Court orders Suffolk to issue permit for Holtsville battery plant; county appeals

A state Supreme Court justice has ordered Suffolk County to issue a permit for a battery storage plant in Holtsville, rejecting the county’s argument that the plant’s containers of toxic material required a special variance.

Holtsville Battery Storage is being developed by Savion, a subsidiary of energy giant Shell. In a five-page decision issued July 30, Justice Christopher Modelewski took county officials to task for their testimony in a trial that took place earlier this year and ordered the county to issue the needed permit within 10 days to allow construction to start.

Suffolk has filed a notice of appeal seeking to overturn the ruling in the state Appellate Division, a move that could delay Savion’s plan to start construction at the site on Morris Avenue and the Long Island Expressway south service road for months or longer. The company has done some pre-construction clearing and had planned to begin building later this year.

Modelewski’s decision cited language in the county code that provides a specific exemption for the battery plant’s storage tanks, which the county argued needed a variance under a separate regulation. He took issue with Suffolk’s interpretation of the law.

“There is a tipping point at which municipal officials elevate themselves from upholding and enforcing the law and instead presume that they, by their policy objectives and decision-making, become the law,” Modelewski wrote in the decision.

Savion spokesperson Kelly Cooper declined to comment on the “active legal matter,” adding, “We respect the legal process and will continue to engage through the appropriate channels.”

Suffolk County spokesperson Michael Martino also declined to comment.

The county’s concern has primarily focused on protecting drinking water, Newsday has reported, noting the plant is one-third of a mile away from a deep-recharge water basin just 50 feet below the surface and that the hazardous liquids on-site would be many times the allowable levels under Suffolk’s interpretation of county law. Residents around the proposed plant in Holtsville had applauded Suffolk’s hard-line stance in withholding the permit.

Fran Lunati, a Holbrook resident who lives a half-mile from the proposed plant, on Wednesday said she was “extremely upset that they would go ahead with this, and I’d like to know why.”

In addition to the delay inherent in the state appeals process, Brookhaven Town Supervisor Dan Panico on Tuesday said the town is not reviewing or approving battery storage permits at the moment. Brookhaven has been one of the towns more accommodating to battery storage. 

“We’re waiting for the state to go forward and do the outreach,” Panico said, referring to proactive meetings with fire departments, residents and others to quell fears about battery fires.

Brookhaven is also re-examining its battery-specific code to make sure potential mishaps don't harm drinking water, Panico said.

“We are also looking at our code, at whether or not adding a containment-type aspect to the code” would be prudent given water contamination following a thermal runaway fire at an East Hampton battery storage facility in 2023, Panico said. Brookhaven and East Hampton are among the few Long Island towns that do not have a moratorium on battery storage.

Ken Lovett, a spokesperson for Gov. Kathy Hochul the state has "worked directly with local leaders and first responders across the state, including on Long Island, to provide clear, factual information about energy storage safety, siting, and oversight, and to support informed local decision-making."

The state in January also released more stringent fire safety codes for battery plants that include safer designs and regular inspections.

Hochul has doubled the state mandate for battery storage to 6,000 megawatts by 2030, and the state is in the midst of a bulk energy storage solicitation; it is set to announce awardees later this year. A dozen proposed Suffolk battery plants, most in Brookhaven, have been proposed for the solicitation.

Meanwhile, Suffolk County and the state Department of Environmental Conservation are in the midst of an investigation into whether water used to fight the East Hampton battery fire contaminated drinking water wells with a forever chemical known as PFPrA. The Suffolk County Water Authority has sued plant owners NextEra and National Grid to recoup costs for having to shut down drinking water wells and potentially drill new ones.

Most Long Island towns have moratoriums on new battery plant development; two already contracted to LIPA, in Hauppauge and Shoreham, have been stalled. 

Newsday in January reported that a review board of Suffolk’s health department had denied a request by Savion for a variance to house tanks with tens of thousands of gallons of petroleum distillate oil and other "toxic/hazardous" liquids on the 6-acre Holtsville site, which proposes containing 110 megawatts of batteries in containers. In rejecting the variance request last year, Suffolk noted Savion’s request was 720% above allowable storage limits.

Modelewski said the county incorrectly applied the standard that would have required a variance. The decision would allow Savion to store 18,249 gallons of "toxic and/or hazardous material," which Suffolk had argued was well in excess of its 250-gallon limit.

Among other storage tanks included in Savion’s application was one for 99 gallons of battery electrolyte containing lead, arsenic and sulfuric acid, all also classified as toxic and hazardous, according to the Suffolk variance denial letter. Another tank would contain 32,500 of Envirotemp FR3 soybean oil, or ester fluid, for "inventory purposes only."

The county’s chief concern was a tank that included 18,150 gallons of petroleum distillate-based transformer oil, which the county noted is classified as toxic and/or hazardous material.

Savion in court materials said a three-year delay of engineering, procurement and construction phases resulting from Suffolk’s denial and redesign "would result in termination of the project’s" prior interconnection agreement with LIPA and the New York Independent System Operator, which manages the state grid.

Savion said the project’s containment design could hold the entire contents of the transformer "plus a 100-year rainfall event" and noted it’s "consistent with other transformers in the area."

By Mark Harrington

mark.harrington@newsday.comMHarringtonNews

Mark Harrington, a Newsday reporter since 1999, covers energy, wineries, Indian affairs and fisheries.