Full party status granted to petitioners; adjudicatory hearings next
By Terry Duffy
Following months of anticipation, the community finally has a response from the state's Department of Environmental Conservation's Siting Board on CWM Chemical Services in Porter.
On Tuesday, DEC Administrative Law Judge Daniel P. O'Connell issued his "Ruling on Proposed Issues for Adjudication and Petitions for Full Party Status and Amicus Status" with regard to the DEC Siting Certificate criteria and CWM's pending permit applications for its long-sought Residuals Management Unit-2 landfill. The announcement comes months after the April 30 DEC Siting Board Issues Conference held in Youngstown, where close to two-dozen community concerns relevant to CWM hazardous waste landfilling operations were presented to Siting Board and state and DEC officials.
Issues Conference petitioners were granted full party status Tuesday, including Niagara County, the Town and Village of Lewiston, the Village of Youngstown, the Lewiston-Porter School District, Residents for Responsible Government, the Niagara County Farm Bureau and Lewiston resident Amy Witryol.
Rick Dykstra, member of Parliament, representing St. Catharines, Ontario, Canada, had sought amicus status last April. However, O'Connell opted to decline this, as Dykstra was not returned to office. No follow-up requests were received.
O'Connell's ruling set the stage for the next round of action on CWM: adjudicatory hearings.
On first glance, the 161-page, very comprehensive document by O'Connell presents a mixed bag. It appears to favor CWM on certain issues raised by the community petitioners with regard to the CWM Draft Environmental Impact Statement submitted to DEC; cancer-related health studies presented thus far, as well as CWM operations impact on the health of contiguous populations; plus trucking and transportation issues on area roadways.
On this matter, O'Connell determined there was no cause and effect from CWM operations on the area's cancer rates presented at the Issue Conference. But he did leave the door open to petitioners, saying the matter was still subject to adjudication.
With regard to truck traffic concerns, O'Connell found there were "no substantive, significant issues for adjudication."
But throughout his lengthy ruling O'Connell did appear to side with community petitioners on a large number of other issues, with adjudicatory hearings deemed the next step.
Tim Henderson, a member of RRG who has been involved in the community's battle for a cleaner, healthier environment for decades, called O'Connell's Tuesday ruling, together with a recent determination by the Army Corps on the Niagara Falls Storage Site, "early Christmas gifts for area residents."
Broken down, arguments presented by petitioners O'Connell deemed worthy of pursuing further via the adjudicatory hearing process included:
•CWM challenges to the 2010 DEC Siting Law with regard to demand and capacity issues.
In its arguments, CWM questioned the accuracy of the 2010 Siting Law determinations on the company RMU-2 landfill. Among other arguments, CWM claimed landfilling demands at its Balmer Road facility had, in fact, increased 3.3 times over a 20-year period, and there was a need for additional hazardous waste landfilling in the state.
O'Connell sided with the petitioners, stating the company has not presented sufficient evidence to prove its case - either at the time the 2010 Siting Law was enacted or thereafter.
"The 2010 Siting Plan finds that sufficient treatment, storage, and disposal facilities are available on a national level to manage the RCRA hazardous waste generated in New York. Based on this finding, the Siting Plan concludes 'there is no current or near term need for increased capacity for hazardous waste management in New York,' " O'Connell wrote.
He continued, "I deny CWM's request to adjudicate whether sufficient treatment, storage, and disposal facilities are available to manage the hazardous waste generated in New York. First, as many issues conference participants noted, CWM did not seek judicial review pursuant to ... the duly adopted 2010 Siting Plan and any subsequent updates. ... I conclude, therefore, that this proceeding is not the appropriate forum to seek review of the 2010 Siting Plan."
•The impact of the facility CWM on municipalities - namely the long- and short-term financial effects on the communities and the related cost factors involved with having CWM open and operating. Among the issues presented by petitioners were zoning and land use plans to accommodate the company, and the resulting costs to communities.
While O'Connell stated, "The prospective interveners have not raised any factual disputes that would require adjudication about whether CWM's proposal would be consistent with the relevant master land use plans," he did grant opportunity for further legal arguments.
This may include whether CWM future operations would have impact on: long-range issues associated with the "Niagara Communities Master Plan, 2030"; the consistency of the August 2004 Town of Porter comprehensive plan; and Town of Lewiston comprehensive plan consistency issues O'Connell said were incomplete.
•The potential for ground water and surface water contamination as a result of the construction and operation of the proposed RMU-2 hazardous waste landfilling facility. Issues considered included groundwater direction, flow and potential migration of contaminants and petitioners' concerns that CWM had not provided adequate information concerning site hydrology and future impacts from RMU-2 operations.
O'Connell wrote, "The proposed issues are substantive and significant, a factual record about them will be developed during the adjudicatory hearing. The Siting Board will be able to review the factual record about the adjudicated issues and, as appropriate, rely on that record during the evaluation of this siting criterion."
•Air quality issues that may impact the community from RMU-2 operations. Considered were the potential for accidental fires and explosions, and their impact on the neighboring community.
Once again, O'Connell found these to be "substantive and significant," with more information encouraged from petitioners at the adjudicatory hearing.
•Public interest concerns in the community with regard to the CWM RMU-2 proposal and the impact on attracting future economic activity in the towns of Lewiston and Porter. Considered were questions over projected economic data contained in CWM's Draft Environmental Impact Statement.
On this O'Connell sided with CWM, but he also left opportunity for petitioners to present further arguments during adjudication.
"The proposed issue is substantive and significant ... because it may result in the denial of the siting certificate," O'Connell wrote. "Depending on the outcome of the adjudication, the Siting Board may conclude that CWM's proposal would not be otherwise necessary or in the public interest."
In his ruling, O'Connell encouraged petitioners to provide input with regard to future economic development projects in the towns of Lewiston and Porter, plus input with on "Whether the potential impacts associated with CWM's proposal on economic development projects can be isolated from any potential effects associated with other facilities in the vicinity of the site of the Model City facility, such as the Modern Landfill and the Niagara Falls Storage Site."
•Potential impacts on the area agricultural community. Presented by the Niagara County Farm Bureau on behalf of two local farmers, issues included the presence of PCBs from CWM landfilling operations and their impact on area soils, groundwater, animal and farm operations, and the future marketability of farm products.
While casting doubt on the impacts of PCB migration from CWM activities on neighboring soils, groundwater and farming, once again O'Connell sided with petitioners - farming interests this time - when it came to future marketability of produce and their economic interests.
In his determination, O'Connell wrote, "The farm bureau has raised a substantive and significant issue about whether CWM's proposal would impact the marketability of agricultural products raised on farms located in the vicinity of the site of the Model City facility. The proposed issue is substantive ... based on the proffered testimony of Messrs. Tower and Freck. These farmers would testify about the perceptions that consumers have about the purity of the food grown on their respective farms, and about the marketability of the agricultural products from these farms. Their respective farms are located in the vicinity of the Model City facility.
"Based on these circumstances, I am inclined to inquire further. The proposed issue is significant ... because it may result in the denial of the siting certificate. Depending on the outcome of the adjudication, the Siting Board may conclude that CWM's proposal would not be otherwise necessary or in the public interest."
"I was encouraged by the thoroughness of Judge O'Connell and his inclusion of the important community concerns," Henderson said. "I am optimistic that our region's toxic waste legacy is coming to a close.
"I think our future is looking a lot healthier, safer and secure for future generations. I thank the people who got involved, took a stand, and their voices have been heard all the way to Albany."