Photo: From left, New York DEC attorneys Jennifer Maglienti and Larry Weintraub; Crestwood attorney Robert Alessi on right.
Via Gas Free Seneca:
On February 12th and 13th, an Issues Conference was held in front of an Adjudicatory Law Judge regarding the storage of gas in unlined depleted salt caverns along Seneca Lake. Jennifer Maglienti, Department of Environmental Conservation (DEC) Program Counsel to the Division of Mineral Resources, not only aggressively sided with Industry on every issue, she and other DEC counsel collaborated with Crestwood attorneys throughout the entire proceedings. They were observed whispering, passing notes back and forth during oral arguments, and communicating with each other for the duration of the Issues Conference.
Judge hears gas storage debate
HORSEHEADS–With legal arguments concluded, the wait begins for the next step regarding a possible hearing on Crestwood’s proposed liquefied petroleum gas (LPG) storage project in the town of Reading. This follows the conclusion of the two-day Department of Environmental Conservation (DEC) issues conference held in Horseheads Thursday and Friday, Feb. 12 and 13, which was attended by more than 150 people. The purpose of the conference was to determine party status for the nine groups who filed a petition and whether there are any issues that should be examined at a possible future hearing. DEC spokesperson Thomas Mailey said the DEC has no estimated time frame to come to a decision.
“Before making any decision, the DEC will examine all aspects of the proposed project, including impacts to community character,” Mailey said. “The DEC will not grant a permit unless it can be demonstrated the permit is in compliance with all legal requirements and the proposed activity can be done safely.”
DEC Chief Administrative Law Judge James McClymonds heard from those filing for party status as well as from applicant Finger Lakes LPG and will be making a determination if the case will move on to an adjudicatory hearing. An adjudicatory hearing is a trial process where a court determines whether or not the allegations against the permit are supported by evidence.
McClymonds heard arguments from legal representation only, but did not allow expert testimony at the conference, as the conference was only to determine which issues, if any, make it to an adjudicatory hearing. The nine parties filing for party status at the two-day conference included Gas Free Seneca, the Finger Lakes Wine Business Coalition (FLXWBC); a group of 12 area Seneca Lake communities; the Propane Gas Association of New England (PGANE); New York L.P. Gas Association Inc.; Schuyler County Legislators Van Harp and Michael Lausell; the Seneca Lake Pure Waters Association (SLPWA); the National Propane Gas Association (NPGA) and the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union.
The issues of public safety and community character were argued during the first day. Harp and Lausell both spoke to why they filed an amicus brief (friend of the court) in regards to public safety, highlighting their concerns about LPG tanker cars traveling over a railroad trestle in Watkins Glen State Park.
“If a significant number of people are in there when there is an accident, there would be no escape,” Lausell said.
He also highlighted the fact the 2008 Schuyler County emergency plan is inadequate in addressing potential hazardous material accidents, adding the revised plan the legislature is working on has been tabled until April.
“Our county legislature is in something of disarray when it comes to this issue,” Lausell said.
Harp voiced his concerns on the impact the project would have on area businesses along with the vulnerability of transportation. He said any accident within the county could have a high impact, especially during tourism and race season when there are more people within the village of Watkins Glen.
Moneen Nasmith, representing Gas Free Seneca, addressed the group’s concerns with public safety, highlighting the risk analysis conducted by former president and CEO of Cayuga Medical Center in Ithaca Rob Mackenzie.
“The consequences are severe enough where additional review is required,” Nasmith said.
However, Kevin Bernstein of Bond Schoeneck and King, representing the applicant, attacked the credibility of Mackenzie’s report, saying his 10 years of expertise assessing risk are in the medical field and not in the gas storage industry.
“We don’t think Dr. Mackenzie is even minimally qualified to assess the risks,” Bernstein said. “[…] We believe [his report] shouldn’t be given any weight whatsoever.”
Bernstein also argued that LPG has been stored and transported in the area for years, adding more than 99 percent of hazardous materials transported reach their destination. He added “The safety record of the rail industry speaks for itself.”
“The trestle is there for a reason, to transport goods and products,” Bernstein said.
The community character aspect was another issue parties argued to have addressed at an adjudicatory hearing. Deborah Goldberg of Earth Justice, who represented Gas Free Seneca, argued “the community character is intertwined with other areas of environmental concern,” adding a project’s visual, noise and economic impact will affect community’s character. She said the impact of a project to the community character must be considered “even if there is no other physical environment impact.”
Kate Sinding, representing the Seneca Lake communities, brought up the area’s efforts to promote agritourism, highlighting the negative stigma such a facility would bring to the region as a whole.
“The communities around Seneca Lake have for years been working to redefine the character of their region away from its industrial past into its current status as a Mecca for wine production and tourism,” Sinding said. “This heavy industrial, and potentially hazardous, facility is simply the wrong thing at the wrong time, in the wrong place.”
Robert Alessi, representing applicant Finger Lakes LPG, said while community character is important, he said it is not an adjudicable issue.
“The law is very clear and there is no basis for overturning the precedence,” Alessi said.
The section of the conference addressing issues such as cavern integrity and salinity levels in Seneca Lake was closed to the public due to confidentiality issues Crestwood has with certain documents. The conference resumed Friday, Feb. 13, to address further issues pertaining to the potential impact of the proposed project.
Once McClymonds issues a decision, the ruling can then be appealed to DEC Commissioner Joe Martens, who can affirm, modify or reverse the ruling. If issues are identified for adjudication, a hearing will be held, with Martens then making the final determination on whether or not to issue the permits, issue the permits with conditions or deny the permits.