By Nathan Mayberg
MONTICELLO — September 23, 2005 – One of Sullivan County’s most critical issues has been playing out in the Sullivan County Government Center’s Hearing Room all week in a sometimes dramatic, and other times baffling, way.
The Sullivan County Landfill is opposed by local and seasonal residents who believe the 35-acre expansion towards Rose Valley Road will asphyxiate the many families near the site, but supported by a majority of Sullivan County legislators and others who think that exporting waste outside the county as an alternative would be even more expensive than the $50 million debt the county currently owes on it.
Its fate will be decided in a major way by New York State Department of Environmental Conservation Administrative Law Judge Edward Buhrmaster, who presided over the hearings on the county’s Phase 1 application, Cell 6 expansion, and now finally Phase 2 – which has been forecasted to allow 18 more years of trash, while growing the mound an additional 100 feet high, or as Sullivan County Attorney Sam Yasgur put it, 1,500 feet above sea level.
The issues conference is meant for Buhrmaster to facilitate discussions among the parties (Sullivan County, New York State Department of Environmental Conservation Region 3, and Mountain Lodge Estates), hear their issues, and determine whether the unresolved issues require adjudication, where witnesses would be called to the stand and sworn in. He could then rule whether to approve or deny the issuance of a permit. That ruling could be appealed to the DEC Commissioner and then in New York State Supreme Court.
The hearings started off with a bang when Yasgur loudly called for the issues conference to be aborted and for the adjudicatory hearing to begin immediately.
Just as striking was the glaring difference in the way the DEC was handling this case as compared to the last hearing held in August. Jonah Triebwasser, the former Deputy Regional Attorney for the DEC’s Region 3, has retired, and Assistant Attorney Carol Krebs has taken over. Regional Attorney Vincent Altieri, who was not seen at past hearings involving the landfill, has been present all week.
The regional office’s attorneys not only absorbed stinging attacks from Yasgur but had trouble answering many of the questions asked of them by Buhrmaster. Many of their responses were muffled, incoherent, or contradictory.
That was in stark contrast to Triebwasser, who usually answered questions clearly, eloquently, and succinctly.
In addition, Triebwasser would answer questions in-depth after the hearing was over. Trebs and Altieri declined to answer any questions – and referred them to the regional office.
To add another layer of dramatization to the week’s spectacles, the Town of Thompson has disappeared from the conference, although its petition still stands.
The Town Board decided to give up fighting the landfill in person, after a bill of nearly $30,000 came in from Jacobowitz and Gubitz for handling the early stages of the proceedings. That bill included an environmental study. The firm, which was being represented by J. Benjamin Gailley, charged the town a similar amount last year – after they represented the town briefly in the Cell 6 expansion battle.
Last month, Town of Thompson Supervisor Anthony Cellini said the town was ready to fight the landfill expansion all the way. While their arguments will still require rebuttal by the respective parties, the town will no longer be represented at the conferences.
Gailley wrote to Buhrmaster stating the town’s support of the DEC’s main concerns over odor and gas control measures, noise control, recycling and other waste reduction measures, as well as landfill siting measures, among other issues stated in their petition. Gailley also relayed the town’s meetings with Taylor Recycling, as an alternative to the landfill.
That leaves Mountain Lodge Estates – a seasonal community of about 60 homes within 250 feet of the proposed expansion towards Rose Valley Road – to fight the county and possibly the DEC in the end. They are represented by upstate attorney Gary Abraham, who fought on behalf of the local environmental group SPECS last year.
The low levels of recycling by the county is one of the major reasons why the DEC is holding off on issuing a permit for the construction of Phase 2. Yasgur has conceded several times that the county has not done an adequate job of recycling and needs to do more. Abraham also lambasted the county for failing to recycle, compost or use other waste diversion methods.
The DEC initially issued over 140 technical comments, or objections, to the county’s application for expansion. As of late Tuesday afternoon, that number had been cut to approximately 50, said Krebs.
As the new round of hearings commenced Tuesday, Yasgur became highly animated as he told Buhrmaster the county would not participate in the issues conference, although it ultimately did.
“There is nothing to do here. . . . We are tired of discussing. . . . This is a waste,” said Yasgur.
Buhrmaster reminded him that it was he, the judge, who was in control of the issues conference. He said the conference would continue, whether the county participated or not.
But, above all, it is Region 3’s apparent lack of certainty over how it intends to judge the county’s landfill expansion which permeates the hearings. Earlier in the hearing, Krebs said the DEC objected to a permit being issued for the county’s expansion. But by Wednesday afternoon, the DEC was far more conciliatory, stating that it would issue a permit if the county agreed to certain conditions.
Even if the county agrees to a number of requirements, such as recycling and odor control, the issue over past compliance could be a major focus.
On Thursday, the DEC’s on-site monitor was prepared to speak about the county’s continual odor violations over the last several months, since a consent order went into effect.
The consent order was issued after the county’s odor problem reached a critical mass two years ago. Yasgur admitted that the county did not do a good job in controlling odors back then but that the situation had improved.
The DEC may require the county to go 6 months without odor violations at the landfill before a permit is issued.
In addition, the questions over past non-compliance continues. The county pledged to implement a far greater rate of recycling than it has in the last several years – and has failed to do so.
Buhrmaster said that continual non-compliance and lack of trustworthiness among other municipalities have been used as a basis to reject landfill permits in the past.
Yasgur derided Region 3 for using the issues conference as a way to punish the county for its lack of recycling and odor violations, when the DEC could have used its enforcement power earlier.
When questioned by Buhrmaster as to whether the DEC can use other avenues to address those issues, Krebs gave differing answers but settled on stating that this was the only proceeding.
Yasgur responded by stating, “If you’re talking about the past, then begin an enforcement proceeding.”
He asked incredulously as to whether the DEC would do nothing for the next 30 years if the county’s landfill was non-compliant. He also referred to the DEC as acting as “snidely as a six-year old.” That brought some repudiation from Buhrmaster, who indicated to Yasgur that he should refrain from personal attacks.
Yasgur also jumped on the DEC for using what he called a “cotton candy” and “amorphous” attitude towards the county. He said he believed the DEC wanted to shut down the Sullivan County Landfill.
Krebs said her department was simply following the rules and regulations. However, as the hearings continued, she appeared to be increasingly conciliatory to the county. When questioned by Buhrmaster as to whether she believed the county is unfit to operate a landfill based on their past performance, Krebs replied “We do not believe there is an underlying problem with the county to operate a landfill.”
One of the DEC’s more surprising actions has been its approval of the county’s plan to encroach on about an acre of a 28.5-acre state-protected wetland. The department said it will replace that wetland with a 3+ acre wetland nearby. DEC staff said they approved of the county’s plan since it is not a new landfill but just an expansion.
Abraham isn’t fighting the approval of the freshwater wetlands permit because he said it is too late.
Another major spat involved the DEC’s dissatisfaction with the noise study conducted by Malcolm Pirnie, the engineering group which has been working for the county on its expansion plans and on the operation of the landfill. David Pollack, of the DEC, said the study lacked critically important data.
That put Yasgur back into attack mode, as he questioned Pollack’s qualifications to be a noise expert. He once again raised his voice, saying, “I’d love to put him on the witness stand.”
That, in turn, made Mike Merriman, Deputy Regional Permit Administrator for the DEC, visibly irritated. Merriman pulled out the exact DEC regulations on noise regulations and vigorously defended them.
One of the focuses of Abraham’s petition centered around the county’s own solid waste management plan from 1993, when it stated that it would become an export community by 2009. Yasgur said that plan would be updated by the Sullivan County Legislature.
He questioned why the county was applying for a permit to handle 200,000 tons of waste a year, when it is currently on pace for less than half of that number.
“They are clearly planning on importing waste,” he said.
Buhrmaster responded that such an issue is not one the DEC can rule on.
Abraham also called on the county to conduct a study as to whether there is any critical habitat for endangered or threatened species on the proposed expansion property. Malcolm Pirnie has concluded that there are no endangered species on site.