Mar 7


Judge rules in favor of industrial park construction

Court rules Orleans County waited too long to file lawsuit challenging construction of a sewage pipeline that would service the STAMP industrial park in rural Genesee County. A federal hold on the work remains.

The Orleans County County Courthouse in Albion.

A judge Thursday tossed out a lawsuit that threatened continued development of a massive industrial park in rural Genesee County.

Orleans County had sued in an effort to halt construction of a sewage transmission line through its jurisdiction that would route wastewater from the STAMP industrial park into Oak Orchard Creek. Orleans officials contend the wastewater would pollute the creek and potentially damage the county’s fishing industry.  

State Supreme Court Judge Frank Caruso dismissed the case on procedural grounds. He ruled Orleans County waited too long to file suit.

The case pitted neighbor against neighbor — Orleans County against the Genesee County industrial development agency — and halted work on critical infrastructure for the 1,250-acre Science, Technology and Advanced Manufacturing Park which is supported by Gov. Kathy Hochul and Sen. Chuck Schumer.

Attorneys for the IDA, called the Genesee County Economic Development Center, argued that Orleans County should have sued over the pipeline much sooner, perhaps as far back as 2016. “Silence” was the only response Orleans County gave “over the course of at least eight years” when asked for input on STAMP and its infrastructure, attorney James O’Connor argued. 

Orleans County argued that a subsidiary of Genesee County Economic Development Center was illegally taking land in Orleans County via eminent domain for the pipeline. Orleans County attorneys argued Thursday that their lawsuit was timely because,  until the Genesee County agency began taking land for the pipeline, the project was in the planning stages.

“When Orleans County was silent about this back in 2016, it’s because it was in the planning stage,” attorney Alex Eaton, with the firm Lippes Mathias, argued Thursday.

The judge’s ruling lifts a restraining order that had prohibited the continued construction of the pipeline into Orleans County. But the federal U.S. Fish and Wildlife Service has a separate hold on the work, which remains in effect. 

That stoppage is tied to three spills of drilling fluids in federally protected wetlands in the Iroquois National Wildlife Refuge. Those spills happened last August and September after hydraulic drilling for the pipeline by a contractor went awry.

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The pipeline at the center of the dispute between the counties would run nearly 10 miles down Route 63, cross from Genesee to Orleans counties and dump up to 6 million gallons of wastewater into Oak Orchard Creek every day once the industrial park is at full capacity. The pipeline would service STAMP, which the Hochul and Andrew Cuomo administrations have supported with $100 million in state funding to date to lure high-tech industries to Western New York.

But STAMP, located in a remote corner of Genesee County, lacks the needed infrastructure to cater to such companies, which require significant amounts of electricity and water. The companies also require wastewater infrastructure. After initial plans to dump the wastewater closer to the STAMP site fell through, Genesee County Economic Development Center settled on a plan to dump it some 10 miles away, in Orleans County.

Orleans County is opposed and sued in September.

Even though the wastewater would be treated before entering the creek, Orleans County officials contend it could cause irreparable damage to Oak Orchard Creek by increasing phosphorus levels. That, the county argued, would harm the fish that feed and breed in the creek, causing further damage to the local tourism industry.

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Investigative Post previously reported that discharging more phosphorus into Oak Orchard Creek could violate the Clean Water Act. The state Department of Environmental Conservation, which issued a permit in 2022 allowing the discharge, has acknowledged the issue and has said its working with Genesee County Economic Development Center to amend the permit. Attorneys for that agency, however, contend that the pipeline is legally permitted for construction and operation.

Speaking to reporters, Eaton said Genesee County Economic Development Center began construction too soon, before it had all of the land it needed for its project. Several landowners granted easements to Orleans County to prevent construction of the pipeline.

“It’s like if someone wants to build an apartment complex that crosses two lot lines,” Eaton said. “It wouldn’t make any sense for them to build half of the building on the one lot they know they can be in and then say you have to give us approval to enter the second one because we’ve done too much of this.”

Attorneys for Genesee County Economic Development Center — O’Connor and Matthew Fitzgerald of the law firm Phillips Lytle — declined comment on Thursday. Jim Krencik, a spokesperson for the Economic Development Center, said only that the agency was “reviewing with our counsel the ruling made by the judge.”

While Caruso’s ruling Thursday ends one restriction on pipeline construction, Genesee County Economic Development Center cannot continue building it due to the second restriction from the U.S. Fish and Wildlife Service.

A spokesperson for the U.S. Fish and Wildlife Service declined comment Thursday, and referred Investigative Post to the Department of Justice because of a separate lawsuit against the pipeline. In that case, the Tonawanda Seneca Nation is suing the U.S. Fish and Wildlife Service — which issued a right-of-way permit for the pipeline to run through the Iroquois National Wildlife Refuge. A justice department spokesperson did not immediately respond to a request for comment.

Linda Logan, a clan mother with the Tonawanda Seneca Nation, said Thursday she was disappointed Caruso tossed Orleans County’s lawsuit. 

“It’s a wastewater pipeline that will bring in more construction and companies into that site and that would affect us,” Logan said. “We love the land, we love it, and that’s how it should be in this day and age. People should love the land more.”

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