Comments on the Draft Scoping Document

for the New York City Comprehensive

Solid Waste Management Plan

Draft Environmental Impact Statement

Prepared on behalf of

Concerned Citizens of Cattaraugus County, Inc.

by: Gary Abraham

P.O. Box 23

Franklinville, New York 14737

April 23, 1999

(corrected for typographical errors, 5/25/98)

1. INTRODUCTION

Concerned Citizens of Cattaraugus County ("Concerned Citizens") is a not-for-profit 501(c)(4) corporation formed in 1991 in New York State. As set forth in its incorporation papers, Concerned Citizens' mission is "[t]o assure Cattaraugus County's air, soil, water and environment is clean and healthful, and to advocate with the public and governments that policies be implemented and that laws be passed to assure such a clean and healthful environment; to assure that local, state and federal environmental protection laws are enforced; to encourage skills for citizen advocacy for a clean and healthful environment."

Concerned Citizens currently has approximately 350 individual and "family" members. Most of these members live or own property in the Allegheny River, Erie-Niagara or Genessee watersheds in the headwaters of which the landfill proposed by the applicant is located. Members of Concerned Citizens reflect the relatively depressed socioeconomic status of the rural residents of Cattaraugus County generally. Cattaraugus County and adjacent counties to the immediate east and west, Allegany County and Chautauqua County, is a federally recognized high-poverty region. These three counties are in the northern jurisdiction of the Appalachian Regional Commission, a federal agency formed during the Administration of Lyndon B. Johnson as part of the Johnson Administration's "War on Poverty."

Concerned Citizens' stake in the New York City ("City") Comprehensive Solid Waste Management Plan ("SWMP") arises from the likelihood that a substantial burden of the adverse impacts of export of 100 percent of the City's municipal solid waste ("MSW"), a purpose central to the City's SWMP, will fall on its members. Because the City's SWMP must be consistent with the environmental policies, laws and regulations of the State, such impacts must be included within the scope of the Plan's environmental impact statement ("Plan EIS"). To avoid or minimize such impacts to the maximum extent practicable the City's SWMP must include serious consideration of waste minimization plans in the city and their potential effect on such impacts. The absence of any such consideration is a fundamental flaw in the City's SWMP modification.

It is possible that the export plan ("2001 and Beyond: A Proposed Plan for Replacing the Fresh Kills Landfill") or the MTS-RFP address this and other related issues. But the goals and parameters of those plans and their impacts on the proposal (and vice-versa) are not made known in the description of the SWMP modification under review. The EIS would benefit from inclusion of an outline or summary of how these issues, such as the hierarchy dictated by the State and the City's minimization plans, govern this project.

2. PROJECT PURPOSE AND NEED

2.1. The City cannot rely on increased disposal capacity upstate in the foreseeable future.

Reliance on export of garbage as the exclusive solution to New York City's waste management problems has already unleashed a frenzy of commercial speculation in garbage disposal facilities that threatens upstate land use plans and state economic goals far more important than the City's garbage problem. Feeling the most direct adverse effects of the City's failure to implement meaningful waste reduction policies, rural and small city upstate communities closest to proposed new or expanded waste disposal facilities and their impacts on local traffic, ecology, public health, economies, and community character are going to war against the City's SWMP. To the extent that City residents rely on upstate water, dairy and other farm products, and recreational sites and the goodwill of local people who live and work at those sites, a SWMP based exclusively on new waste disposal facilities upstate will have adverse effects on the traffic, ecology, public health, economy, and social character of the state as a whole. Such state-wide adverse effects specifically include effects on rural-urban socioeconomic relations. These effects have been widely recognized as a "garbage war" that threatens the integrity of established state environmental and economic policies.⁽¹⁾

If the SWMP included programs to achieve a goal of 40 percent or greater reduction in the City's waste stream, excess landfill capacity that already exists upstate would be adequate to meet the City's needs and avoid escalation of the garbage war now taking place between the City and its own minority communities⁽²⁾ and between the City and rural and small cities upstate.⁽³⁾

The controversy over garbage upstate has become regional, reproducing the same issues and the same sorts of parties to the siting dispute in each new case. It is more and more likely that local town and county officials will join citizen groups in opposing new landfills because there is no garbage crisis upstate: today most western New York counties have achieved a 40 percent reduction in their 1991 waste streams⁽⁴⁾ and there are currently millions of tons per year of excess landfill capacity in the area.⁽⁵⁾

Increased commercial speculation in garbage created by the combination of the scheduled closing of Fresh Kills Landfill and the absence of any meaningful waste reduction plan has stimulated proposals to expand the largest existing commercial landfills upstate at Seneca Meadows (Seneca Co.), and Modern Landfill (Niagara Co.), and has revived landfill proposals that would otherwise have died for lack of economic viability in the western New York towns of Farmersville (Cattaraugus Co.), Eagle (Wyoming Co.), Angelica (Allegany Co.), and Albion (Orleans Co.). New landfills, however, face an uphill battle because a state permit is not enough. Every new landfill must be approved by the local municipality as well.⁽⁶⁾ The Modern Landfill expansion proposal noted above also requires approval from the local municipal government.⁽⁷⁾

As long as a "garbage war" climate prevails, caused in substantial part by the failure of the City to include meaningful waste minimization plans in the SWMP, the City cannot rely on the construction of additional solid waste facilities in New York State. The SWMP must therefore identify specific waste disposal facilities it seeks to rely upon and must show in each case that contracts and adequate disposal capacity are presently available or can be reasonably relied upon in the foreseeable future.

2.2. Planning to export 100 percent of the City's MSW will have adverse impacts on waste minimization plans in the City and elsewhere.

Whether 100 percent export of MSW managed by the City DOS, estimated at 10,000 to 13,000 tons per day, (Draft Scoping Doc., p. 1-1), will have an adverse impact on present and future efforts to minimize waste in the city must be addressed in the SWMP. A Plan EIS that addresses only "the development and operations of the facilities [the city] selects" for waste transfer for export, without addressing policies, programs, and facilities for waste minimization is unacceptable. Such a Plan EIS is likely to retard implementation of current policies and future policy-making regarding waste minimization and therefore to retard development and operations of waste minimization programs and facilities.

A Plan EIS that includes consideration only of waste transfer stations and excludes waste minimization policies, programs and facilities is woefully incomplete. Because the waste management hierarchy mandated by State law puts waste minimization measures ahead of waste disposal measures,⁽⁸⁾ and because expansion of existing and construction of new waste transfer facilities in the City are waste disposal measures, findings upon which the proposed SWMP must be "predicated," (Draft Scoping Doc., p. 1-4), that the Plan is "consistent with social, economic, and other essential considerations of State . . . policy" cannot be achieved without serious consideration of waste minimization policies, programs and facilities.

Without including review of existing and future reasonable measures to achieve waste minimization no finding can be made that the Plan EIS is adequate with respect to "reasonable alternatives." (Id., p. 1-5 (quoting CEQR Technical Manual, pp. 1-11 and § 270). Such alternatives must include substantial reductions in the City's waste stream. Failure to do will remove any basis for finding that "the proposed action is one that minimizes or avoids significant adverse environmental effects to the maximum extent practicable." (Id.).

Since recycling, reuse, and other waste stream reduction measures are, as a matter of State policy, preferred measures compared to waste disposal, waste minimization measures utilizing any or all of these preferred measures must be deemed "reasonable alternatives." If such reasonable alternatives are excluded from consideration in the Plan EIS, no finding is possible that the proposed SWMP minimizes or avoids significant adverse environmental effects to the maximum extent practicable.

Without visible minimization by the City, other upstate communities and destination areas will find little point in pursuing their own minimization efforts, which would seem insignificant or futile alongside the massive quantities of waste arriving from the City.

2.4. Exclusion of commercial waste renders the SWMP incomplete on its own terms.

Although the Draft Scoping Document presents itself as "The New York City Comprehensive SWMP Draft Modification," it in fact proposes to limit the SWMP to impacts on that "waste stream . . . managed by the City's Department of Sanitation." (Draft Scoping doc., pp. 1-1, 1-4). No justification for this limitation of the scope of the SWMP is given. Since solid waste management, whether commercial or municipal, is a matter affecting the health, welfare, and safety of residents of the City and the State, the City's commercial waste is certainly subject to regulation by the City. Since it is subject to regulation by the City,⁽⁹⁾ the manner in which the City's commercial waste stream is managed and will be managed in the foreseeable future must be included in the scope of the SWMP modification. In addition, it should be included because there are no assurances one of the contractors in this project could also be contracting to haul, handle or dispose of some of the commercial quantities generated within the City.

Moreover, the adverse impacts of the City's ultimate plan for managing its MSW waste stream cannot be assessed without including potential adverse impacts resulting from direct and indirect impacts of any MSW management plan on the manner in which the commercial waste stream is or will be managed. Will waste minimization policies promote commercial waste minimization? Can economies of scale be realized by including commercial waste in MSW management policies, programs, and facilities?

2.5 No-Build alternative.

An atmosphere of hysteria should not be fostered in making a decision relating to the Fresh Kills closure. Impacts resulting from the No-Build alternative should be fully evaluated. A topic of discussion should be responsibility for locally-generated waste and approaches other communities use to deal with this problem in responsible ways. The logic behind expecting others to take care of the problem on the City' s behalf should also be scrutinized. If the City residents are the recipients of their own waste it will necessitate a realistic and responsible solution that will foster minimization, recycling and other alternatives of the most meaningful sort.

2.6 Ownership.

What are the impacts resulting from private waste companies playing an active role in a process which stems from a large number of people living in close proximity? What is the cost benefit (to the citizen) of privatization versus government management? Studies and experience have shown privatization does not always create the optimum solution for all players.

2.7 Quantity.

What role do small quantity generators of waste and hazardous items play in this project? Is there a plan to treat small quantities of hazardous substances or materials as household waste for this project?

Also, what information is available on the environmental impacts of scale when such enormous quantities are moved? In addition, specifics regarding quantities and end-markets for waste should be made a part of the EIS to adequately portray the true scope of the project. It is important to note that most, if not all, upstate destination communities produce in several months -- and in some cases a full year -- what the city would send to them in one single day.

1. Adverse effects of urban waste export plans on rural-urban socioeconomic relations have been observed in many parts of the country. See Al Senia, With Landfills Full, Garbage Wars Erupt Among Californians, The Washington Post, Feb. 11, 1982, p. F2; Laurent Belsie, Town Trenched in Dump "Civil War," Christian Science Monitor, Nov. 1, 1990, p. 6 (reporting on a dispute over siting a 10,000 ton-per-day landfill in Philippi, a "small, poor county in northern West Virginia"); U.P.I. wire, Paulding landfill issue dumps controversy into community, July 31, 1988 (reporting on a similar dispute in Paulding County, Georgia); Convalescent Home Legislation Backed, Chicago Tribune, April 12, 1989, p. D3 (reporting, inter alia, on legislation passed by rural DuPage County, Illinois, in the context of "garbage wars" between Chicago-area and Downstate counties in Illinois). See also Richard Sisk, Dumping Furor, New York Daily News, April 4, 1999 (noting that Virginia, New Jersey, Maryland, Pennsylvania and West Virginia have enacted state landfill caps in response to unwanted urban exports of solid waste into their states).

2. See James Bradley, Garbage Wars, City Limits (New York City) (Jan. 1998) <http://www.citylimits.org/archives/9801garb.htm>.

3. See Editorial, New York's Garbage, The Buffalo News, March 29, 1999 (noting that a March 24, 1999, hearing on a proposed new commercial landfill in the western New York Town of Farmersville, relying on New York City solid waste exports, "provided evidence of solid community opposition to this plan"); John Eberth, Alderman Raise A Stink About Guiliani, Olean Times Herald, April 15, 1999 ("Our community has spoken and Cattaraugus County has spoken: They don't want [the City's] trash" (quoting City of Olean Mayor James Griffin) and "I would like to remind the public that we are still heavily involved in this fight [against the City's export of MSW]" (quoting City of Olean Alderman Paula Snyder)). Both articles are attached as Appendix A. See also Editorial, Dear Rudy, re 'exports': Not in our backyard, The Buffalo News, Dec. 4, 1996 (connecting western New York community opposition to new solid waste facilities to New York City Mayor Rudolph Giuliani's reduction in City funds for recycling).

4. See, e.g., Rick Miller, Cattaraugus County Saves $1.2 million by Recycling, Olean Times Herald, April 21, 1995, p. A (noting that Cattaraugus County recycled 32 percent of its waste stream in 1994); Correspondence from Richard R. Preston, Waste Management Analyst, Cattaraugus County Department of Public Works, March 12, 1999 (on file with the author) (reporting that Cattaraugus County recycled slightly more than 40 percent of its waste stream in 1998).

5. Lisa Rein, City Trash is Headed Upstate, New York Daily News, April 6, 1999 ("At the city's request, state Environmental Conservation Commissioner John Cahill last month identified millions of tons of excess capacity at 25 of the state's 41 disposal sites.").

6. In New York towns enjoy adequate police power authority to ban landfills within their jurisdiction. Monroe-Livingston Sanitary Landfill, Inc. v. Town of Caledonia, 51 N.Y.2d 679, 417 N.E.2d 78, 435 N.Y.S.2d 966 (1980)); Gary D. Peake Excavating, Inc. v. Town Board of Hancock, 93 F.3d 68 (2nd Cir. 1996). New York Environmental Conservation Law ("ECL"), which governs, inter alia, the siting and regulation of solid waste management facilities, provides that local laws meeting at least the minimum regulatory requirements for such facilities are "deemed consistent" with the statute. ECL §27-0711. See generally Daniel A. Spitzer, Maybe in My Backyard: Strategies for Local Regulation of Private Solid Waste Facilities in New York, 1 Buffalo Environmental Law Journal 87 (1993).

7. See 11 Envtl. Notice Bull. 21 (March 17, 1999).

8. Solid Waste Management Act of 1988, Laws 1988, ch 70.

9. See N.Y. Const., Art. IX, Art. IX 2 [c] [ii] [10]; Municipal Home Rule Law 10(1)(ii)(a)(12).