Judge Says He’ll Discount Affidavits Linking Water Discharges from Power Plant With Toxic Algae Blooms

PENN YAN, May 25, 2018 — The Yates County Supreme Court judge hearing a legal challenge to state water permits for a Dresden power plant said this week he will disregard evidence in affidavits linking massive warm water discharges into Seneca Lake with recent outbreaks of toxic algae.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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