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Lawsuit accuses DEC of allowing illegal waste shipments to Porter landfill

Two western Niagara County residents have sued the state Department of Environmental Conservation, accusing the agency of allowing CWM Chemical Services to continue treating toxic waste at its Porter landfill even though the site's capacity has been exhausted.

CWM, a subsidiary of Waste Management, is seeking state permission to dig a new landfill at its site on Balmer Road in Porter, but the lawsuit from Amy H. Witryol and Thomas Freck doesn't pertain to that.

The suit, filed Oct. 19 in State Supreme Court in Erie County, accuses the DEC of improperly allowing CWM to treat and store waste brought to the site.

Amy H. Witryol speaks at a news conference in Lewiston. (Thomas J. Prohaska/Buffalo News)

About 48 tons of waste have been treated at the Balmer Road site so far this year and 305 tons have been stored there before being transferred elsewhere, Witryol said Wednesday at a news conference in Lewiston.

She said much of the waste comes from out of state. After its treated or stored, the waste is shipped to Waste Management facilities in other states.

Witryol, a retired banker from Lewiston and a two-time Democratic candidate for state senator, is a party in the lengthy regulatory process reviewing CWM's application for a new landfill. Freck owns a farm on Balmer Road, about 900 feet from the CWM property.

The landfill ran out of room in 2015, but CWM has been taking liquid waste from disposers, including material containing cancer-causing PCBs and other toxic chemicals including benzene and trichloroethylene, according to the lawsuit.

Wityrol and Freck say the DEC cannot legally allow CWM to take that waste for treatment without a new permit, called a siting certificate.

The DEC and the company responded to Witryol's complaints by telling her the 1993 certificate for the now-full landfill allowed such treatment and storage activities to continue on the site.

"We think the DEC's interpretation is wildly mischaracterized," Witryol said.

The plaintiffs and their environmental law attorneys contend the certificate allowed treatment and storage of waste only if it was "ancillary" to the operations of the now-closed landfill – in other words, if the waste was landfilled there after treatment.

CWM has no operating landfill at present, and thus must store sludge from waste treatment at Balmer Road until it can be shipped to other landfills. The lawsuit contends that such treatment and storage is illegal.

CWM spokeswoman Lori Caso said the company had not seen the complaint and declined comment. A DEC spokesman said the department was reviewing the case and would not comment further on pending litigation.

Local officials said they remain determined to defeat CWM's long-delayed request for a new landfill, which Witryol said could be aired at hearings before a state siting board sometime in 2018.

"We think we're going to win it, and win it convincingly," Niagara County Legislature Vice Chairman Clyde L. Burmaster said.

He said the county and the Town of Lewiston already are committed to another year of legal fees.

"We are no longer going to accept toxic waste rolling through our town, in front of our schools, jeopardizing those we love," Lewiston Councilman Alfonso M. Bax said.

State regulations require trucks hauling waste to CWM to use a route that includes Creek Road, part of Route 18, which passes in front of the Lewiston-Porter Central School campus.

"The community wants an end to the hurt and the CWM stigma," Witryol said.

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