Letter to Zoning Board of Appeals from Attorney Claudia Braymer

June 8, 2020

Via E-Mail Only

Zoning Board of Appeals
Village of Endicott
1009 East Main Street
Endicott, NY 13760

Re: Appeals from Determinations regarding
SungEel MCC Americas, LLC battery incineration and recycling plant
801 Clark Street, Endicott, New York

Dear Zoning Board of Appeals Members,

I represent Robert Tiberi, Vincent Spinelli, Monarco DiFrancesco, and Carlo Cervoni (collectively “Appellants”) in these appeals to you regarding determinations made by Village officials about the above-referenced facility. The Appellants appeal to you, pursuant to zoning code Article 68, from the determinations of Mayor Linda Jackson and Anthony Bates that the battery incineration and recycling facility, proposed by SungEel MCC Americas, LLC (“Applicant”), is a permitted use. The Appellants live and/or own property near the proposed battery incineration and recycling facility and are aggrieved by the determinations that this facility is permitted in the Village of Endicot

A. The Battery Incineration and Recycling Facility is
Not Permitted without a Use Variance and other Approvals

According to the NYS Department of Environmental Conservation (“DEC”), the batteries at the facility would be “discharged. . . dismantled . . . heated . . .cooled, shredded, ground up and the metals will be separated”. A more detailed explanation of the process, prepared by Paul Connett, PhD, as well as a June 1, 2020 letter to the DEC from John Ruspantini, CHMM, PMP, Paul Connett, PhD, are enclosed for your reference.

As you may know, earlier this year, the Village Attorney, Robert H. McKertich, wrote to the New York State Department of Environmental Conservation (“DEC”) on behalf of the Village Mayor and Board of Trustees “to express [their] concerns” about the “proposed battery incineration and recycling plant located at 801 Clark Street in Endicott ”. Attorney McKertich wrote that “the general location of the proposed plant is impacted by severe ground contamination due to the previous use of the site by IBM. The Village and its residents have and will continue to suffer the consequences of this contamination for years. In light of the Village’s experience with pollution, Village residents are concerned about the lack of information and DEC’s failure to conduct a thorough review of the potential environmental, health and safety consequences of the project”.

Attorney McKertich stated that “Sungeel Corporation failed to identify any need for local Planning or Zoning Board approval for this project”. He also stated that it would be  possible “ that the project will require a use variance by the Village Zoning Board of Appeals and, at the very least, a site plan review by the Village Planning Board. Furthermore, the Village’s Aquifer Protection law requires that any activity requiring a permit from the DEC also obtain a special permit , given the presence of an aquifer beneath the Village”.

The Applicant’s Facility is Currently Prohibited

The battery incineration and recycling facility is currently prohibited by the zoning code. The Village’s current zoning code allows only certain, specific activities to be conducted in the Industrial zoning district. Any uses “not listed” are “expressly prohibited” – meaning that if the activity is not in the zoning code’s list of allowed uses, then the use is not allowed, even if the use will be inside an existing building. Zoning Code § 300-22.3 (available at https://ecode360.com/26797942). The Village’s prior zoning code and recently-amended zoning code do not list a battery incineration and recycling facility as an allowed use(1). Therefore, the Applicant’s proposed facility is expressly prohibited by the Village zoning code.

Additionally, the proposed facility does not meet the definition of manufacturing. The Village Code definition section states that the term “‘ Manufacturing’ shall not include the handling of any waste products and materials .” Therefore, the handling (and dismantling of) waste batteries is not “Manufacturing” per the plain language of the Village zoning code, and is not permitted in the Village. Zoning Code § 300-70.2. Even if it were allowed, it would requirea special permit from the Planning Board, and is not permitted as of right.

Therefore, the proposed battery incineration and recycling facility is prohibited, and could not be approved without a use variance.

The Village Board passed a zoning amendment on May 7, 2020 purporting to allow “Recycling Facilities”, but the law was not validly passed, and the Village Board is now in the process of rescinding that amendment.

The Applicant’s Facility Needs Other Approvals

If the Applicant were to obtain a use variance for the facility, the Applicant’s facility would also need additional approvals. According to the Village Zoning Code, there are at least three approvals needed for the proposed facility:

  1. A building permit pursuant to Zoning Code chapter 185;
  2. Site Plan approval pursuant to Zoning Code section 300-63.2 is required for “all new buildings and uses and expansions of existing buildings” ; and
  3. An aquifer permit from the Planning Board pursuant to Zoning Code section 242-5.

Therefore, the facility needs these additional approvals before the Applicant could begin operations.

B. The Determinations Appealed From Were Wrong and Must be Overturned

The determinations being appealed from were wrong, and we respectfully request that this Board overturn those determinations. The facility is not permitted as of right, and, as shown above, the facility would need a use variance in addition to other approvals

Determination by Mayor Jackson

On numerous occasions in the last couple of months, Mayor Jackson has stated that the Applicant’s proposed battery incineration and recycling plant can start operating at any time because “[t]hey were already given permission by the [DEC] in December . . . and got the complete permission to start on April 10”. Email from Mayor Jackson dated May 1, 2020. She has also stated that the zoning amendment to add “Recycling Facilities” to the zoning code is irrelevant because the facility “is allowed” as a “manufacturing” use. Email from Mayor Jackson dated May 2, 2020; see second Email from Mayor Jackson dated May 2, 2020.

The Mayor’s statements that the Applicant’s proposed facility is permitted as a manufacturing use, and that it would not need any permits or approvals from the Village in order to begin operating, are wrong and contrary to the zoning code. The DEC permit does not establish that the facility meets the Village zoning code. As shown above, the battery incinerator and recycling facility is not a permitted use. Moreover, even if it were permitted, or had obtained a use variance, there are additional approvals needed. Therefore, the Mayor’s determination that the facility has “complete permission” must be overturned.

Determination by Anthony Bates

On April 8, 2020, Anthony Bates stated that the Village could “issue the building permit for the company” once the zoning amendment was passed. As noted previously (in footnote 1), the Village Board passed a zoning amendment on May 7, 2020 purporting to allow “Recycling Facilities”, but the Village Board is now in the process of rescinding that amendment. A battery incineration and recycling facility is not listed as an allowed use, so it is prohibited. Even if the recent zoning amendment remained in place, the proposed facility, as described in the attached documents, would not meet the zoning amendment’s definition of a recycling facility. The facility technically meets the definition of a commercial and industrial solid waste incinerator unit per the US Environmental Protection Agency determination dated July 16, 2019.

Notably, the zoning amendment’s definition of a recycling facility does not include incineration. Moreover, the proposed facility’s burning and destruction of a high percentage of the battery’s component parts means that those parts that are not “recycled” or made available for “resale”; they are wastes that are emitted into the air or otherwise discharged or discarded. Therefore, the proposed facility does not meet the Village’s new definition of a recycling facility.

As such, the proposed facility is not an allowed use, and cannot be issued a building permit. Mr. Bates’ determination was wrong and must be overturned by this Board

C. Harmful Impacts from the Proposed Facility

The Applicant’s proposed battery incineration and recycling facility has the potential to emit harmful toxic air emissions. The April 20, 2020 letter from the Village’s own consultant states that:

“The process includes a rotary kiln dryer, which heats the Lithium-ion batteries (LIB) using indirect heat from a natural gas fired burner in a rotary kiln to temperatures between 550-600 degrees Celsius (1,022-1,112 degrees Fahrenheit).”

“The emissions from this process include combustion emissions from natural gas combustion including particulate matter (PM), carbon dioxide (CO2), carbon monoxide (CO), sulfur dioxide (SO2), nitrogen oxide (NOx), and hydrocarbons. The emissions from the actual drying of the battery cells are defined as process emissions and include ammonia, formaldehyde, hydrogen chloride, sulfuric acid, fluoride compounds, several metal compounds, and polychlorinated dibenzo-p-dioxins (PCDD)). Of these potential process emission air contaminants, there are several NYSDEC classified as highly toxic air contaminants (HTACs) including formaldehyde, PCDD (dioxins), and metal compounds.”

A facility of this nature – especially without any approvals or restrictions – poses a threat to the existing community character of the Village, which is adjacent to dense areas of relatively smaller residential structures. Additionally, the proposed facility has the potential to cause adverse impacts to the use and enjoyment of public resources, such as Logan Field, George Johnson Park, the public swimming pool, and the carousel, which are all in close proximity to an Industrial zone.

All of these impacts demonstrate that the Village zoning code should not be interpreted broadly to allow a battery incineration and recycling plant to be permitted without a use variance and the additional approvals required for this type of facility. Moreover, these impacts demonstrate that the Appellants are aggrieved by a decision allowing the facility without a use variance and all of the necessary approvals.

Thank you for your time and attention to this important matter.

Sincerely,

                        /s/ Claudia K. Braymer

Claudia K. Braymer

enc.

cc: Robert H. McKertich, Village Attorney
Appellants

(all via e-mail)

 

Attachment to ZBA Appeal
Description of the SungEel Battery Incineration and Recycling Process
By Paul Connett

  1. The operation involves discharging and dismantling lithium ion batteries of many different designs and feeding the cells into a rotary kiln operating at 600 degrees C. The gases from the kiln are then burned in an afterburner operating at 800 degrees C or more. The purpose of these two stages are to separate the valuable metals in the electrodes from the non-metallic parts of the batteries (the electrolytes, the binders, the separators and some of the casing).
  2. The metal parts leave the kiln at the base but the non-metallic parts are variously melted, vaporized and partly broken down chemically by the high temperature in the kiln and some may even ignite. The resulting gases and particles exit from the top of the kiln and then burned in the afterburner.
  3. In other words, the metals are recovered, the non-metallic part is destroyed or sacrificed from a recycling point of view. Thus, the process is half recovery and half destruction. Half recycling and half incineration.
  4. Contrast this with the process used by the company Duesenfeld Recycling.  In its case the graphite and the electrolyte are not incinerated. Their overall recycling rate of battery cell materials is 91%, compared with just 32% for pyrometallurgical processes like SungEel. (  https://www.duesenfeld.com/ecobalance.html)
  5. From the point of view of the need to shift from a linear economy to a circular economy, any process involving incineration goes in the wrong direction. In addition, burning processes create more carbon dioxide and contribute to global warming. SungEel is also using natural gas to heat up the rotary kiln – another source of carbon dioxide and global warming.
  6. A large concern is the very toxic by-products (and the potential dangers thereof) created when burning the non-metallic parts of these batteries, particularly the fluorinated polymer PVDF which is 60% by weight fluorine, the electrolyte LiPF6 which is 75% fluorine, the electrolyte Li (bis trifluoromethansulfonyl)imide which contains a 3-carbon PFAS, and any other substance that contains fluorine, bromine or chlorine.

 

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