Lawyer Reaches Out to DEC and Monroe County Calling for Immediate Action

After the Conservation Board meeting, Linda Shaw from Kanuf and Shaw LLP sent a letter to the DEC and Monroe County. Shaw is currently in the process of being retained by FAFE, Inc. 

The letter can be found in its entirety, including all exhibits, in our Research Materials section. 

Dear Commissioner Seggos:

We write to you on behalf of our client, Fresh Air for the Eastside, Inc., a newly-formed very large group of neighbors (2,200+) in Perinton and Macedon, New York, who live in close proximity to the High Acres Landfill (“Landfill”). We are writing you because on December 4, 2017, you took the time to write a letter to Waste Management of New York, L.L.C. (“WM”) requesting their immediate action to correct noxious fumes being reported to you by the community. Unfortunately, numerous garbage and noxious gas odor emissions continue to the current day in violation of the terms and spirit of your letter. At the Town of Perinton Conservation Board meeting this past Tuesday, January 16, 2018, WM disclosed that it will be at least another three weeks that our clients will be exposed to noxious gas odor emissions while WM continues extensive remedial “intrusive work” to add horizontal landfill gas collection piping. This “intrusive work” is being performed by re-exposing recently filled garbage because horizontal piping was negligently not incorporated into the collection system design for Landfill Cell 11, which was presumably approved by the Department.

This large community group was initially formed in a social media format to share their odor complaints from distances as far as 5-6 miles from the Landfill. Causing odor emissions at such great distances as a result of an inferior system design, which should have never been permitted, is completely unacceptable standard Landfill practice. It is frankly unclear how this has happened and is unfortunate because all of the negative impacts being experienced could have been avoided. The group has developed a computer app, which has accumulated data documenting complaints since mid-December 2017. Attached to this letter in Exhibit A is a map illustrating the odor reports to-date, and a summary of data collected to-date. This information was presented to WM and the Conservation Board on Tuesday. The stench has become so prevalent and predictable that the residents can predict when each individual neighborhood will wreak based on wind speed and direction.

This letter respectfully requests Community Air Monitoring specific to the landfill gases being emitted during the next three weeks of intentional exposure. The group can advise the Department and WM when each neighborhood will stink each day. In exchange for this sharing of information, it seems like the least WM can do is to document what substances are in the Landfill gases WM is intentionally exposing the community to, during at least the next three weeks, after which WM will allegedly complete its planned corrective actions.

The date when unacceptable odors commenced, based on the flawed system design, appears to be sometime in 2016 when the homes closer to the Landfill started to experience significant odors as compared to prior years. Since March 2017 to the present, these odors have progressively increased, and for the last two months have been at such unacceptable levels members of the community stated, at the Public Meeting on Tuesday night, they are choking and want to throw up when they go outside. Some testified that they also have trapped Landfill gas inside their homes. In addition, there have been numerous concerns of the Landfill gases infiltrating into two nearby schools, and that the learning environment is being compromised from the horrendous stench. A teacher at one of these schools submitted a letter stating that the impacts are so severe, the children’s ability to concentrate has been negatively impacted.

WM’s admissions on Tuesday that the company has caused a public nuisance by installing a methane collection system in Cell 11 consisting solely of vertical wells has been frankly hard to absorb. How the Department could have allowed for such a flawed design at the risk of such a significant community impact, while at the same time permitting a new rail system that allows tons of New York City garage to come to this Landfill per day, is inexcusable. Even more problematic is that as the system is now being redesigned and remediated, both Landfill gas to energy power plants had to be shut down, and the two flares used to manage “upset conditions,” also malfunctioned on January 2, 2018, which in turn caused tremors to reverberate throughout the community.

WM admitted in a January 3rd Community Update that there was too much oxygen in the Landfill, and because the cover system has also been compromised, this effectively caused the flare system to malfunction, which then caused tremors and homes in the community to reverberate. On January 10, 2018, another tremor event occurred, which WM claimed was the result of a “test” that allegedly re-created the tremor conditions felt on January 2nd without any prior communication to the community. This failure to tell the community about an alleged test, which caused homes to shake, is directly contrary to your advice to WM for “increased communications,” and is simply outrageous given all the impacts being caused to this community.

While WM tried to reassure the community that no costs will be spared to correct the problems, they also showed the visual rendering in Exhibit B, which illustrates in the areas shown in red and blue how much of the Landfill currently lacks a sufficient vacuum for the Landfill gas collection system to work effectively. This lack of vacuum clearly demonstrates that the Landfill gas collection system efficiency has been much less than the 85% efficiency claimed by WM in its Title V Air Permit, and that the community has been exposed to much greater quantities of untreated, fugitive Landfill gas emissions than any air modeling presented in WM’s Title V Permit application. Additionally, now that a very large area of the Landfill is required to have the cover system ripped open in order to retrofit the collection system with pipes, that should have been installed BEFORE the waste was placed in Cell 11, we are concerned that the excess oxygen conditions that lead to the prior tremor events will be further exacerbated, and this community is literally living next to a Landfill that could catch fire or explode.

1. The Department Must Require Immediate Community Air Monitoring.

This is an environmental emergency. Given the admitted severity of the Landfill’s fugitive gas emissions, which are known to contain hazardous substances, including potential carcinogens, based on the historic hazardous waste landfilling in this Landfill and some historic data in our possession, the Department must take all steps necessary to protect the public health and safety of this community. WM has already admitted that the Landfill is not currently operating under “routine operating conditions” due to the “ongoing multiple construction projects underway to better capture and control the Landfill gas.” Community air monitoring should have been implemented before the start of these “multiple construction projects,” which are corrective action projects, and remedial in nature. See Exhibit B prepared by WM’s consulting firm referring to the work as “remedial”. In fact, WM predicted that when it had to remove a road, which was clearly an “intrusive activity,” it would increase odors. In simple terms, WM undertook activity to completely remove a section of the Landfill’s cover system, possibly exposing the entire community to harmful Landfill gases, without any Community Air Monitoring. The standard monitoring performed quarterly on the surface of the Landfill for methane is completely inappropriate under these materially changed conditions.

WM must be directed by the Department to immediately implement a Community Air Monitoring Plan (“CAMP”), monitoring gases specific to the Landfill gases being emitted, and make all data immediately available in an on-line, real time format as was done during the Tuckahoe Landfill remediation project (BCP #C360143). DER-10 §1.9(b) states that “all work plans for any intrusive activities must include a site-specific plan, the CAMP, to address community health and safety which identifies measures and/or actions to ensure that the public living and working near the site as well as employees or visitors to any facility located on the site are protected from exposure to site contaminants during intrusive activities.” How can a CAMP be standard practice at a former landfill site being remediated, but not at this active Landfill when it is being intrusively opened for remediation and excavation of new piping? A doctor, who testified at the Public Meeting, stated that for many reasons “odor is a health risk.” WM, with the acquiesce of the Department, has put the health of thousands at risk by implementing a completely flawed design. Now having made this huge mistake, the Department must request that WM at least monitor for volatile organic compounds (VOCs), sulfides, and other harmful gases pursuant to a CAMP before all of the work is completed so that the community has some baseline data, or peace of mind. As far as we are aware, absolutely no Community Air Monitoring has been implemented while the face of the Landfill has been ripped open during the cover system’s remedial repairs.

Since the group has already hired its own air sampling expert, we would be willing to coordinate sampling efforts so there can be no disagreement about results. However, our consultant plans to commence implementation of another sampling round next week. Therefore, we need to hear from the Department by Monday January 22, 2018, if efforts will be coordinated.

As the Department is well-aware, WM’s environmental record is not as stellar and “green” as their public relations team suggests. Over the years, this facility has been issued Notices of Violations, signed Consent Orders, and violated multiple permit conditions for various incidents. We believe it is time for the Department to take immediate action to ensure the community is not exposed to hazardous Landfill gases during WM’s remedial work.

2. The Department Should Revoke or Suspend the WM’s Part 360 Permit (“Landfill Permit”) in Three Weeks if Odors and/or Tremors are Not Permanently Ceased.

When a landfill causes adjacent properties to reverberate and stink for at least 10 months, this rises to the level of being an imminent and substantially dangerous event, which must be immediately rectified, or the facility should be shut down until the causes are fully understood and addressed. Based on disclosures made by Department personnel in the Avon office, it is understood that the New York City waste being transported via rail is extremely odorous. The waste takes days or weeks to arrive at the Landfill, where it may sit for additional time on the tracks before it can be unloaded. Thus, the flawed gas collection system may not be the only issue at the Landfill causing odors, and the community has valid concerns that even if the collection system is fixed in three weeks, the odor problem may persist. If this is not the case, and WM lives up to its word that the collection system will be fixed, the community should not experience any further odor problems. However, if this is the case, and odors persist, it is time to recognize that the odors are a serious permit violation and the facility should be shut down until all odor causes are eliminated.

On behalf of the newly formed and highly active community group, we respectfully request that the Department exercise of the its summary abatement powers to address this as an emergency, and to reevaluate the various 2013 permits, which appeared to have changed the Landfill design in a manner not effectively allowing for the recently permitted lateral expansion of the Landfill without unacceptable community consequences at the same time it allowed massive quantities of NYC garbage to be received.

While we have not yet received documents in response to our Freedom of Information Law request to determine all of the violations that have occurred from recent dangerous events, to the best of our knowledge, the Department has not issued any Notices of Non-Compliance, Notices of Violation, or taken any action against WM. WM’s current Landfill Permit states that the Department has the right to modify, suspend or revoke the Landfill Permit. The grounds for doing so include, inter alia: failure by the permittee to comply with any terms or conditions of the permit; newly discovered material information or a material change in environmental conditions; noncompliance with previously issued permit conditions, orders of the commissioner, any provisions of the Environmental Conservation Law or regulations of the Department related to the permitted activity.

The recent imminent and substantially dangerous untreated gas emissions and tremors represent a material change in environmental conditions and are permit violations. The “higher-than-normal” oxygen levels in the Landfill, which contributed to the malfunctioning flares, and led to the violent tremors, is also a material change in environmental conditions because large portions of the cover system are lacking at this time, which is causing additional oxygen infiltration into the Landfill gas, increasing the risk of a Landfill gas fire or explosion. Thus, there have been a number of material changes in the environmental conditions at the Landfill, and WM has admitted it cannot maintain the routine operations of the Landfill under these changing conditions.  In addition to air monitoring described above, the Department should also direct WM to perform structural analysis of the homes where tremors caused homes to shake.

Additionally, WM is in noncompliance with the Department’s regulations on odors, which state “[t]he owner or operator of a facility must ensure that odors are effectively controlled so that they do not constitute a nuisance.” 6 NYCRR §360.19. WM has already admitted that it has created a public nuisance and the hundreds of odor complaints documented by the community since mid-December is proof of this nuisance. The Restatement (Second) of Torts §821B(1) states that a public nuisance is “an unreasonable interference with a right common to the general public.” There can be no question that the Landfill’s odors meet this definition.

Therefore, if in three weeks WM is continuing to negatively impact this community, WM’s Landfill Permit should be suspended or revoked until the problems causing these material changes are fully understood, analyzed, and permanently corrected. WM should not be profiting while the community is suffering.

Fresh Air for the Eastside, Inc. is optimistic the Department will take all necessary actions against the Landfill for its ongoing violations discussed in this letter. We trust that with your swift action, this imminent and substantial threat to human health and the environment will be abated, and legal action will not be required. However, if something meaningful is not done to effectively address these dangerous conditions, we will be required to seek the assistance of the courts for relief.