Board Refuses to Sign Consent Agreement With DEC On Landfill Cleanup
by Alex Brooks
The Petersburgh Town Board meeting began with one member missing, as Jack Barnhill had a “business emergency” which kept him from attending the meeting. So with only four members present the Board considered perhaps the most momentous decision it has faced in a long time, the decision on how to proceed with the landfill cleanup. The Town’s environmental attorney Kevin Young was there to present the arrangements he had worked out with the various parties involved over the course of two years of negotiations.
These were embodied in three separate agreements. The first is the Town’s Consent Agreement with DEC, in which it agrees to finish the proper closure of the landfill by installing a leachate collection system, in accord with DEC’s 1991 order to close the landfill, the Final Closure Plan the Town agreed to at that time, and the Part 360 regulations which govern Solid Waste Management Facilities. The primary goal of this effort is to stop leachate, water which has flowed through the landfill and become contaminated, from being released into surface waters below the landfill and contaminating a stream there which flows into the Little Hoosic River. The Town’s responsibilities under the consent agreement include doing an assessment of the landfill and its impacts on groundwater or drinking water, identify and evaluate stream diversion options to reduce the quantity of leachate being generated, pay natural resource damages, and reimburse New York State for money it has spent investigating and responding to the leachate pollution problem. What it will cost to satisfy all of these requirements is not yet known, so it is difficult to assess what the cost will be of entering into the consent agreement.
The second agreement is with Covanta, the company which bought Energy Answers. Energy Answers was the company which contracted to close the landfill for the Town in 1991. The Town has asserted that Energy Answers is at fault for not installing a leachate collection system that was required by the Landfill Closure Plan, and that Covanta bears the responsibility for that failure to complete the work agreed to in the landfill closure contract. Covanta denies responsibility for this problem and disputes that it has any liabilities or obligations in relation to the Petersburgh/Berlin landfill, but to avoid litigation and to assist the Towns in good faith to respond to the State’s demands concerning the landfill, Covanta agreed to a settlement agreement in which they would pay $200,000 towards operation and maintenance of the leachate collection system while specifically not admitting to any facts, liability, obligations to the towns, or breach of the 1992 landfill agreement.
The third agreement is with Taconic, in which it agrees to make a grant of $250,000 to the Towns of Berlin and Petersburgh to help them cover the cost of compliance with the demands of the State of New York concerning the landfill cleanup.
Town Board Votes Down Executive Session
The subject of the landfill was first raised by a motion to go into Executive Session to have Attorney Kevin Young brief the Board on his negotiations with DEC, with Covanta, and with Taconic. But Councilman Heinz Noeding asserted that too much of the deals concerning the landfill are being done behind closed doors and he wanted those involved to tell the public what is going on and seek public input on what the Town should do.
Attorney Young said all three of the agreements brought before the Board are related to potential litigation, and in order to decide whether it is in the Town’s best interest to enter into those agreements, they need to know the strengths and weaknesses of the Town’s case in the event that the Town decides not to enter into the agreements and gets involved in litigation instead. He said DEC has a claim against the Town, and the Town has to decide whether to settle the claim through the consent order, or litigate. The Town has a potential claim against Covanta concerning the 1992 landfill closure contract with Energy Answers, and the Board must decide whether to accept Covanta’s settlement or pursue litigation. The Town has a potential claim against Taconic concerning the PFOA found in the leachate coming out of the landfill, and acceptance of Taconic’s grant would have an effect on whether that claim could be pursued in the future.
Young said, “I’m not going to tell you in a public session the weaknesses of your claims” in each of these situations. He said the subjects to be discussed clearly include contemplated litigation and they are therefore completely legitimate subjects for an Executive Session. Despite this advice, Noeding continued opposed to holding an executive session, and when called to a vote, Tom Berry joined him in voting against, so the motion to go into Executive Session failed by a 2-2 vote, with Councilman Alan Webster and Supervisor Dennis Smith voting in favor.
This presented a quandary, as Young had driven out to this meeting for the specific purpose of telling the Board in detail about all of the considerations which had led to the three agreements now before the Board, and why he believes these three agreements are the Town’s best way forward. The Board would have to make its decision without benefit of a full briefing from its attorney.
Young then addressed the public, describing how we arrived where we are now. He said Petersburgh opened its landfill in 1955, and Berlin joined in 1960 to make it a jointly run facility. There were no regulations to speak of at that time, so towns ran landfills pretty much as they saw fit. The first landfill regulations were passed in 1980, but the most significant new regulations were put in place in New York State in 1988. At that time the regulations required all active landfills to have a clay liner to keep leachate from making its way down into the groundwater. It was not feasible to retrofit a landfill with a clay liner, so in effect it meant that most landfills had to be closed, and around that time about a thousand landfills in New York State were closed. Petersburgh/Berlin received its order to close in 1991. The new landfill regulations also prescribed requirements for closing landfills, involving a clay cap with specified slopes and a leachate collection system. Closing a landfill could cost millions, and Petersburgh dealt with that problem through an agreement with Energy Answers (EAC), in which EAC agreed to close the landfill to DEC’s satisfaction, paid for by tipping fees from out of town garbage used to create the proper slope for the closed landfill. The result was that it was closed without cost to the Town, but somehow EAC got away without putting in a leachate collection system.
Young said New York State has a program for helping Towns to close landfills which makes grants which cover 90% of the cost, and the Town has to pay 10% of the cost. Petersburgh and Berlin have applied for such a grant and Young said the expectation is that such a grant will be awarded, but it might take a few years to come through because there are periodically political deals made about allocating Environmental Protection Fund money for these landfill closure grants.
He said the idea is to use $200K from Covanta and $250K from Taconic to get started on the Town’s responsibilities under the Consent Agreement with the expectation that a landfill closure grant will come in a little later to pay for building the leachate collection system, and that some of the Covanta/Taconic money can be used for operation and maintenance of the leachate collection system after it is built.
He said operation and maintenance may be a significant long term cost. He estimated that the leachate collection system might collect 1,000 to 2,000 gallons of contaminated water per day, which would have to be either trucked to a treatment plant, or treated on-site and released. He pointed out that if the choice is on-site treatment, the cost of building the treatment facilities could also be covered with one of the 90% grants he mentioned earlier.
Deadline Coming Soon
Young said the opportunity to sign the consent order is available for a limited time. The State originally gave the towns two years to come up with a solution to the leachate pollution problem, and the time is up now. He said February 28 is the State’s deadline for having a consent agreement in place. If the towns do not sign a consent agreement by then, the site will be put on the registry of inactive hazardous waste sites, know in common parlance as the State Superfund list. Once that happens, the towns are no longer eligible for 90/10 grants from the Environmental Protection Fund. Instead, the State takes charge of the investigation and remediation of the site and fronts the money to get the work done, then seeks reimbursement from the parties responsible for the pollution. Young said this is a very expensive process, with the State-run investigation and remediation running quickly into the millions, followed by lengthy high-stakes litigation over who must pay for it all. He said, “if we get into litigation over Superfund cost recovery, you’ll see legal bills of $10,000 a month,” and this may go on for years. Some suggested that they may go after Taconic rather that the towns. Young said it is very likely that the State will seek money from Taconic, but in that situation the usual practice would be for Taconic to turn around and sue others who might have some responsibility, resulting in a blizzard of litigation. He also said he has seen a lot of cost recovery efforts under the State Superfund process, and “in every case they went after the owner/operator of the facility.”
Young also pointed out that the Town of Berlin will be greatly affected by the Bpard’s decision on this matter. Four days earlier Berlin voted in Executive Session to sign the Consent Order. Young did not address the question of whether one Town could sign it and the other not sign it, but it would no doubt be a difficult situation at best.
To sum up, Young said the Consent Agreement will certainly cost the towns some money, and a good deal of uncertainty remains about how much that will be. But the chances are good that this will be an affordable project funded in large part by somebody else’s money. The alternative, allowing it to go into the Superfund process, will end up with “enormous cost and massive litigation.” He said there are two paths – one in which we are seen as cooperative partners with the State making good faith efforts to solve the problem, and the State helps us get it done with 90% grants, or the other in which we refuse to sign an agreement with the State and they impose a solution on us, and then compel payment. The Superfund process, he pointed out, was created in response to Love Canal, and is designed to handle uncooperative polluters.
Dennis Smith then said that there are three separate agreements before the Board, and they should not necessarily be seen as a package deal. He said he himself had some doubts about the Taconic agreement because he wasn’t sure how extensive is the release of liability that goes with the agreement. But he said he wants to get the Consent Order in place “so we have some control.” He said he believes the cost will be much greater “if DEC is running the show.”
With this Smith called for a vote, starting with the decision to sign the Consent Agreement. They started to vote but Tom Berry then said wait, I want to ask another question. He asked if the Consent Agreement gave Taconic any release of liability, and Kevin Young said no. Berry then asked to read the Consent Agreement. Young handed it to him, and everybody waited several minutes while he read it. A vote was held, and Smith and Webster voted to sign the Consent Agreement and Berry and Noeding voted not to. The motion to sign it failed by a vote of 2-2.
Young said the Covanta agreement was based on a signed Consent Agreement, so it could not be accepted unless it was renegotiated, and no vote was held on either that or the Taconic agreement.
Young asked Tom Berry about his reasons for rejecting the Consent agreement because he didn’t understand what Berry said at the time he voted. Young said he thought Berry might have a misunderstanding of what was in the Consent Agreement, and asked if Berry would like him to arrange a meeting in which DEC officials could respond to his concerns and generally clarify the situation. Berry said yes he would like that. There was a concern that this not become an official meeting of the Town Board, which means only two members of the Town Board can attend. Someone then suggested that may be two from the Berlin Town Board might like to attend also. Young said he would try to arrange such a meeting. Heinz Noeding said he would like to attend that meeting, so it looks like it will be Tom Berry and Heinz Noeding with Kevin Young and people from DEC. It wasn’t clear when this meeting would take place, but it would have to be very soon unless DEC is able to postpone its deadline.
The planning of the DEC meeting appeared to leave open the possibility that the Board might reconsider its rejection of the Consent Agreement, but nothing was said about such a possibility.