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Falls plant was fined in past for discharging mercury, raw sewage

ALBANY – The Niagara Falls wastewater plant, home to last week’s discharge that turned parts of the lower Niagara River into a black and smelly mess, has been fined twice over the past decade for illegal levels of contaminants, including mercury.

The state Department of Environmental Conservation entered into consent order with the Niagara Falls Water Board as recently as the spring of 2015, after a review found that the plant discharged higher-than-acceptable levels of mercury into the river over a 15-month period ending in October 2014.

State law could have led to a $37,500 per day fine against the board, but the two sides reached a binding consent order that included a $10,000 penalty and several operational changes to reduce the levels of mercury, a neurotoxin that has been a problem in the Great Lakes for decades.

The plant illegally released millions of gallons of raw sewage into the Niagara River over numerous days in 2003 and 2004, according to a 2005 consent order The Buffalo News obtained. During one two-day period in August 2003, the plant dumped 9.4 million gallons of “overflow” over 23.5 hours.  The board was fined $10,000, according to the consent order.

State DEC officials, speaking on background, said it is not uncommon for a wastewater treatment plant in New York to operate under a consent order because of some level of discharge violations.

Falls Water Board concedes that human error led to black discharge

The state DEC on Friday provided The Buffalo New with a spreadsheet of nearly 1,500 water tests between Nov. 1, 2014 and this past June 30. They showed 21 cases where discharges into the Niagara River exceeded permitted levels –  a compliance rate of nearly 99 percent.

The 2005 agreement also called for $2.8 million worth of improvements at the Niagara Falls plant to end what had become a steady number of prohibited discharges during both rainy and dry weather.

In both the mercury and raw sewage cases, the overflows far exceeded the state permit levels.

In its own reporting system, the U.S. Environmental Protection Agency noted that the mercury discharges led to the plant being classified in “noncompliance” because of “significant violations” over the five different quarters beginning in June 2012.

The 21 violations that the DEC noted since 2014 included higher-than-allowed levels of “coliforms, suspended solids and pH” – which come from sewage – and five cases of “trace” organic chemicals.

Officials noted that the tests were done by the Niagara plant, or an outside lab, and furnished to DEC as part of a routine process by all permitted wastewater plants. Those nearly 1,500 tests are among the aspects of the plant’s operation that the DEC is now investigating after Gov. Andrew Cuomo ordered the agency to look into how last Saturday’s discharge into the river – the subject of headlines around the world – happened.

“I have directed DEC to leave no stone unturned in getting to the bottom of this very serious and unfortunate incident,’’ Cuomo said in a written statement Friday.

He said the Niagara Falls facility will be “held accountable for all violations that may have occurred.”

Officials with the Niagara Falls Water Board, a public agency, did not return calls for comment on Friday. The agency’s chairman, Dan O’Callaghan, on Thursday declined to discuss specifics of the incident because, he said, the agency is under investigation. While state officials have said they found no immediate environmental damage as a result of Saturday’s discharge – which came during backwashing of one of its holding basins – the incident has brought a broad investigation of the facility’s operations by the state DEC.

A senior DEC official, in discussing the two consent orders involving the treatment plant, said the sewage overflow incidents were “flat out illegal.’’

In the case of the higher mercury discharges, the official said the plant was ordered to abide by sharply lower discharge levels and to take more than a half dozen steps to address the problem.

The consent involving the mercury discharges held that three-quarters of the fine would be suspended if the plant met discharge thresholds contained in the agreement. The order noted that in its worst reporting period – March 2013 – mercury discharges into the river exceeded the original levels set by a state permit by more than 600 percent.

The state and the water board, a public benefit corporation, agreed to the consent order “to avoid protracted and expensive litigation,’’ the document states.

An EPA spokeswoman referred questions about the discharges involving the consent orders to DEC, which is delegated by the federal government to monitor compliance by treatment plants with the federal Clean Water Act.

The consent order involving mercury discharge levels is still in effect and can result in penalty levels of as much as $600 per day if terms are violated. The consent order period expires Dec. 31.

One of the that order’s provisions called for the water plant to replace what the agency calls sludge collection equipment in two of the facility’s five holding basins, including Basin 5. That is the basin that last Saturday was being drained for renovation work and that was the source of the discharge that emptied into the river below Niagara Falls during the height of the summer tourist season.

A DEC spokesman said the work required in that consent order is different than the basin renovation the water board was undertaking at the time of last weekend's discharge.

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