Water Front

DRESDEN — A coal ash landfill next to the Greenidge Generation power plant continues to discharge heavy metals into the Keuka Outlet and local groundwater more than three years after it formally committed to a complete cleanup by Oct. 1, 2016, documents show. 

The landfill, known as Lockwood Hills, holds toxic leachate in an unlined pond that it had agreed to remove and replace, while properly treating the leachate and disposing of leachate sediment.

The prompt cleanup contracted in a February 2015 consent agreement with the state hasn’t happened. 

Instead the state Department of Environmental Conservation has acceded to the landfill’s requests to push back the cleanup deadline by more than three years, to Nov. 1, 2019.

Meanwhile, the DEC has repeatedly postponed a formal review of the landfill’s outdated permit to discharge leachate waters into the Keuka Outlet, which empties into Seneca Lake. 

The stakes for the lake and local well water are unclear. But a 2016 study by Duke University of unlined ponds at 21 coal ash landfills in the Southeastern U.S. found that toxic contamination was widespread and persistent.

In addition to relaxing the cleanup schedule at Lockwood, the DEC determined that the landfill had no bearing on a critically important ruling it made about the Greenidge power plant, the source of virtually all its waste. Entirely ignoring inevitable future water quality violations at Lockwood, the DEC declared in June 2016 that restarting the power plant “will not have a significant adverse environmental impact.”

That sweeping judgment enabled  Greenidge Generation’s owners, Atlas Holdings, to restart the power plant without preparing an environmental impact statement, or EIS.

The plant began generating electricity again last March after a six-year hiatus, and it resumed dumping waste products at Lockwood Hills.

Lawyers for the Sierra Club allege in a lawsuit that the the DEC broke the law when it opted to exclude the landfill from its analysis of the environmental impacts of restarting the plant.

An EIS is typically called for under the State Environmental Quality Review Act whenever a project’s potential impacts are in doubt. The agency’s “negative declaration” in June 2016 allowed Greenidge to sidestep the EIS process — squelching a public airing of a host of environmental issues, including the landfill violations, massive discharges of heated water by the plant, fish kills and noise, among others.

But lawyers for Greenidge and the DEC recently argued in Yates County Supreme Court that the plant and landfill are entirely separate companies, and they defended the DEC’s negative declaration. In making their oral pleadings to Judge William Kocher, those lawyers glossed over history linking the two facilities.

The plant was built in the 1930s and operated for decades as a coal-burner. Around 1979, the facility’s owners bought a nearby farm from Ira Lockwood, a mechanic at the plant, for use as a dumping ground for its coal ash.

The landfill, which is directly across Route 14 from the plant, had been accepting the coal ash for more than three decades when in December 2011 then-plant owner AES Greenidge filed for federal bankruptcy protection.

Months before that bankruptcy filing, AES Greenidge wrote a “Layup Plan” to mothball the plant. It took similar steps for Lockwood, which wrote its own Layup Plan. 

“As an integral element of power station operations, Lockwood Ash Disposal site is also being prepared for protective layup,” the plant’s Layup document states.

Atlas Holdings, which is based in Greenwich, Conn., bought the plant in 2014 and announced plans to restart it using coal as its fuel. It later switched its primary fuel to natural gas. Atlas owns Greenidge Generation Holdings LLC, which, a company spokesman said, owns Greenidge Generation LLC, owner of the plant, and Lockwood Hills LLC, owner of the landfill.

The current general manager of the plant, Dale Irwin, signed the February 2015 consent agreement on behalf of the landfill. He identified himself on the document as vice president of Lockwood Hills LLC.

That document stated that the DEC had concluded that Lockwood’s unlined leachate pond was illegally leaking boron, manganese, magnesium, iron, sodium and sulfate in excess of water quality standards. It required an engineering report by August 2015 with remediation plans, including a formal schedule to:

— Segregate stormwater from leachate at the site.

— Re-route leachate to an on-site holding tank …

— Treat and dispose of leachate …

— Remove and dispose of contaminated leachate in the leachate pond.

The engineering report’s schedule, the consent decree said, “shall require implementation be completed no later than Oct. 1, 2016.” 

Irwin also issued a public statement in October 2015, published in local media, that said: “The existing (unlined) leachate pond will be removed, and any sediment will be properly disposed of. A new, fully-lined leachate pond will be constructed to capture leachate, which will then be routed to the on-site water treatment facility for treatment.” 

Those steps haven’t been completed. 

On Feb. 24, 2016, the DEC pushed back the final implementation date 25 months — to Nov. 1, 2018. Then on July 10, 2017, it postponed the deadline again, this time to Nov. 1, 2019. 

This week, the DEC issued the following statement: “Lockwood Hills is currently in compliance with the DEC-issued Consent Order, as amended.”

Meanwhile, Lockwood Hills is continuing to monitor pollution and taking steps toward a cleanup, as reflected in a December 2017 report by Daigler Engineering and a March 2017 mercury minimization report, also by Daigler, a Greenidge contractor.

A key goal of the cleanup is to segregate and treat the leachate rather than discharging it into Keuka Outlet.

Daigler summarized Lockwood’s leachate quality in the third quarter of 2017 in a chart that showed measurements for arsenic, boron, chloride, iron, manganese, selenium, sodium and sulfate exceeded state standards. Measurements for several other substances, including mercury and barium, were not listed.

According to the mercury minimization report, the state limit (water quality-based effluent level, or WQBEL) for mercury is 0.7 nanograms per liter. The limit set in Lockwood’s discharge permit is 50 nanograms per liter, or 71 times the state standard.

In each quarter of 2016, mercury readings from flow into the leachate pond ranged between the state standard and the permit limit. But all results from mercury discharges from the leachate pond into Keuka Outlet met the state standard, according to Daigler.

Results of samples from monitoring wells at the landfill between 2013 and 2016 were reported by the independent website ashtracker. They show levels of arsenic, boron, manganese and sulfate as pollutants above safe levels.

After the 2015 consent agreement, Lockwood had to decide whether to treat its toxic leachate on-site or to segregate it and ship it elsewhere for treatment.

DEC staff “had anticipated that leachate would be collected in tanks and sent off-site” to a facility licensed to treat it, according to a letter dated Nov. 30, 2015 from DEC attorney Dennis P. Harkawik to Lockwood attorney Danielle Mettler-LaFeir.

But in late 2015, Lockwood was proposing something entirely different. It said it wanted to develop an on-site leachate management system that, according to Harkawik, would rely on mixing leachate and stormwater “to achieve permit discharge results” — at least during the development phase.

In his letter to Mettler-LaFeir, Harkawik said such commingling of leachate and stormwater was not allowed under the landfill’s discharge permit because “dilution is not considered treatment.”

Another problem, Harkawik explained, was that Lockwood was proposing to model its leachate management system on a “primitive” one used by a smaller, coal ash landfill in Broome County that has been closed. Because Lockwood’s owners planned to reopen the Dresden landfill — to accept new wastes from the soon-to-be-reopened power plant — any on-site system would need to be more sophisticated. Harkawik sent Lockwood back to the drawing board.

In a Jan. 15, 2016 letter, Mettler-LaFeir, the landfill’s attorney, wrote Harkawik that Lockwood would need to complete a leachate flow monitoring program before designing a leachate management system. She asked the DEC to delete from the 2015 consent agreement the Oct. 1, 2016 deadline for full implementation of the leachate management system. She proposed a new deadline:  Dec. 31, 2018.

The DEC agreed to give Lockwood 25 of the 27 months of breathing room Mettler-LaFeir requested — to Nov. 1, 2018 — only to later extend it for another year.

Michael McKeon, a spokesman and lobbyist for Greenidge Generation, said this week that the DEC wanted to be certain that there was sufficient continuous leachate flow data to appropriately design a leachate management system that accounted for short-term variables.

McKeon added that the DEC’s second deadline extension was necessary “because unusual drought conditions occurred during the original monitoring period.”

Irwin and Mettler-LaFeir did not return phone calls seeking comment last week. McKeon, a partner at Mercury LLC, called to say he was responding to the request to interview Irwin.

McKeon said the latest DEC full implementation deadline — Nov. 1, 2019 — will allow sufficient time for the landfill to remove the unlined leachate pond and install the leachate management system, as well as to remove and dispose of the leachate sediment. Once those steps are complete, he said, “untreated leachate will not be discharged to the Keuka Outlet.”

McKeon said Lockwood has already taken steps to segregate leachate from storm water.

The same week in early January 2016 that Mettler-LaFeir asked to amend the consent decree’s deadline for full implementation, the DEC announced that it planned to renew Lockwood’s permit to discharge into Keuka Outlet without any formal review.

That public notice drew swift negative reactions from the U.S. Environmental Protection Agency and the Committee to Preserve the Finger Lakes, a petitioner in the lawsuit Judge Kocher is hearing against the DEC and Greenidge.

In a Feb. 12, 2016 memo to the DEC, Alyssa Arcaya said the EPA opposed the administrative renewal of the discharge permit in light of water quality violations at the landfill, changes at the associated Greenidge power plant and new EPA rules on coal ash landfills.

A day earlier, Peter Gamba, president of CPFL, had written the DEC to complain about the agency’s bid to renew the permit without a review.

The DEC responded by placing the landfill on a list of sites scheduled for review, but it assigned such a low priority — No. 576 on a list of 687 — that an actual review would be unlikely to take place for several years.

That action prompted Mary Anne Kowalski of Romulus to complain to the DEC that such a low priority ignored the EPA’s stated objections. Kowalski is a member of Seneca Lake Guardian, another lawsuit petitioner with Sierra Club and CPFL.

In a July 29, 2017 email to the DEC, Kowalski said the agency had improperly scored the priority of the review. 

A month later, the  DEC responded in an email to Kowalski that said the priority score had been changed from 576 to 47 (out of 687), presumably speeding up the review process.

Meanwhile, Judge Kocher is considering requests by Greenidge and the DEC to dismiss the lawsuit challenging the plant’s water intake and discharge permits. 

The record in that case includes a series of affidavits filed by petitioners, including one by Kowalski that details the chronology of the DEC’s enforcement record concerning Lockwood Hills.

Another affidavit from an expert on toxic algae said massive warm water discharges from the Greenidge power plant could spur harmful algal blooms on Seneca Lake near the Keuka Outlet. The other affidavits catalogue a host of environmental issues the DEC ignored when it summarily stated that the plant’s restart would not have an impact on the environment.

Kocher said at the May 22 hearing that he would consider those affidavits only as confirmation that the petitioners had legal standing to sue. 

He said he wouldn’t consider the substance of the sworn statements because they were filed too late, a ruling lawyers for Greenidge and the DEC had requested.

Backers of a proposal to build the state’s largest trash incinerator in Romulus have filed suit against the Town of Romulus and its Zoning Board of Appeals in a bid to overturn their recent local zoning decisions aimed at blocking its construction.

The Article 78 lawsuit, filed Tuesday in the Supreme Court of Seneca County by Circular enerG LLC and Seneca Depot LLC, comes only days after Gov. Andrew Cuomo and U.S. Sen. Chuck Schumer separately announced their opposition to the $365 million project, which would truck municipal waste from New York City.

The incinerator project is also the target of pending bills in the state Assembly and Senate which would exclude trash incinerators from the Public Service Commission’s Article 10 permitting process. 

The 22-page complaint confirms that Circular enerG, a Rochester-based startup with no experience in either power generation or municipal waste, isn’t giving up in the face of election year political pronouncements.

The startup company is asking the court to vacate an April 26 resolution by the “Town of Romulus Zoning Board of Appeals” that overturned a Romulus zoning officer’s legal interpretation that the waste incinerator would produce renewable energy and would not be “noxious or injurious” if it followed regulations.

The interpretation had been spelled out by Adam Schrader in two 2017 letters drafted by Alan Knauf, Circular enerG’s attorney. They weren’t widely known to all relevant local officials until after the company unveiled its plans to the public in November.

The validity of the Schrader letters was challenged by Alan Kiehle, a Romulus resident who filed a formal appeal Feb. 1. That appeal was granted by the ZBA and was the basis for its April 26 resolution. 

Initially, several key local officials said they would keep an open mind about the project. But in the face of overwhelming opposition from Romulus residents, winery interests and public officials in neighboring towns and counties, they turned against the company’s bid for local zoning approval.

When Circular enerG saw its local options closing earlier this year, it opted instead to seek permits from a power plant siting board the operates under Article 10 of state public service law. The siting board has the authority to waive local objections that it deems unduly onerous.

Cuomo waded into the fray May 15 by issuing a statement denouncing the project as wrong for the Finger Lakes. 

He had been criticized only days earlier by Cynthia Nixon, his leading challenger for the Democratic nomination for governor, for his failure to take a stand on the incinerator plan. She taunted him at a press conference in Geneva, saying California Gov. Jerry Brown would never allow such a facility in Napa Valley, his state’s premier wine region.

Cuomo was silent on the incinerator controversy at a Geneva ribbon cutting today for the town’s new welcome center on the shore of Seneca Lake. He did not take questions from the media.

Asked why he thought the incinerator project stood a chance in the face of Cuomo’s strong opposition, Knauf said, his attitude might quickly change after the election in November.

Knauf said Schumer was merely “piling on” when he declared his opposition to the project at a press conference at May 25. 

Schumer said the plant would be “a danger to the health and a dagger to the heart of this wonderful economy” in the Finger Lakes.

Knauf said Schumer was off base when he said the plant’s smokestack would spew dangerous chemicals that would carry across the region. He said the Circular enerG facility would be cleaner than any of the state’s other 10 trash incinerators, and that it would have to comply with federal and state air emissions standards.

“If he doesn’t think they’re strict enough, he should do something about it,” Knauf said of Schumer. “You’re the U.S. Senator. There are four waste-to-energy plants on Long Island, we’re you’re from. Why don’t you do something about those?”

The bill in the state Senate is sponsored by Sen. Pam Helming (R-Canandaigua), who represents Romulus. 

She said in an interview at the Schumer press conference that she gives her bill a 50-50 chance of being signed into law. The biggest obstacle, she said, were amendments added to the Assembly version of the bill that might build opposition to her narrowly tailored goal.

Judith Enck, a former U.S. Environmental Protection Agency supervisor for New York and New Jersey and backer of Nixon, she thought the Circular enerG might inspire the state Legislature to act.

Enck noted that the time window for passing an anti-incinerator bill is small because the Legislature is expected to adjourn in less than three weeks. But since most legislation is passed in the final week each year, there’s still time for the bill’s supporters to rally statewide support.

“This is a private company trying to force a local community to accept something it doesn’t want,” Enck said in an interview. “They’re picking on a small community, trying to intimidate. No one likes a bully.”

 

PENN YAN — The Yates County Supreme Court judge hearing a legal challenge to state water permits for a Dresden power plant said this week he will disregard evidence in affidavits linking massive warm water discharges into Seneca Lake with recent outbreaks of toxic algae.

In a lawsuit filed in November, Sierra Club and others argued that heated water that pours from the Greenidge Generating Station threatens to fuel future outbreaks of dangerous cyanobacteria, also know as toxic algae or HABs (harmful algal blooms).

In September, during the lake’s worst-ever rash of toxic algae blooms, the state Department of Environmental Conservation issued Greenidge permits to make huge withdrawals and discharge up to 134 million gallons a day (at temperatures up to 108 degrees) into Keuka Outlet, which empties into Seneca.

In support of their suit, petitioners filed affidavits last month from several lakeshore property owners near Dresden and one of the region’s leading experts on toxic algae blooms, or HABs, Syracuse biochemist Gregory Boyer. 

Boyer, a professor at SUNY-ESF, has conducted extensive studies on how toxic cyanobacteria, or HABs, thrive in nutrient-rich water, particularly as water temperatures rise. 

“Adding large volumes of heated water in the Dresden bay area of Seneca Lake could result in increased HABs outbreaks in that area,” Boyer wrote in April, underscoring an earlier affidavit from January 2017. 

But attorneys for Greenidge and the DEC claim the affidavits were filed too late to be considered. Each party filed motions earlier this month to strike key portions of them from the record on the grounds that it is improper to introduce new evidence after the filing of the initial petition.

Sierra Club attorneys objected to the bid to strike. But at oral arguments May 22, Acting Yates County Supreme Court Judge William F. Kocher said he would treat the affidavits as proof the petitioners have legal standing to sue, but otherwise disqualify them as evidence.

That procedural victory came a year after Kocher dismissed a previous Sierra Club lawsuit challenging Greenidge’s air quality permits.

In that October 2016 suit, the Sierra Club and others sought an injunction to block the restarting of the plant, which had been dormant since 2011. Kocher dismissed the case in April 2017, one month after the plant had restarted (without up-to-date water withdrawal or discharge permits).

The Sierra Club has appealed that dismissal order. Oral arguments in the appeal of Kocher’s air permit decision are scheduled for later this year.

At the hearing this week, Greenidge attorney Yvonne Hennessey told Kocher the suit challenging the water permits should also be dismissed as an improper attempt to get “a second bit of the apple.”

She said the case boils down to whether permitting actions taken by the state Department of Environmental Conservation were rational and appropriate. She said they were.

In fact, at the hearing, Sierra Club attorney Richard Lippes did return to an argument he made to Kocher in the air permit case. He asserted that the DEC broke the law in June 2016 when it ruled that Greenidge was not required to prepare an environmental impact statement before restarting the plant because, the agency found, it “will not have a significant adverse environmental impact.”

That DEC decision largely ignored the question of waste Greenidge produces in the electric generation process, he said. 

The plant, which as built in the 1930s, had long been powered by coal. The restarted plant is now fueled by natural gas (though it is allowed under its air permits to use biomass for up to 19 percent of its fuel).

For decades, the plant dumped its toxic coal ash in the Lockwood ash landfill adjacent to the plant. Since the restart in March 2017, Greenidge has resumed dumping sludge and other wastes at Lockwood. 

In deciding not to require a formal environmental impact statement on the restart, the DEC illegally discounted any relationship between the plant and the landfill, Lippes argued. 

In February 2015, the landfill entered a consent agreement with the DEC which acknowledged significant groundwater pollution related to an unlined leachate pond, and it committed to a cleanup program.

However, samples collected in December 2016 showed groundwater at Lockwood “contains unsafe levels of arsenic, boron, manganese and sulfate,” according the the website ashtracker. Eight of the landfill’s 13 monitoring wells have been polluted above federal advisory levels for certain chemicals, the website reported. 

Nicholas Buttino, an attorney representing the DEC, told Kocher May 22 that the plant and landfill are two separate facilities and are not codependent.

But Lippes argued that the DEC violated the State Environmental Quality Review Act by concluding that the landfill’s pollution issues are totally unrelated to the plant’s restart. And even if the facilities were unrelated, he added, the DEC never addressed Greenidge’s waste stream.  

Lippes also argued that the DEC incorrectly ruled that Greenidge’s water withdrawal permit was a “ministerial action” — eliminating any need to even consider whether to require a full environmental impact statement. 

He noted a recent appellate court decision in a similar water withdrawal case held that such permits are not merely ministerial. The appeals court said the DEC was free to apply conditions to water withdrawal permits.

One obvious condition the DEC could have imposed on the permit, the Sierra Club has argued, was a requirement to install a water recycling system. 

Greenidge’s outdated “once-through” water cooling system requires at least 10 times as much water as a modern recycle system. 

Although the DEC issued a policy statement in 2011 that called for all new power plants to employ systems that recycle cooling water, it gave Greenidge a pass.

Kocher said he planned to rule promptly on motions by Greenidge and DEC to dismiss the water permit lawsuit. 

After the hearing, Lippes said he expected the case to be decided at the appellate level, suggesting that the losing side will appeal Kocher’s ruling.

In response to fresh evidence of salt cavern leaks, Crestwood says it will conduct a new series of pressure tests of a unlined cavern near Watkins Glen that it proposes to use for high-pressure storage of liquid petroleum gas, or LPG.

A subsidiary of the Houston-based company is asking the state Department of Environmental Conservation to suspend any decision on its controversial eight-year bid for an LPG storage permit pending the outcome of the new tests.

The surprise disclosure came in a May 17 letter from Kevin Bernstein, a Syracuse attorney for the Finger Lakes LPG Storage subsidiary, to DEC Commissioner Basil Seggos.

Bernstein did not elaborate in his letter on the incident or condition that triggered the alarm.

But he noted that the new owners of U.S. Salt — which Crestwood agreed to sell last Fall — were developing new solution mining salt wells and that one of those wells “may be in communication” with an adjacent cavity called “Gallery 10” or with other wells or caverns nearby.

In addition to pressure-testing Gallery 10, Bernstein said the company “will install a pressure monitor on Well 44,” an entry-point to “Gallery 1,” which Crestwood proposes to use for high-pressure LPG storage.

Opponents of Crestwood’s proposal have long contended that caverns in and around the U.S. Salt property are riddled with faults and are unsuitable for storing explosive hydrocarbons under high pressure.

The company has argued that the caverns are safe, but it has insisted on keeping confidential much of the data that might support that conclusion.

The need to install a pressure monitor on Well 44 “suggests that the integrity of ‘Gallery 1’ may be compromised,” Deborah Goldberg of EarthJustice wrote Seggos in a May 18 response to the Bernstein letter. 

Goldberg represents Gas Free Seneca, a local environmental group formed in 2011 to oppose the LPG storage bid, which was launched in 2009. GFS claims that 450 Seneca Lake property owners and more than 500 local businesses also seek to block the project.

The DEC has already drafted a proposed permit, and an administrative law judge at the DEC has issued detailed findings. But Seggos hasn’t made a final decision.

Bernstein did not return a phone call to explain whether Crestwood or Kissner Group Holdings, the new owners of U.S. Salt, detected the potential problem leak. Calls to a spokesman for Kissner also went unanswered.

The DEC acknowledged that it has received Bernstein’s letter and said it is evaluating it.

Bernstein said in his letter to Seggos that “during the development of one of the (Kissner) wells, Well 64, we became aware that Well 64 may be in communication with either Gallery 10 (which consists of Wells 18, 52 and 57) and/or other nearby wells….”

The purpose of the letter, Bernstein wrote, “is to report this development to you and ask that you hold in abeyance any decision on the appeals that are pending until the outcome of this pressure test has been reported to the (DEC) and those involved in this proceeding have had an opportunity to comment.”

H.C. Clark of Houston, Gas Free Seneca’s primary expert on cavern geology, has consistently argued that potential cavern integrity flaws have been inadequately disclosed in the permit application, Goldberg wrote in her letter to Seggos.

“At the very least,” Goldberg added, “Finger Lakes LPG should be required to disclose to Dr. Clark … all studies of the wells at the site, including those conducted by U.S. Salt and other entities affiliated with Finger Lakes LPG, that have been conducted over the past five years….

“Finger Lakes also should be required to disclose other reported observations of conditions that prompted the need for additional testing that may appear in email, text messages or other media.”

DEC records show that a permit application to install a brine line at Well 64 was suspended on May 18.

The U.S. Salt plant sits on the western shoreline of Seneca Lake in Reading, about two miles north of Watkins Glen. Over many decades, salt wells were drilled into the hillside above the lake as the first step in the solution mining process. 

After water is injected into the salt-lined wells, brine is extracted. The brine is then processed into high-quality salt. The process leaves behind unlined caverns, bordered mostly by salt but also by shale. For decades, several caverns have been used to store LPG and natural gas, and Crestwood continues to store natural gas there.

But the issue of cavern stability has always lurked in the background. 

In the 1960s, a 400,000-ton section of roof fell in a U.S. Salt cavern that TEPPCO had been using to store LPG. TEPPCO later abandoned the site. Today it stores LPG in a cavity that it dug across Route 14. It is lined to ensure against leaks.

In the 1970s, the federal government conducted an exhaustive study to see whether the caverns were suitable for nuclear waste storage. They weren’t.

In 2001, natural gas explosions in the central Kansas town of Hutchinson that killed two people were tied to nearby gas storage caverns. In response, the DEC ordered reviews of the integrity of several storage caverns at U.S. Salt. 

A decade later, Crestwood proposed storing pressurized liquid butane in a cavern that had been deemed unsuitable for storage in 2001. It has since backed away from that plan.

In 2012, shale rock caverns at the Todhunter Terminal in Middletown, Ohio, were emptied of natural gas after a series of leaks and fires. Propane detectors were distributed to 70 homes near the terminal out of concern that cavern leaks could trigger fires or explosions.

Crestwood is only the latest in a revolving door of companies — including TEPPCO and NYSEG — that have attempted to store volatile hydrocarbons in the unlined salt and shale caverns in Reading. 

Last fall, Crestwood Equity Partners LP took a major step toward disengagement from the Reading site. On Oct. 31, it announced the sale of U.S. Salt operations to Kissner for $225 million. However, it retained rights to store LPG and natural gas in certain caverns. 

Crestwood had acquired U.S. Salt in 2013 as part of its purchase of Inergy LP, which had bought it in 2008 in the early days of the Marcellus natural gas boom. Inergy had said it intended to spend $191 million developing up to 5 billion square feet of storage capacity in the U.S. Salt caverns.

Salt mining has never been a core business for either Inergy or Crestwood.

Crestwood has continued to pursue the LPG storage permit that Inergy first sought in 2009, but the DEC has delayed any final decision amid widespread skepticism about the geologic integrity.

State regulations call for the appointment of a state geologist to give his or her blessing to underground storage applications.

However, that post has been vacant throughout the administration of Gov. Andrew Cuomo.

Earlier this month, gubernatorial candidate Cynthia Nixon made Crestwood’s LPG permit application an issue in her bid to challenge Cuomo for the Democratic nomination this fall.

At a press conference in Geneva, Nixon criticized Cuomo for failing to take a stand on two environmental issues critical to the Finger Lakes: a proposed trash incinerator in Romulus, and the Crestwood LPG project in Reading.

Days later, Cuomo issued a statement that said the incinerator project was inappropriate for the Finger Lakes. He has remained silent on the Crestwood proposal.

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.