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Guilderland Archives The Altamont Enterprise, December 17, 2009
Judge to decide
By Anne Hayden
GUILDERLAND As Albany plans to expand its landfill a fifth time, a watchdog group that has long fought to preserve the Pine Bush has taken the matter to court.
In arguments heard Friday, Save the Pine Bush maintained the city has no solid-waste plan in place.
The state’s Department of Environmental Conservation, which approved the expansion, argued that long-term solid waste plans are not needed.
Arguments in the case were heard from both sides in the state’s Supreme Court, the lowest rung in a three-tiered system. This is the fifth proposed expansion of the landfill since it was opened in 1981, and there is no end in sight, said Peter Henner, the Clarksville lawyer representing Save the Pine Bush.
The landfill currently serves the 12 municipalities including New Scotland, Altamont, Berne, Westerlo, Voorheesville, Rensselaerville, and Knox that make up the Capital Region Solid Waste Management Partners; Guilderland recently pulled out of the consortium, in opposition of the expansion. The dump also accepts garbage from private haulers, charging a tipping fee, and realizing a profit a major source of income for the city of Albany.
“Every time the city has expanded the landfill, they have promised it is the last time,” said Lynne Jackson, a founder of Save the Pine Bush, this week. “Their promises are meaningless.”
“This has to be stopped. If not now, when?” Henner asked. The three formal arguments put forward on Friday were that the DEC did not give Save the Pine Bush the opportunity to offer complaints, that the permits as issued do not comply with the regulatory criteria, and that the expansion plan does not comply with the State Environmental Quality Review Act.
Henner believes the DEC did not want to approve the expansion, but had no other choice, and so imposed a variety of conditions.
Regulations say a decision should be rendered by a judge within 60 days of a court hearing, said Henner, but he is not sure how long a decision on this complicated case will take.
“I think our arguments are strong, and we presented serious issues to the court. I just hope that the court agrees,” Henner said. The hope is that the matter gets sent back to the DEC, so that it will be forced to hear Save the Pine Bush arguments, and to research alternatives.
If public comments on a permit raise significant issues regarding the application, the DEC is to hold an adjudicatory hearing on the matter. Save the Pine Bush believes that an adjudicatory hearing should have been held before the expansion permit was granted for the landfill.
The DEC argues, according to documents sent to The Enterprise from the attorney general’s office, that, during the 69-day public comment period, Save the Pine Bush did not produce “substantive and significant issue,” and therefore it had no reason to hold a hearing.
“The DEC hearing regulations explain that adjudicatory issues cannot be raised by ‘mere expressions of general opposition,’” read the court documents.
Save the Pine Bush also maintains that the city of Albany does not have a solid waste plan in place.
“The city is supposed to have a specific, long-term plan in place, and they just have not done it,” said Jackson.
The DEC’s counter-argument is that Article 27 of the Environmental Conservation Law indicates that long-term solid-waste management plans are not mandatory. The DEC, as a condition for granting the expansion permit, has required the city to formulate a long-term plan by 2011, according to the court documents.
Two out of the three permit variances the city of Albany was granted are being challenged by Save the Pine Bush. State law restricts landfills from being built on top of aquifers. The landfill is on top of an aquifer, but an aquifer variance was granted because the city demonstrated that the landfill expansion would not impact public health, safety, or the environment, since the Pine Bush aquifer is not used as a municipal water supply, according to the DEC’s documents.
The second permit variance granted is called a “Posi Shell” variance, which allows the city of Albany to use a spray-on material as an intermediate cover on the landfill, instead of the compacted soil normally required by state law. According to the DEC paperwork, “Posi Shell” can be used as long as it has no adverse affect on the public health, safety, or environment.
The State Environment Quality Review Act stipulates that the “lead agency,” in this particular case the DEC, identify relevant areas of environmental concern.
“SEQRA does not direct any particular outcome, but instead requires an agency to take environmental concerns into account in its decision making,” according to the DEC’s prepared argument. Save the Pine Bush makes the case that the DEC did not comply with SEQRA, saying it did not consider alternatives to the expansion, did not mitigate environmental impacts, did not consider odor problems, and failed to examine impact to the Pine Bush ecosystem, especially to the endangered Karner blue butterfly.
“The city only had one alternative plan, and that was the site in Coeymans, which it spent over $5 million to purchase,” Henner said. Jackson said the city did not come up with one feasible alternative.
According to the DEC documents, five alternatives were considered:
A 24-acre expansion onto a city-owned mobile home park;
A 24-acre expansion onto city-owned Albany Pine Bush Preserve Commission dedicated preserved lands;
Expansion onto city owned land with impacts to 5.05 acres of forested wetlands;
A 16-acre expansion onto city-owned preserve commission lands; and,
Use of portions of the existing footprint of the Rapp Road landfill.
The DEC argues that it did consider a “no action” alternative, which would mean hauling waste to other facilities, but rejected that plan because it would have negative fiscal ramifications for the city.
The DEC sites its habitat restoration plan as an in-depth study on the environmental impacts of the landfill expansion, as well as a way to alleviate them. The multi-million dollar plan calls for restoring 203.84 acres of the Pine Bush ecosystem; it includes changing the cover on the landfill surface, using native plants, and wetland restoration.
According to Save the Pine Bush, the attempted restoration of the habitat may do more harm than good. Some of the herbicides and insecticides approved for use during the restoration could cause damage to the endangered species living there, and, members say, some of the acreage the plan says will be restored is really just capped landfill.
“What are they going to do?” Jackson asked. “They aren’t going to dig up all the garbage and take it away. Putting sand on top of a landfill isn’t restoring an ecosystem.”
“If justice were to be done, we would win,” concluded Jackson. Asked if Save the Pine Bush would appeal the decision if it lost the case, Jackson responded, “Look at our history. What does Save the Pine Bush do? Litigate, litigate, litigate.”