DEC is Derelict its Duty — Not Requiring Preparation of Environmental Impact Statements

by Tom Ellis

A growing problem in the capital region and probably elsewhere in New York is that large or gigantic proposed projects, many with potentially enormous environmental impacts, are passing thorough the NYS Department of Environmental Conservation’s (DEC) regulatory system without environmental impact statements (EIS) being produced, as required under the State Environmental Quality Review (SEQR) Act.

DEC is playing a huge role in this problem. I first noticed it in 2005 when DEC issued a negative declaration allowing Lafarge to avoid preparation of an EIS for Lafarge’s proposal to burn 4.8 million whole tires per year in its cement factory in Ravena. I was stunned at DEC’s irresponsibility. I repeatedly insisted an Environmental Impact Statement was legally and morally required due to the enormous size and scope of the project and that Lafarge is located directly across Route 9W from the Ravene-Coeymans-Selkirk Middle and High Schools. At one public hearing, when I raised this issue, about half the remaining speakers also demanded an EIS.

DEC pulled similar stunts twice in Albany early this decade when Global Partners (1) sought DEC permits to double (to 1.8 billion gallons per year) the quantity of oil it desired to transport via rail through downtown Albany to the Port of Albany and (2) two years later when Global Partners proposed to construct a 2600 square foot facility with at least four massive boilers to heat the crude oil so it could more easily be loaded from rail cars on to ships for export. Both times (2011 and 2013) DEC issued negative declarations meaning DEC had concluded these projects were unlikely to have any significant impacts worthy of extensive study.

I do not understand how DEC can assert that burning millions of tires per year in a cement kiln adjacent to two schools or transporting hundreds of millions of gallons per year of gassy oil through crowded down-towns are of such minor importance that no environmental impact statements are required. Surely DEC is both setting a bad example that local governments are noticing and placing the public at enormous and unnecessary risk.

More recently local governments are getting into the act. The Town of Schodack has issued a negative declaration for a proposal by Amazon to construct a one-million square foot warehouse costing $100 million on Route 9. A citizens group, the Birchwood Association, does not oppose the project, but insists an EIS is legally required. The Birchwood Association is concerned about water supply, truck traffic, and public safety and is suing the town to obtain the EIS.

Finally, there is the City of Rensselaer, one of the most perpetually mismanaged municipalities in the the country. City residents and public school students have been under attack for four years by the giant Dunn construction and demolition debris landfill that blows dust, nasty odors, and who knows what else through the city, an adjacent school and cemetery, and an East Greenbush neighborhood. The dump has considerable truck traffic that passes through the downtown each weekday.

Last year, BioHiTech applied to the city for permission to construct a large solid waste processing facility on the former BASF industrial property, a few blocks south of downtown Rensselaer. If approved, more than 100,000 tons of municipal wastes would be trucked into the site each year, for perhaps many decades, to be shaped into packets about the size of a cigarette pack, and then trucked to a cement kiln in Pennsylvania where it would be burned as fuel.

Last summer, Rensselaer’s planning board issued a negative declaration, thus allowing the project to move forward without any EIS. This came despite the considerable concern among Rensselaer residents about the existing large smelly dump and its high volume of downtown truck traffic, that the BASF property is an inactive hazardous waste site, located only a few hundred feet from the Hudson River in a flood plain.

When I contacted DEC urging DEC to instruct the town that an EIS is legally required, DEC Deputy Regional Permit Administrator wrote to back on February 20 saying: “The City of Rensselaer Planning Commission has declared themselves Lead Agency for the State Environmental Quality Review Act (SEQR) processes on this project. The Planning Commission has determined this to be a Type 1 action under SEQR (6NYCRR Part 617) and has coordinated review with all involved agencies. The Planning Commission, as Lead Agency, has determined that there is not a need for an Environmental Impact Statement and has issued a Negative Declaration as their SEQR determination. As an involved agency, DEC has no authority to require an Environmental Impact Statement or change the SEQR determination.”

In my March 16th response, I wrote: “As part of DEC’s review of BioHiTech, will the combined impacts of the two projects [the Dunn dump and BioHiTech] be considered? How will this be done? How can the public be certain DEC will do it? Can the public participate in this process? Is DEC willing to meet with my colleagues to discuss this? And if the proposed one-million square foot Amazon distribution center in Schodack is approved, a third source of heavy truck traffic might be experienced by Rensselaer residents. A negative declaration for this giant project was also issued. Will the combined impacts of all three projects be addressed in DEC’s review of BioHiTech?” I have so far received no response from DEC.

Even if DEC is without legal authority to instruct a local government to require an EIS, DEC should have enough sense to recommend one. The existing New York State regulatory approach allows DEC and local governments to issue negative declarations for large projects in clear violation of SEQR intent: that major projects must be carefully examined with meaningful public participation before going forward. DEC’s regulatory practices lack transparency and leave the public with no confidence or proof that environmental reviews are truly complete or that DEC is protecting the public health and environment. The public needs and deserve much higher quality government. The public needs to be certain that a thorough and inclusive review process examining all potential issues will occur.

Published in June/July 2019
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