LEWISTON – As Niagara County and the Town of Lewiston work out an agreement to share costs to fight the proposed expansion of the CWM Chemical Services hazardous waste landfill, CWM’s attorney suggested last week that it might be beneficial to make a deal.
“If you’re talking about the best way for a governmental entity to spend its money, it would be trying to arrive at the best arrangement,” said Daniel M. Darragh, a former quarterback for the Buffalo Bills who now works as an attorney in Pittsburgh.
Darragh, who has represented CWM for more than 20 years, noted that the Town of Porter, in which most of the landfill is located, made a deal in 2001 rather than fight CWM.
Porter is poised to receive $3 for every ton of waste disposed at CWM’s new landfill – if it is approved by a state siting board that has yet to be appointed by Gov. Andrew M. Cuomo.
Lewiston and the county, which have spent more than $300,000 on Allegany environmental attorney Gary A. Abraham to fight CWM’s plans, seem poised to continue the battle.
“I’m kind of on the fence,” Lewiston Supervisor-elect Dennis J. Brochey Sr. said. “More than a money decision, it’s got to be about the residents and what they want.”
He acknowledged that the Town Board has appropriated an additional $50,000 to keep Abraham working, a vote in which he took no part because Brochey currently serves on the Village Board, not the Town Board.
“I have to go along with their decision. They already allocated the $50,000. I wouldn’t want to go higher than that,” Brochey said.
He said he has been extensively briefed by local environmentalists about the negatives associated with CWM disposing of toxic wastes at its landfill, but he said he wants to hear the other side.
He also thinks other towns should help bear the cost of paying for Abraham and his team of technical experts, who are poised to take on CWM’s team once the state Department of Environmental Conservation gives the green light for the siting board process to begin.
“The truck traffic goes through other townships,” Brochey said.
County legislators decided Dec. 10 to work out a formal cost-sharing agreement for legal services regarding the CWM expansion, instead of alternating $50,000 appropriations with Lewiston as they have been doing since 2005.
“There shouldn’t be any confusion about our position: We don’t want any more pollution coming into our county,” said Legislator John Syracuse, R-Newfane.
Darragh, CWM’s attorney, pointed out that for a quarter of a century, the localities have been receiving substantial sums of money from CWM through a gross receipts tax.
The company must pay 6 percent of its revenue to the towns of Lewiston and Porter and the Lewiston-Porter, Wilson and Niagara Wheatfield school districts.
One-third of the money goes to Porter, one-third to Lewiston and the remaining third is divided among the three school districts based on their share of the districts’ total student enrollment.
In the last six years, the towns have received a total of $1.5 million each from that tax, which means that in the last six years, CWM’s gross receipts for waste disposal have totaled about $75 million.
“The community actually got a benefit from sitting down at the table,” Darragh said.
Porter received an extra benefit during a 2001 wrangle over whether to rezone two 75-acre parcels of CWM-owned land to allow for the future second landfill site, where the battle is now looming.
CWM paid Porter a total of $3 million in exchange for approval of the rezoning, and also agreed to the $3-per-ton payment for the waste dumped in the new landfill.
The price exacted for that payment was a pledge from Porter not to oppose CWM’s expansion plans. That’s why Porter isn’t taking part in the current controversy.
Porter Supervisor Merton K. Wiepert said he voted against the 2001 host community agreement, which squeaked through the Town Board on a 3-2 vote.
“I know it’s going to get contentious,” Wiepert said of the expansion issue. But he said he doesn’t anticipate the matter will be reopened by the Porter Town Board.
“We don’t talk about CWM much,” Wiepert said.
Darragh said the company’s application for the current landfill in 1978 was opposed by the county, the two towns, the State Attorney General’s Office and the Ontario Ministry of the Environment. After a 104-day hearing, CWM got its permit.
“You’re entitled to your permit if you meet the regulatory requirements,” Darragh said.
Abraham disagreed. “CWM will have an uphill battle,” he told the Legislature, because the law requires a finding by the siting board of a need for a landfill and that its existence is in the public interest.
Protection of 65 jobs at issue
The landfill employs 65 people now, manager Michael D. Mahar said. CWM is emphasizing the job-protection issue.
Mark Mariani, a heavy-equipment operator at CWM, told reporters at the Legislature’s Dec. 10 committee session that he is concerned about his livelihood.
“You’re using my tax dollars to shut down a facility and cost me my job,” he said.
Abraham said that the company would have to maintain a “perpetual” workforce to monitor the landfill after a shutdown.
“They will have a workforce forever, as long as there is a government,” Abraham said.
Mahar said that such a monitoring staff would be “a skeleton crew” of five to 10 people.
The company still has room for about 130,000 tons of waste in its existing landfill, Mahar said. Depending on the amount of demand, it could run out of space in a year or two.
“What would shutting down CWM do, except that it would do away with a significant source of tax revenue, it would shut down an economic driver, and it would do away with a lot of employment?” Darragh asked.
Abraham said that he sees CWM’s weekly reports to the DEC, which are forwarded to him by the county Health Department. He said most of CWM’s waste comes from other states or from Canada.
“Most hazardous waste today is reused on-site,” Abraham said. “There isn’t enough hazardous waste being generated in the whole State of New York to justify a hazardous waste landfill.”
CWM filed its application for the new landfill, called RMU-2, in 2003. A decade later, the DEC has yet to declare the application complete, which would trigger the siting board process.
Abraham said the state allowed CWM to expand the current landfill, called RMU-1, despite a state law that barred expansion unless the DEC had issued a statewide siting plan.
Abraham said that a lawsuit opposing the expansion failed but that by 2010, the DEC had completed a siting plan that said there is no need for more hazardous waste landfill capacity in New York.
Part of the fight before the siting board is likely to be over whether the current landfill is leaking. Abraham told the Legislature that the CWM facility is leaking PCBs into the Niagara River, but Mahar said, “We don’t have any evidence that any landfills are leaking on our property. We discharge treated water into the Niagara River.”
“We will argue the site is unmonitorable,” Abraham said.
Darragh insisted, “The facilities that are there are going to stay there. That was a contaminated piece of property going back to World War II days. Nothing’s going to change.”
14 criteria on state’s score card
According to the state Environmental Conservation Law, once the DEC declares that CWM’s application is complete, Cuomo is supposed to appoint a siting board within 15 days.
“Past experience tells me it doesn’t happen that fast,” Darragh said.
At the same time, the DEC commissioner is supposed to appoint a hearing officer to conduct a joint public hearing with the siting board. This is supposed to occur within 60 days after the board’s appointment. A prehearing conference is to be held at least two weeks before the formal hearing starts.
These sessions are when Abraham and his scientific advisers are expected to deploy their ammunition in an attempt to derail the CWM application.
The siting board is to have eight members, five of whom will be representatives of state agencies: the DEC, the state Health Department, the Commerce Department, the Department of Transportation and the secretary of state.
The other three are to be chosen by Cuomo, and at least two must be Niagara County residents. A simple majority vote makes the decision, which is supposed to be made within 60 days after the hearing record is completed.
The siting board is supposed to score CWM’s application on 14 criteria.
They include population density in the vicinity of the landfill; population adjacent to the route for transportation of waste; the risk of accidents in transporting waste; proximity to “incompatible structures,” which could be homes, schools, nursing homes, or anything else the board wants to consider; risks to nearby utility lines; effects of all types on the municipalities; contamination of surface and groundwater; and water supply sources.
Also, the risk of fires and explosions; the impact on air quality; nearby areas of mineral exploitation; preservation of endangered, threatened and indigenous species; conservation of historic and cultural resources; and impact on open, recreational and visual resources.
The board is required to score the criteria, each of which is assigned a specific weight in the law. Water contamination is the highest-weighted criterion, proximity to utility lines is the lowest-weighted category.
The scoring system in the law will be used by the board to determine a final score for the application. The lower the score, the more favorable it is for CWM. If the final score is 200 points or higher, the application is rejected. If the score is less than 200, the permit is granted, although special conditions may be placed on it.
Those who disagree with the siting board’s ruling would have no alternative but to challenge it in court.