"Waste Management of New York, LLC ("WMNY," or "the Applicant") proposes to expand the closed Orleans Sanitary Landfill ("OSL") facilities at 3511 Densmore Road in the Town of Albion, Orleans County. The new facility, to be known as the Towpath Environmental & Recycling Center ("Towpath"), would be located south of the New York State Erie Canal, east of Densmore Road, west of Transit Road, and north of the Conrail tracks. [See Appendix "A" of this report, a map of the site and adjacent area, and Appendix "B", a site plan map, both of which are part of the application documents.]
"The approximately 204-acre parcel upon which the landfill would be developed includes the existing OSL site and previously disturbed land to the north and east. It is adjacent to the McKenna Landfill ("McKenna"), which is immediately to the northeast. The site property is owned by the Estate of the Orleans Sanitary Landfill, Inc. and Irene M. Smith. Under the terms of a 48-year lease agreement, the estate bankruptcy trustee and Ms. Smith conveyed certain rights and obligations to WMNY. As a condition of the lease, WMNY is obligated to obtain all required permits to construct and operate a landfill on the site and thereby create a revenue stream, a portion of which is to be distributed to creditors of the Estate.
"The proposed site includes an area of about one acre in the northwest portion that was used by the Village of Albion for waste disposal in the 1950s. It also includes the approximately 40-acre closed OSL site in the southwest portion. The closed OSL site was operated from 1983 to 1991. Initial closure activities were performed in 1991, but in August of that year, Orleans Sanitary Landfill, Inc. filed for bankruptcy. Closure and post-closure of the OSL site since the bankruptcy filing has been managed by the bankruptcy trustee, who contracted with WMNY for implementation of a closure plan and post-closure activities.
"The proposed landfill footprint is 73 acres in the eastern portion of the 204-acre parcel. The westernmost four acres of the landfill would overlay the existing eastern slope of the closed OSL site, forming one contiguous landform. Most of the property where the proposed landfill would be constructed was mined in the past for overburden soil used in support of operations at the closed OSL site.
"The adjacent privately-owned McKenna Landfill site, which was operated from 1968 to 1983, is now closed. It is listed as a Class 2 site on the New York State Registry of Inactive Hazardous Disposal Sites. WMNY has entered into a consent order with the New York State Department of Environmental Conservation ("the Department," or "DEC") for the development of a closure remedial program for the site, which includes the installation of a landfill cap, a leachate and groundwater collection system, off-site leachate/groundwater treatment, and an improved gas-venting system.
"As proposed, the Towpath landfill would have a design capacity of 1,800 tons of solid waste per day. According to an activity schedule timeline provided by WMNY, the project would last about 18 years, 16 of which would involve the placement of waste. At full capacity, the landfill would be about 200 feet above the existing ground level and about 90 feet higher than the existing OSL. All construction for the Towpath landfill would include a double composite liner system beneath the solid waste, collection and treatment of both landfill gas and leachate, storm water management, and groundwater, leachate, landfill gas, surface water, and sediment monitoring.
"To move ahead with its project, WMNY requests a permit to construct and operate a solid waste management facility, the issuance of which is controlled by the Department pursuant to Title 7 of Article 27 of the Environmental Conservation Law ("ECL") and Part 360 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR Part 360"). Also, WMNY requests a dam safety permit under Title 5 of Article 15 of the ECL (for the construction of a sedimentation basin), an air pollution control permit under Article 19 of the ECL (addressing the release of landfill gases), and a water quality certification under Section 401 of the Clean Water Act (related to impacts to federally regulated wetland).
"In conjunction with the solid waste management facility permit, WMNY is seeking two variances. One is from the requirement of 6 NYCRR 360-2.7(b)(9)(iv) that two separately functioning subcells be maintained so that a non-functioning subcell could be made inoperable to allow for investigation and remediation while another subcell could continue to receive solid waste. WMNY intends to operate the first landfill cell before the second is constructed, and in the event the first cell must become inoperable prior to the second one's availability, WMNY would divert the inbound solid waste stream to alternate authorized transfer and/or disposal facilities.
"The second variance sought is from the requirements of 6 NYCRR 360-2.12(a)(1)(v) and (vi) that unconsolidated deposits underlying the proposed landfill either exist or be constructed to be 20 feet or greater in thickness as measured from the base of the constructed liner system. WMNY intends to provide a subgrade that would be no less than 10 feet thick, one that would exhibit performance at least equivalent to that contemplated by the 20-foot layer prescribed by the regulations. Because of this, WMNY concludes that filling with an additional 10 feet of soil would unduly increase construction costs and raise the liner elevation, thereby eliminating air space and the revenue associated with it.
"As lead agency under the State Environmental Quality Review Act ("SEQRA," ECL Article 8), DEC determined that the proposed Towpath project is a Type I action and issued a Positive Declaration on May 6, 1994. The Applicant prepared a three-volume Draft Environmental Impact Statement ("DEIS"), which DEC Staff accepted for review on March 24, 1999. A Notice of Complete Application, dated March 24, 1999, was published in the Department's Environmental Notice Bulletin (ENB) and the Albion Advertiser on March 31, 1999.
"...Public officials speaking against the project included State Senator George D. Maziarz (61st District), Marcia Tuohey, chairperson of the Orleans County Legislature, Orleans County Legislator George Bower, and Barre Town Board member Shirley A. Walter. Also speaking against the project were the New York Parks and Conservation Association, which said the landfill would be incompatible with the development of recreation and tourism along the Erie Canal, and the statewide Citizens' Environmental Coalition, which voiced concerns about impacts to public health and safety, as well as the environmental compliance record of the Applicant's parent company, Waste Management, Inc., which it said warranted permit denial or, at the least, heightened monitoring if the project goes forward.
Community opposition to the landfill centers on the following concerns:
- - Diminished property values and lost canal-related tourism opportunities;
- - Visual impacts affecting local landmarks like the observation tower at the Mount Albion Cemetery;
- - The impact of landfill-related traffic on public safety, particularly at the intersection of Routes 31 and 98 and along Route 31 near public schools;
- - Monitorability of the Towpath facility given its proximity to the OSL and McKenna landfill;
- - The potential for escaped leachate to contaminate groundwater and drinking water wells, and to escape detection in bedrock fractures; and
- - Potential waste mass instability given the possibility of earthquakes along a nearby fault.
"Opponents questioned the need for the landfill, arguing that the community already has adequate disposal capacity and should not have to take responsibility for others' waste. Some opponents said landfills are archaic ways to dispose of waste and a disincentive to recycling. Citing the OSL and the McKenna facility, others said Albion had "had its turn" with landfills, and any new ones should be located in other places. Some questioned whether the Applicant can be trusted to comply with relevant laws, given its record of compliance history; others doubted whether DEC has sufficient staff to provide adequate surveillance.
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"These companies' compliance history is relevant because it bears upon the Applicant's ability and trustworthiness to meet the requirements of the ECL, DEC regulation, and any permit that is ultimately issued. The compliance history of WMNY is especially important because its name is on the application. However, the compliance history of WMI is also relevant because WMI holds a substantial interest in WMNY. In fact, WMNY is a wholly-owned subsidiary of WMI.
"The fitness issue has been proposed by the intervenor group Stop Polluting Orleans County as a basis for permit denial or, at the least, some unspecified additional conditions beyond those in Staff's draft permits. While they did not propose the issue in their own petitions, the Towns of Albion and Murray join SPOC in requesting further disclosure by the Applicant, this time for USA Waste, which merged with WMI in 1998. The need for such disclosure is challenged by the Applicant and DEC Staff, and is addressed as part of these rulings so the issue may be appealed by any dissatisfied conference participant.
"Also requiring further scrutiny are various more recent DEC violations related to waste handling by WMNY and its former subsidiary Waste Management of New York City, which is now part of the parent company. Acknowledged by the Applicant, many of these violations resulted in substantial penalties:
- - $50,000 for 1999 violations including operating over permitted tonnage limits and beyond authorized hours, at a Goshen recycling facility (Northern Recycling); - - $50,000 for 1998 violations including exceeding operating hours, at an Averill Park transfer station (Poestenkill);
- - $20,000 for 1999 violations including acceptance of unauthorized materials, at a Brooklyn transfer station (NYC Hauling);
- - $20,000 for 1998 violations including alterations to the physical plant and facility operations beyond those authorized by permit, at another Brooklyn transfer station (Varick 1);
- - $20,000 for 1998 violations involving physical plant modifications which resulted in changes to plans, at a third Brooklyn transfer station (BQE);
- - $40,000 for a 1998 violation of operating beyond the borders of the permitted area, at a fourth Brooklyn transfer station (Woodyard).
"Finally, it appears from WMNY's disclosure that it and Waste Management of Virginia, a sister corporation, were penalized $150,000 by a Virginia Court in 1999, and enjoined from transporting or receiving loads of solid waste that include regulated medical waste. Also, Virginia imposed a $125,000 penalty after blood, bloody fluids and "sharps" were found in waste bales from a WMNY facility in East Rochester, which were to be disposed of at a Virginia solid waste management facility.
"To properly consider the matters identified above, the Applicant needs to produce the underlying documentation, including the consent orders in matters involving penalties assessed by DEC. Matters not explicitly mentioned above shall not be pursued further, to narrow the focus of inquiry. (For these matters, the Applicant's disclosure summary shall suffice.)
"Once the factual record is developed, the parties will be allowed an opportunity to make written arguments about the relevance and weight of the violations, consistent with the EGM's mandates.
"Also, the Applicant shall be considered under a continuing duty to update all demanded summaries of compliance information, so that the final permitting decision can account for the most recent information.
"The fitness issue in this case shall encompass a review of the compliance history not only of WMNY, but also its parent company, Waste Management, Inc. ("WMI"). This is necessary to conform with the EGM, which provides that its guidelines should be applicable not only to the "immediate entity" (WMNY) but to any corporation which "holds a substantial interest" in the permittee or applicant. WMI holds a substantial interest in WMNY because it owns it; WMNY is its subsidiary.
"The compliance record of WMI is the principal concern of SPOC, as is clear from its filing for party status (Exhibit No. 9 A -D). WMNY did not make any disclosure for WMI as part of its application, nor was such disclosure requested by DEC Staff, despite the mandate of the EGM.
"On August 18, 1999, in a verbal ruling (T: 748-757), I determined that record of compliance information for WMI, consistent with that covered by the EGM, would have to be provided by the Applicant, basically granting SPOC's request in this regard. Such information was provided by the Applicant under a cover letter of Kevin Bernstein dated October 5, 1999.
"By a memorandum of October 22, 1999, I allowed an opportunity for all conference participants to comment on the new information, whether it represented an adequate disclosure, and what bearing it should have on fitness considerations. Comments on these points were received from DEC Staff (a letter of November 2, 1999, from Paul D'Amato), SPOC (a November 2, 1999, letter from Patricia Wood), and the Town of Albion (a letter of November 3, 1999, from Daniel Spitzer.) By a letter of November 12, 1999, Mr. Bernstein responded to the comments on behalf of the Applicant.
"According to the Applicant's disclosure, WMI is a large company in the waste management business, with over 70,000 employees and 292 landfills, 295 transfer stations, 104 material recycling facilities, and 615 collection companies in the United States.
"Consistent with my directive, the 16-page disclosure summarizes 37 incidents resulting in criminal convictions or civil penalties of $25,000 or more. Among the most serious is a 1991 incident in which Waste Management of Pennsylvania, a WMI subsidiary, paid a $3.8 million civil penalty for its employees' creating inaccurate records about the volume of waste received at the Lake View Landfill in Erie, which resulted in the acceptance of waste in excess of the permitted maximum and average daily tonnages. According to the disclosure, Chemical Waste Management, Inc., another WMI subsidiary, has also been the subject of substantial assessments: $10.1 million in penalties, costs, restitution and contributions for a 1992 guilty plea in a federal case involving failure to report hazardous waste spills during the clean-up of a Pennsylvania Superfund site, and a $1.9 million civil penalty for unspecified 1991 "permit interpretation issues and alleged violations of Illinois Environmental Law."
"The incidents described in the preceding paragraph are of sufficient gravity that the underlying documentation must be brought into the hearing record. As for the other incidents included in the WMI disclosure, no one has challenged the accuracy of the Applicant's accounting, so the disclosure can come into the record without further explanation, except with regard to some incidents for which I may request clarification, to reconcile the Applicant's descriptions with those from news accounts referenced in SPOC's filing for party status.
"Though not challenging the WMI disclosure as far as it goes, SPOC writes in its November 2 letter that the disclosure is incomplete, based on a 1999 newspaper article which allegedly states that, in the past six years, WMI has been cited for nearly 1100 violations of law and paid hundreds of millions of dollars in fines. Even if this is true, SPOC's contention fails to recognize that I did not ask the Applicant for WMI's entire compliance history, but only that information which would require disclosure under the EGM.
"The Applicant's fitness is a substantive issue since its and its parent company's past environmental compliance histories raise sufficient doubt about its ability and trustworthiness to comply with the requested permits. It is a significant issue because the permits can be conditioned or denied based on the outcome of the issue's adjudication, given DEC's implicit discretion in this area, which all parties have acknowledged.