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Benjamin Mcpherson New York State Department of Environmental Conservation 270 Michigan Ave., Buffalo, NY 14203

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Benjamin Mcpherson New York State Department of Environmental Conservation 270 Michigan Ave., Buffalo, NY 14203 Benjamin McPherson New York State Department of Environmental Conservation 270 Michigan Ave., Buffalo, NY 14203 January 17th 2020 Re: Clean Air Coalition Comments Opposing Brownfield Application for Former Tonawanda Coke Facility by Riverview Innovation and Technology Campus site ID #C915353 Dear Mr. McPherson, The Clean Air Coalition (Clean Air) respectfully submits the following comments regarding the brownfield application for Riverview Innovation & Technology Campus, Inc. for a site known as Riverview Innovation and Technology Campus, site ID #C915353, located at 3875 River Road, Tonawanda, New York 14150. We request that the New York State Department of Environmental Conservation (NYS DEC) reject the application due to the fact it is incomplete, premature, and not in the interest of the public. If approved as is, the NYSDEC will warp the purpose of the Brownfield Cleanup Program (BCP), originally intended as a pathway to return blighted properties to the tax rolls. This application sets a dangerous precedent, reducing the program to a loophole for legally recognized primary polluters to avoid their financial and environmental responsibility. Clean Air members, and the residents of Western New York deserve a full and comprehensive remediation, which is not what current application seeks. Given the long history of criminal environmental violations that have occurred on this property, the fact that the property is located in an environmental justice community, is subject to current ongoing removal action by the Environmental Protection Agency (EPA), and there exists a viable Principle Responsible Party (PRP), we request that only after this property has been determined to be found not to be a significant threat to human health or the environment should it be considered for a tax incentive program, such as the Brownfield Cleanup Program (BCP). Over 10 years ago our members, many who lived with cancers such as leukemia, lung cancer and other rare respiratory illness, organized to hold Tonawanda Coke accountable for environmental violations that put their health at risk. 1 The media coverage and public pressure generated by Clean Air members have resulted in real change. In December of 2009, the U.S. Department of Justice, the U.S. EPA, NYS DEC and U.S. Coast Guard raided Tonawanda Coke with a federal search warrant. Less than a week later Mark Kamholz, Tonawanda Coke’s Environmental Control Manager was arrested. Our member’s advocacy resulted in an EPA enforcement action and criminal trial. In March 2013, Tonawanda Coke was found guilty of breaking 14 federal laws under the Clean Air Act and the Resource Conservation and Recovery Act. Mark Kamholz was found guilty on the same counts plus an additional count of obstruction of justice. The company was fined $12.5 million in fines, 5 years of probation, and to pay nearly $12 million for future health and environmental studies. Mark Kamholz was sentenced to 1 year and 1 day in prison for plus a $20,000 fine and a supervised release after serving the term. Since the EPA’s enforcement action, air monitors have reported dramatic reductions in benzene. The continuous air monitor at Grand Island Blvd reported a 92% benzene reduction, with a 68% reduction at the air monitor on Brookside Terrace. These reductions, the result of over a decade of work by Clean Air members, represent significant improvements to air quality and public safety. In May 2018, Clean Air was notified that a waste heat tunnel at Tonawanda Coke collapsed, and publicly called on the DEC and EPA to examine potential toxic emissions being released into the surrounding community. Clean Air members documented black smoke coming from the facility and submitted hundreds of complaints to the DEC and EPA, bringing further attention to the gravity of the situation. In July 2018, DEC and EPA inspections at Tonawanda Coke revealed 176 violations of environmental regulations, and a cease and desist letter was issued. When court proceedings began in September 2018, Clean Air members filled the court chambers for 2 weeks. We heard the U.S. Government detail multiple instances where the company violated their probation order, including numerous compliance issues brought forth by the NYS DEC and the EPA, specifically citing daily opacity violations, an inspection revealing a giant hole in the company’s ammonia tank resulting in a chemical leak, and structural damage at the facility. The U.S. Court ruled the company was in violation of their probation. 2 In October 2018, Tonawanda Coke revealed that it would close and reorganize under Chapter 11 bankruptcy. Members immediately called for a worker transition plan, and for a site classification for the full property. We submitted 379 petitions the NYS DEC Commissioner to refer the site to the Federal Superfund Program (Appendix 1), and over 20 community and labor organizations also submitted letters of support. (Appendix 2). Procedural History On December 4th, 2019 the NYS DEC issued a notice for public comment for the Riverview Innovation and Technology Campus (RITC) Brownfield Cleanup Program Application. The end date for public comment is January 18th, 2020. Overview of the Site In 1917, Semet-Solvay Co., a subsidiary of Allied Chemical, began burning coal at the site to extract coke and other elements, such as benzene, xylene and toluene, for manufacturing purposes. Allied Chemical later purchased Honeywell and changed its name. Some sections of the property had been used to dispose of wastes such as coal tar sludge and fly ash before 1978, when Tonawanda Coke purchased the property to continue producing coke. Prior investigations indicated widespread contamination from the disposal of industrial and hazardous waste. On October 14, 2018, TCC suspended operations and initiated process shutdown to permanently close its facility. On October 15th, 2018, Paul Saffrin and Micheal Dirken of Tonawanda Coke filed for Chapter 11 bankruptcy. At the same time, the EPA took oversight of the property “working under its CERCLA removal authorities” (Superfund).1 The sale of the property was ordered by the U.S. Bankruptcy Court in September 2019. The bankruptcy court accepted a proposal from Ontario Specialty Construction and Honeywell International, Inc. for the sale of the TCC property to Riverview Innovation and Technology Campus Inc. (RITC) for the redevelopment of the property as a data center. The Site is approximately 129 acres in size and the nearest residential area is approximately 0.25 miles south of the site, where Clean Air members live. The site is comprised of two parcels of land separated 1 (USEPA Proof of Claim 2019) 3 by River Road. The parcel of the east side of River Road, known as the main plant area, is the portion where coke manufacturing formerly occurred. The parcel on the west side of River Road, adjacent to the Niagara River, is known as Site 108 and is designated as a state superfund site, currently “under EPA oversight.”2 Operable Unit #3 (Site 108) comprises the western parcel of the site adjacent to the Niagara River, and was used for transferring coal from the river to the plant facility via conveyor belts. In 1973, the Erie County Health Department granted Allied Chemical (Honeywell) permission to establish a disposal area, which was subsequently filled with refuse, wood, scrap polyethylene and ceramic saddle packing from refining equipment. The disposal of coke/coal, fly-ash cinders, and coal tar sludge has also been documented. Additionally, the site is under a consent order with Honeywell and under enforcement action.3 Operable Unit #2 (Site 109) is located near River Road on the western side of the plant portion of the site. Disposal and handling of industrial waste from the coke production activities at the site have contaminated the soil, groundwater and sediment with semi-volatile organic compounds and metals that are related to coke production. There is a 2008 Record of Decision on this site that requires that Tonawanda Coke restrict access to OU2 and that an environmental easement be filed to control the future use of the area. This easement has not yet been executed.4 Operable Unit #1 (Site 110) is located in the northeast corner of the plant portion of the site. Materials such as coal tar sludge, wood shavings impregnated with iron oxide, fly ash, and cinders were reportedly disposed of at OU1. The disposal activities are reported to have occurred prior to 1978. In 2005, SVOCs such as benzo(a)anthracene and benzo(a)pyrene were detected above standards in the surface soil site. The health impacts of Benzo[a]pyrene include genetic defects, cancer, and damage to fertility. The contaminant is also very toxic to aquatic life with long lasting effects and hazards to the aquatic environment over the long-term. Cyanide was consistently detected above the groundwater standards from samples collected in 2005. Human health impacts of Cyanide include organ damage. Cyanide is also extremely toxic to aquatic life with long lasting effects. A 2008 Record of Decision required that 2 (USEPA Community Update 2019) 3 (Administrative Settlement Agreement and Order on Consent for a Removal Action 2019) 4 (NYSDEC Fact Sheet 2017) 4 Tonawanda Coke restrict access to OU1 and that an environmental easement be filed to control the future use of the area. This easement has not yet been executed.5 1) Application should be rejected because this project is not in the Public Interest. According to NY Env Cons L § 27-1407 (9), “The department may reject such request for participation if the department determines that the public interest would not be served by granting such request...” Tonawanda Coke is a massively polluted site with three portions of the property that have been already classified as Class 2 Superfund Sites; meaning they pose a significant threat to human health and the environment.
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