Modern files suit against Lewiston

Newlin charges Modern used suit potential as bargaining tool for increased tonnage request

by Terry Duffy
Lewiston Porter Sentinel, January 9, 2010

The year 2009 ended with a legal headache for the Town of Lewiston, as it was served with a lawsuit, estimated to be in the $500,000 range, from Modern Landfill Incorporated over contents found in an old landfill property previously owned by the town that was transferred over to Modern.

Town Supervisor Fred Newlin announced the suit on New Year’s Eve as he concluded his term of office at Town Hall.

“It’s New Year’s Eve, and I’m the last person here at Town Hall, so this might very well be my last official act as supervisor,” said Newlin.

“Modern has initiated a lawsuit against the town regarding their discovery of barrels of toxic waste on their property. This property was originally owned by the town, and before the town owned it, it belonged to the federal government,” he reported.

According to the Modern civil suit, filed in U.S. District Court on Dec. 22, 2009, the town owned a 37-acre-plus parcel of land near the corner of Pletcher and Harold roads adjacent to the Modern landfill from “approximately” 1964 until Nov. 13, 2007. It argues, “… Upon information and belief, the town operated the property as an unregulated and unpermitted waste disposal site from 1964 until 1972.”

Modern stated that, during this time, the town accepted wastes from various businesses in Western New York on the site, including several 55-gallon drums of the hazardous waste trichloroethylene from the then-Hooker Chemical Company, now known as Occidental Chemical/Occidental Petroleum Corp. The TCE waste, described by Modern as a chlorinated solvent and a designated hazardous substance, was reportedly unearthed by Modern during excavation of the property in August 2008 and found to have leaked into surrounding soils.

At issue, according to the suit, was that Modern took title to the land as per its accepting particulars contained in a Second Amended Community Host Agreement with the town, which was enacted by the Lewiston Town Board in July 1999.

“Among other things, the Second HCA required Modern to accept the fee interest to the property, remove the solid waste from the property and dispose of it in Modern’s solid waste landfill, as a condition of the Second HCA.

“The town knew when it entered into the Second HCA that, as a result of the unregulated waste disposal activities that occurred for almost a decade, the property was or could constitute a significant potential environmental liability of the town,” the suit argues. It further argued the Town of Lewiston knew when it entered into the Second HCA that federal, state and local law “prohibited disposal of hazardous wastes and substances into Modern’s landfill.”

Modern acquired the property in November 2007 and began excavations of the land in August 2008.

It argues that during the time the Town of Lewiston owned the lands the town “caused or contributed to past handling, storage and treatment of the TCE and to the release and discharge of the material.”

For its part, other than its handling of the TCE waste, Modern says it has not dealt with any other wastes on the property since acquiring the land in 2007.

As to the TCE concentrations found, Modern argues it exceeds state standards and “constitutes an imminent and substantial endangerment to human health and the environment … .” The suit noted that the drums labeled “Hooker and/or Hooker Chemical” were found broken when unearthed and had released their contents into the surrounding soil of the property.

In his response last week, Newlin said that Modern had notified the town in the fall of 2009 of the TCE waste found, and said the company offered to drop a potential suit if contractual agreements could be reached with the town to permit increased tonnage in Modern’s landfill. “Modern … also told the Town Board that if the town agreed to allow more garbage to come into Lewiston, Modern would drop this lawsuit,” Newlin said.

“Needless to say, I find the timing of the lawsuit, coming between the holidays and well after the elections, is at (least) very convenient for Modern. I have made it clear that I did not want to negotiate with Modern with a gun to my head and was prepared to litigate. As long as Modern has a lawsuit against the town, I believe it is foolish to enter into any negotiations with them, especially negotiations in which Modern clearly desires to increase the amount of garbage into this town.

“It is my belief that Modern now wishes to use the threat of this lawsuit as strong leverage for negotiating an increase in the amount of waste coming into Lewiston. I hope the next Town Board does not succumb to this pressure,” Newlin said.

Gary Smith, Modern vice president, informed the Sentinel this week that discussions with the town on tonnage and on the TCE waste did in fact occur. “We did have tonnage discussions,” said Smith. “That doesn’t preclude the fact that we ran into this problem.”

As to Modern filing the suit, Smith said, “Regretfully we had to do it. We attempted to find a resolution; all I got was nothing.”

Of the TCE wastes, he added, “Lewiston is responsible for it. There’s real damage that has occurred.”

Of the roughly half-million dollars in damages sought, the suit indicated the Town of Lewiston “should be directed to remediate contamination at the property, abate the imminent and substantial endangerment” of the TCE wastes on the property, and pay Modern’s litigation costs, including attorney’s fees and expected witness fees.

Newlin reported that, in its response so far, the Town Board on Dec. 30 approved using $124,000 in encumbered funds for the retaining of Niagara County environmental attorney Gary Abraham to fight the suit. As encumbered, those monies have no impact on the town’s 2010 budget. In addition, Newlin said his 2010 budget allocated $110,000 for legal contingencies, plus another $100,000 in general contingency money that could be used for legal expenses. Further, he said the town could utilize “more than $350,000 available in unspent ‘signing bonus’ money” from the town’s 2005 agreement with the New York Power Authority that “can also be spent on this litigation.”

“In short, the town has substantial assets, which it can use in defense against this lawsuit,” Newlin said.

As to the TCE wastes found, Newlin said the town would be attempting to determine if in fact the drums “were found as Modern alleges” as well as determining if they had been placed there when the land was owned by the federal government.

In response to Newlin’s charges on the tonnage issue discussions and the town’s moves last week on securing legal funding, Smith deprecated Newlin, stating, “He’s saving the world for everyone by enlisting an attorney” to represent the interests of town residents. “We know full well what Town of Lewiston residents wanted, and it turns out it wasn’t him.”

But he also stated Modern remained willing to discuss the problem with the town. “Modern is still open to discussion on this,” said Smith. “I have been and still am. (But) in two years I haven’t heard anything from them.”

Smith said Modern “still was waiting to hear from the Town of Lewiston,” but that it also realizes the town was in a state of transition with a new administration and said the company was being patient as to the town’s next move.

Of working out the issue with the Steve Reiter administration, Smith was hopeful, saying, “I anticipate better cooperation. I’m willing to sit down and talk.”

Calls to Reiter were not returned as the Sentinel went to press Friday.