REVIEWING THE IWS PROPOSAL
All landfills in New York must receive both a local permit from the town hosting the landfill and a state permit from the DEC. However, the Town of Farmersville has a contract with IWS under which, if IWS obtains a DEC permit, the town agrees to automatically issue a local permit. This makes the DEC review of IWS's permit application at the present time the only basis for determining the outcome.
A public comment period ending January 2, 2004 produced over 1,000 comments from the public, making a public hearing mandatory, and extending the comment period to March 30 and 31, the dates of hearings scheduled for Olean and Franklinville. However, the public should continue to familiarize themselves with the IWS application, as there will be an opportunity to comment further on the proposal as the issues conference progresses. The most readable portion is the volume titled "Draft Supplemental Environmental Impact Statement" (or DSEIS). Comments on specific assertions made in that portion will be most helpful. Send us a copy of your comments. Send a copy as a letter to the editor.
The public comment period was triggered by the DEC finding that the IWS application materials are "complete." Completeness in the DEC permitting context simply means that an application is ready for substantive review. It does not mean that the application contains all the information necessary to meet regulatory and statutory requirements.
In fact, the judge presiding over the hearings to review the IWS proposal has ruled that later in 2005, the public comment period will open again and stakeholders will have another opportunity to petition to intervene, if they haven't done so already. This is because an issues conference has shown that IWS must apply for two new permits, one to discharge up to 1.6 millions of gallons of wastewater per day into Carpenter Brook, another to destroy wetlands.
WHAT'S ALREADY HAPPENED:
April 2, 1991: IWS asks DEC to conduct a "conceptual review" of its proposal. This allows for a decision regarding whether the basic idea or "concept" of a landfill of the size (650,000 tons of waste per year proposed at that time) and type (municipal trash and garbage) is appropriate for the Farmersville site.
January 20, 1994: DEC Staff accepted the IWS proposal as complete for conceptual review, after a series of rejections and revisions.
September, 1994: Two sessions to hear public comments, almost all opposed to the landfill proposal, were followed by an adjudicatory hearing before an Administrative Law Judge (ALJ) in the Franklinville Fire Hall. Cattaraugus County, the City of Olean, the Town of Farmersville, CCCC, IWS, and DEC Staff testified at the hearing.
May 15, 1996: After a Recommended Decision by the ALJ was appealed more than once, then-Commissioner of the DEC Zagata issued a Final Decision granting "conceptual approval" to the IWS proposal. This allowed IWS to prepare a permit application. The Commissioner ruled that underground water in the Carpenter Brook aquifer (beneath the proposed site) and the Ischua Valley aquifer (to the west) were not sufficiently connected to trigger a prohibition on landfills located over drinking water aquifers. The Commissioner also ruled that surface water contamination of the Ischua Creek would be sufficiently diluted by the time it reaches Olean, and the steep slope of the proposed landfill site (18-19% after waste is placed on the hill) would not destabilize a landfill.
Week of July 18, 1999: IWS submitted a four-inch-thick Technical Application to DEC. Now the proposal is expanded to receive 3,000 tons of garbage per day, or 915,000 tons per year. IWS must wait for a scoping document from DEC before submitting the larger part of their application, a Supplemental Environmental Impact Statement (SEIS).
Week of August 2, 1999: DEC Staff met with Project Manager Steven J. Doleski to draft a scoping doument. Scoping (determining the scope of issues that must be included in a complete permit application) was the subject of public meetings the DEC held in March, 1999, in Franklinville.
August 11, 1999: IWS submitted a draft SEIS (Supplemental Environmental Impact Statement, actually the permit application) before DEC Staff could develop a scoping document. This raises important questions about who determines the scope of issues that will eventually considered in a DEC hearing. Soon after, DEC rejected the draft application as incomplete.
October, 2000: The Town Board of Farmersville enacted a new restrictive landfill law that would have had the effect of stopping the dump but, but under threat of a lawsuit by IWS the board passed a revised law that removed all but a few provisions changing the shape of the landfill. However, the contract with the town provides that IWS automatically gets a town permit if they succeed in getting a DEC (state) permit. To date, the town has shown no willingness to exercise its power to protect local health, welfare and safety. DEC has no obligation to do so; it has state-wide interests in increasing landfill space. Moreover, the DEC is obligated by law to grant a permit if IWS qualifies for one by meeting the state's minimum requirements.
August, 2001: IWS submitted another draft application for a permit to DEC. This time the proposal was scaled back to 690,000 tons of waste per year, for 19 years. The DEC asked IWS to agree to wait a few months for a determination of completeness. The usual time required for a decision is 30 days from the date the application is submitted.
July, 2002: Two 3-ring binders of revisions were submitted by IWS in response to comments on its application by the DEC. The changes include the addition of "residential septage" to the kinds of waste IWS proposes to dump in Farmersville.
August, 2002: After the company submitted a number of unacceptable proposed changes, DEC Staff asked IWS to wait until December 31, 2002, for further action on its application.
December 30, 2002: DEC Staff notified IWS further action on the application must wait until Staff comments on the air pollution impacts of the proposed landfill are prepared, by February 17, 2003. Numerous additional changes are requested by DEC's Division of Water and Division of Legal Affairs. More information about IWS and STWS is requested by Legal Affairs.
September 15, 2003: The DEC notified IWS, Cattaraugus County, the City of Olean and CCCC that its application is complete, and the public review of the landfill proposal will begin the following month.
January, 2003: The DEC received over 1,200 written comments on the dump proposal, providing ample justification to schedule a public hearing.
March 30 & 31, 2004: The DEC assigned administrative law judge (ALJ) Kevin Cassutto to hold a public hearing and accept applications for party status (in which potential parties propose to intervene, arguing that specific issues may require changes in the draft permit or permit denial).
April 27, 2004: An issues conference was held for two days by ALJ Cassutto in Machias, but three months after adjourning, the judge canceled it. When Judge Casutto reconvenes the issues conference, he will decide is who shall be accepted as formal parties to the issues conference and whether an adjudicatory hearing on specific issues (see below) will be scheduled.Only parties whose issues are accepted by the judge may participate in an adjudicatory hearing. All other concerned citizens may observe the proceedings, because all hearings are open to the public.
October, 2004: Chautauqua County, which petitioned to intervene, brought a motion to reopen the 1996 DEC "conceptual" approval of the site. The 1996 approval did not permit the landfill, and specifically called on IWS to apply for all necessary permits. But over the summer of 2004 the DEC technical staff re-mapped wetlands on the IWS site and found they exceed the 12.4 acres triggering state regulation. The 1996 approval was based on maps provided by IWS. If it was know then that the wetlands were larger, the site would have been approved and we wouldn't be here now. Chautauqua County argues the site should now be disqualified. IWS replied to the motion in January, 2005, and the DEC Commissioner should rule on the motion soon.
IWS must submit two new permit applications, one to disturb wetlands, one to discharge polluted water into Carpenter Brook. Once those applications are complete ALJ Casutto will schedule a new public comment period and invite new petitioners for party status on water issues. Following the deadlines for filing new comments and petitions (and supplementing previously filed petitions) Judge Cassuto should reconvene the issues conference. Ultimately, the judge will decide whether further hearings are necessary to examine the evidence for and against the IWS proposal.
One or more parties are likely to appeal the ALJ's recommendations to the Commissioner of the DEC. Sixty days are allowed to prepare appeals. Within another 60 days from the last date allowed for appeals, the ALJ's recommendation could be acted upon by the Commissioner of the DEC, who alone has the power to issue a Final Decision granting or denying a permit to construct the proposed landfill. The Commissioner's final decision can (and often is) challenged in a court.
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The engineering specifications required for the kind of landfill IWS proposes, and whether certain "mitigations" or trade-offs for the negative impacts of the project have been fully considered, will be decided in the permit review process just beginning now.
CCCC has applied along with Cattaraugus County and the City of Olean (jointly), the Town of Farmersville, and others to be parties in an adjudicatory hearing. DEC Staff and IWS are automatically parties. We need your financial, spiritual and personal support as participants in public meetings, which will help us provide the judge with technical information to decide whether IWS gets a permit.
get the IWS Application at:
Farmersville Town Hall
Franklinville Town Hall
Olean Public Library