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After 15-year fight over new landfill, CWM review resumes Tuesday

For more than 15 years, residents and governments in Niagara County have been battling a big business to keep their air and water clean.

They've spoken out at public hearings; submitted letters and petitions; dug up old deed restrictions; hired consultants, experts and lawyers;  and gone to court – all to prevent CWM Chemical Services LLC from digging a new hazardous waste landfill in the Town of Porter. Even state agencies have weighed in.

As a result, they've successfully dragged out a regulatory process that the company initially expected to wrap up after only two years – back in 2005. And they kept CWM from expanding its operation even three years after its original landfill closed because it was full.

"I didn't expect to be spending 16 years of my life on this, but whatever it takes, this is pretty important for this region," said Amy H. Witryol, a retired commercial banker and concerned local resident who has led some of the fights against CWM.

But the company's application is still pending. And now consideration of the potential new dump is finally about to move forward again.

"The process has been very long and arduous," said CWM spokewoman Lori A. Caso. "These are never done quickly."

Three years after a state siting board began to review CWM's application for a new location in Porter, the panel will reconvene Tuesday morning for a public meeting to consider the next steps.

CWM landfill hearing to resume after three years

The so-called "issues conference" will not result in a final ruling on the application to the state Department of Environmental Conservation. Rather, it is meant to determine what subjects or arguments are still in dispute, because those need to be settled in a formal DEC "adjudatory" hearing or administrative trial before a final decision can be made on the requested water and air discharge permits that CWM is seeking.

Even the subject of which topics can be raised on Tuesday will have to be decided that day, as Witryol and other opponents plan to raise questions related to economic issues, taxes, earthquakes, radiation from World War II atomic bomb waste buried nearby and other issues, while CWM will seek to keep the meeting limited strictly to the permits.

Niagara County, Lewiston heavily invested in CWM fight

To make matters even more complicated, it's not just one regulatory body that will be making the decisions but two, because the burden is on CWM to prove the new facility is necessary. That's because the DEC's new landfill siting plan for Niagara County – finally adopted in 2010 after a previous one was thrown out by a court in 1987 – had determined that there was no need for it.

So besides the regular air and water discharge permits from the DEC commissioner, CWM also needs a certificate of environmental safety and public necessity from the eight-member siting board, to authorize an exception to the siting plan.

The conference, which was scheduled by the DEC in early March, will be held in the Lewiston-Porter Central School Board of Education meeting room, starting at 10 a.m.

The meeting will be conducted in a courtroom fashion, with attorneys representing the various parties before the siting panel and an administrative law judge. While it is open to the public to attend and listen, public comments will not be taken.

"We're disappointed that DEC didn't want to hold any of these meetings in the evening, but at least it's open to the public, so they'll have an opportunity to observe this process," Witryol said.

CWM is proposing to dig a new 43.5-acre landfill on Balmer Road, next to its former Model City landfill, which ran out of space in 2015. Like the older facility, which opened in 1993, the new one would take mostly contaminated soils from cleanup projects, with concentrations of PCBs, lead, filter cake, incinerator ash, transformers, small capacitors or other pollutants beyond what could be disposed of in a regular solid-waste landfill.

The company is requesting approval to discharge wastewater into Four Mile Creek, Twelve Mile Creek and the Niagara River, through a 4-mile pipeline.

There are only about 20 such facilities across the country, including six operated by CWM's parent, Houston-based Waste Management Inc. Caso said the Niagara County site took soil from throughout the state and New England, with a large concentration from Superfund and brownfield sites in Western New York, such as the former Ameripride dry cleaners property in Buffalo and a former steel-processing plant in Dunkirk.

Without a new dump here, Caso said, customers would have to either take their fill material to a competitor in Michigan or the nearest other WM facility in Alabama.

"It's definitely needed," she said. "We're the only ones in the state that can do this. We hear from customers daily that are looking for a place that can dispose of their hazardous materials. They either have to go a long distance, or put off their projects until we reopen."

But the plan is heavily opposed by Niagara County, the towns of Lewiston and Porter, the villages of Lewiston and Youngstown, the Lewiston-Porter Central School District, the Niagara County Farm Bureau, the Tuscarora Nation, Buffalo Niagara Waterkeeper and some local residents. And the opponents have managed to continually delay the process since 2003.

The Town of Lewiston and Niagara County early on hired attorneys and experts, who quickly identified problems in the application that could be challenged. A local citizens group found a deed restriction on the property that had been issued by the state Department of Health, which conducted its own review at the request of the county.

The U.S. Environmental Protection Agency hired a consultant to study the groundwater, so CWM worked with the agency to address its concerns. There were also multiple disputes and revisions over the years. And the application was only deemed by the state to be complete and ready for formal review in 2014 – but only for the landfill and not for air or water discharge, which prompted more petitions and objections.

"That's one of several reasons why it took so long to process the application," Witryol said. "This is a very different decision-making process than the kind we've gone through for the last 25 years, since the last siting board convened."

The first "issues conference" was held in April 2015. Caso said "hundreds" of issues were raised, but only about six were forwarded for trial, which has yet to be scheduled.

"The process on getting expansion of a hazardous waste facility is never done quickly and that should assure the public that everything has gone through this process," she said.

Judge dismisses lawsuit against hazardous waste facility in Niagara County

Most recently, Witryol and another Niagara County resident – CWM neighbor Thomas A. Freck – filed a lawsuit in State Supreme Court in Erie County in November 2017, accusing the state of improperly allowing the company to treat and store waste at the Porter site.

The lawsuit asserted that CWM had been taking liquid waste, including material containing cancer-causing PCBs and other toxic chemicals, even though the existing landfill has been full since 2015. Witryol, who has consistently opposed CWM's activities and potential expansion, said at the time that 47 tons of waste had been treated at the Balmer Road site last year and 305 tons were stored there before being transferred elsewhere.

But a judge threw out the lawsuit in late March, siding with the company and state, who had argued that the 1993 landfill certificate allowed such activities.

"Now, finally, we're getting to the issues conference on air and water," Witryol said. "This is the last step before the trial, and then when the trial is over, the judge will ask for final briefs and then make a decision. At this point, that's looking like next year."

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