Gov. Cuomo signs toxic burning ban, vetoes bill to protect small streams

Photo by Joe Ritchie, used with permission
Smoke from the Norlite incinerator can be seen from the Saratoga Sites Public Housing complex in Cohoes earlier this year.

On Nov. 23, Governor Andrew Cuomo signed landmark legislation that will ban incineration of fire fighting foams containing harmful chemicals in certain cities. This new law is documented as being amongst the first of its kind in the nation, a notable victory for critics of foam incineration at the Norlite facility in Cohoes, New York.  

The fire fighting foam, or Aqueous Film Forming Foam (AFFF), contains perfluoroalkyl and polyfluoroalkyl substances (PFAS) which are commonly used for other resistant materials such as nonstick cookware and water resistant clothing. However, the strong chemical bonds that allow for these products have resistant qualities also make it extremely difficult to break down in the environment. PFAS are often referred to as a “forever chemical” because there is nothing naturally occurring that is strong enough to break these chemical bonds, causing it to accumulate in the air, soil, water — even in our bodies.

Due to prolonged exposure and lack of comprehensive regulations, PFAS can likely be found in the blood of almost all Americans, according to the U.S. Centers for Disease Control and Prevention (CDC).

The Nortlite facility in Cohoes is responsible for burning 2 million pounds of foam containing these forever chemicals in 2018 and 2019. The facility is also just a three minute walk from the Saratoga Sites housing complex, according to Google Maps. 

Close proximity to the incineration of this harmful contaminate has raised concerns for residents in the surrounding area due to potential for adverse effects on the human body. This is not to mention the distance that PFAS can travel through air and water to other communities outside Cohoes. 

According to the Environmental Protection Agency (EPA), “The most-studied PFAS chemicals are PFOA and PFOS. Studies indicate that PFOA and PFOS can cause reproductive and developmental, liver and kidney, and immunological effects in laboratory animals. Both chemicals have caused tumors in animals.”

The bill (S.7880-b/A.9952-b) was sponsored by Capital Region lawmakers, Sen. Neil Breslin, D-Delmar, and Assemblyman John McDonald, D-Cohoes.

The decision for the governor to sign this legislation on Nov. 23 followed the passing of the Albany County Clean Air Act in early September. The county legislation was considered one of the most protective air pollution legislation in the state on the county level. Although a notable accomplishment for supporters, the 19 municipalities located in the county were able to opt out of the law through their own local statutes.

Consequently, legislators and environmental advocates recognized that the work was not finished after the Albany County Clean Air Act was passed, leading to the pressure for Gov. Cuomo to sign the recent legislation. The law on the state level could ban waste burning outright without opt out options as allotted on the local level. 

“While the federal government has failed to regulate these compounds or protect the health of our communities, New York continues to respond to the threats posed by emerging contaminants like PFAS in our environment with sustained science-based actions,” Governor Cuomo said in a press release. “While this measure will ban incineration of firefighting foam containing these compounds in cities like Cohoes, our work is not over. We remain fully committed to this effort and will continue to advance comprehensive, statewide measures which protect all New Yorkers and our environment from emerging contaminants.”

The law signed by Gov. Cuomo is limited to “cities designated as Environmental Justice areas by the New York State Department of Environmental Conservation where the population is between 16,000 and 17,000 residents.” 

The effectiveness of the law will depend on certain criteria which includes population size. As a result, residents living in rural, less densely populated areas in the state may not have the same protections as those living in dense cities.

In the same week the governor signed the foam-burning ban, he vetoed legislation that would have expanded water protected under existing environmental conservation law. 

The legislation, S.5612A/A.8349, was sponsored by Senator Pete Harckham and Assemblyman Sean Ryan. The bill passed the state Senate in both the 2019 and 2020 session, while passing in the Assembly in 2020.

It would have extended the Department of Environmental Conservation’s Protection of Waters Program to class-C streams intended to provide oversight to projects which may disturb stream banks or beds. Supporters of the bill say many smaller streams are misclassified, and broader protection is needed to protect trout populations and other wildlife.

The reason for the veto was due to the financial burden it would cause. State Senator Thomas O’Mara (R-Big Flats) joined the opponents of this legislation, citing that it would put local governments in a position where they would be unable to uphold critical stream and infrastructure protection.

Senator O’Mara was a part of a group of legislators representing the Southern tier, Finger Lakes and Western New York who wrote a letter to Gov. Cuomo, urging him to reject the legislation on the grounds that it would force reclassification of thousands of miles of streams which would be costly and impractical.

In the letter, Chemung County Soil and Water District stated, “Currently, Soil and Water Conservation Districts are leaders in their local communities assisting public entities and private citizens with thousands of stream habitat, stabilization, flood remediation, and flood mitigation projects on an annual basis. We oversee and install these projects and go through an arduous permitting process that we can assure you has not been dissolved…This bill, while intended to preserve and protect water quality, would inadvertently set conservation efforts back 50 years.”