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Niagara County, Lewiston heavily invested in CWM fight

LOCKPORT – The legal battle over whether CWM Chemical Services will be allowed to dig a new hazardous waste landfill on its property in Lewiston and Porter will begin in earnest this week, as an issues conference convenes Tuesday in the fellowship hall of First Presbyterian Church, 100 Church St., Youngstown.

The taxpayers of Niagara County and the Town of Lewiston, who have retained environmental attorney Gary A. Abraham since 2004 to prepare for this day, have spent more than $500,000 over the past 11 years in preparations and preliminary skirmishes leading up to the effort to stop CWM’s waste disposal business from expanding.

Company spokeswoman Lori A. Caso said earlier this month that CWM is nearly out of space in its current landfill. Without a new landfill, CWM would no longer be allowed to accept new waste, although it would have to continue maintaining the existing site. It is seeking permission to dig a new 43.5-acre landfill that would hold four million cubic yards of waste.

In 2014 alone, the legal tab for the county and Lewiston was $200,028, and Abraham estimated his effort will cost roughly the same amount this year.

It’s worth it, said County Legislature Chairman William L. Ross.

“It was a unanimous investment,” he said. “We’ve done everything we can to support the health and safety concerns of the residents.”

An examination of more than 10 years of Abraham’s bills, obtained by The Buffalo News under the Freedom of Information Law, showed a total of $561,711 from September 2004 through February of this year. The bills are sent to the county, which pays them and receives 50 percent reimbursements from Lewiston.

There was a controversy in 2013 over whether the county should stick with Abraham. The Republican-controlled Legislature was accused by local environmentalists of not being fully committed to the effort to stop the CWM expansion because of campaign contributions to Niagara County Republicans by Waste Management, CWM’s parent company. However, at the end of the day, Abraham was kept on board.

“This project is on solid footing, and Lewiston has committed to half the costs, as before,” Abraham said. The villages of Lewiston and Youngstown also have joined the list of “municipal stakeholders” opposing CWM, although County Attorney Claude A. Joerg said the villages are not making financial contributions.

Joerg said he sees no grounds for objection to the cost of Abraham’s effort on the county’s behalf. “He doesn’t have unbridled discretion to spend money, but so far I think he’s been a good steward of the money, from the invoices I’ve seen and approved,” Joerg said.

“I’ve been satisfied up to this point,” Ross said. “I believe in him, let’s put it that way.”

Opponents confident

Legislature Vice Chairman Clyde L. Burmaster, whose district includes the landfill, used a football analogy. He said, “We’re down to the 5-yard-line. This is not the time to walk off the field. It’s time to score a touchdown. I have some confidence that we’re going to prevail in this lawsuit.”

A football comparison might be appropriate, since CWM’s team of attorneys and consultants will be led by Pittsburgh attorney Daniel M. Darragh, who played quarterback for the Buffalo Bills from 1968-70, winning only one of 11 career starts. He has represented CWM for more than 20 years.

Most of the Balmer Road landfill is in the Town of Porter, but that town is not taking part in the legal battle. That’s because of a 3-2 vote by the Town Board in 2001 to accept a payment from CWM of $3 million plus $3 per ton of waste dumped in the new landfill in exchange for not participating in opposition to the expansion.

Nearly half of Abraham’s bills for 2014 – $89,857 – called for payments to scientific experts he has chosen to help with the technical aspects of the battle against CWM.

“We definitely need experts to put this case forward to the hearing,” Joerg said.

Abraham, whose office is in the Village of Allegany in Cattaraugus County, said the roster of experts was selected to concentrate on what he believes are the three issues likely to consume the most time at the conference. They are “groundwater protection, discharge of PCBs to the Niagara River and Lake Ontario, and exposure to radioactive compounds during deep excavation.”

Attending the issues conference to assist in addressing those matters will be Marvin Resnikoff of Radioactive Waste Management Associates, a specialist in issues regarding radioactivity; Andrew Michalski, a private hydrogeologist; Anirban De of Manhattan College, an expert in landfill engineering; and Ranajit Sahu, an air emissions expert.

Reports by those four are included in Abraham’s 116-page brief seeking for the municipalities to be granted “party status” in the formal hearing that will follow the issues conference, perhaps later this year.

Michalski has been the highest-paid consultant so far, with almost $65,000 charged since 2011, including $44,319 in 2014. Resnikoff has been paid more than $44,000 since 2005, including $9,650 last year; Sahu received $26,152 last year, and De was paid $8,250.

Radioactivity is a key issue because CWM’s proposed new landfill, like its current one, is to be located on land that was originally part of the Niagara Falls Storage Site, where the federal government buried nuclear waste from the World War II atomic bomb project and other postwar atomic production. That waste remains buried there, and the opponents will contend that more excavation might release it. CWM owns 710 acres of land there.

Also, Abraham and his team are prepared to argue that the groundwater conditions on the site make another landfill too big a risk, contending that the landfill will leak and the chemicals it contains will make their way through the groundwater flow into the nearby Niagara River.

Open to the public

One of the preliminary battles Abraham won was a declaration by the state Department of Environmental Conservation in 2010 that New York State doesn’t need any more hazardous waste disposal capacity. A 1987 state law ordered the DEC to investigate that question, but the agency dragged its feet for 23 years. The 2010 siting plan is a key weapon in the hands of CWM’s opponents.

The purpose of the issues conference, which is open to the public from 10 a.m. to 5 p.m. Tuesday through Friday, is to determine what will be discussed at the formal hearing and who will be allowed to discuss it.

Besides Abraham’s municipal clients, party status also is being sought by Residents for Responsible Government, a local environmental group, the Lewiston-Porter School District and the Niagara County Farm Bureau. They have hired attorney R. Nils Olsen Jr., a Youngstown resident and professor at the University at Buffalo Law School who also chairs Buffalo’s fiscal control board.

In addition, Amy H. Witryol of Lewiston, a citizen active in environmental issues and two-time Democratic candidate for state senator, is seeking party status, as is Rick Dykstra, a Canadian member of Parliament from St. Catharines, Ont., whose district borders on the Niagara River.

“We support standing for all the other petitioners,” Abraham said when asked if the municipalities wanted to exclude anyone from winning party status. However, it’s possible that standing might be granted to some players only on certain topics.

CWM refutes claims

Spokeswoman Caso said, “CWM doesn’t believe any of the petitioners have identified a significant and substantive issue. Where a draft permit is proposed, the burden is on a petitioner to bring significant or substantive issues forward. We don’t believe any of them have done so. Many of the issues being raised have been previously asserted.”

Presiding over the issues conference and the subsequent hearing will be Daniel P. O’Connell, an administrative law judge from the DEC. Also present will be the eight-member siting board appointed by Gov. Andrew M. Cuomo, comprising five state agency representatives and three local residents: former County Legislator Lee Simonson of Lewiston; John Benoit of Lockport, a retired manager from Delphi Thermal Systems and current chairman of the Niagara USA Chamber; and A. Scott Weber of Getzville, senior vice provost for academic affairs at the University at Buffalo, who holds a doctorate in civil engineering.

Paul D’Amato, director of the DEC’s Region 8 office in Avon, is chairman of the siting board. The other state agency representatives are former Erie County Legislature Chairwoman Lynn M. Marinelli, Western New York director of intergovernmental relations at Empire State Development; Matthew J. Forcucci, public health specialist in the Buffalo office of the state Health Department; Dierdre K. Scozzafava, deputy secretary for local government in the Department of State; and Darrell F. Kaminski, regional director of the Department of Transportation.

Although dozens of issues were submitted in the run-up to the conference, O’Connell asked the parties to try to group them into three distinct classifications. According to Abraham, those are issues pertaining to the criteria the DEC must consider to grant CWM a new disposal permit; those the siting board must consider regarding a siting certificate; and those that overlap or pertain to the state’s usual environmental impact proceedings.

Before the process ends, both the DEC and the siting board must make their own decisions on whether the expansion will be allowed.

“It’s a complicated proceeding because of the two parts, two decision-makers,” Abraham said. “Both decisions have to go CWM’s way for there to be a new facility … The two decision-makers have independent authority. One cannot influence the other.”

Although the church hall has been booked for two weeks, both sides hope it won’t take that long.

O’Connell faces no deadline to make his decision on the subjects and participants for the formal hearing.