The Goshen Town Board's Plight
The Town Board in Goshen must decide whether they want the impacts of a major landfill in their backyard for a few more generations. Here are some of the questions they face.
What Permits Does Superior Need Before it Can Expand the Al Turi Landfill?
In New York waste management facilities require two solid waste permits, one from the state and one from the local government that regulates waste management facilities. Failure to obtain both permits destroys a waste management facility proposal.
The state permit will be granted by the DEC after a long application process--two years is normal if there are no delays. Superior Hudson, Al Turi Landfill's potential purchaser, must meet all the requirement of DEC's regulations, principally 6 NYCRR Part 360 to obtain the state solid waste permit. There are other required state permits, including a permit to discharge treated leachate into the Wallkill River. There is also a required federal Clean Air Act permit to emit air pollution from the landfill's decomposing garbage and garbage-handling activities. However, these other permits are unlike the solid waste permit, of which there are are two, a state and a local permit.
Superior has applied for five different variances from some of the most environmentally important of the state regulations with which it should comply. This is discussed more fully below. However, the state's regulations, even if they were all met, are intended to provide only minimal protections for human health and the environment. Towns are free under New York law to impose more stringent requirements, tailored to their local experience and needs, up to an outright ban on all landfills.
The local solid waste permit ordinarily comes from the town board. The only time that's not true is when the town has decided to have no waste management laws--either it never passed any, or it decides to rescind it's laws because (for example) it thinks the local county government can handle the local permitting process better. If a town has no waste management laws and the county does, the county's law applies for purposes of the local permit.
In Goshen the town has a law that says, among other things, there shall be no more landfilling after 300 acres has been used up for landfilling. Well, it appears well over 300 acres has been used up--by Al Turi Landfill and by the Orange County Landfill. But the town made an agreement with Al Turi not to enforce its law against an expansion of that landfill.
The Town of Goshen's Agreement with Al Turi Landfill, Inc.
In 2000 the Town of Goshen signed a "Second Supplemental Settlement Agreement" with Al Turi Landfill, Inc., in which the town agreed not to oppose or contest the proposed landfill expansion in return for Al Turi's promise to drop its challenges to the town's 1990-1995 tax assessments. The agreement covers "any purchaser or contract vendee for the purchase of Al Turi Landfill, or any other successor or assign of Al Turi who agrees to be bound by each and every provision of this Stipulation."
One of the provisions to which both parties agreed is this condition, without which there is no agreement at all:
"[the town agrees not to contest the landfill expansion,] provided the Expansion is consistent with and subject to the strict regulatory scheme and conditions to be imposed on any such application by DEC." (para. 1)
Shortly thereafter Superior Services submitted an application that includes a request for four variances from fundamental regulatory protections of groundwater and a fifth request for a variance from the requirement that Superior show no alternative sites are reasonably available.
Is this what the town agreed to when it included the condition that any expansion application be "consistent with . . . the strict regulatory scheme" administered by the DEC? Maybe one or two variances could be expected, but is it reasonable to think the town board agreed to give away the future of the water beneath the landfill site when included those words?
Is There a Threat from Litigation?
Under the most recent version of the agreement between the town and the landfill, both sides have reserved their right to seek judgment on the tax dispute in court. A fair fight on that dispute is unlikely to result in much if anything for Al Turi. After all, Al Turi was not only actively landfilling during the years in question (1990-1995), but it obviously expected a lucrative future in landfilling in Goshen because it applied for approval to expand. Moreover, Al Turi was in fact making good money from landfill during 1990-1995. On what grounds could they argue they were unfairly assessed?
Last year Al Turi's application to expand was denied because the DEC found its three owners are crooks--they were convicted of tax fraud over a number of years and fined millions--and therefore not trustworthy enough to hold a permit.
Can Al Turi Landfill, Inc., three convicted tax cheaters, really hope to get much sympathy from a judge if they go into court claiming they've been unfairly treated during a time they were raking in lots of money and ripping off the government?
What Should the Town Do?
Now that Al Turi's been denied a state permit and forced to sell the company, the Town of Goshen would strengthen its position even further if they granted Al Turi Landfill a reassessment downward--say, 10 percent less. That would show good faith, and it would show the town recognizes changed circumstances warrant a reassessment. Does the town really want to gouge Al Turi? Do they want to live off landfill money forever? What will the Town do after the regulatory 30-year post-closure care period ends, and for purposes of federal Superfund liability, all further pollution will be the Town's responsibility?
Why only 10 percent? Even though Al Turi Landfill is facing its last days as a landfill, their land and buildings are hardly worthless, as Al Turi claims. According to Orange County's records, Al Turi, Inc. owns 20 properties in Goshen on which can be found ten buildings with a combined area of 16,278 square feet. The land adds up to over 340 acres.
The non-landfill-related land is assessed at $125 million. Of more interest, however, is the landfill-related land, assessed at over $22 million, with buildings assessed at over $1 million.
The key to determining what it should be assessed for should landfilling no longer be viable is Al Turi Landfill's certificate of incorporation, filed with the New York Secretary of State. None of the revisions of the company's certificate of incorporation have changed "[t]he purposes for which it is formed," which were stated in 1973 to cover all the following non-landfill-related activities:
" . . .c)To engage in the business of surfacing any and all surfaces includiung but not limited to roadways, driveways, walkways, playgrounds, parking lots and any and all other surfaces, and to own, lease, operate and maintain the property, structures or other facilities for such purpose, and to own lease, operate and maintain, and to use, buy, sell, deal in, promote and distribute all equipment, machinery, vehicles, materials, supplies and other articles required and and/or used for such purpose. "d)To engage in the business of and to act as general contractors, builders, pavers, wreckers, concrete breakers and contractors, miners, dredgers, excavators, welldiggers, carpenters, woddworkers, cabinet makers, plumbers, electricians, drilling contractors, riveters, acoustical contractors, glaziers, roofers, tinsmiths, floorers, tile contractors, brick layers, hod carriers [?], masons, quarry owners and operators, stone, sand, and gravel dealers, stonecutters, sand blasters, copper, tin, lead, aluminum, brass, bronz[e], nickel, zinc, iron, steel, and other metal workers, smelters, welders, machinists, tool and die makers, steamfitters, gasfitters, heating and air conditioning contractors, elevator contractors, waterproffing [sic] and fireproffing [sic] contractors, painters, decorators, plasterers, paperhangers, and suppliers, equippers, and outfitters for the foregoing, and to engage in all other activities, render all other services, and handle and deal in all materials, supplies, and products incidental or related to or connected with any and every phase of the building and construction trades. . . ."..
Well, you get the idea. There are five more paragraphs setting out the seemingly biblical scope of activities Al Turi Landfill is dedicated to. (Paragraphs "a" and "b" cover landfill- and garbage-related activities.) Can any reasonable person read this and think there is nothing other than landfilling Al Turi's land and buildings might be used for?
An assessment should reflect a reasonable evaluation of the value of land and buildings in light of their useful purposes. Clearly, the acreage and buildings are far from worthless. Maybe a ten percent break on Al Turi's assessment would be fair now that one those purposes--landfilling--has reached the end of its useful life.
If the Town Enforces Its Law, Won't the Town Still Get Sued?
Sure, landfill companies treat lawsuits as a cost of doing business. If they think they can intimidate a town board they'll sue it for just about anything, and they do so regularly across New York.
However, in 1997 the Town of Root (in Schenectady County) passed a landfill ban law after a developer came to the town board with a landfill proposal. The developer sued but the court decided in favor of the town, citing a powerful chain of authority from the New York State Constitution to New York Town Law to New York Home Rule Law and court decisions from New York's highest court on down that support a town's power to protect the health, welfare and safety of its citizens by banning landfills. In 1996 the Town of Allen (in Allegany County) considered a landfill proposal but decided to leave its landfill ban law undisturbed. Knowing that the town board was firm in its resolve, the landfill developer went away--it understood that it would lose any lawsuit that went to trial.
When faced with a landfill proposal, towns usually get sued no matter what they do.
Landfill companies can only win with litigation one way: by forcing the town to settle the lawsuit because the town thinks it can't sustain prolonged litigation, or it can't win, or both. However, towns are wrong to think they can't win such lawsuits: in New York, towns have never lost such a lawsuit that has gone to trial.
As for the costs of prolonged litigation, a good lawyer should be able to convince a judge that the town is being harassed; raising this issue will often force the landfill developer to show it would "likely" prevail in the end, something that the case law and the statutes just don't support. Failing to show this, a lawsuit against a town under these circumstances is likely to be thrown out before it gets going.
More importantly, the long history of recognition by the courts and the Legislature in New York that towns have a duty (not just the power) to protect health, welfare and safety gives town boards wide latitude to change their minds, and to decide to withdraw their approval for a landfill (or not give it at all) to discharge this duty.