Is TCI attorney Bill Better ignorant of basic zoning law and environmental precepts? Or is he just counting on his audience to be clueless?
It’s hard to tell, here on the one-year anniversary of the company’s devastating fire and explosions in Ghent... at least, based on Better’s carping and tendentious letter this week to the Columbia County Emergency Management Council, or EMC.
This site obtained a full copy of Better’s letter on Wednesday; it can be downloaded in full via this link.
As first reported here, the EMC issued a memorandum in late June recommending new steps be taken to prevent further disasters like the one at TCI at the start of last August. The day-long fire forced thousands of County residents indoors, and put countless firefighters at risk.
In response to a well-founded critique that the company failed to seek required permits, TCI’s legal flack blusters that “the Town requires no such approvals and there is no office or official prepared to issue them... No Town or County codes exist with respect to PCBs.”
Unfortunately, Better’s argument just doesn’t pass the legal laugh test. And to understand why does not require a law degree.
There are two basic types of local zoning codes in New York: Restrictive or Permissive. Restrictive zoning only allows those activities which are specifically identified as permitted uses. Any other uses not specifically spelled out in the code are not allowed. Permissive zoning is the reverse: Any uses not specifically prohibited are allowed.
Almost all towns in our region—including Ghent—opt for restrictive zoning, for a one very obvious reason: Because it’s impossible to anticipate every single cockamamie idea that some human or corporation might propose.
Thus when Better fails to find anything in the Ghent code mentioning the dechlorination of PCBs, that absence ought to have told him that it is unpermitted. Instead, TCI’s attorney plays (or acts) dumb, as if not understanding the fundamental premise of restrictive zoning.
The only way for such an unusual use to be allowed as-of-right within a restrictive zoning code would be to argue that it’s a “customary accessory use” to some other permitted activity. For example, you can have a swingset in your backyard even if your local code does not mention swingsets, because everyone agrees swingsets are customarily found on residential properties.
But no reasonable person would say that bringing in an outside contractor to heat PCBs in a trailer and dose them with explosive sodium is customary to a commercial or manufacturing business in Ghent. In any case, even Better does not even try to advance such an absurd argument. (NOTE: It also has been argued in Ghent that the mere act of bringing in a second company to the TCI building in itself should have triggered a permitting request.)
Next, Better struggles to argue that TCI’s catastrophic explosions, which leveled their facility to the ground, were “nothing more than a fire.” As such, he feels the EMC was “wrong to describe the fire as an ‘environmental incident’.”
What this lawyer characterizes as a mere “fire” prompted County emergency management officials to tell all residents within a 15-mile radius to stay indoors all day, and required a response from virtually every fire company within that same radius.
More to the point: Does Better really believe that it’s environmentally safe and legal to dispose of PCBs in a gigantic, uncontrolled bonfire punctuated by multiple explosions?
If that were the case, TCI would be in a different business: burning PCBs in huge ad hoc bonfires. After all, why bother trying to dechlorinate PCBs, or to dilute them in mineral oil, if it were environmentally safe to just torch them? There is no question that TCI’s facility contained large quantities of PCBs; the estimated amounts onsite at the time of the fire are spelled out in the company’s own engineering report.
In an attempt to minimize his client’s negligent management , Better falls back on a favorite weasel word of apologists for polluters: “measurable.” His letter argues that no “measurable contamination” was found in the surrounding air, soil or water. Once again, neither the facts nor common sense are on Better’s side. In point of fact, even the limited testing by EPA and DEC did find “measurable traces” of PCBs near the former plant site, including at least one hotspot.
And of course, if PCBs have disappeared in a fire, it’s likely they were dispersed widely, or volatilized into something else. But notoriously, those agencies did not take the promised step of reassuring the public by testing for dioxins and furans, into which PCBs often transform when incinerated.
The shameless sophistry of Better’s “environmental” argument is also on display in the statement that “less than 5% of the material on site the night of the fire involved PCBs.”
Once again, TCI’s lawyer seems to expect his readers to be unfamiliar with the rudiments of chemistry and combustion. With a highly-toxic substances, 5% is a very large amount. Saying that “only” 5% of the material burned involved PCBs is like a bartender reassuring a customer that only 5% of his martini contains arsenic.
Meanwhile, Better conveniently ignores that TCI’s disaster—its second fire of 2012—sent up a thick, dark plume observed for many miles around. The vast size of that plume meant that nearly all of its building materials and contents, including those PCBs, were distributed as soot or gases over a large area—making it unlikely that high concentrations would be found in any one spot. But this does not make unplanned, accidental incineration safe or legal.
Industrial polluters often try to escape responsibility by spreading their effluvia over a large area (typically, from a tall stack) making it difficult to definitively finger them for the spread of pollutants. But we know that PCBs were improperly burned in their unintended infermo. And as any Environmental Sciences 101 student knows, dilution is not a solution to pollution.
Better also works himself up into high dudgeon in protesting the supposed lack of “courtesy” extended to his clients by the EMC. It was not a secret that the EMC was studying ways to address future potential disasters, based on the TCI fire; indeed, Better showed up unannounced at a February EMC meeting to make his case, taking the added hostile step of bringing along a stenographer, as if the meeting were a court proceeding.
Better’s feigned ignorance of the EMC’s workings, and show of being offended by its lack of deference, perhaps is a reflection of how the attorney is used to being treated with kid gloves by the County. (Better is a former County attorney, who stepped down after three female employees filed sexual harassment lawsuits against him.)
The minutes of the Columbia County Economic Development Council (EDC) suggest how Better normally expects his clients to be mollycoddled. Himself a board member of the EDC, but frequently absent from its meetings, Better did show up for the February 26th, 2013 meeting—at which TCI boss Brian Hemlock made a presentation. Hemlock was personally introduced by EDC Chair David Crawford, whose engineering firm Crawford & Associates works and advocates for... TCI. Hemlock “asked the board for their support for the company by attending meetings” about the company’s plan. Of course, none of the many residents concerned with the fallout from TCI or its plans to rebuild were invited.
Better even goes so far as to downplay the extreme risk to which Columbia County firefighters were exposed a year ago on the night of August 1st-2nd, saying that “no firefighter was injured in the fire.” Leaving aside the possibility that firefighters may have been exposed to various toxic emissions at the site, the fact that TCI just barely missed an even worse disaster should not reassure anyone.
As Churchtown firefighter and 1st Lieutenant Nathan Chess wrote in a widely-circulated letter, “We were only minutes away from bagpipes and flag-draped coffins.” But apparently Better thinks that the risk posed to the County’s first responders was acceptable, because they retreated from the explosions just in the nick of time.
As one TCI neighbor commented after reading Better’s letter: “How and why does Bill Better think he is the authority on what regulations would be onerous or unnecessary for the safety of Columbia County? The gall of this guy is shocking.”
