Does Albany Have the Will to Protect Finger Lakes from Giant Trash Burner?

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.Romulus_incinerator_opposition_20180316-791x1024

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.EnckREADY 

“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). BusinessCouncil

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.IPPNY 

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.AlanKnaufREADY

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.JohnBRhodesREADY

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 approvalStudyAreapdf2

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.covantahemsteadready

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.”MichaelWarrenThomasREADY

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.”HelmingREADY

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.READYO'MaraPdf

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.LiftonREADY

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.”





Bills in State Senate, Assembly Would Derail Incinerator Permitting 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.HelmingREADY4

“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.ComparableREADY

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.RomulusCrowdREADY

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.LiftonREADY

“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.NoIncin

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.StudyAreapdf2

— 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.

3 State Legislators to Gov. Cuomo: Romulus Incinerator ‘Must Be Stopped’

A waste incinerator proposed for the town of Romulus would have “horrific” long- and short-term consequences for the Finger Lakes region and “must be stopped,” according to the three state legislators who represent the most affected communities.HelmingREADY4BrianKolbREADY5palmesanoREADY4
In a recent letter to Gov. Andrew Cuomo and other state officials, State Sen. Pam Helming (R-Canandaigua) and Assemblymen Brian Kolb (R-Canandaigua) and Philip Palmesano (R-Corning) urged rejection of an impending application for project permits from the State Board on Electric Generation Siting and the Environment.
“Being located only 3.9 miles from Seneca Lake and the Cayuga Shoreline, this operation would compromise the character and safety of the region for both residents and tourists and would result in devastating impacts that we simply cannot allow to occur,” the legislators said in their Mar. 9 letter.
The facility proposed by Circular enerG LLC, a year-old Rochester company with no history of waste disposal or energy production, would be the largest waste incinerator in the state.StudyAreapdf2
It would import up to 2,640 tons of municipal solid waste a day — mostly from the New York City area — to be burned in a plant on 48 acres of land at the former Seneca Army Depot. The plant’s smokestack would rise 260 feet. The waste would arrive by highway — 176 tractor-trailer loads a day — or by rail — 30 rail cars per day.
When it first announced the project in November, Circular enerG said the facility would generate up to 50 megawatts of electric power from burning waste.
It is now seeking a certificate of environmental compatibility and public need under Article 10 of the state Public Service Law to generate up to 80 megawatts of power.
On Mar. 13, Circular enerG filed with the state Department of Public Service its “Public Involvement Program Plan,” or PIPP, opening a docket for a regulatory matter that is expected to grow for many months, if not years.
Since the company’s PIPP filing, more than a dozen comments have been added to the docket, many from representatives of local communities such as Romulus, Lodi, Fayette, Ovid and Geneva that have expressed opposition to the project.
In its public involvement plan filed this week, Circular enerG proposes to hold open house meetings this summer before filing its scoping document with the Department of Public Service.
The PIPP document makes numerous references to a “study area” within a five-mile radius of the proposed incinerator. Circular enerG does not provide details on why it chose to limit its study of the project’s environmental impacts to such a restricted area.
Toxic air pollutants, including mercury, lead and dioxins, would be expected to spread from the smokestack across much of the Finger Lakes region, according to Paul Connett, a waste incinerator critic who spoke at a public hearing in Romulus in January.
Wine industry officials have expressed fears that pollutants from the plant would harm vineyards far beyond the five-mile “study area.”
In November, Circular enerG had sought to obtain a Special Use Permit from the Town of Romulus Planning Board. But it withdrew that application in January in the face of stiff local opposition and turned instead to an alternative permitting process under the state Siting Board.JohnBRhodesREADY
“The reason Circular enerG is applying under Article 10 is due to unanimous opposition from residents, businesses and local officials,” the three state legislators said in their Mar. 9 letter to Cuomo, Siting Board Chair John B. Rhodes, and others.
Helming’s state Senate district includes the Town of Romulus and the company’s proposed five-mile “study area.”
The dividing line between the state Assembly districts represented by Kolb and Palmesano lies about a half-mile north of the proposed site of the incinerator. While most of the “study area” falls in Palmesano’s district, a sizable portion also falls in Kolb’s.
Kolb is the minority leader of the state Assembly.

Hours After CPV’s Major Appeals Court Win, Jury Deadlocks on Bribery Charge Against CPV Exec

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


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 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 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.