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New York’s failure to review permits for the state’s worst air polluters in a timely manner has meant some businesses have gone years without conducting tests to determine how much pollution they are spewing into the air, according to documents obtained by The Buffalo News. It’s a lapse in oversight by the state’s Department of Environmental Conservation that has left communities − including the Town of Tonawanda and Buffalo − burdened with unchecked levels of toxins in the air. The DuPont Yerkes Plant in the Town of Tonawanda has gone eight years without conducting tests to determine how much pollution it’s spewing into the region’s air.
“DEC often says there’s nothing illegal about them doing this, and that may be the case, but it doesn’t mean that it’s protective of public health and the environment,” said Judith Enck, a former U.S. Environmental Protection Agency administrator and president of Beyond Plastics.
Locally, the DuPont Yerkes Plant in the Town of Tonawanda has not conducted stack testing in eight years, according to the DEC and documents obtained by The News. Dupont’s Title V permit expired four years ago. Because many major air polluters in New York operate on Title V permits that have surpassed their expiration dates , emissions testing that was required “once during the term of the permit” may have not happened since the permits expired, the DEC told The News.
Title V permits are administered by the DEC and issued for a period of five years in accordance with the federal Clean Air Act. When the DEC includes language in a business’ Title V permit requiring emissions testing, the testing frequency is set at a minimum of once per permit term, the agency told The News. But a facility’s permit term may extend years beyond the five years it was originally issued for when the DEC fails to renew permits in a timely manner and allows companies extensions on their Title V permits.
Emissions, or stack, testing is essentially a checkup for a facility that pollutes toxins into the air: A company hires someone to look at its equipment and ensure that everything is working properly. The stack tests also verify that the amount of toxins a company reported being released into the environment is accurate. Without frequent stack tests, a lot is left to the unknown.
“These tests are the backstop safety check to ensure that everything else is working,” said Bruce Buckheit, a former director of the EPA’s Air Enforcement Division. “Without them, you don’t know for sure.” The tests can be expensive and take time, meaning companies typically aren’t motivated to conduct them unless required, Buckheit said.
The DuPont Yerkes Plant on River Road has not conducted stack testing since 2016. Its Title V permit had an expiration date of Feb. 8, 2020, but the facility has been allowed to continue to operate under the old permit through an extension by the DEC under the State Administrative Procedure Act.
Stack testing at the DuPont plant is meant to be a check on the facility’s emissions of toxins known as volatile organic compounds, including vinyl fluoride. The probable carcinogen is explosive and can cause various health issues at high rates of exposure. DuPont is limited to emitting 15,000 pounds of vinyl fluoride per year, according to its permit.
“They have no way, without a stack test, of knowing that they’re achieving that,” Buckheit said. The DuPont Yerkes manufacturing facility in the Town of Tonawanda, Wednesday, Dec. 11, 2024.
In 2023, DuPont reported to the EPA it emitted 7,710 pounds of vinyl fluoride into the air at its Tonawanda plant. But those reports are based not on stack tests, but on engineering calculations by the company done at the time of the previous stack test to determine what pollution control measures were needed to comply with the permit’s emissions limits, Buckheit said. The current accuracy of those calculations cannot be verified without regular stack tests, he added.
Stack tests at other facilities have found failures in equipment designed to stymie the flow of toxins into the air. At the Goodyear plant in Niagara Falls, stack testing found that the pollution control measures at the facility did not capture the expected amounts of ortho-toluidine, a toxic, cancer-causing chemical, according to reporting by WBFO . As a result of the testing, Goodyear discovered it had released significantly higher concentrations of the chemical into the air than legally allowed and the DEC issued a permit violation notice in 2023 , WBFO reported.
The DEC denied requests by The News for an interview about the DuPont facility. In a statement to The News, a spokesperson for the DEC said the agency “carefully reviews all applicable federal and state standards to ensure the agency’s decision-making is protective of public health and the environment and meets applicable standards and is closely monitoring the DuPont Yerkes facility to ensure it complies with all of New York State’s stringent environmental requirements.” Additionally, the DEC said it has not required additional testing at DuPont since the Title V permit was extended because “inspections, semiannual compliance reports and annual compliance reports have not raised compliance concerns and DEC has not received complaints about this facility.
” Dan Turner, a spokesperson for DuPont, wrote in an emailed statement that the facility “is currently operating in compliance” with its permit. In a “collaborative decision” between the DEC and DuPont, Turner said the company plans to conduct stack testing in 2025 − nearly a decade after it last tested. “DEC’s attempt to reassure the public that DuPont is ‘in compliance’ because it performed smokestack testing nearly eight years ago is totally absurd,” said Keri Powell, the air program leader at the Southern Environmental Law Center, in an emailed statement.
“If DEC had acted on DuPont’s permit renewal application on time, DuPont would have already undertaken another round of testing to demonstrate that its air pollution meets Clean Air Act limits. The fact that it hasn’t done that testing is due to DEC’s failure to comply with the Clean Air Act and renew DuPont’s Title V permit back in 2020 when it expired.” Unicell Body Co.
off Howard Street in South Buffalo has not conducted a stack test to check emissions of styrene, a possible carcinogen, and toxic methyl methacrylate since 2008. Other plants don’t do regular stack tests Dupont isn’t the only major polluter in the state that the DEC hasn’t required to conduct stack testing on a regular basis, according to permitting language. A large landfill in Brookhaven on Long Island, a plastics producer in Hoosick Falls, Cornell University’s campus in Ithaca and a packaging producer in Macedon along the Erie Canal all have permits that have passed their expiration dates and include language similar to DuPont’s, requiring stack testing “once during the term of the permit.
” Unicell Body Co. off Howard Street in South Buffalo hasn’t conducted a stack test to check emissions of styrene, a possible carcinogen, and toxic methyl methacrylate since 2008, according to its 2023 annual compliance report. The facility’s permit expired in February 2013 but has since been extended by the DEC.
After the 2008 testing, the DEC determined that no additional emission testing was required or necessary, according to the agency. A total of 33 of the 38 issued Title V permits in Erie and Niagara counties have passed their expiration dates, according to data from the DEC. Statewide, 193 of the 302 Title V permits issued to major air polluters, or 64%, had expired as of mid-December, according to the DEC’s data.
Though their permits expired years ago, the facilities can stay open because state law allows them to operate under the old permits as long as they apply for a permit renewal before the old one expires. The loophole has allowed facilities in Western New York to operate as long as 12 years beyond their permit’s expiration date, the DEC’s data show. Most Title V facilities in the region have permits with expiration dates of about five years.
“The lack of stack tests at Dupont is emblematic of the underlying, larger issue of inaction on permit renewals at NYSDEC,” said Chris Murawski, executive director of the Clean Air Coalition of Western New York. “We understand that reviewing these permit applications are monumental undertakings, but the longer the DEC takes to review, the greater the risk to public health and our environment becomes.” The DEC and the EPA have the broad authority to require stack testing at facilities with Title V permits at least once every five years, Enck said.
“The stack test is the foundation of strong air pollution regulation, and it should be done regularly and it should be done during typical operating conditions,” she said. Reach climate and environment reporter Mackenzie Shuman at [email protected] or 716-715-4722.
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