Most of Western New York’s biggest air polluters are operating under expired state permits, including some that lapsed more than a decade ago.
And some of those polluters with expired permits have been producing skyrocketing greenhouse gas emissions, according to data from the state Department of Environmental Conservation.
In Erie and Niagara counties, the DEC has failed to renew 33 of the 38 issued Title V permits, or 87%, before their expiration date.
A Title V permit, issued for a period of five years, is administered by the DEC under the federal Clean Air Act to regulate major polluters that emit large amounts of greenhouse gases such as carbon dioxide and other harmful substances, including fine particulate matter, nitrogen oxides and sulfur dioxide.
On average, the major polluters with lapsed permits in Western New York have Title V permits that expired nearly five years ago, according to the DEC’s data.
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A 2023 state comptroller report that analyzed the DEC’s air quality monitoring program effectiveness found that “the longer the permits remain extended, the greater the risk that facilities are not operating under requirements that align with the most up-to-date air pollution control standards.”
Four facilities in the two counties have been operating under Title V permits that expired more than a decade ago: 3M Tonawanda’s permit expired in November 2012; Unicell Body Co. in Buffalo and Modern Landfill in Lewiston had their permits expire in 2013, and General Mills in Buffalo has three permits that expired in June 2014.
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The General Mills plant in Buffalo emitted on average less than 10 tons of fine particulate matter annually before 2014, the year its air pollution permit expired. Between 2015 and 2022, those emissions rose to an annual average of 42 tons, data show.
Statewide, 182 of the 308 Title V permits issued to major air polluters, or 59%, had expired as of early July, according to the DEC’s data.
“Any reasonable person would find that unacceptable − that’s a failing grade,” said Bridge Rauch, an environmental justice organizer with the Clean Air Coalition of Western New York. “DEC is our first line of defense when it comes to regulating harmful air pollution here. We need them now more than ever to step up their enforcement of these facilities.”
Chris LaLone, DEC’s director of the division of air resources, told The Buffalo News the state is required to regularly inspect the Title V facilities to ensure they are in compliance with the most current air quality regulations and their issued permit.
LaLone said although the facilities are operating on permits that surpassed their expiration date, those permits are still enforceable under the State Administrative Procedure Act. That law states that Title V permits do not expire as long as an operator submitted a renewal application at least 180 days before the permit expiration date.
“Those permits are still effective in our mind,” LaLone said.
However, some of the facilities in Western New York have massively increased their output of harmful emissions since their permit’s expiration date passed.
For example, Fortistar in North Tonawanda, which was acquired by cryptocurrency mining company Digihost in September 2022, has emitted more carbon dioxide in the first three months of 2024 than it ever has in an entire year, according to data from the U.S. Environmental Protection Agency’s Clean Air Markets Program. The facility’s Title V permit’s expiration date was in November 2021.
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The Digihost cryptocurrency mining facility in North Tonawanda emitted more carbon dioxide in the first three months of 2024 than it ever has in an entire year, federal data show. The plant's Title V air pollution permit expired in November 2021.
The permit for a Kinder Morgan-owned gas compressor station located in Eden, which helps keep gas moving through pipelines stretching across the nation, expired in 2018. Since then, its carbon dioxide emissions skyrocketed from less than 30,000 tons of carbon dioxide annually before 2021 to more than 240,000 tons in 2022 − the biggest carbon dioxide emission source in Erie County that year, according to data from the DEC.
Carbon dioxide is a gas that absorbs heat and rereleases it back into the atmosphere. Excess carbon dioxide emissions caused by human activities have contributed to climate change and caused global temperatures to rise.
But the pollution goes beyond carbon dioxide. Major polluters with expired permits in some cases are also sending more particulate matter into the air we breathe.
The General Mills plant in Buffalo emitted on average less than 10 tons of fine particulate matter, or PM-10, annually before 2014, the year its permit expired. PM-10 can include things such as dust and smoke.
Between 2015 and 2022, those emissions have increased to an annual average of 42 tons, with 94 tons of PM-10 emissions reported in 2022, according to the DEC’s data.
“It’s never going to be a good thing − more PM-10 is never harmless,” said Pauline Mendola, a professor of epidemiology and environmental health at University at Buffalo. “But how bad it’s going to be depends on really what’s going on in the rest of the context of the atmosphere.”
PM-10 pollution can irritate a person’s eyes, nose and throat, and potentially cause health impacts for those with pre-existing conditions such as asthma and chronic obstructive pulmonary disease, according to the Environmental Protection Agency.
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The 3M factory in Tonawanda. The plant’s Title V permit, which regulates air pollution from the plant, expired in November 2012.
DEC says it inspects facilities
To ensure they are in compliance with their issued permits, the DEC inspects Title V facilities “at least once every two years,” LaLone said.
The state agency also requires facilities to submit a twice-annual emissions monitoring report and an annual report detailing how they are complying with their permit, LaLone added.
He also noted that all polluters are required to follow the most recent air pollution regulations even if those regulations are stricter than what’s outlined in a facility’s permit.
But some are concerned that the DEC could be violating the 2019 Climate Leadership and Community Protection Act, which mandates the state reduce greenhouse gas emissions by 40% below 1990 levels by 2030 and by 85% by 2050.
“That’s pretty shocking to me and pretty disturbing that DEC isn’t meeting its legal obligations,” said Niki Cross, a staff attorney for the environmental justice program at New York Lawyers for the Public Interest. “This seems like quite clear violations of its mandates to reduce emissions.”
“DEC has a responsibility to regulate these facilities,” Cross continued, “and by failing to issue either renewals or denials, it’s failing that responsibility.”
Keri Powell, a senior attorney and air program leader for the Southern Environmental Law Center who is a nationally recognized expert on the Clean Air Act, said the number of Title V permits expired in New York, and how long many of those had been expired, was “egregious.”
“By falling so far behind, the other thing that happens is they don’t have to look back at the facility and figure out: Are there new requirements that apply? Have there been changes made to that facility that really should have been addressed?” Powell said. “Are they doing sufficient monitoring, record keeping and recording to demonstrate their compliance and giving the chance for the community to weigh in and say whatever the problem is?”
The Climate Leadership and Community Protection Act is why the DEC denied the renewal of a Title V air permit for Greenidge Generation, a cryptocurrency mining company that had acquired a power plant in Dresden off Seneca Lake. The agency had found that by restarting the power plant and running it using gas to power cryptocurrency mining, Greenidge was set to increase greenhouse gas emissions at unacceptable levels under the state’s new climate law.
In June 2022, it denied the company’s application to renew the Title V air permit for the facility, which otherwise would have allowed the increase in emissions.
Under the State Administrative Procedure Act, DEC is afforded at least 180 days, or about six months, to review Title V permit renewal applications. It took the state more than a year before it denied the Greenidge application.
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Unicell Body Co. in Buffalo on Thursday, June 27, 2024. Unicell's Title V air permit, which regulates air pollution from the plant, expired in 2013.
DEC offers explanation
LaLone told The News that it typically takes “a number of months” to review renewal applications.
“That’s assuming you have one permit to work on and you have nothing else to work on, which isn’t the case, unfortunately, for our staff,” he said.
To the question of why some facilities had permits with expiration dates of more than a decade ago, LaLone said, “I don’t really have a good answer for you, I know that some of those are very complicated facilities.”
Climate advocates are pushing the DEC to hasten its review of the Title V permit for the Fortistar plant in North Tonawanda.
The state Public Service Commission approved the transfer of the power plant to Digihost in September 2022, which the Clean Air Coalition of Western New York and Sierra Club Atlantic Chapter, represented by Earthjustice, have since challenged in court.
Fortistar has been operating under its Title V air permit that expired in November 2021. The power plant was previously used solely as a “peaker plant” delivering electricity to the grid at peak demand times.
Under Digihost, the 63-megawatt power plant could be “run full tilt” to supply the energy needed for cryptocurrency mining operations, said Mandy DeRoche, the deputy managing attorney of Earthjustice’s clean energy program.
During the first three months of 2024, Fortistar emitted more than 53,000 tons of the greenhouse gas carbon dioxide, according to data from the EPA’s Clean Air Markets Program.
Since 1999, when the EPA’s emissions data for the plant began, the most carbon dioxide Fortistar had ever produced over the course of an entire year was 44,000 tons, the data show.
Had the DEC reviewed the permit renewal application in a more timely manner, perhaps it could have prevented the massive increase in carbon dioxide emissions from the facility during the start of 2024, DeRoche said. The huge increase in emissions from the plant for the purpose of cryptocurrency mining undermines the goals outlined in the Climate Leadership and Community Protection Act, she added.
LaLone said the DEC is “looking closely at that one right now.”
“We’ve gone back and asked them for additional information a couple of times to make sure we’re clear on how much of that emissions is just the regular power generation and how much of it is … crypto power generation,” he continued.
However, LaLone could not give an estimate as to when the DEC will finish its review of Fortistar’s permit.
Bill would require reforms
A bill introduced by Sen. Pete Harckham in the New York State Senate aims to reform the State Administrative Procedure Act to ensure Title V permits are reviewed within five years of a permit expiring. The bill, S9370, has since stalled in committee.
The state could also revise how it charges polluters for their emissions, since the Clean Air Act requires the state to set the fees for the sources that pay for their permits at a level that’s sufficient to run the program, Powell said.
Ensuring more money is going to the Title V permit program could help increase DEC staffing levels and resources dedicated to reviewing the permits, she added.
“This is our job, right, so evaluating, and reviewing applications and making sure people comply with all the requirements in the air,” LaLone said. “It’s just taking a little longer than, honestly, we would like and other people would like.”