FAFE Membership FAQ
**Note: This is a survey of interest and NOT a commitment to obtain legal representation**
As this situation unfolds, it is becoming very clear that Fresh Air for the Eastside, Inc. (FAFE) needs to get more organized. We believe it is time for fundraising efforts in order to be able to conduct our own sampling throughout the community, and possibly consult with our own environmental experts to help us better understand what is happening. The gravity of this situation is becoming too big to manage this effort solely through a public Facebook group. We are hoping to elevate FAFE to a more formalized group. Therefore, we are asking that the members of the Facebook group who are interested in becoming a more formal member of FAFE fill out the MailChimp survey confirming your membership interest. So many of you have expressed an interest, but we need real commitments now.
As many of you know, we have been working with Knauf Shaw LLP, local environmental attorneys, already. FAFE needs to be prepared to handle the expenses that will arise, like court filing fees, hiring experts, and legal fees. If litigation is initiated, it will be brought under the corporate name FAFE. However, some members of FAFE do still need to be named in the Complaint to demonstrate standing (i.e. that the group includes members as far as 5 miles from the landfill and a number in between). In this type of action, FAFE would be suing to get WM into compliance, and possibly for property damages if we can make a solid demonstration of such damages. At least this initial case would not be for personal injury.
The focus right now as we wait for sample data to come in, see how WM progresses and see what the Town and DEC plan to do, is to get more organized and start our fundraising efforts. We are hoping to hold regular meetings, and initiate committees to handle specific tasks. So please fill out the MailChimp survey or send an email to email@example.com with your name, address, phone number and level of interest. Please use an email address that you regularly check, because important information regarding any potential litigation will be shared via email, not Facebook. Right now, we already know there are spies in the Facebook group, and we need to have a way to communicate securely. In the event that litigation seems inevitable, we would like to share our FAFE Membership list with Knauf Shaw, so that they can share secure and privileged communications via email. However, at this time we are just accumulating the list for FAFE membership purposes and to determine that if we sue, whether you are or are not willing to put your name and address in the Complaint.
Since we anticipate that you have questions, below we have attempted to summarize some questions we had ourselves and answers developed in conjunction with Knauf Shaw to share with you in advance of becoming official FAFE members:
Will Knauf Shaw LLP be our legal counsel?
Yes, the Board on behalf of FAFE will be signing a retainer agreement with Knauf Shaw LLP, which is not seeking any upfront monetary payment. Knauf Shaw understands that getting data to document what is in the air we have been breathing, and possibly some soil and groundwater samples around the landfill, is important to be able to know what to actually sue WM for. In other words, the results may impact the causes of action brought against WM. So they have agreed to forego any payment until this data is collected and paid for with monies we collect. In fact, Linda Shaw is helping to pay for some of the initial sampling we are performing. There are two ways we hope Knauf Shaw will be paid later: (1) if we have extra funds from donations and fundraising events, FAFE would like to pay them for the amount of services FAFE can afford; and (2) certain causes of action, if successfully litigated, may require WM to pay them. If this is the case, and WM has to pay for FAFE’s legal fees, then Knauf Shaw LLP has agreed to refund any fees FAFE has paid Knauf Shaw so that FAFE can use these funds for community projects.
I signed a survey from that Michigan law firm. What do I do now?
If you signed only a survey, this does not mean you have become the client of the Michigan law firm since the survey was not a retainer agreement. However, you may have to decide whether you want to pursue the case with the Michigan firm or not. We think that firm wants to bring a personal injury action. While FAFE is not yet ruling out personal injury claims until we get back all of the data from our own independent sampling, personal injury will not be the main focus of the initial case. We want the stench to stop and to get our lives back to what we had before – a stink-free zone – that is our goal.
How much money will you need from me?
We are hoping for FAFE members to donate at least $100. You do not have to donate now, but this is the amount we are hoping to receive from members. If you cannot contribute money at this time, we are hoping you can donate time, services, and help us raise money and collect donations for the cause through fundraising events we will have in the future.
When is the deadline for people to sign up? If there’s a lawsuit, when would that take place?
We are first hoping to make FAFE a more formal organization ASAP. Toward that end, we need to develop a list of those of you willing to have your names included in the Complaint to establish standing from as far away as 5-6 miles from the landfill. Therefore, it will be helpful to the Board members, who are volunteering their time, if you can start to send us your contact information now, and tell us how you feel about being named in a Complaint or not. Since we think this will take a fair amount of work, we want to begin to accumulate a spreadsheet of FAFE members now.
With respect to timing of the lawsuit, Knauf Shaw also sent a Resource Recovery and Conservation Act (RCRA) and Clean Air Act (CAA) “notice” letter to WM this past week. In that letter, there are 60 and 90 day timeframes before which we are not supposed to sue because the Notice letter is intended to put both EPA and DEC on notice that they should be enforcing WM to come into compliance. Therefore, if an injunction action is not commenced, a lawsuit in federal court could be commenced approximately three months from now.
Will you or Waste Management look into my past or do a background check?
No, a background check is not required for this type of legal case. WM also cannot require a background check.
How much money will I get from Waste Management when we win?
The goal of at least this initial lawsuit is not for FAFE to seek monetary damages from WM. We want to hold WM to higher standards so that they will never again fail to spend the necessary resources to properly implement the landfill gas recovery system so that there are no odors as a result of the volume of material they are handling. If they cannot do this effectively, then the goal will be to reduce the volume of waste and work toward closure of the facility.
Can Waste Management sue me?
After the tremor incidents and recent admissions by WM that their operations have been causing unacceptable impacts on the community, and the letter the DEC Commissioner just sent to WM as a result of our complaining, it is highly unlikely (and frankly would be stupid) of WM to try to attempt any retaliation. Knauf Shaw LLP has explained that a countersuit against any of us would be considered a “SLAPP suit” for which we can get punitive damages and attorneys’ fees. It would be unprecedented for a Fortune 500 company like Waste Management to sue community members, and is not in WM’s best interest. While we understand that some members in the community have expressed fear of WM retaliation, you should not be scared to join FAFE based on this explanation, and we hope many of you would be willing to be named in the Complaint to establish standing. Moreover, in the highly unlikely event that WM were to do anything to the community, we would have attorneys to defend us.
Why is FAFE working with Knauf Shaw LLP?
Knauf Shaw LLP has a proven history of success with suing Waste Management in relation to this landfill. The firm was able to prevent the vertical expansion of the Perinton side of the landfill in 2009. In addition, Knauf Shaw is not a personal injury firm. They are not ambulance chasers. They are an environmental law firm seeking to bring WM into compliance so that we no longer smell the landfill, and if this is not possible, to shut it down or reduce the intake volume.
My whole family is concerned. Should we all sign up?
This a community group and the more help and support we can get the better!
I’m not a resident of Perinton. Can I join if I'm from Walworth, Penfield, Macedon or Gananda?
Absolutely! Our goal is to improve our air quality for the Community, including those in Wayne County! However, if we have Wayne County members, we will really need some of you to sign onto the Complaint to establish standing in Wayne County as well as Monroe County because we need to establish a 5-6 mile radius around the landfill to demonstrate that documented odors have in fact traveled that far based on your own complaints via the app.