Peter Mantius: Crestwood LPG won robo-approval - FOIL proves that there are no records showing that the Board of Regents has appointed a “state geologist” or “acting state geologist” since 2010

Gov. Andrew Cuomo should waste no time resolving the latest controversy over a Texas company’s application for a permit to store liquid petroleum gas, or LPG, in unlined salt caverns next to Seneca Lake.

At issue is whether a specifically designated “state geologist” has a legal responsibility to conduct a rigorous analysis of such potentially dangerous activity or whether a simple undocumented sign-off by — well, anybody — will do.

In its six-year bid to win that underground storage permit, Crestwood Equity Partners has made a practice of hiding documents, fudging facts and co-opting state regulators and local officials.

Last week the company was called to task by the Seneca Lake Pure Waters Association for dodging a fundamental rule of the state Department of Environmental Conservation.

The first sentence of the DEC’s “underground gas storage permitting process” states that such permits may only be granted with “approval in writing from the State Geologist.”

SLPWA notes that by law the “state geologist” must be appointed by the New York Board of Regents as part of “state science service” supervised by the “director of the state museum.” That curious structure was probably established to provide the scientists independence from regulators who constantly rub shoulders with — and sometimes cozy up to — aggressive applicants like Crestwood.

But the state museum has no records showing that the Board of Regents has appointed a “state geologist” or “acting state geologist” since 2010, according to a June 16 letter to SLPWA from Mark Schaming, head of the state museum.

So if there’s no legally designated state geologist, SLPWA argues, there can be no legally required authorization for the Crestwood LPG project. Right?

Not necessarily. In March 2013, Crestwood obtained a two-paragraph letter approving its permit application signed by Andrew Kozlowski, who identified himself as “acting associate state geologist.”

Voila! Robo-approval.

Kozlowski’s letter, offered without supporting documentation, followed a request letter two months earlier from Peter Briggs, the DEC’s oil & gas permitting manager. In fact, several DEC staffers and lawyers have supported Crestwood’s application despite grave safety concerns voiced by independent geologists.

So Gov. Cuomo must ask himself whether DEC staffers, in their bid to guide the Crestwood project, are authorized to accept Kozlowski’s letter at face value. Is it OK, SLPWA asks, for Briggs or others to sidestep the plain wording of the DEC rule and the law behind it?

Another question. Why has the Board of Regents neglected to appoint a state geologist throughout the entire Cuomo Administration?

The last formally designated state geologist, William Kelly, retired in September 2010, two months before Cuomo was elected. He had been appointed by the Board of Regents in 2004.

Before he retired, Kelly had been looking closely at the LPG proposal. In a Jan. 11, 2010 letter, Briggs noted that “comments and questions from the state geologist” on the LPG permit application had been forwarded to the company.

Later that year, this reporter filed a Freedom of Informational request with the DEC for Kelly’s “letters, emails, notes” related to the LPG storage plan. In an Oct. 29, 2010 letter to me, Briggs issued a blanket denial of all Kelly documents, citing his legal authority to withhold certain “inter- or intra-agency communications.”

A week earlier, I had published an opinion column criticizing the DEC for dithering on whether to require a formal environmental impact statement for the LPG project, and I was used to agency officials denying my FOIL requests.

They were also refusing to provide me key sections of the company’s “reservoir suitability report” on the grounds that they were a “trade secret.” My FOI law appeals for the suitability report on salt cavern integrity were mostly unsuccessful.

I also appealed Briggs’ decision that I was not entitled to any of Kelly’s documents or analyses. Agency officials later told me they never received my Nov. 5, 2010 appeal letter sent to the DEC office of general counsel. “Every so often, correspondence goes astray,” a DEC official wrote me in February 2011, “and of course nobody knows we haven't received it until after the sender asks why we haven’t responded.”

At least by that time the DEC had finally surrendered to public pressure and ordered a formal environmental impact statement. That EIS triggered critical analyses by independent geologists, which stimulated a groundswell of opposition from across the Finger Lakes region.

Now an DEC administrative law judge is weighing Crestwood’s LPG application. He has denied the public access to swaths of evidence related to salt cavern integrity and Seneca Lake’s extremely high salinity.

Meanwhile, the positions of the Board of Regents, the State Museum Director Mark Schaming and Gov. Cuomo remain deep mysteries. Schaming did not return my phone call last week. Maybe robo-approvals are fine. We’ll see.

Source:

http://www.the-leader.com/news/20160628/peter-mantius-crestwood-lpg-won-robo-approval