Chautauqua County's Ellery Landfill
The Ellery Landfill is publicly owned by Chautauqua County. On May 12, 1999, the county legislature approved financing to add to the landfill a 15-acre cell.
At that time, the Ellery Landfill accepted an average of 581 tons per day and offered discounted tipping fees for waste generated within the county ($20.50 per ton) and for waste generated in Cattaraugus County (averaging $27 per ton). A smaller waste stream from BFI, outside the county, is charged $29 per ton.
In 1999, after considering whether to close, sell or otherwise abandon the landfill as a net burden on county taxpayers (shouldn't responsible waste management be one thing county taxpayers would agree to pay for?), the county decided to expand the landfill. Following the path of irresponsible commercial garbage companies, the Ellery Landfill today is a regional landfill, serving interstate waste disposal needs of urban areas, not just the county's needs. The county has therefore made its residents host substantial amounts of other people's garbage and thereby shoulder environmental burdens with a clearly disproportionately small benefit. These burdens include breathing a number of regulated hazardous air pollutants, including (among the most dangerous) vinyl chloride, benzene, toluene and xylene.
In March, 2003, the landfill's application for permission to expand in size 16 percent, from 1,376 to 1,600 tons per day, was accepted by the DEC. Public comments were accepted by the DEC up to April 14, but no critical comments from citizens were received. The permit will therefore be modified, but as discussed more fully below, there is reason to believe the landfill is violating the Clean Air Act by emitting toxic gases in excessive amounts that will affect the health of persons who live or work nearby.
How Has Ellery Landfill Avoided Clean Air Act Requirements?
Large regional landfills cannot remain financially viable without cutting corners, and this means violating applicable regulations. The landfill gas regulations are among the most onerous financially because, once they become applicable to a landfill, the facility must embark on a major capital expense, the planning and installation of a comprehensive gas collection and control system.
Ellery Landfill should have begun the planning process in 2002, when they came up for review under Title V of the Clean Air Act. The review process is supposed to result in an operating permit that collects all applicable Clean Air Act requirements in one document and thereby allows the public monitor the landfill's compliance with the law.
The process includes a public period on a draft permit prepared by the DEC. If the DEC does not change the permit in response to comments, a 45-day waiting period follows DEC's issuance of the Title V permit during which EPA has the option of objecting to the permit. If EPA does not object, a 60-day period begins during which citizens may submit a petition to EPA requesting the agency object. Without an objection, the permit is made final without any changes.
Because they lack the resources to look at all draft air permits, EPA looks at a draft Title V air permit only a during the second stage, because the law requires a review at this stage. If they receive no petition challenging the permit, there is generally no EPA review.
That is precisely what happened in this case. Ellery Landfill's size and age coincides with emissions of toxic gases that exceed the regulatory threshold requiring controls, compared to all other landfills in the country. However, DEC Staff does not have the resources to scrutinize the estimation of emissions based on tests of the gas quality at the landfill. In this case, those tests were provided by a outside firm that specializes in calculating what it takes to avoid triggering the landfill gas rules. The tests showed the Ellery Landfill's emissions were just barely under the 50 Mg/yr. rate for toxic NMOC gas that would require planning and installation of controls.
Comments were submitted during the public comment period arguing that the slim margin for triggering the control rules, in light of the size and age of the landfill, calls for a second look at the way the emissions estimation was calculated. Comments also indicated that any expansion of the landfill would trigger the Clean air Act's New Source Review program, which requires testing of the ambient air quality away from the landfill, to see if people nearby are being chronically exposed to elevated levels of air toxics.
The DEC proved unwilling to expend the resources to look harder at the Ellery Landfill's Title V permit application, which it then issued, and no petition was brought to request EPA to take a look.
Now that the landfill is expanding again, citizens have another opportunity to demand the landfill install controls and reduce toxic emissions.