felt the DEC made the right decision based on science, the information compiled to support the permit issuance and the independent analysis completed that ensures the shaft poses no threat of significant environmental impact.”
But Walter Hang of Ithaca, a veteran environmental activist who has worked closely with Lifton and Englebright, expressed deep skepticism this week about the DEC’s ability to compel Cargill to mine safely under Cayuga.WalterHangREADY
Even CLEAN’s efforts to compel rigorous environmental review are probably in vain because they stop short of insisting on an outright ban on salt mining under the lake, Hang said. He’s gathered nearly 800 signatures on a letter calling for a ban on sub-lake mining.
At a CLEAN forum in June, Hang urged the group to get more overtly political.
“If you rely on the DEC to protect this lake, they’re just not going to do it,” said Hang, president of Toxics Targeting. “… We need a political campaign … the same kind of battle against Gov. Cuomo that won the fight against shale fracking.”
But Brian Eden said CLEAN has chosen a more nuanced approach of attempting to engage with Cargill.
Eden wonders what might happen if Cargill were to be forced to abruptly halt sub-lake mining and then determines it can’t make a profit from new mining under land nearby. That might leave the company with little incentive to hang around long enough to close the mine safely.

THE FINGER LAKES — TRASH CENTRAL?

Mystery Company Wants State’s Largest Waste Incinerator Within 50 miles of State’s Three Largest Landfills

The company that plans to build the state’s largest trash incinerator in the heart of the Finger Lakes doesn’t see a need to prepare a full environmental impact statement for its $365 million project “because we are going to meet all the (permitting) standards,” its Rochester attorney said this week.ChurchillquoteREADY
The plant would burn trash arriving by truck or rail from near and far, much of it from New York City.
It’s setting in Romulus — midway between Lake Seneca and Lake Cayuga and only 12 miles south of the state’s largest landfill — has drawn opposition on multiple fronts.
Douglas Knipple, president of the Geneva-based Finger Lakes Zero Waste Coalition, an anti-landfill group, said it would be “ridiculous” to proceed with such a massive waste project without public involvement in a full EIS.
“The Finger Lakes is under siege,” Knipple said. “A region can either have agriculture, tourism, education and wine or gas pipelines, trains, trucks, monuments to waste and incinerators. You can’t have both.”TrainREADYs
In an interview Nov. 28, Alan Knauf, attorney for Circular enerG LLC, said “real environmentalists who aren’t just NIMBYs” should support his client’s incinerator plan. He touted the environmental advantages of burning trash rather than piling it in towering landfills that stink and produce methane, a potent greenhouse gas.
Steve Churchill, chairman of the environmental committee of the Seneca County Board of Supervisors, conceded his point, but added: “Incineration may be better technology than landfilling, so build it — but build it down near New York City where the waste is.”
Churchill’s committee voted 4-0 this week for a law banning new waste facilities such as the incinerator in Seneca County. But even if the full county board were to pass the law, the town of Romulus could override it. Still, the committee’s action reflects local resistance to the mysteriously-backed project.
Knauf declined to name the players behind Circular enerG, which was formed in January and has no track record. And he said it was too early to say who might build or operate the facility. Costich Engineering in Rochester and Daigler Engineering in Buffalo have been involved in the early stages.KnaufPDFREADY
Knauf said his initial goal to file Circular enerG’s applications for state permits by yearend was probably too optimistic, given the complexity of air quality issues.
Meanwhile, the Town of Romulus Planning Board is scheduled to consider a special permit for the project at a meeting on Monday, Dec. 4 (7p.m. at the Romulus Firehouse 2010 Cayuga St. Romulus).
The plant and its 260-foot smokestack would be built on a 48-acre tract at the former Seneca Army Depot. Knauf said the site is owned by Seneca Depot LLC, which shares a Rochester address with Circular enerG, Rochester developer David M. Flaum and Top Capital of New York.
Flaum is “a partner in Seneca Depot LLC,” and therefore “the landlord or the seller,” Knauf added.
Circular enerG’s incorporation papers don’t list owners, directors or investors. Knauf said the company is “affiliated with” Top Capital, though not a subsidiary. “The companies have a couple of principals in common,” Knauf said, declining to elaborate.
Top Capital’s founder, Zheng “Gene” Zhou, said in a press release in July that he and his business partners were “investing more than $200M in a ‘circular economy’ project that will create energy from trash …”GeneZhouREADY
The contact spokesperson for Zhou on that release, Jamie Frumusa, did not respond to emailed questions about the Romulus project or about Top Capital’s reported use of a controversial “golden visa” program to raise investment capital.
Under that federal EB-5 program, foreigners can obtain visas in exchange for investing $500,000-$1 million in projects that create U.S. jobs. Almost 90% of “golden visa” investors are from China, as is Zhou, a naturalized U.S. citizen.
In January 2016 press release, Top Capital had touted its plans to draw on EB-5 investments and said it had used them in financing its Heritage Square assisted living complex in Brockport.EB-5READY
But early this year, Sens. Diane Feinstein (D-Cal.) and Chuck Grassley (R-Iowa) introduced legislation to kill the 27-year-old program.
“The EB-5 program has been rife with fraud and national security weaknesses,” Grassley said. “It has also strayed from Congress’ original intent to spur economic development in rural and depressed areas.”
Asked if EB-5 investments could be used to help fund the Romulus incinerator, Knauf said: “There is no way. They would not be doing that.”
The Romulus facility would be designed to burn up to 2,640 tons of trash a day, or nearly half the limit allowed at the state’s largest landfill, Seneca Meadows Inc., 12 miles to the north, between Waterloo and Seneca Falls. (The state’s second and third largest landfills, High Acres in Fairport and the Ontario County in Stanley, are also within 50 miles of Romulus).
An executive summary produced by Circular enerG says that as many as 176 waste-hauling trucks would arrive at the incinerator each day, along with 62 other trucks carrying ash, scrap metals and other materials. If rail service to the plant is arranged as planned, up to 30 railcars a day would greatly reduce that truck traffic.
The executive summary’s analysis of the project’s greenhouse gas effects assumes “an average distance of 254 miles” between the source of the trash and the Romulus incinerator. That’s the distance to New York City.NYS10incineratorsREADY
New York State already has 10 waste-burning incinerators, including seven that are owned or operated by Covanta, a publicly-traded waste company based in Morristown, N.J., according to a February report from the state Department of Environmental Conservation and a list complied by Harvard University.
Four of Covanta’s New York plants are located on Long Island, including the largest: Covanta Hempstead in Westbury. That plant has 82 employees and is designed to accept 2,505 tons of trash per day. It has three boilers and produces up to 72 megawatts of power.
The Romulus plant would have a slightly larger trash-burning capacity and roughly the same number of employees. It would run four boilers and produce up to 50 megawatts of power.
The state’s other nine waste incinerators have waste capacities ranging from 200 tons per day in Oswego to 2,250 tons daily in both Peekskill and Niagara Falls. They generate between 4 and 60 megawatts of power and employ between 28 and 87 employees.
Proponents of waste-to-energy technology argue that the U.S. lags far behind Europe and Japan in reducing landfilling through recycling and waste incineration.
For example, the five European nations with the highest recycling rates (Germany, the Netherlands, Austria, Belgium and Sweden) are among the biggest fans of waste incineration, according to a 2013 report in Ensia, a non-profit magazine that reports on worldwide environmental issues.EUWasteIncinerationREADY
In fact, that study said the 27 countries in the European Union burn 22% of their total waste while sending 38% to landfills. It said the U.S. burns only 7% while sending 69% to landfills. The most extreme European case, Sweden, burns 49% of its waste, recycles 50% and sends only 1% to landfills.
The Ensia report scolds U.S. environmental groups for stifling development of waste incineration and — by default — encouraging landfilling.
For at least the past six years, Covanta has been lobbying — unsuccessfully, so far —to have its so-called “waste-to-energy” plants included within the state’s Renewable Energy Portfolio now made up primarily of wind, solar and hydro. Eligibility on the renewables list could open up opportunities for the refuse incinerators to win special subsidies. But environmental groups have protested Covanta’s push, arguing that waste-to-energy plants pollute the air and including them would suck incentive funding away from more traditional renewables.Covanta70%READY
Like Covanta, Circular enerG has gone out of its way to stress its potential green attributes, at least compared to landfilling trash.
“The facility will improve environmental quality and reduce the carbon footprint from waste generation,” the company says in its executive summary. “…This will result in a savings of about 168,485 tons per year of carbon dioxide equivalent compared to landfilling.”
Circular enerG said the Town of Romulus, population 4,316, “has already determined that a waste-to-energy facility constitutes “renewable energy production.” It said it hopes to negotiate a host agreement with the town before yearend.
Knauf said his client would prefer to see the town act as lead regulatory agency for the project instead of the state Department of Environmental Conservation.
Whoever takes the lead — the town or the DEC — will decide whether to require a full environmental impact statement with public hearings and comments.
The alternative favored by Circular enerG would be a less rigorous environmental assessment process that requires little or no public input. That “perfunctory” process is unsatisfactory because it would squelch concerns of the wine industry in particular on regional truck and train traffic as well as air pollution, Knipple said.
Several major waste incinerators around the country have stirred controversy over air quality.
For example, a Wheelabrator facility in Baltimore, which features a 315-foot smokestack emblazoned with the city’s name just off Interstate 95, reportedly has been a major emitter of smog-producing nitrogen oxide.
“They produce more NOx than coal-fired plants for the amount of energy generated,” a lawyer for the Environmental Integrity Project in Washington told the Baltimore Sun newspaper.
Another group based in Berkeley, Calif., the Global Alliance for Incinerator Alternatives, blasted incinerator subsidies in its 2011 report “Burning Public Money for Dirty Energy: Misdirected Subsidies for ‘Waste-to-Energy’ Incinerators.”
In New York, Covanta Hemstead was cited in a March 2017 report by the State Comptroller as the state’s fifth largest recipient of net tax exemptions from local Industrial Development Authorities in 2015.CovantaHemsteadREADY
The report showed that the $296 million Covanta project obtained $15.8 million in tax exemptions that year, with no offsetting payments in lieu of taxes (PILOTs). That represented 2.3% of the total $694.7 million in IDA-awarded tax breaks to 4,484 projects statewide in 2015.
Meanwhile, a DEC air quality permit review report from July 2016 described Covanta Hemstead’s ozone release performance as “severe non-attainment.”
Four of New York’s 10 other active trash incinerators have been operating with expired air quality permits, according to the February 2017 DEC list.