DEC Commissioner's Decisions in Waste Management's Albion Landfill (Towpath) Proposal
In New York, there are many more proposals to expand landfill capacity by modifying the permit of an already operating landfill than there are for new landfills. That's because an application for a permit modification receives less scrutiny from the DEC than an application for a new permit. However, often such modifications involve sites where a leaking landfill is located.
The Waste Management proposal is such a site. For this reason it implicates an important regulatory requirement: "new landfills must not be located in areas where environmental monitoring and site remediation cannot be conducted." Part 360-2.12(c)(5). This issue is presented because how can we be sure pollution from the new landfill area (here, partly overlapping with and adjacent to the old, leaking McKenna landfill) can be distinguished from the existing pollution? We think Waste Management is banking on the ultimate impossibility anyone can tell the difference with any certainty. When its new landfill area finally does leak into the groundwater, Waste Management will be able to argue that contaminants reported by its monitoring wells around the site are partly or entirely old pollution, not caused by the new dump.
ALJ Buhrmaster is holding hearings to make sure the monitoring wells can in fact distinguish the old from the new pollution. Hearings were held at the Albion Town Hall in April and May 2001.
In prefiled testimony Waste Management tried to cloud the issue by arguing that double-lined landfills don't leak. However, the judge didn't buy it. Judge Buhrmaster threw out the testimony as irrelevant, reasoning as follows:
"The ability to monitor and remediate depends upon a proper understanding of the subsurface environment in which the landfill is located, working from the legal presumption that a release may occur, because if no relase were possible, there would be no reason for the monitorability requirement in the first place."
In the Matter of the Application of Waste Management of New York, LLC, Ruling of the Administrative Law Judge (March 7, 2001), p. 2.
Interim Decision of the Commissioner (May 15, 2000)
(Adapted and updated from the newsletter of Stop Polluting Orleans County--SPOC) In a 12-page May 15, 2000, decision NYSDEC Commissioner Cahill rejected Administrative Law Judge (ALJ) Edward Buhrmaster's December 31, 1999 Ruling that evidence of environmental crimes committed by Waste Management of New York, LLC, and its parent corporation Waste Management, Inc., be subject to a hearing to determine the fitness of Waste Management to hold a landfill permit. The proponent of the fitness issue SPOC filed a petition asking a court to review the Commissioner's decision on September 14, 2000. After the judge assigned to hear the case recused himself, for reasons of his "strong feelings" about the dump proposal, the case was heard on December 5 by Niagara Falls Judge Amy Fricano.
Judge Fricano dismissed SPOC's petition without reaching the merits, as not ripe for review. Over SPOC's objections, the judge heard WMNY's attorney, who was not a party to the lawsuit, and ultimately sided with the position taken by Commissioner Cahill and WMNY, that SPOC must wait until after the permit decision has been made to sue. SPOC's argument failed, that its inability to develop the record in the administrative hearing below regarding fitness would significantly harm its chances of a fair hearing after the permit decision. Judge Fricano questioned whether SPOC, having been denied party status in the ongoing administrative proceeding, would actually be prevented from submitting its evidence on WMNY's fitness to the Commissioner.
As a result of Judge Fricano's action, a final decision of the Commissioner remains on the books that precludes citizens, towns and other intervenors from bringing evidence of corporate crimes to support a request for conditions to be imposed or a denial of approval for a major waste facility. However, SPOC sill has the option of filing its lawsuit after a final decision on the state permit.
In what follows the ALJ's and Commissioner's decisions and SPOC's petition for judicial review of the Commissioner's decision are discussed at greater length. The full text of the May 15 Interim Decision is available on the web at:
ALJ Buhrmaster's December 31, 1999 Ruling
Most of the Commissioner's decision (ten out of twelve pages) is devoted to the fitness issue. Understanding it requires a summary of ALJ Buhrmaster's Ruling and the appeals to it all parties submitted. The following discussion focuses only on the fitness issue, not hydrogeology and noise issues.
The standard for determining whether an issue should be adjudicated is whether enough doubt has been raised by a party proposing the issue "that a reasonable person would require further inquiry." One who proposes an issue must also prove the allegations that raise such doubt could lead to permit denial or to additional conditions imposed on the permit beyond those already included in NYSDEC Staff's draft permit.
The ALJ found the first part of the standard was met because WMNY failed to disclose some violations of its own and of its parent corporation he requested they disclose (the ALJ found out only after NYSDEC Staff provided a full list of New York violations and after SPOC brought news accounts of other violations to his attention) and because he felt the evidence supported SPOC's allegations that the violations went even further. SPOC argued that there is a "corporate culture" of environmental crime and dishonesty that would influence WMNY, like it had many other subsidiaries of its parent corporation. According to the ALJ, all this made it reasonable to inquire further by holding an adjudicatory hearing on the issue, including a look at violations of WMNY, Waste Management, and USA Waste which merged with Waste Management in 1998.
The ALJ found the second part of the standard was met because, if proven true, these allegations could lead him to add conditions to the landfill permit or deny it altogether. However, the ALJ ruled the evidence to be considered should be more limited than SPOC offered: no evidence of fraud crimes and no evidence of environmental crimes that were close to but not beyond ten years old (the usual period allowed in NY) would be allowed.
Appeals to the ALJ's Ruling
All sides appealed the ALJ's Ruling to Commissioner Cahill. SPOC argued that it should have been allowed to bring evidence of fraud, since such evidence would obviously be relevant to the company's trustworthiness, an important aspect of "fitness." (Since then the SEC has ordered WMI to stop antifraud practices.) Waste Management introduced a new argument, that NYSDEC lacks authority to adjudicate the fitness issue because a fitness inquiry is required under New York's hazardous waste law but not under the solid waste law.
Each party then submitted a response to the appeals. SPOC's response dismissed Waste Management's argument by noting that the authority for a governmental body to make fitness a requirement for a permit predates New York's environmental laws, which do not supercede this older, common law authority. This, by the way, applies to local as well as state permitting bodies.
In their response NYSDEC Staff adhered to their earlier view, that a fitness inquiry is not warranted in this case, but vigorously opposed Waste Management's argument on appeal that the agency lacks authority to adjudicate fitness in any solid waste landfill case. Staff thus agreed with an important part of SPOC's response argument and, indeed, elaborated the point.
Commissioner Cahill's May 15, 2000 Decision
The Commissioner pointed to NYSDEC regulations holding one who proposes an issue to a higher burden when, as is the case here, NYSDEC Staff and the Applicant agree on the terms of Staff's draft permit. He rejected Waste Management's argument that he had no power to look at fitness, but that didn't matter since, in his view, SPOC "offer[ed] no proof that the principals behind WMNY are unsuitable to receive the proposed permit." From the Commissioner's perspective, the Applicant is WMNY, not Waste Management, Inc.
The Commissioner was silent about SPOC's "corporate culture" claims. The burden, according to him, was to show either that Waste Management has a "serious and persistent" history of environmental violations in New York, or that the larger company would be involved in "day-to-day operational decisions" at the proposed Towpath Landfill. "The violations SPOC brought to the ALJ's attention were committed by Waste Management subsidiaries in other states," not entities with control or influence over the Applicant." No matter how serious, the 37 violations SPOC pointed to (see the 12/31/99 ALJ Ruling) were, according to the Commissioner, not substantial because Waste Management, Inc., has 292 landfills as well as many other facilities.
Finally, the Commissioner said information on USA Waste's violations is not relevant because they've only got four persons on the twelve member Waste Management Board of Directors. Because WMNY would, in his view, "be substantially influenced" by neither USA Waste nor Waste Management, Commissioner Cahill decided no hearing on fitness is warranted.
Commissioner Crotty's February 10, 2003 Final Decision
Adjudicatory hearings went forward on the groundwater impacts. The testimony and submissions by DEC Staff, the towns of Albion and Murray, Waste Management and the Orleans Sanitary Landfill trustee Greg Slater (who acted as Waste Management's partner) led to a voluminous final environmental impact statement and hearing report. Commissioner Crotty accepted the EIS and report hearings except in one particular: she rescinded a permit condition applying DEC policy that requires landfills to pay for DEC on-site environmental monitors. In its place, she said Waste Management should find its own monitors, negotiate their fee, and leave to DEC to role of reviewing the results of Waste Management's padi monitors.
DEC staff around the state reacted immediately with outrage, as the monitor provisions were never disputed by Waste Management or local DEC Staff who drafted the permit, and no one was given any notice that a decade-old policy was about to change.