CCCC Updates, July 5, 2003
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Landfills in the news and related solid waste policy news


An Administrative Law Judge has issued a ruling on the proposed Oneida-Herkimer Solid Waste Management Authority regional landfill in Ava, NY, recommending that the landfill be permitted. The ruling is subject to comment and reply by the parties, including a coalition of opponents comprised of four nearby municipalities, a citizens group and three veterans groups. A decision of the Commissioner of the DEC is expected in August. However, an adverse decision from another DEC agency may play a part in the outcome.

On June 3, the DEC's Freshwater Wetlands Appeal Board ruled that DEC Staff had acted arbitrarily in denying a request by opponents to have wetlands surrounding the proposed landfill site reclassified. The wetlands, home to the American Bittern, a vulnerable bird species in New York State, are presently classified as Type II. The Board's ruling, requiring the DEC to consider reclassification to Type I will mean, among other things, the Oneida-Herkimer Solid Waste Authority will have a new burden to show an economic need for another 1,000-ton-per-day landfill in New York.

That should be difficult, as New York's commercial landfills have consistently left well in excess of one million tons of permitted landfill space unused every year since at least April 6, 1999, when the New York Daily News reported, "At [New York City's] request, state Environmental Conservation Commissioner John Cahill last month identified millions of tons of excess capacity at 25 of the state's 41 disposal sites." Over 28 million tons, to be exact. Since Cahill spoke, that amount has risen steadily: as of the end of last year the DEC reported the top 25 landfills have over 52 million tons of permitted landfill space. The state's ten incinerators have almost as much capacity.

The DEC's waste disposal capacity data are posted on our archive site.


On February 10, DEC Commissioner Erin Crotty approved permits for Waste Management's proposed new regional landfill in Albion, within 500 feet of the banks of the Erie Canal in Orleans Co. However, in May the Albion Town Board denied local permits to the company, rejecting a host community benefit deal worth as much as one million dollars each year. Then on June 9, a local environmental group teamed up with the state-wide organization Citizens' Environmental Coalition to file suit seeking to annul the DEC decision. On June 18, Waste Management and the lessor of the landfill site (also the site of an abandoned hazardous waste landfill) sued the town.

Commissioner's Crotty's decision is being challenged on two grounds. First, a May, 2000 Interim Decision rejected the ALJ's recommendation that Waste Management's fitness to hold permits without further conditions be adjudicated. This eliminated the group Stop Polluting Orleans County as a party, as fitness was their only issue. Then-Commissioner Cahill justified this decision in important part because two DEC environmental monitors were provided in the draft permit. Crotty's final decision threw out the monitors, saying Waste Management could hire its own, and this brought CEC in, joining with SPOC to challenge both decisions as an unwarranted change in policy. The DEC's own union has also opposed the monitor policy change, which was not requested by either Waste Management or the reviewing DEC Staff. A hearing is scheduled in Albany for July 25.


The DEC's review of the Ava and Albion applications makes it clear that landfills in New York are not being sited in areas that can comply with the minimum siting requirements contemplated by DEC's own regulations. The Ava landfill proposal cannot be permitted without granting a variance from the requirement that there be a minimum separation of five feet between the base of the constructed liner system and the seasonal high groundwater level. Part 360-2.13(d). The Ava proposal also requires a variance from the prohibition on constructing a landfill in a DEC-regulated wetland. Part 360-1.7(a)(2)(iv). (Over 14 acres of state-regulated and over 46 acres of federally-regulated wetland would be destroyed.) The Albion landfill proposal cannot be permitted without granting a variance from the requirement that unconsolidated deposits beneath the landfill be 20 feet or greater in thickness as measured from the base of the constructed liner. Part 360-2.12(a)(1)(v) and (vi). Variances in both cases are being justified by the project sponsor on the grounds that without them, the cost of construction would be prohibitive. DEC Staff agree with this rationale in both instances.


A modification of Waste Management's Chaffee Landfill (Erie Co.) Title V air permit is being recommended by the DEC, to allow the landfill to avoid becoming a major source of carbon monoxide when a new gas collection system comes on line.  CO emissions from the landfill's gas flare would be capped at 240 tons per year, just below the 250-ton major source threshold. But whether such a limitation is practically enforceable is in question, since landfill gas flow cannot be turned down like the valve on a fuel supply line. Update: EPA orders DEC to revise Title V permit

The landfill is fighting a citizen suit in federal court alleging that the new system was supposed to be on line at least nine months earlier, and those with homes adjacent to landfill have been forced to live elsewhere to avoid sickness from chronic exposure to landfill gas. The same citizens have also petitioned the EPA to reopen the landfill's existing Title V permit for failure to undergo New Source Review for a 1999 expansion.

Comments on the modification of Chaffee Landfill's air permit must be submitted in writing to the DEC no later than July 18, 2003.


Al Turi Landfill in Goshen, NY (Orange Co.), was fighting two citizen groups and the DEC, all of whom wanted to close the landfill now that its current Part 360 permit has expired. Last fall an issues conference was held at which the opponents proposed the issues of fitness and whether the landfill could as a practical matter be considered "open," considering it was taking in little more than 50 tons of waste per month just to keep its renewal application alive. Now Al Turi has withdrawn the application and begun final capping at the landfill, but there remain issues. One is whether corrective measures to address leaking arsenic found in monitoring wells will be adequate to keep the landfill from polluting the adjacent Wallkill River. Another is whether the EPA will re-open the landfill's Title V air permit, since Citizens Who Care petitioned the EPA to look into whether the landfill circumvented the Clean Air Act by omitting emissions from an on site gas to energy plant that burns its landfill gas.


Sixty percent of the 5.6 million tons of sewer sludge disposed of in the U.S. is processed, relabeled "biosolids" and applied to land, according to industry figures. As reported here at our last Update in January, effective March 10, 2003, the DEC adopted changes to Part 360, Part 364, and Part 621 regulations regarding land spreading of sewage sludge, characterized as the recycling of organic waste through composting and other means. The changes are intended in part to make state regulations consistent with federal rules.

Federal regulations allow sewage sludge to be disposed in landfills or incinerators without regard to concentrations of dioxins. 66 FR 66228 (December 21, 2001). Heavy metal concentrations, pathogen content and frequency of application are regulated for land application of sludge. 40 CFR Part 503. Cf. 68 FR 17379, 17382 (April 9, 2003). The EPA is scheduled to take final action on whether to limit concentrations of dioxins for sludge applied to land by October 17, 2003. 68 FR at 17382. This proposed action is currently subject to public comment. <> (Docket ID No. OW-2003-0006).

EPA's action is being taken in response to recommendations from the National Research Council of the National Academy of Sciences, and the Clean Water Act which mandates that EPA look at all available data on the environmental and health impacts of sludge. Earlier this year, NRC found more research is needed to "reduce persistent uncertainty about the potential for adverse human health effects from exposure to biosolids." 68 FR at 17383.

As NRC found, there may be little proof that when applied properly, spreading sludge on land is harmful. However, whether as a practical matter it will be applied safely is another question. Last month a jury awarded $550,000 in damages to a dairy farmer who showed hay grown in land fertilized with municipal sewage sludge caused his cattle to die off. (NYTimes, 7/26/03) In January, Earthjustice filed suit to stop two Florida companies from over applying sludge on open fields making nearby residents sick. Local governments in most states retain the power to ban land application of sludge. Community Environmental Legal Defense Fund has provided a model local ordinance to do so.

In contrast to the U.S., under its 1986 Sewage Sludge Directive, to be revised later this year, the E.U. regulates the concentration of metals in the soils to which sludge is applied. Holland banned land application of sewage sludge in 1991 and, as of May 1, 2003, Switzerland banned the practice where fodder crops and vegetables are grown.


Casella recently lost its argument against the Town of Bethlehem, New Hampshire, adopted everywhere by the waste industry, that state regulation of landfills preempts more stringent local regulations unless the regulations because local regulation is inconsistent with state law. This argument fails, according to a New Hampshire court, because more stringent local regulations cannot logically be "inconsistent" with a state law whose purpose is to protect the environment. (Littleton [NH] Courier, 4/16/2003). As a result, Casella's landfill is not allowed to expand and must close.

A proposed expansion of up to 656,000 tons to be disposed over five years at Casella's Farmington, New Hampshire 12-acre landfill could bring the town up to $6.5 million in revenue over the next five years, but the town is balking because the proposal would turn a local dump into a regional dump and because Casella's record has the Farmington Town Board worried. (Foster's Daily Democrat, 4/16/2003).

Poor management in past years has pushed the McKean County Solid Waste Authority to put its Mt. Jewett, Pa. landfill up for sale. Last fall the SWA had to raise tipping fees from $30 to $86 per ton, and successfully sought a restraining order against communities in its district that began sending their waste to Casella's transfer station in Cattaraugus County, NY, just over the state line, and from there to Casella's Hyland Landfill in neighboring Allegany County. The county has a local flow control ordinance requiring all county-generated waste be disposed at Mt. Jewett. Now Casella has emerged as one of two bidders who survived seven companies initially responding to the SWA's request for proposals. (Times Herald [Olean, NY], 7/1/2003). If successful, Casella's bid will give it a near-monopoly on the region's waste stream. Where that has happened in New England, waste management costs to municipalities contracting with Casella doubled.

--Gary Abraham, CCCC

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