HORSEHEADS — Legal wrangling over a proposal to store 88 million gallons of liquid propane and butane in salt caverns adjacent to Seneca Lake continued Friday at a state Department of Environmental Conservation hearing in Horseheads.
Attorneys argued in the second day of the two-day DEC “issues conference” over noise levels, alternative sites for the project, and the financial ability of Houston, Texas-based Crestwood Midstream to cover costs in the event of a major catastrophe.
When the hearing ended, DEC Chief Administrative Law Judge James T. McClymonds announced that legal parties would have 60 days to file briefs and responses, once transcripts of the issues conference were completed and distributed in the next two weeks.
After all the briefs are submitted, McClymonds has 45 days to issue a ruling on whether any of the issues presented to him are substantive enough to require a formal court hearing.
Deborah Goldberg of Earthjustice, representing Gas Free Seneca, told the judge the sound study paid for by Crestwood and executed by Hunt Engineers was flawed. A second study, conducted by Sandstone Environmental Associates at the request of Gas Free Seneca, indicated noise generated would likely be at “potentially intrusive levels.” Sandstone identified 16 additional areas needing study, Goldberg said, including measurement of sound traveling across the lake from west to east, not just along the western shore where the facility is planned.
Crestwood attorney Kevin Bernstein of Syracuse argued that the original Crestwood study done by Hunt had properly followed DEC policy in its procedures and methodologies. In response to questions from the judge about the timing of taking sound samples, Bernstein said sound measurements done in warm weather months provide the most accurate assessment of overall sound impacts because of background noise.
“Doing a study in the winter doesn’t reflect reality,” Bernstein said. “The only sound is the snow falling.”
The issue of whether the DEC adequately considered alternative sites for the project — including not allowing the project at all — drew sharp exchanges between the attorneys.
It also prompted some close questioning by the judge.
Earthjustice attorney Moneen Nasmith said the DEC documents failed to take into consideration a “no action” alternative to Crestwood moving ahead.
Crestwood attorney Robert Alessi of Albany said that particular issue was settled at the outset of DEC process when the DEC decided what needed to be addressed in its environmental reviews.
“It is not proper to raise ‘no action’ now,” Alessi said.
Part of the “no-action” alternative to building a new facility would be to store the gas at another Crestwood-owned (or to be purchased) site instead of the Town of Reading location, the judge said.
He asked DEC staff and Crestwood attorneys if they had studied locations where the facility could be located instead of the 576-acre Town of Reading site just north of Watkins Glen.
DEC staff member Linda Schwartz said that although Crestwood owns a storage facility 30 miles away, in Savona, the DEC deemed it unsuitable.
“We knew about the site,” Schwartz said. “But the caverns there are not a reasonable alternative.”
The most spirited debate between the judge and Crestwood attorneys came over the topic of financial responsibility and discussion of economic impacts of the project.
McClymonds said that while the DEC doesn’t “adjudicate economic issues,” he believes it is within the scope of the agency to consider if an applicant has adequate financial backing in case of a catastrophe.
Crestwood’s attorney Alessi took sharp exception to any discussion of economics in the hearing.
“Does the department have authority to do this?” he asked. “This is inappropriate for an issues conference.”
But arguing on behalf of a coalition of a dozen Seneca Lake communities, Kate Sinding of the National Resource Defense Council said whether Crestwood has adequate resources in the case of a catastrophe is a key issue that needs to be addressed.
She told the judge if the project caused an increase in the salinity of Seneca Lake and fouled the drinking water for more than 100,000 persons in the region, there should be legal assurances that Crestwood has adequate resources to mitigate the problem.
Friday’s issues conference was open to the public for the entire five hours during which arguments were made.
On Thursday the judge closed the afternoon hearing to the public and the media to discuss matters that included trade secrets and proprietary information. Only persons who had signed non-disclosure agreements were allowed in to hear the arguments.
Gas Free Seneca founder Yvonne Taylor said she thought the group had made its case for a full judicial hearing.
“We feel confident that our legal team, along with the teams representing half a million people surrounding the lake, and the hundreds of agri-tourism businesses throughout the region, raised issues that are significant enough to warrant a full adjudicatory hearing,” she said.
