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Modern Landfill announces intent to sue Alleged toxic waste at former dump is reason for suit against the Town of Lewiston

The Lewiston Town Board was notified last week of Modern Landfill's plan to go forward with litigation against the town regarding alleged toxic waste on the former town dump, which was labeled a "non-hazardous waste dump."

"It appears that they don't want to talk anymore," Town Attorney Joseph Leone Jr. told The Buffalo News.

But Modern Landfill's Chief Executive Officer Gary E. Smith told The News that it was the lack of discussion that prompted a "notice of intent" to sue that was filed Sept. 9. The company now has 90 days to file a civil suit.

Smith said the suit was prompted by the discovery in 2008 of several buried drums labeled Hooker Chemical. The drums had leaked most of their trichloroethlyene (TCE) into the soil and ground water.

He said the waste they came across "was definitely toxic" and was found on the old town dump, which the town turned over to Modern in 2002. He said it could cost between $100,000 to $500,000 to clean up.

"It left us with very few options," Smith said, adding that there was not supposed to be any hazardous waste on this land.

"I'm not sure if this was neglect, but when a site is registered nonhazardous it changes how you approach it," Smith said.

While the Town Board has been unable to discuss much of the issues in public due to "pending litigation," Smith was anxious to get the details out into the public.

He denied he had any political motivations in the matter, but did note that he wasn't surprised that the board didn't want to discuss this as elections are approaching.

"Fred Newlin [who is running for supervisor] just thinks this will go away," Smith charged.

Modern's lawsuit will not involve the town's Community Advisory Committee that spent nine months negotiating on the board's behalf, including discussion of the host community agreement and Smith's request to increase tonnage at the dump.

Councilman Alfonso Bax, who is cross-endorsed by the Republican and Democratic parties in his run for re-election, served as the board liaison on the committee and called the citizen's group invaluable. But he said the committee was formed before the barrels were found and said they were not negotiating on this matter.

"We [as a board] are certainly concerned [about the notice of toxic waste,] but I can't say we would be surprised given the history of Western New York with the Lake Ontario Ordnance Works and CWM," Bax said.

Newlin said the town's use of this land as a dump goes back to the 1970s and 1980s.

Newlin said Smith had asked for a quid pro quo, suggesting that he would drop the lawsuit if the board would allow him to bring in more trucks and expand the dump.

Smith told The News that this was on the table, "but now I'm not seeking an expansion. I had a lot of money tied up [in the cleanup]."

The Community Advisory Committee recommended in June that the town reject the request to increase tonnage.

In addition, the committee recommended a complete audit of Modern's compliance under the existing host community agreement and, finding several issues that should be addressed in the agreement, asked the board to address them.

"The CAC has done a fantastic job of reviewing contracts and discussing improvements that can be made. My opinion is what they have done is invaluable," Bax said.

At the time, the board accepted the lengthy report and decided not to open any negotiations on increasing tonnage.

Town attorney Leone said a letter of intent is a step beyond a notice of claim against a government.

And Smith said he expects he will likely go forward with his civil suit in 90 days.

Leone expressed disappointment, saying, "[The CAC] was in there [negotiating] forever and ever. This came as a surprise to me. But now it looks as if their work is all for naught."

"The goal was to start a dialogue, but now this lawsuit puts handcuffs on us and is a bargaining chip for Modern," Bax said. "Now all we can do is wait."

e-mail: nfischer@buffnews.com

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