ITHACA, May 8, 2018 — 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 to clients of his firm that have business before the DEC.