Simon Kinsella vs. South Fork Offshore Wind (eco-issues aplenty)

By Sherri Lange -- September 1, 2022

“We congratulate Simon Kinsella for his fortitude and diligence. Other communities are in line for similar threats as from South Fork Wind proposal (Long Island). Pushback to agencies that thrust agreements and permits in favor of wind development without appropriate assessment is essential, economic issues aside.”

Simon Kinsella of Suffolk County New York is no stranger to legal proceedings. His filing last month with the District Court at District of Columbia follows a neat pattern of Citizen “water bearer” to environmental concerns raised for years now regarding South Fork Offshore Wind (Ørsted) with the Long Island Power Authority and the Bureau of Ocean Energy Management (Department of the Interior).

The Biden Administration’s priority is industrializing large strips of coastal ocean water to get the radically uneconomic offshore wind industry going on the East Coast. This push was behind a meeting between President Biden and Interior head Deb Haaland and 11 governors representing these states: Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania and Rhode Island.

Mr. Kinsella (profile in Appendix A) claims egregious levels of disregard for process, legalities, and public health and environmental concerns. Defendants at District Court, District of Columbia are the Department of the Interior, and Honorable Deb Haaland, US Bureau of Ocean Energy Management, and US Environmental Protection Agency, and Honorable Michael S. Regan.

Kinsella (see Appendix A) and citizen groups have a number of concerns including water safety and per- /polyfluoroalkyl (PFAS) substances in the ocean work, as well as

potential adverse impacts on the Town’s sole source of drinking water (the Upper Glacial and Magothy aquifers) or the surface waters and related habitats of Georgica Pond and Wainscott Pond.

Injunctive Relief asks: Disclose, Dismantle, Remove, and Restore

Kinsella seeks injunctive relief: for access to any and all disclosure of laboratory results for contamination of soil or ground water on onshore routes:

I am entitled to preliminary and permanent injunctions against any further work permitted or otherwise pursuant to such unlawful final agency action. … Furthermore, I am entitled to seek an order compelling South Fork Wind to dismantle, remove, and remediate any damage and return the SFEC corridor to its original condition, including but not limited to removing all concrete duct banks and vaults and all and any other infrastructure and equipment related to the Project.”

Furthermore, Kinsella’s second claim for relief includes: dismantling and removing and remediating any damage and returning the corridor to its original condition, including removing all concrete duct banks and vaults and infrastructure and equipment for the Project.

Infrastructure Galore

Offshore wind construction is an extremely complicated, invasive, and ugly process–far removed from the rhetoric of jobs, supply chain hubs, and “green power.” But communities in the line of fire are up to speed. This staging area development will be the first chapter of many along the way to economic downsides, community upheaval. (Block Island “connection” and staging involved prepping for about 20 miles of 34.5 kV (kilovolt) bi directional undersea cables, and another “3.5 miles of underground cable from Scarborough State Beach to the Dillon’s Corner substation.”)

A quick description of equipment and access to manufacturing, transportation, and installation prep is here. This industry article describes an average European project of 80 to 150 steel foundations, each weighing about 1,000 tons, to be stored and moved in two parts, as well as the hundreds of miles of power cables. “It is not uncommon to see hundreds of turbine blades that are over 250 feet long being stored at offshore wind farm port facilities ready to be loaded out for a single project,” in Europe.

Add cranes, jack up vessels, preparation for decommissioning, demolition, disposal of redundant materials, careful containment, or removal of hazardous materials.  Add preparation for dredging for cable laying.  Add permits from the US Army Corps of Engineers (dredging, construction); add permits from the Maritime Administration (Secretary of Transportation), for non deep ports.

Add an extremely serious concern for the staging area for South Fork Wind: a legacy of contaminated sediment from many historical uses. Chosen sites are often urban communities, ports, and provide access to grids and consumers.  Due to proximity to urban communities… “Thus, contaminated sediments will be found at a majority of port facilities proposed for redevelopment.”

17 Complaints

Kinsella points out in this 17-point Complaint Summary that the defendants:

1. Recklessly ignored PFAS contamination that poses a risk to public health and the environment and exposed construction workers and residents to such contamination without regard to safety or the environment;
2. Permitted South Fork Wind to install underground infrastructure, including vaults the size of forty-foot shipping containers (encroaching into groundwater), in a square mile with more PFAS-contaminated drinking water wells than anywhere else in Suffolk County;
3. Allowed South Fork Wind to install miles of underground concrete duct banks and vaults without regard to potential adverse impacts on the Town’s sole source of drinking water (the Upper Glacial and Magothy aquifers) or the surface waters and related habitats of Georgica Pond and Wainscott Pond.

At issue also are a group of more than 4,700 human-made substances–collectively known as per- and polyfluoroalkyl substances used as surfactants, lubricants, and repellents for dirt, water, and grease. [New York State Environmental Conservation Law, Article 27, Title 13, defines PFOA and PFOS as hazardous substances (6 NYCRR Section 597.3)].”

From the Complaint:

The EPA warns that exposure to PFOS and PFOA contamination may cause “developmental effects to fetuses during pregnancy or to breastfed infants (e.g., low birth weight, accelerated puberty, skeletal variations), cancer (e.g., testicular, kidney), liver effects (e.g., tissue damage), immune effects (e.g., antibody production and immunity), thyroid effects and other effects (e.g., cholesterol changes). The US Agency for Toxic Substances and Disease Registry (hereinafter “ATSDR”) cite human epidemiology studies that suggest links between PFHxS exposure and liver damage and decreased antibody responses to vaccines (this could be of concern for a potential coronavirus vaccine). According to reports, PFHxS has a half-life in humans of 8.5 years. (from the Complaint)

After receiving BOEM’s approval to proceed with construction, the developer began excavating over 30,000 tons of soil (and groundwater) in February 2022. The developer, South Fork Wind LLC (formerly Deepwater Wind South Fork LLC), knew of the PFAS contamination at least as early as 2019.

Still, without regard to safety, it rushed to excavate contaminated soil and groundwater from a square mile with more PFAS-contaminated private drinking water wells than anywhere else on Long Island. BOEM received overwhelming evidence of extensive PFAS contamination exceeding U.S. Environmental Protection Agency (“EPA”) 2016 Health Advisory Levels (“2016 HAL”) nine months before it issued its record of decision (“ROD”) (on November 24, 2021).

BOEM is statutorily mandated to take a “hard look” into environmental impacts according to the National Environmental Protection Act and the Outercontinental Shelf Lands Act. However, BOEM looked away, recklessly concluding that–– “Overall, existing groundwater quality in the analysis area appears to be good” (see FEIS at p. H-23, PDF p. 655 of 1,317). PFAS contamination continues to adversely impact our sole-source aquifer that thousands of residents rely on as their only source of fresh water, including private drinking water wells and public supply wells operated by the Suffolk County Water Authority.

South Fork Wind’s construction activities, Page 3 of 91 concrete duct banks, and large underground vaults the size of forty-foot shipping containers will exacerbate, enhance, spread, and prolong PFAS contamination for decades and pose a threat to our drinking water supply

Other important features of the Complaint contain references to contamination and impacts to endangered species:

• Confirmed monitoring of wells from SFW’s (South Fork Wind) proposed construction corridor containing PFAS contamination exceeding the New York State Drinking Water Maximum Contamination (MCL) by many times over and the EPS Drinking Water Health Advisory by more than double. (Our emphasis)
• According to NEPA, BOEM must “specify the underlying purpose and need to which the agency is responding in proposing the alternatives” (40 C.F.R. § 1502.13). Therefore, BOEM must measure and assess alternatives against those underlying purposes and needs. Instead, BOEM relied upon a fabricated purpose and needs statement to justify approving the project, thereby corrupting the integrity of the NEPA review process.
• PSL § 126 (1) (c), mandates that the Commission select the wind farm that can provide electrical energy with “the minimum adverse environmental impact considering […] the nature and economics of the various alternatives[.]” SFW proposes transmitting a small amount of electrical energy (130 MW) via high voltage transmission cables that it plans to install underground through a sole source aquifer and the most contaminated soil and groundwater on the South Fork of Long Island and sell at vastly inflated prices. (Our emphasis)
• BOEM approved the Project’s cable corridor between the locally designated Significant Page 59 of 91 Coastal Fish and Wildlife Habitats of Wainscott Pond (NYSDEC-classified Freshwater Wetland) and Georgica Pond, which supports brackish wetlands and an abundance of wildlife of which some are endangered or threatened.

Impacts to Marine Estuary spawning grounds, and important fishery populations:

* The Significant Coastal Fish and Wildlife Habitat of Georgica Pond is described under CZMA Enforceable Policy 7 as follows–– “Georgica Pond to function as a marine estuary which provides a spawning ground and nursery area for anadromous fish such as alewives, and maintains salinity for blue claw crab, the most important fishery in the pond. It provides an essential step in the food chain and is thus important to local fish populations.

White perch as well as many bait fish, such as silversides, spawn in the pond. The coordination of beach opening with spawning times determines the effectiveness of this system. The pond also provides feeding areas for osprey (T), winter waterfowl, common terns (T), roseate terns (E, EFED), least terns (E) and several species of herons and migrating shorebirds. The barrier beach supports a colony of least terns and several pairs of piping plovers (E, T-FED). […]

Breeding birds also include blue-winged teal, common gallinule and black duck. Recreational uses associated with the wildlife resources at Georgica Pond include crabbing, hunting and birding. Commercial activities include the taking of perch, bait, crabs and eels” (id., p. III-49, PDF p. 202, ¶ 3)

* Wildlife populations that exist within the pond itself are high density and low diversity which are indicative of poor water conditions. The primary fish populations within the pond are stunted yellow perch, brown bullhead and American eel. There is a lack of predator species (i.e. warm water competitive species, e.g. largemouth bass, chain pickerel) which require higher oxygen levels.

The perch and bullhead populations are commercially and recreationally useless because of their stunted size. Problems could be reduced with hedgerow, wetland buffers, and allowing for proper drainage structures.” 381. East Hampton Town LWRP continues: “Any activities that would further degrade water quality […] would have a significant impact on fish and wildlife species inhabiting Wainscott Pond. All species of fish and wildlife may be affected by pollution from chemical contamination. […]

Wetland areas surrounding the pond should be restored to improve both water quality and wildlife habitat” (id., pp. III-50-51, PDF pp. 203-4).

The Complaint calls the procedural abuse and lack of attention to environmental law reckless and indicates that the Commission “erred in fact and law and acted arbitrarily and capriciously.” (Page 40 of the Complaint)

Conclusion

Lawsuits abound worldwide with respect to on and now offshore wind; issues as fishing rights, safety, Public Trust, loss of amenity, ongoing and imminent “Precipice Like” avian and mammal mortality, and improper Government procedures that clearly ignore or brush aside the law.

There is no question it is a developer’s ambush aided by insolent and somnolent government agencies. The rush to Offshore Wind in the US (and elsewhere) is callous and lacking deliberation of impacts. It is a dangerous rush to permit, tripping over or papering over deep and meaningful research, and obvious impacts to communities at all-important “staging” areas and substation developments. And that’s before the wind turbines arrive!

We congratulate Simon Kinsella for his fortitude and diligence. Other communities are in line for similar threats as from the South Fork Wind proposal (Long Island). Pushback to agencies that thrust agreements and permits in favor of wind development without appropriate assessment is essential.

Appendix A: Simon Kinsella (from the Complaint)

 I, Simon V. Kinsella, plaintiff pro se, am a full-time resident of Wainscott, in the Town of East Hampton, Suffolk County, New York –

a. I live near the beach where the Applicant plans to bring a high-voltage submarine cable ashore and install underground transmission infrastructure through my neighborhood;

b. I am a taxpayer and a ratepayer in the service area who will have to pay higher rates for power because BOEM approved a project contrary to its statutorily mandated obligations;

c. In 2017, my community asked me to investigate a proposal for an offshore wind farm sponsored by the Applicant following a request (in 2016) that I look into water Page 8 of 91 quality issues in Wainscott, including a group of emerging contaminants known collectively as per- and polyfluoroalkyl substances (“PFAS”).

d. I have contributed substantially to BOEM’s record of review, including testimony (of 299 pages), briefs (of 46 pages), and provided approximately one hundred and fifty (150) exhibits.

I relied on BOEM to conduct a vigorous and wholehearted review “to the fullest extent possible” (NEPA 1978, 42 USC § 4332, sect. 102), but BOEM recklessly ignored its obligations.

Appendix B: Status of South Fork Wind

South Fork Wind, New York’s first offshore wind farm, has received the final decision from the federal level needed to move the project toward the start of construction as the US Department of the Interior’s Bureau of Ocean Energy Management (BOEM) has now given its final approval of the project’s Construction and Operations Plan (COP).

The COP approval outlines the offshore wind farm’s one-nautical-mile turbine spacing, the requirements on the construction methodology for all work occurring in federal ocean waters, and mitigation measures to protect marine habitats and species.

BOEM’s final approval of the COP follows the agency’s issuance of the Record of Decision in November 2021, which concluded the environmental review of the project.

Onshore works will be carried out by the Long Island-based contractor Haugland Energy Group, which will install the underground duct bank system for the onshore transmission line and lead the construction of the project’s onshore interconnection facility in East Hampton. Fabrication of the project’s offshore substation is already in process, according to South Fork Wind developers Ørsted and Eversource.

The offshore substation will be built by Texas-based Kiewit Offshore Services at its facility in Ingleside, near Corpus Christi. The substation will be the first offshore wind energy substation built in the US.

Appendix C: Other Resources:

https://www.nrel.gov/docs/fy07osti/41135.pdf

New York’s First Offshore Wind Farm Gets Final Federal Go-Ahead to Start Building

https://www.stantec.com/en/ideas/content/blog/2022/4-challenges-to-overcome-when-transmitting-offshore-wind-power

https://iopscience.iop.org/article/10.1088/1748-9326/9/3/034012/meta

—————————

There was paucity in studies on cumulative impacts and long-term effects on the food web, as well as on combined effects with other human activities, such as the fisheries. These aspects remain key open issues for a sustainable marine spatial planning.

The effects of offshore wind farms on marine life

————————

Impacts of noise from construction and ongoing, as well as electromagnetic impacts

Offshore wind grid woes may be worse than previously thought

Priming the grid for green

“Connecting the East Coast’s first offshore wind development (Block Island Wind Farm) to the electric grid involved installing new overhead and underground lines onshore, upgrading substations, installing a new substation and switching station, laying 20 miles (and 5 million pounds) of submarine cable from Block Island to the site, and overcoming those water complications.

To create a viable worksite, crews had to build a cofferdam along the shoreline, then restore the area once the project was complete so it could once again serve as one of Block Island’s most popular recreational beaches. Working with a cable vessel and jet plow, crews were able to lay just one mile of submarine cable per day, and weather sometimes impeded that progress. Furthermore, the area had seen some World War II activity, so crews had to take extra precautions to avoid potential sites of torpedo tests.”

Our note: Block Island’s connection to the grid is offline at this time. Cabling issues of a dangerous nature have prompted officials to disconnect. It is determined that the cable installed by Jet Plow, did not reach sufficient depths to ensure its safe burial. The delay in reburying at last count experienced additional problems. At a cost of $300 million, and an estimated further $100 million for remediation of the cables and reburying, one must question the lack of value for five measly turbines. These turbines can be seen leaking oil down the shafts.

https://www.facetfiltration.com/wp-content/uploads/sites/2/2020/08/Offshore-Wind-Substation-OWS_Case-Study.pdf

https://ncceh.ca/documents/field-inquiry/going-underground-electrical-substations-and-health

Forbes: Offshore Wind Companies Are Racing To Develop America’s East Coast. First They Must Appease The Fishermen.