Pact puts TCI suit on hold

Recycling firm, pondering move, suspends suit against Ghent
CLAVERACK–What was billed this week as oral arguments in the suit brought by TCI of New York against the Town of Ghent yielded instead an agreement for a temporary stand-down by both sides for at least the next six months. That will give the company time to determine whether to move its electrical transformer recycling business to a new community or to resume its effort to rebuild in West Ghent.

A spokesman for the company said TCI, which employs about 16 people, is actively pursuing invitations from three other municipalities in New York State. Most of the work that was being done in West Ghent before the fire is now being handled at the Port of Coeymans on the Hudson River south of the City of Albany.

TCI sued the Ghent Planning Board earlier this year, saying that town officials were blocking the company from obtaining a permit to rebuild and resume operating. The permit became an issue after a huge fire and explosions at the Falls Industrial Park Road facility August 1-2, 2012 destroyed the company’s building, storage tanks and other equipment there. The fire and the resulting plume of smoke from mineral oil and other materials at the site led to a county state of emergency with warnings not to go outdoors, air quality warnings or alerts in much of Columbia County and in other counties around the region as well as parts of Massachusetts, with federal and state agencies joining the response.

Town officials have said that TCI did not inform the town of safety-related changes it had made in its operations. TCI has denied that claim.
Fire officials investigating the blaze suspect that the fire may have started because a contractor hired by TCI did not properly monitor a system designed to remove PCBs–toxic industrial chemicals used in some old electrical gear–from mineral oil that TCI had drained from old transformers. TCI says it has subsequently severed its relationship with the contractor.

Tests conducted after the fire did not detect elevated levels of PCBs at the site. But neighbors and other county residents have urged the town not to allow the company to restart its operations.

The understanding reached Monday at the temporary county courthouse on Route 23B is called a “Tolling agreement” and calls for both sides to defer their claims against each other. TCI also agrees to pay the town $12,500 for its costs related to processing TCI’s application plus as much as $2,500 more for additional engineering services. The company can continue the limited activities currently permitted by the state at the West Ghent site. Town Attorney Ted Guterman and lawyer Joseph F. Castiglione, the environmental law specialist hired by the town for this case, said after the agreement was announced that TCI may continue to park up to two trucks overnight at its West Ghent property and store old transformers that were at the site before the fire. TCI’s business is preparing old transformers for recycling, a process that includes draining the oil from the devices. Some of the oil contains PCBs.

A handwritten section of the agreement says that the two sides will now draw up “absolute releases” that will end their claims if TCI decides to withdraw its application to rebuild in West Ghent. If TCI does decide to pull up stakes and leave the county, the agreement gives the company “a reasonable period of time to terminate current operations.” But it will have to close down by no later than June 1, 2014.
The agreement also allows the parties to extend it by mutual agreement.
The agreement puts restrictions on Ghent, saying that the town won’t interfere in TCI’s efforts to seek permits from places that don’t involve the town.

The Ghent Town Board must still approve the agreement, and may take up the issue at its next regular meeting or at an earlier special session. Mr. Guterman assured Acting State Supreme Court Judge Jonathan Nichols that he would recommend that the board vote to approve the terms.

The board’s discussion of the litigation aspects of the agreement would be conducted in private, but any vote on the overall agreement would occur in public, Mr. Guterman said after leaving the court.

In a statement released Tuesday, July 9, Jonathan Cohen of Behan Communications, TCI’s public relations firm, said the tolling agreement “will allow representatives from both sides to conduct discussions designed to resolve all outstanding issues while we consider our options to rebuild.”
The company thanked Ghent for “presenting settlement terms in a spirit of good faith and cooperation,” adding that TCI looks forward to working with the town under the agreement.

Attached to the agreement is another document that drops a conflict of interest charge raised by TCI against the firm of Mr. Castiglione, the town’s environmental counsel. That had been a contentious point during previous meetings, at which TCI alleged that the firm, Young, Sommer, Ward, Ritzenberg, Baker & Moore, LLC, had previously represented TCI. Mr. Castiglione said the charge had no merit and there was no sign of tension between the lawyers representing the town and TCI as they answered questions from Judge Nichols in court Monday.

After the agreement was announced Bill Better, an attorney for TCI, said that avoiding litigation benefitted both sides, an understanding that led to compromises and the agreement. In response to a reporter’s question he said there was “nothing unique to Ghent” as far as TCI’s operations are concerned. The company was already located here when the current owners bought the firm, Mr. Better said.

Ghent resident Patti Matheney, a leader of the local group Ghent CANN, praised the town’s legal team for their work on the agreement, saying they had acted “in the best interests of the residents of Ghent” and adding, “I’m very happy that for now, the tax payers do not have to bear the burden of this unfounded lawsuit by TCI against our town and the representatives that were attempting to do their due diligence during the permitting and application process.”

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