Friday, August 31, 2012

Marcy NanoCenter in the Balance - Part 1

In case you missed them, there were two excellent interviews on WUTQ this week concerning Army Corps of Engineers' recent denial of a wetlands permit for the Marcy NanoCenter project pending that project signing up a tenant.

Jeff Hawk of Army Corps of Engineers vs Steve DiMeo of MV EDGE  

Administrative balancing . . . 

ACE is an administrative agency charged with carrying out the provisions of Clean Water Act Section 404.  It can only act within the authority found in its governing statute and regulations. Its decisions must be based upon substantive evidence.  It cannot act arbitrarily or capriciously. It also has an obligation to act and not avoid its responsibilities. ACE must balance each proposal against what is required by law. 

ACE is concerned that EDGE will never find a tenant, and that, per ACE's decision, the wetland “will be filled without purpose.

"Purpose" is key to understanding this controversy . . .

As understood by the public, the  purpose of this project is to have an Oneida County site prepared where the semi-conductor industry can simply come in and break ground on a plant without delay, with the ultimate goal of producing local jobs. 
There is nothing in the Part 230 regulations that allows ACE to evaluate the purpose of the project beyond determining whether or not it is a water-dependent activity and whether it might be more appropriately conducted elsewhere with less adverse impact. ACE feels that it needs the tenant because it hopes to work with the tenant to get the tenant to modify its requirements to further reduce the impact to the wetland -- but that defeats the entire purpose of the project by injecting delay and uncertainty. Simply put, ACE does not have the legal authority to change the purpose of the project but its position is an attempt to do so.

Previously ACE had issued a permit to EDGE with the condition that no work be performed on the site without a written contract securing a tenant.   "In the District’s view, issuing a conditioned permit achieved the goal of identifying a site that was “pre-approved” or “pre-permitted” in order to attract a semiconductor facility . . . "  Mr. Hawk admitted during his interview on WUTQ that ACE has no expertise in the semi-conductor industry.  ACE's determination that its previously-issued permit was sufficient "to attract a semiconductor facility," thus, was a determination that was both outside its expertise and not based upon substantive evidence.   

As pointed out by Mr. DiMeo during his interview, ACE has issued similar permits for shopping centers without requiring the developer to have signed commitments from tenants. Why did not ACE require commitments in those situations to ensure that the wetland is not filled "without purpose" or to work with those tenants to get them to reduce their impacts by, perhaps, reducing the sizes of their stores?  What regulation allows ACE to make the tenant a requirement for EDGE's proposed shovel-ready site but not for shopping centers?  ACE is acting arbitrarily and capriciously when it requires tenants in one situation and not the other.

Simply put, ACE, without authority, without evidence, and without the proper expertise has arbitrarily imposed a tenant requirement to avoid conducting the review it is commanded by law to perform. We can only guess why it has done this.

This situation can only be rectified by ACE's recognition of its errors and doing its job, or by litigation.

Whether or not Oneida County should proceed to litigation involves another type of balancing ... but that will be discussed in Part 2.


Anonymous said...

The questions continue to go begging for answers. Why was this problem not red flagged to begin with? And, why have we been spending a small fortune running around the world trying to market a site not "ready"?

Anonymous said...

Destito was guiding this one. Giving our locals the impression that this would happen due to deals made in Albany with Shelly Silver.

Destito brought in a lot of money to support this project. Now she is gone and Shelly doesn't have the obligation any longer to keep the money flowing.

DiMeo, Picente, and all those influenced and supportive of Destito marched in tune with the song she was singing.

Dave said...

I can understand that an agency charged with protecting water resources wants to determine if a resource is being unnecessarily distrubed by no more than a politician's pipe dream.
"ACE feels that it needs the tenant because it hopes to work with the tenant to get the tenant to modify its requirements to further reduce the impact to the wetland -- but that defeats the entire purpose of the project by injecting delay and uncertainty." But it's in line with the agency's charge to get the best deal for the environment.

Anonymous said...

Why has central NY been one part of the state left out of the economic development centered around humble agricultural/food processing? Look to the east to Johnstown Industrial Development Park and witness hundreds of jobs that have sprung up in relation to Fage Yogurt and Euphrata Cheese. Look to the south and see a $200,000,000 investment by Chobani, generating 1400 jobs by a company propelled from zero to $1 billion in sales in 7 years. Look to the west and see Pepsi investing millions into building North America's largest yogurt plant in partnership with Muller (Germany's largest privately held dairy firm). Alpina Foods (controls 70% of South America's yogurt is also setting up in western NY on a site that was shovel reqdy in 21 days. The Mohawk Valley is an area rich in grasslands, dairy farms. Our resources and the humble farms that are quiet engines of economic development are virtually invisible to the powers that be of the Mohawk Valley. Too bad...other areas have been well-rewarded for paying attention to food.

Strikeslip said...

Good point, Anonymous! I think it is because ag-oriented businesses are not on EDGE's radar screen. I do not think it is one of the industrial "clusters" that they have identified as being ripe for development. I can think of another use of the word "cluster" in relation to EDGE and what has been done to the taxpayer, but I want to maintain a certain level of decorum when discussing issues here.

Anonymous said...

Why isn't ag business on EDGE's radar? Because the only person on EDGE's staff with ties to ag business is too worried about protecting her parents' personal financial interests in Marcy than in building the county.

Anonymous said...

It's not just EDGE ignoring Ag opportunities. Take a good look @ which county legislators sit and lead what committees and sit on boards @ CCE. If you're business is local Ag, why foster competition?

Anonymous said...

AND, this is just what I've heard but certainly deserves to be that Dimeo and co REJECTED an opportunity at landing one of the above mentioned yogurt facilities @ Griffiss because it didn't fit with what they trying to create there.

Anonymous said...

I wonder if it was the Fage plant? Their reps stated at the Governor Cuomo's Yogurt Summit that they had looked for a site in the Mohawk Valley close to the Thruway, in proximity to the hundreds of dairy farms of the Mohawk Valley, and with good water.
Fage has grown by leaps and bounds. They are adding on another 150 jobs. Their capacity has expanded from 6,000 tons to 85,000 tons of yogurt, they claim they will be outgrowing soon.
Humble dairy processing has also resulted in big purchases from Feldmeier in Little Falls for building the huge stainless steel towers for milk storage. I spoke with a group of lab technicians who re-tooled their lab skills into dairy lab work and were delighted. People are driving from Herkimer to Chobani in Chenango County at this point. Some of them are headed out to Idaho to help Chobani train new employees in the new plant they are building in Idaho because they can't get enough milk in NY. (yeah, I remember talking with some of our illustrious leaders who told me that food would be imported in the future).