[Announce] 2002 recommendation for future strategies (landfill) from Lewis Oliver regarding loss of P-4 lawsuit

[Bert]

Lewis Oliver provided his opinion the loss of the lawsuit and also
predicted the City's future actions for further expansions in his
letter - excerpts  "In my opinion STPB is unquestionably correct that
the DEC regulations at 6 NYCRR 360-2.12(dc) (1) absolutely prohibit
siting a new or expanded landfill over a principal aquifer such as the
Pine Bush Formation after December 31, 1995.
The denial of permission of permission to appeal to the Court of
Appeals and failure to grant a stay/injunction is an injustice, and a
failure by the Court of Appearl to consider a case raising novel and
important issue.  In this case, the protection of principal aquifers
in NYS from contamination by landfills built in violation statutes
adopted by teh State Lefislature and regulatin to implement the
federal Clean Water Act is a novel and important issue,  It is not the
frst time the court of Appeal had ducked an important issue because it
might strike a raw nerve with State governmetn.  As you know, Judges
of the COurt of Appeals ar appointed by the Governor.
  As you are aware, the City is purchasin 60 acres from the Fox Rn
Trailer Park, but only 40 acres are being dedicated to the APB
Preserve Commission.  The remaining 20 acres is not being dedicated
immediately, but will be at some vague, undefinened date in the
future.  .. I think the reason why the 20 acres in not being dedicated
is because the City plans to construct more landfill expansion on this
acreae, closest to the landfill, in the future"   Well - we know this
became a reality although unsuccessful!!!!

"Although the City has had options to purchase several parcel at site
C-2 in the Town of Coeymeand since 194, the City has repeatedly and
intentionally delayed going ahead....  In the last 8 years the City
ahs not completed a draft EIS.  During this same time frame, the City
has applied for and received two permits to expand the landfill in the
PB.    In the Coeymans situation, the City has repeatedly cited the
Pine Bush litigation as the reason for delaying making a permit
application for site C-2 to DEC, and in the Pine Bush situation the
City has repeatedlycited the Coyemnans sitauation as a reason for
making another landfill expansion in the PB.  My conclusion is that
the City has little interest in pursuing the Coeymans site and is
stalling regarding Coeymenas because it intends to make more
applications to expand the landfil in the Pine Bush in the future."

AGAIN, he was right!!!

"I think the motivation for the City is stalling going ahead with the
Ceoymans site is that Albany is making a lot of money in the garbage
business at the Rapp Road landfill and has become dependent upon
income from the landfill for its annual budget.  A reading of the
City's opposition to granting the stay/injunciton is revealingk
especially at paragraph 32 of the affadavit by Willard Bruce dated
February 4, 2002, attached to the Opposition of the City... states:
"The City relies upon the income from its Rapp Road landfill to
provide a steady cash flow to meet not only the construction and
operating costs (including the mitigation costs, amounting in the
milllions, which the City incurs as a result of the landfill) of the
Rapp Road landfill, but its current operating needs as a municipality.
 Under the current economic climate, municipalities are receiving
decreased federal and state aid, and being required to make matching
contributions to the retirement system, something municipalities have
not had to do for many years. Therefore, this cash flow is even more
critical if the City is to remain on a sound financial
footing......The City had to advance the date for construciton of
Phase 2 from 2005 to 2002 because the City is accepting so much
garbage from outside the so-called ANSWERS communities that Pahe 1 is
filling up much faster than originally planned.

The prohibition against siting a new or expanded landfill is contained
in State Part 360 regulations as part of New York's implementation of
the federal Clean Water Act, but a violation of Part 360 is not an
issue the federal courts would assert jurisdiction over."

Lewis Oliver offered these suggestions backl in 2002:

"One potential strategy I can foresee to stop landfills in the
PB(other than lawsuits) is to make a complaint to the US EPS to stop
the funding NYS is receiving under the federal Clean Water Act
implementation program.  ....  In order to give money to a state, EPA
must certify that the state's Clean Water Act implementation program
meets the requirements of the federal Clean Water Act.    NYS
promulgated the prohibition against siting a landfiill over a
principal aquifer as part if its Clean Water Act implementation
program. "

"A second potential strategy I can forsee to stop landfilling in the
PB is to amend the City's Part 360 Permit for the P- landfill to
prohibit acceptance of waste from outside the ANSWERS communities.  6
NYCRR Part 621 governing the DEC permit process provides that any
interested party can petition DEC to amend or modify a permit at any
time for good cause shown.  A petition can be based on Commissioner's
Jorlings broken promise in 1990 not to construct more landfill in the
PB in the future, hte status of the PB formation as a principal
aquifer, the contamination of the aquifer and Patroon Creek, and the
City's admission it is using the landfill as a source of income to
subsidize the annual budget rather tha a site for only necessary
garbage disposal.   If DEC prhibiited the P-4 landfill from accepting
waste from outside ANSWERS, the City's income stream would be
substantially reduced and the City's incentive to continue expanding
landfills in the PB would be reduced or eliminated.

STPB might begin a campaign to educate EPA about what is going on with
the Clean Water Act implementation plan in NY and request EPA to cut
off funding to NY unless DEC will enforce the regulations that the
State promulgated to implement the Act. , such as the prohibiton
against siting a new or expanded landfill over a principal aquifer in
Section 360-2.12(c)(1). "