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.
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.
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.
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.
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.
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.
“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.
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.
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