Appellate Panel ‘Misapplied Law,’ Glossed Over Ongoing Environmental Harm Caused by Greenidge, Appeal Argues

DRESDEN, Apr. 2, 2019 — Three environmental groups are asking an appellate court in Rochester to reconsider a five-judge panel’s unanimous ruling in February that dismissed as “moot” their challenge to an operating permit granted to the Greenidge Generation power plant in Dresden.

The groups assert that the panel “misapplied the law” when it tossed out their claims on procedural grounds without weighing the merits of their environmental claims. 

They warned that the court’s failure to address the “public harms” caused by Greenidge could set a dangerous statewide precedent, blocking public participation in the evaluation of ongoing harms caused by other restarted old power plants.

“The (Greenidge) case presents novel issues regarding the proper standard of environmental review to be applied in (repowering) an old, out-of-service coal plant,” attorney Richard Lippes wrote in the petition.
“As old shuttered coal plants are revamped across the state, the issues raised in this proceeding will continue to come up.”

Discharges from Greenidge’s Lockwood Hills ash landfill continue to violate water quality regulations as well as a the original deadline in a 2015 consent agreement with the state. They pollute the Keuka Lake Outlet, which empties into Seneca Lake.

Meanwhile, Greenidge’s water intake and discharge system — used to cool the plant’s boilers — is several years and several millions of dollars in private investment away from complying with federal law.

The system’s massive above-ground pipe, which is seven feet in diameter and extends 650 feet into Seneca Lake, lacks legally required screening.

Yet Greenidge is permitted to withdraw up to 139 million gallons of Seneca Lake water each day through that pipe, vacuuming up and mangling thousands of fish in the process.

Those facts stand in the face of a controversial 2016 conclusion by the state Department of Environmental Conservation that the restart of Greenidge “will not (emphasis added) have a significant adverse environmental impact.”

That legally-binding “negative declaration” is the basis for the DEC’s waiver of a full environmental impact statement, which short-circuited public involvement and cleared Greenidge’s way to win a fast-tracked operating permit.

That so-called “neg dec” drew legal challenges by the Sierra Club, Committee to Protect the Finger Lakes, Coalition to Protect New York, and others. 

The groups have already lost arguments before both the state Supreme Court in Yates County and, in February, the panel at the New York Appellate Division-Fourth Department in Rochester.

In their March 18 filing with the Fourth Department, the petitioners asked permission to reargue their case. If that request is denied, they asked for leave to appeal the matter to the Court of Appeals, the state’s highest court.

Greenidge has treated the Fourth Department’s ruling as final resolution of legal challenges to its operation. In a formal statement, plant manager Dale Irwin touted the company’s “complete and total victory” over groups making “absurd claims driven solely by politics.”

The legal arguments Greenidge and the DEC wielded in scoring that victory rested upon a implied assumption: There is no legally enforceable distinction between a pledge to comply with lawful environmental requirements at some (extendable) future date and actual compliance with those environmental standards in the present.

The courts have not challenged that assumption.

Greenidge’s operating permit is conditional on future compliance, freeing the DEC to waive enforcement of existing violations.

(WaterFront has reported that Greenidge’s owners spent more than $120,000 in campaign contributions to Gov. Andrew Cuomo and more than $500,000 on lobbying Cuomo’s administration, all while receiving a $2 million state grant toward their plant’s restart.)

For example, Greenidge currently dumps waste into its Lockwood Hills ash landfill, which leaches and discharges heavy metals and other chemicals in violation of water quality regulations. The company has never fully complied with a 2015 consent order that initially mandated cleanup of all violations by late 2016. 

The DEC has repeatedly allowed the company to postpone that remediation. The latest deadline is November 2019. Meanwhile, the agency is weighing the company’s bid to expand the landfill. 

That agency stance exasperates Dresden resident Eileen Moreland, who says she and her neighbors bear the brunt of releases of heavy metals into groundwater and the Keuka Lake Outlet. 

“The landfill has been a source of pollution for many years,” Moreland wrote in a Mar. 26, 2019 letter to Gov. Andrew Cuomo. “Now is the time for closure, not expansion.”

The DEC has shown similar forbearance in regulating Greenidge’s out-of-compliance water intake and withdrawal system. 

The federal Clean Water Act requires large water withdrawal pipes to have special screens that protect fish, fish eggs and other marine life. The Dresden pipe doesn’t have them.

Greenidge acknowledges the shortcoming and has repeatedly promised to address it with the best technology available — cylindrical wedgewire screens — despite the substantial expense.

At a public hearing in Dresden on Nov. 4, 2015, Irwin told a packed room of concerned citizens that wedgewire screens would be installed within four years.

“We have to design, engineer, procure and install,” Irwin told the crowd. “We plan to have that installed in four years. The cost of (installation) will be about $5 million to $7 million.”

But that promised completion  date — November 2019 — was abandoned long ago. And the multi-million expense was left off an estimated total cost of the project that Greenidge attorneys provided the Fourth Department in a filing last summer. 

“By January 6, 2017, 94 percent of the Greenidge Project construction had been completed at a cost of $11,418,624 to (Greenidge),” the filing said. 

The plant’s state discharge permit, which went into effect on Oct. 2, 2017, grants Greenidge until October 2022 to install the wedge wire screens — three years later than Irwin promised Dresden residents at the 2015 public hearing.

That permit also calls for the company to install variable speed pumps for the intake system by later this year.

But Greenidge has raised some doubt about whether even that delayed compliance will happen on schedule.

A host of engineering challenges lie ahead for the installation of the wedge-wire screens, according to a study Greenidge received last spring from an outside contractor, ASA Analysis & Communication Inc. of Lemont, Pa.

The main problem is that the intake pipe extends out onto a shallow shelf.  The pipe enters the lake in water that’s only about 12 feet deep, the study says.

“The shallow depth limits the size of the (screens) because sufficient water must be provided above the units in order for them to function properly,” ASA reported. “This is particularly critical for (Greenidge) because a vacuum must be maintained within the conduit in order for the system to function.”

Also, the intake pipe’s location in the shallows would expose the screens to “dense aquatic vegetation during summer months” which risk “potential for debris fouling.” Even surface ice during the winter was cited as a potential problem.

A coal power plant on Cayuga Lake that is seeking to convert to gas power recently installed wedge-wire screens in water more than 30 feet deep.

The ASA study suggests that Greenidge may need to opt for much smaller screens. However, it also notes that “due to the location of the withdrawal, debris (primarily biological in nature) fouling of the (screens) has the potential to be severe.”

Three months after ASA submitted its report to Greenidge, Irwin raised concerns with the DEC about meeting compliance deadlines.

“Unless the (wedgewire screens) and (variable speed pumps) are designed together, which the permit timelines do not allow, the actual performance and integration of the (screens) and (pumps) cannot be confidently predicted,” Irwin wrote in a June 27, 2018 letter to the DEC.

So the harm to Seneca’s aquatic life will continue indefinitely, despite the fact that the operating permit the DEC granted Greenidge declares categorically that restarting the plant “will not have a significant adverse environmental impact.”

Because of the DEC’s “neg dec,” Greenidge was not required to prepare a full environmental impact statement for its restart project.

Moreland and others Dresden residents have argued that the DEC’s decision to waive an EIS has denied the public the opportunity to adequately analyze other potential environmental harms caused by the project.

High on Moreland’s list of unaddressed issues is whether the plant’s huge daily discharges of warmed water has contributed to the spate of harmful algal blooms with high toxins in and around Dresden in 2018 and 2019.

The interrelationship of factors that trigger  algal blooms is highly complex. But the scientific consensus is that warmer water is an important contributing factor.

An EIS could have shed more light on the effects of the plant’s massive warm water discharges into the Keuka Lake Outlet, which flows into the Dresden Bay area of the lake.

At the 2015 public hearing in Dresden (moderated by officials from the state Public Service Commission), Irwin told a questioner that water discharges from the plant were consistently 12F warmer that intake water.

“It doesn’t matter if the (intake) water is 30 degrees, 40 degrees, 50 degrees, 90 degrees,” Irwin explained. “The differential temperature from the incoming to the outgoing is going to be 12 degrees. This is something we measure on a daily basis, and we have extensive background information, historical information.”

Historical data in 2015 would have applied to the plant’s operation as coal-burner, well before its March 2017 restart using natural gas as its primary fuel.

Under Greenidge’s October 2017 discharge permit, the plant is allowed to release up to 134 million gallons of condenser cooling water per day into the Keuka Lake  Outlet at temperatures up to 108F degrees.

The permit allows the plant to discharge water that is up to 26F hotter than intake water in the summer. In the winter, the authorized temperature differential is 31F.

In her recent letter to Cuomo, Moreland wrote that the state should have required Greenidge to convert to a closed-cycle cooling system, which recycles water used for condenser cooling and drastically cuts intakes and discharges.

An EIS would have allowed for public comment on the DEC’s decision to allow Greenidge to restart with the less efficient once-through cooling system.