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EPA intervenes in CWM landfill fight

PORTER – The U.S. Environmental Protection Agency has weighed in on the discharge of toxic chemicals from a proposed new CWM Chemical Services landfill, and its intervention is good news for the opponents of the plan, according to an attorney for local governments.

That attorney, Gary A. Abraham, said last week that CWM can’t operate a landfill without a permit to discharge treated leachate or precipitation runoff, something the company has been doing for years. The leachate and runoff are collected in ponds at CWM’s site on Balmer Road, straddling the Lewiston-Porter town line. It’s treated on site before being pumped into the Niagara River.

The EPA’s March 21 letter said the 1995 Great Lakes Initiative and resulting regulations bar CWM from discharging any more material into the river than it already does. That policy established stringent standards for discharges of mercury, PCBs and dioxin.

“Even if CWM provides a demonstration of economic need for this expansion, the requirements … mandate that no lowering of water quality shall be allowed, under any circumstance,” wrote Alyssa Arcaya, section chief of the EPA’s Clean Water Regulatory Branch. “The Niagara River is also on the list for impairments due to PCBs and dioxin in contaminated sediments, and there is a fish consumption advisory. The Niagara River is not achieving its best use.”

CWM spokeswoman Lori A. Caso said, “After reviewing the letter and given the already stringent limits involved in our existing process and our dedication to compliance, we remain confident that the issues can be resolved.”

Arcaya rejected the state Department of Environmental Conservation’s proposal to allow CWM to discharge more chemicals into the river if and when its new landfill opens. It ordered the DEC not to allow such an increase for any reason. Instead, the letter said, the DEC “should be requiring the off-site treatment of leachate, or an alternative solution that decreases the discharge of (chemicals).”

Abraham predicted that CWM can’t meet these standards. “So it looks like CWM has run up against a wall,” he said. “There is no allowance for any discharge of this material. CWM must find another way of treating water from their site and taking it outside the Great Lakes basin for disposal.”

The DEC, which had tentatively approved a new water discharge permit for CWM, will rewrite it to address the EPA’s concerns.

Caso said CWM expects a status report on the talks between the DEC and the EPA by April 25.

Abraham is representing Niagara County, the Town of Lewiston and the villages of Lewiston and Youngstown in the process, in which a siting board is to decide whether to recommend a new landfill to the DEC commissioner.

The Lewiston-Porter School District, the Niagara County Farm Bureau and Residents for Responsible Government, a western Niagara County environmental group, also are parties, as is Amy H. Witryol of Lewiston.

Besides the water permit, there is a issue over an air emissions permit that CWM also needs. The company owns land that was part of the Lake Ontario Ordnance Works, where the federal government stored nuclear waste from the World War II atomic bomb project and postwar atomic projects carried out by local industries.

Abraham said one of the objections is the construction and operation of the new landfill might release radioactive material in the dust churned up by the work.

Daniel P. O’Connell, the DEC administrative law judge presiding over the process, told the players that once the air permit application goes through a public comment period, he might allow new parties to enter the fray, but only on the air and water discharge issues.

In December, O’Connell made a lengthy ruling about what topics should be part of a trial-like “adjudicatory hearing” on the landfill application.

He now wants a hearing sometime between July and September on subjects that weren’t appealed by any of the parties after his December ruling. The water and air discharge permits would not be part of the proposed summer hearing.

That hearing could include topics such as traffic, noise and consistency of the landfill with localities’ comprehensive plans.

Caso said that O’Connell “requested that the parties work together to group the hearing issues into manageable parts with separate blocks of time for each. The hearing would continue, on and off, until all issues had been heard.”

But there is no schedule yet for a hearing on the more contentious topics.

Caso said, “Yes, this is a time-consuming process, but it should assure the community that all concerns have been addressed. Once we receive our permit, the public can be certain that nothing was overlooked.”

One important topic is the flow of groundwater on the CWM property – specifically, whether it flows west toward the Lewiston-Porter school campus. If it does flow west, and the landfill opponents say it does, that means leaks from the landfills would carry toxic chemicals toward the school.

In support of a DEC staff appeal on O’Connell’s ruling that the water flows west, Caso said CWM is drilling five new monitoring wells and six separate soil borings “to add to the factual record, to confirm site geologic and hydrogeologic aspects, and to further confirm that the proposed landfill could be monitored in a manner consistent with regulatory requirements.”

Meanwhile, Abraham’s bills to the county, examined by The Buffalo News, show that the anti-CWM effort has cost taxpayers $728,801 since Abraham was hired in 2004 to fight CWM, including $167,090 in the past 12 months. The total includes the cost of expert witnesses and paralegal services.

Abraham said he doesn’t expect to bill very much in the next few months. “I think it will be less because of these delays,” he said.

But eventually the hearings will start, and those will be expensive, he acknowledged. Abraham will call in the four experts he relies upon: Anirban De of Yonkers, on landfill engineering; Marvin Resnikoff of Bellows Falls, Vt., on radiation; Andrew Michalski of South Plainfield, N.J., for hydrogeology; and Ranajit Sahu of Alhambra, Calif., on soil erosion.

In the past year, Abraham billed the county $71,450 for his own services, which cost $220 an hour, a price that rose to $240 an hour as of Jan. 1. The experts received a total of $77,785. They all charge $165 an hour, except for Resnikoff, who bills $100 an hour. Other costs included paralegal services, mileage, local lodging at Lewiston’s Barton Hill Hotel during last year’s issues conference in Youngstown, and copying and printing.

County Attorney Claude A. Joerg said the county and the Town of Lewiston alternate $50,000 appropriations to pay Abraham and his team, and when one runs out, the other government comes up with the next $50,000. The villages don’t contribute financially.

“That’s how it’s worked historically,” Joerg said. “The Legislature’s been made aware this is the most expensive part of it. It is a lot of money, there’s no question about it.”