Board Approves All Three Landfill Agreements
by Alex Brooks
At a special meeting on March 9 the Petersburgh Town Board voted unanimously to approve all three of the landfill agreements which have been under debate over the last two weeks.
The first vote was on the consent order with NYS Department of Environmental Conservation (DEC) in which the Town agrees to design and install a leachate collection system based on a detailed analysis of the site by its engineers with the intention of stopping all contaminated leachate from escaping the containment facilities to be built on the lower end of the site. The Towns of Berlin and Petersburgh are under a DEC deadline to have a consent agreement in place by March 15. DEC said if the Towns did not sign the agreement by then, it would put the site on the State Superfund list and begin a State-directed remediation process right away. The choice was either to have the Town hire engineers and contractors to contain the leachate and make provision to either treat it onsite or haul it to an off-site treatment facility, or to leave the cleanup of the site to the State under the rules and procedures of the Superfund program.
Each of the Town Board members said a few words about how they came to their decision to support the consent agreement. Supervisor Dennis Smith said since the consent order makes the towns eligible for a grant in which the State will pay 90% of the cost, and also allows the towns to accept cash grants from Taconic and Covanta amounting to $500,000, it will be the most affordable option. He said he believes if the landfill is dealt with through the Superfund process, it will end up costing the towns a lot more money.
Councilman Heinz Noeding said for him the decision hinged on whether the towns are facing a manageable problem or a massive cleanup that will require resources beyond what the towns can bring to it. He said if it is not a manageable problem, the towns would have to turn it over to the State, but he said his discussions with people from DEC led him to the belief that it is a manageable problem. He said it is not a massive landfill contamination problem and there is not a significant plume, and “DEC is not asking us to dig up the landfill.” He said the consent order focuses on leachate collection, which he believes is a problem the Town can handle. He said the consent agreement and the Part 360 (landfill closure) regulations it is based on allow the towns to be in control of the process. He also added that if later on in the process it turns out that the State is demanding something much bigger from the towns, the towns still have the option at that point to “step away from the process and have the State take it over.”
Jack Barnhill said he agreed with the things that Heinz Noeding had just said, and said he supports the consent agreement because, “I believe it is the most financially responsible thing we can do for the taxpayers.”
Alan Webster said he supports the consent agreement because he believes the most important issue is control of the process, because that will give the towns the ability to control costs.
Tom Berry said as an engineer he has worked on a number of very large government projects, and his experience is that they invariably go over budget and take much longer than expected, and if the State were to take over this cleanup, that would be likely to happen here. He said he thinks the towns’ best option is to sign the consent agreement and go through the Part 360 (landfill closure) process.
The vote to sign the consent agreement was 5-0.
Taconic Agreement
The next matter under consideration was whether to accept a grant from Taconic for $300,000. This money is to be paid in cash soon after the agreement is signed, and would therefore be available to hire the environmental engineers right away to get the process started. The towns’ environmental attorney Kevin Young told the Board it typically takes two years to do a detailed study of the landfill and create the design of the leachate collection system and a detailed workplan and get it approved by DEC. Once the workplan is approved, the State can make a commitment to funding 90% of the project, but until then the towns would have to front the money, and the Taconic grant would cover the costs during this early part of the project.
Supervisor Dennis Smith said he supports the Taconic agreement because he believes $300,000 will get the towns “pretty far” into the process. Jack Barnhill said he is also in favor of the Taconic agreement. Tom Berry said he is in favor of the Taconic agreement now because it has been improved since it was first presented. It was originally a $250,000 grant, and is now a $300,000 grant.
In addition, Taconic has agreed to allow the towns to come back and ask for more money if costs end up being greater than anticipated. They did not make any representations that they would agree to pay more, but they did allow the towns to ask, if costs are significantly greater than anticipated. Board members referred to this provision as the “reopener,” and several mentioned it as an important part of their thinking. Alan Webster said “the reopener did it for me.”
Heinz Noeding said he believes Taconic does have a responsibility to help address the landfill contamination, and he hopes to get them to help also with operation and maintenance costs later on after the leachate collection system has been installed and we know what the annual costs of maintaining it will be. Noeding refers to the ongoing operation and maintenance cost as “perpetuity costs,” because whatever that cost ends up being on an annual basis, it will be something that the Town will have to pay every year, forever. Having said that, he said he supports the Taconic agreement , and it passed 5-0.
Covanta Settlement
The final matter to be considered was a settlement agreement with Covanta in which Covanta agrees to pay $200,000 to the towns, without admitting any guilt or liability, in order to avoid litigation. The towns agree not to sue Covanta over the failure of its predecessor company, Energy Answers, to install a leachate collection system that was supposed to be part of the landfill closure that it contracted to do for the towns. Supervisor Dennis Smith moved for the Board go into executive session to hear the towns’ environmental attorneys discuss the merits of the town’s claim against Covanta if the Board were to reject this agreement. The Board agreed to go into executive session for that purpose, and they were gone for over half an hour. When they came back, they voted 5-0 to accept the Covanta settlement, but they were all quite conflicted about it.
Supervisor Dennis Smith said the legal advice the Board is getting is that if the towns sued Covanta they would likely get not much more than the settlement agreement provides because the court might well take the position that by providing the cost of installing a leachate collection system, Covanta has made good on its contractual obligations. But Smith said despite this logic he has a hard time saying that this settlement money makes up for the company’s failure to fulfill its contractual obligations. He notes that the reaffirmation of indemnity in this agreement just acknowledges that there was an indemnity given in the original contract in 1991, and it is not really a new indemnity. But despite his conflicting feelings on the agreement, he agreed to support it.
Heinz Noeding said although he had a number of good reasons to reject the agreement with Covanta, and he beleives it is a bad agreement, he agreed to support it because his biggest concern is about ongoing operation and maintenance (O&M) costs. He said if the towns accept this settlement agreement, the funds from it are available for O&M costs, but if they sue Covanta and are successful, any proceeds from that litigation will reduce the state grant and will not be available for O&M costs.
Tom Berry said “Litigation is expensive.” He said he thinks the towns could have gotten more out of Covanta, but because of the cost of litigation, he guesses the towns won’t come out too much ahead by taking Covanta to court. He noted that the agreement has been significantly improved since it was first presented. Originally Covanta had agreed to pay $100,000 as an outright grant and another $100,000 as a loan to be paid back when the Town gets its grant money, but now the whole $200,000 is a grant.
Alan Webster said he believes the risk of litigation is too great compared to the potential reward, and he would rather take a sure thing now than embark on lengthy and expensive litigation for an uncertain result.
Jack Barnhill said, “I hate making this decision. I feel we should get more from Covanta, but I have been advised by two attorneys that I respect very much to take this deal, so I am going to take their advice.”