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Franklin, County of - Summary Report, April 20, 1993

Summary Report, April 20, 1993

50 Wolf Road
Albany, New York 12233-1550

In the Matter

- of -

the Applications of

County of Franklin
Solid Waste Management Authority
121 East Main Street
Malone, New York 12953

Pursuant to Environmental Conservation Law ("ECL") and Title 6 of the Official Compilation of
Codes, Rules and Regulations of the State of New York ("6 NYCRR") for permits to
construct and operate a solid waste management facility (county landfill)

DEC Project Number 5-1699-00003/00001-0


- by -

Robert P. O'Connor
Administrative Law Judge

April 20, 1993


The County of Franklin Solid Waste Management Authority, 121 East Main Street, Malone, New York 12953 (the "Applicant" or the "County") applied to the New York State Department of Environmental Conservation ("DEC" or "Department") through the Department's Region 5 Office in Ray Brook, New York for permits to construct and operate a solid waste management facility, i.e. -- a county landfill. The applications were filed pursuant to applicable sections of the Environmental Conservation Law ("ECL") and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"). The site proposed for the landfill is located in the northern Franklin County Towns of Westville and Constable, approximately one mile south of the border between New York State and the Province of Quebec, Canada.

On February 22, 1993, the Department's Office of Hearings in Albany, New York received a request from the Department's Region 5 Office to conduct a legislative public statement hearing to respond to public interest in the proposed project expressed by persons in both Franklin County, New York and the Province of Quebec.

Notice of the public hearing was duly published in the Malone Evening Telegram on March 9, 1993, and in the Adirondack Daily Enterprise, the Plattsburgh Press-Republican, and the Department's Environmental Notice Bulletin ("ENB"), all on March 10, 1993. Additionally, the hearing notice was mailed to all persons, organizations and governmental officials in both the U.S. and Canada who were known or believed to have an interest in the proposed project.

The legislative public statement hearing was held as scheduled by Administrative Law Judge ("ALJ") Robert P. O'Connor at 6:30 P.M. on Thursday, April 1, 1993 in the Kitchen Conference Room, Franklin County Courthouse, 63 West Main Street, Malone, New York. Due to inclement weather, i.e. - a combination of rain, snow, sleet and freezing rain, and hazardous driving conditions, only 15 persons attended the April 1, 1993 hearing session. Of those persons, five were DEC staff members, five were employed by or affiliated with Franklin County and three were from the media, e.g. - newspaper and radio. Of the remaining two persons, one was a representative of Environment Quebec who was present only as an observer, and the other was the U.S. Co-Chairman of the International Committee for Environmental Quality, who was the only person, other than representatives from the County and DEC, to make a formal statement for the hearing record.

On Friday, April 2, 1993, a representative of the Canadian government requested the Department to conduct an additional hearing session because, due to the adverse weather conditions, many of the concerned Canadian citizens had been unable to attend the April 1, 1993 hearing session. The Department then scheduled a second hearing session for Thursday, April 8, 1993.

The Department's Region 5 Office sent out a news release on April 2, 1993 announcing the additional hearing session. The news release was sent to all persons, organizations and governmental officials in both the U.S. and Canada who were known or believed to have an interest in the proposed project. Additionally, the news release was given wide distribution to both U.S. and Canadian media representatives.

ALJ O'Connor conducted the second hearing session, as announced in the news release, at 6:30 P.M. on Thursday, April 8, 1993 in the Kitchen Conference Room, Franklin County Courthouse, 63 West Main Street, Malone, New York. With favorable weather conditions, approximately 45 persons, mostly Canadian citizens, attended the second hearing session. Other than a representative of the DEC Staff who, for the benefit of the attendees who had not been present at the first hearing session, repeated the Department's Region 5 Staff statement of position on the proposed project, six persons from the Province of Quebec and one Franklin County, New York resident made statements for the hearing record.

The hearing record remained open to receive written statements on the proposed project until the close of business on April 15, 1993. Several additional written statements were received during this comment period. All statements, both given orally at the hearing and written, are summarized below.

The stenographic transcript of the first hearing session was received in the Department's Office of Hearings on April 8, 1993. The stenographic transcript of the second hearing session was received in the Office of Hearings on April 15, 1993, and the hearing record officially closed on that date.

Summary of Statements

DEC Region 5 Staff Position -- The DEC Staff position on the proposed project was presented at the first hearing session by Donald Corliss, Regional Engineer, DEC Region 5, Ray Brook, New York and at the second hearing session by Dale Becker, Senior Engineering Geologist, Division of Solid Waste, DEC Region 5, Ray Brook, New York. The Staff's review of the project determined that Franklin County had initially evaluated up to 42 potential landfill sites in the County. The list of potential sites was subsequently narrowed to seven and then, following additional analysis, the site in the Towns of Westville and Constable was chosen as the project site. The site selection methodology and procedures used by the County were consistent with the regulatory landfill site selection requirements in 6 NYCRR Part 360.

Based on its review and analysis, the Staff stated that subject to the imposition of various conditions the project conforms to the strict requirements of the Solid Waste Management Facility Regulations set forth in 6 NYCRR Part 360. The landfill is designed to minimize any off-site contamination, and will be protective of areas which could potentially be impacted by landfill derived contamination, whether in New York State or in neighboring Quebec Province.

The Staff prepared Draft Freshwater Wetlands and Solid Waste Management Facility Permits which detailed the conditions necessary for the construction and operation of the landfill to ensure protection of public health and the environment. These Draft Permits were available for public inspection in the Franklin County Clerk's Office and in the offices of the Franklin County Solid Waste Management Authority, both in Malone, New York, and in the DEC Region 5 Office in Ray Brook, New York from approximately the end of February 1993, prior to and at the public hearing sessions. The DEC Staff recommended approval of the project.

PAUL J. McMAHON, U.S. Co-Chairman, International Committee for Environmental Quality, took issue with the County's landfill site selection process, stating that the desired clay soils are available in other locations in Franklin County and that the proposed site is remote from the County's center of waste. The site selected by the County is almost completely surrounded by freshwater wetlands and requires much additional engineering to attempt to safeguard the groundwater and surface water resources in the area. Additionally, he cited the ecological sensitivity of the area, noting the brooks which drain the site are spawning grounds for northern pike, muskellunge and red-finned mullet, the identification in the area of the endangered brook stickleback, and the presence of a highly regarded deer yard in the area.

Mr. McMahon stated the double composite liner system proposed for the landfill gives rise to fears that hazardous wastes may be deposited at this site. Since the landfill cannot meet the Part 360 requirement for a five foot separation between the bottom of the liner system and groundwater on the site, the County has requested a variance from this requirement and will engineer a "pore pressure relief system." Mr. McMahon believes this system will lower groundwater levels in the area and diminish the wetlands surrounding the site.

Mr. McMahon noted Franklin County passed Local Law No. 2 which prohibits importation of wastes into the County from other areas. County officials have assured residents that wastes from outside the County would not be allowed in the landfill. However, despite the local law and these assurances, because of the relatively small population of Franklin County and the large cost of the project, Mr. McMahon contended wastes might have to be imported from other jurisdictions in order to make the project economically viable. Residents are particularly concerned that hazardous and industrial wastes from large industries in neighboring St. Lawrence County would be deposited at the site.

Franklin County is in the process of securing financing for the proposed facility by procuring long term bonds. Mr. McMahon stated the citizens of the County fear the momentum of the process for permitting, constructing and operating the landfill and associated transfer stations will be driven by monetary needs alone, to the exclusion of the environmental and safety concerns which his committee has identified.

Mr. McMahon indicated a major concern of his committee is the proximity of the landfill site to the Canadian border. This location exposes the County to potential international liabilities in the event the landfill causes surface water and/or groundwater problems which migrate northward with the natural flow of waters in this area and require remediation on the Quebec side of the border. The County has recognized the neighboring Canadian municipalities to the north of the site as part of the host community, along with the Franklin County Towns of Westville and Constable. Mr. McMahon implied the County has not fully recognized or dealt with its potential liabilities and legal responsibilities to maintain host community property values, water quality, etc. on the Canadian side of the border, as it must do in the U.S. host communities. Further, he stated the taxpayers of Franklin County are being required to underwrite unacceptable risks in this regard, especially with the severe shortage of tax capital in the County.

Lastly, Mr. McMahon commented on the site selection, review and permitting process for the proposed landfill. Throughout the siting and permitting process, those persons opposed to the proposed site have felt disenfranchised with respect to the role which they perceive is appropriate in the governmental/regulatory agency review process. Not only has the citizens' ability to control the process through their elected officials been usurped by the formation of a Solid Waste Management Authority with appointed officials at the County level, but at the State level the DEC Commissioner and other officials are also appointed and have little accountability to the public. Mr. McMahon noted the legislative hearing was conducted by an employee of DEC -- the very agency which his committee believes has not been responsive to its concerns.

Mr. McMahon requested that an adjudicatory hearing be held during which testimony for and against the proposed project would be received and following which the case would be judged on its merits. This process should allow participation of the concerned public on both sides of the issue, and further efforts should be made to actively involve the affected public in future decision making.

JACQUES ADAM, Canadian Co-Chairman, International Committee for Environmental Quality, noted that there are many large dairy farms on the Canadian side of the border. These farms, and many of the residents in the neighboring area of Quebec, depend on the Chateauguay River for drinking water. Despite the "state-of-the-art" technology proposed to be used for the Franklin County landfill, Mr. Adam expressed concern for the element of human error, which he said cannot be overcome. The Canadian citizens have no assurance of any kind of compensation from Franklin County in the event of contamination of their water supplies by the landfill. Mr. Adam stated there is no reason for taking a chance of contaminating the waters draining into Quebec by locating the landfill so close to the border. He suggested the County had an acceptable site for the landfill near Moira, but because of strong opposition there, the Westville/Constable site, with less opposition, was chosen instead. Mr. Adam requested consideration of the concerns which his committee has raised to avoid any danger of contamination.

GERALDINE GRAY, Dundee Councillor and Representative of Municipalité Régionale de Comté du Haut Saint-Laurent -- the Quebec Municipalities of Elgin, Godmanchester and Dundee, stated these three municipalities have opposed the proposed project due to its location one mile from the New York-Quebec border, but particularly because of concern over the potential for the Franklin County landfill to contaminate ground and surface waters which flow northward from the site into the Province of Quebec. Ms. Gray also relayed a concern over the potential for contamination of soils due to seasonal flooding of ditches, creeks, streams and rivers in the area. Such contamination, if it occurred, would have a negative impact on property values in the municipalities which Ms. Gray represents.

The three municipalities suggested during the site selection process that the implications and complications regarding the potential negative impact on another nation - Canada - indicated a "fatal flaw" in the rating of the proposed site. Ms. Gray offered copies of three maps to demonstrate the proximity of the proposed site to the New York-Quebec border and the watercourses which flow through the agricultural lands north of the border.

Ms. Gray reiterated the $1+ million value of some of the farms on the Canadian side of the border and stressed their dependence upon high quality groundwater as a source of water supply for the farmhouses and barns.

Ms. Gray noted the Franklin County Solid Waste Management Authority had acknowledged the "host community" for the proposed project extends across the border to include part of the Municipalities of Elgin, Godmanchester and Dundee. In September 1991 Ms. Gray was named to the Citizens' Advisory Board ("CAB") established by the County as the representative of the Canadian communities. Ms. Gray stated the CAB has never been convened to discuss host community issues. Furthermore, since the existence of the CAB is not mandatory to the regulatory process, and since the mandate of the CAB is only advisory, Ms. Gray stated the CAB presented a forum which was neither appropriate nor adequate to address the concerns of the municipalities which she represents.

Throughout the review period, Ms. Gray and others on the Canadian side of the border submitted various letters and comments to the Department which outlined their concerns. Their letters were not answered and their concerns were not specifically addressed in the Department's Responsiveness Summary. The Canadians believe their concerns have been conveniently overlooked, because they are not part of "our" system. They ask if the Department is considering granting the necessary permits for the Franklin County landfill, that assurance, responsibility and financial liability be negotiated with and guaranteed to the Canadian host community as an integral part of the permit.

STEPHEN COTE, Agronomist and Representative of Federation de l'U.P.A. (Union des Prodectures Agricole) de St-Jean - Valleyfield -- the Provincial Farmers Union, noted that he was speaking on behalf of Pierre Rinfret, President of the Farmers Union, who in fact signed the written statement submitted for the record. Of the 4,800 members of the Union in the area of Quebec which borders New York State and Franklin County, 3,000 members own and operate farms in the Chateauguay Valley. Farming in this area is a multi-billion dollar business, which the Union believes is threatened by the proposed landfill.

Mr. Côté stated that the double membrane liner does not eliminate all risks of technological failure and human error. Further, "a marsh may not be such a terrific site for a dump." Mr. Côté cited a 1990 newspaper article in which EPA staffers stated liners have shown leaky seams, and once a landfill cell starts leaking, the only options are to either live with the leak or to close and cap the cell, in the hope the cap remains watertight. Mr. Côté said even if double liners are the safest of technologies, they still represent too much of a threat to the Chateauguay watershed.

Mr. Côté also presented concerns regarding the vagueness of the responses from the County and DEC regarding the nature of compensation measures which may be available to Canadian citizens in the event of surface water or groundwater contamination on the Quebec side of the border resulting from the landfill. The farmers in Quebec are particularly frustrated in knowing that compensation is required for any residents of Franklin County in the event of contamination, but apparently not for residents of the Canadian host community. No one has approached the Farmers Union to assess the levels of risk, the nature of what is at stake and what kind of problems will arise as the result of contamination on the Canadian side of the border.

Mr. Côté noted that the Farmers Union cooperates with Canadian governments officials to properly site sewage treatment plants and landfills. When there is little resistance from the populace, geological constraints and other criteria tend to be overlooked. This appears to be the case with the proposed site in the Towns of Westville and Constable.

The Farmers Union seeks acknowledgement by DEC that landfill operations at the proposed site will present some risks for Canadian neighbors. These risks will increase as the site operations expand. Additionally, neither the County nor DEC has offered any proof of proper financial compensation guarantees to the Canadian host community. Based on these two concerns, DEC should not issue permits for the proposed project and should recommend consideration of alternative sites which are less flood prone and located farther from the Canada - U.S. border.

ROBERT HAAS, Owner of Property Adjoining the Site from Constable, New York, speaking on behalf of himself, his wife Martha and his unborn child, stated the County cannot guarantee that groundwater on his property will not be contaminated, or that his property values will not be adversely impacted by the County landfill. Mr. Haas stated that in approximately 1990, when applying for a home equity loan, his property was appraised at a value $27,000 less than when he purchased the property in 1986. He attributes this drop in value solely to the landfill site being proposed on adjacent property. He is also concerned over the potential for the landfill to leak into the groundwater which serves as his water supply.

SERGE BOURDON, Vice-President, SCABRIC ("la Société de conservation et d'aménagement du bassin de la rivière Châteauguay") -- the Chateauguay Watershed Management Agency, stated his agency profoundly disagrees with the site proposed for the landfill. He noted the boundary between the U.S. and Canada was an imaginary line drawn for administrative purposes. Nevertheless, the topography of the region is such that the "Quebecers" are the ones most at risk from an accident at the landfill.

Mr. Bourdon posed three questions: How do DEC and the County foresee the restoration of groundwater and surface water if there is an accident? Have they determined exactly how they will compensate the affected property owners of some of the richest agricultural lands in Quebec, as well as ordinary citizens and municipalities? Have they considered the impact of an accident on the supply of drinking water and public health? If these questions have answers, they have not been provided to those living on the Canadian side of the border.

Rather than implement a project which could have an irreversible effect on the environment of their neighbors, Mr. Bourdon called for the establishment of a protocol agreement, mechanisms for regional consultation, an action plan, and a zone free of all activity which could be harmful to the environment on both sides of the border.

DONALD ROSENBAUM, President, CRRC ("Comité pour la Rehabilitation de la Rivière Chateauguay") -- the Chateauguay River Rehabilitation Committee, spoke on behalf of 140 members of a non-profit group formed nearly a decade ago to work for the protection and restoration of the natural environment of the Chateauguay River and surrounding area.

Mr. Rosenbaum noted that, without a change of direction, policies and practices, our environmental, economic and social welfare will continue to deteriorate and jeopardize our children's future. He stated that environmental considerations must be placed front and center in all our decision making. In this regard, his group believes the location of the proposed Franklin County landfill site so close to the Canadian - U.S. border is dangerous and provocative. Their concerns are particularly acute because those who would suffer most in the event of flooding or contamination of the site would be the people in Quebec, especially those who draw their water from the Chateauguay River, and those in the farming community who depend on clean air, land and water for their food, health and livelihood.

Mr. Rosenbaum cited an instance of groundwater contamination in the area of Mercier, a village in the region. Millions of dollars have been spent on cleanup efforts and in bringing alternate water supplies to the affected homes. He does not want a similar situation to occur to Canadians as the result of the proposed project.

Mr. Rosenbaum noted the concerns of Environment Canada regarding the siting of the project in an apparent wetland area and stated the location of such a facility so close to the border would set a disturbing precedent. He advocated a policy of respect for the environment and cross-border cooperation with a border region free of any activity potentially detrimental to the area.

DENISE ST-GERMAINE, Representative of Parti Québécois, Comté de Beauharnois-Huntingdon -- a political party in Quebec, stated the proximity of the project to the border exposes the Canadian population to contamination of its water supply because of the flooding potential of the site and the northward flow of the waters in the area.

Ms. St. Germaine stated the impact studies done by and for the County have not considered impacts on the Canadian side of the border. Further, the County has made no provisions for a security fund to undertake remedial action on the Quebec side of the border. She also expressed concern that the site might be used for disposal of wastes which were generated outside of Franklin County. She noted these concerns have been raised repeatedly over the past three years, without receiving any satisfactory answers.

Ms. St. Germaine requested an adjudicatory hearing to properly consider the evidence of risk of transboundary pollution which might result from the project.

JEAN-GUY HUDON, Member of Parliament Representing Beauharnois-Salaberry, Québec in the House of Commons, Ottawa, Canada, is opposed to the proposed project for a number of reasons. First, the site selection criteria did not respect the existence of another nation, Canada, one mile from the proposed site. The lack of such consideration constitutes a fatal flaw in the site selection process. A representative of Environment Canada's Quebec Region, in a letter to the DEC Region 5 Staff on September 29, 1992, sought to have transboundary impacts considered and weighted in the site selection process. No satisfactory response was received from the DEC Region 5 Staff.

Mr. Hudon queried why the Moira site was not analyzed more extensively to determine its suitability for the landfill, when of the top seven ranked sites in the County, it is the only one without technical problems, e.g. - drainage and screening. He again cited the Environment Canada September 29, 1992 letter to DEC Region 5 Staff, which lists wetlands and shallow groundwater on the site as impediments to meeting the requirements of 6 NYCRR Part 360. Environment Canada concluded the site in the Towns of Westville and Constable is not suitable for a landfill and recommended other potential sites should be reconsidered.

Mr. Hudon expressed concern that the landfill would be expanded beyond the presently planned footprint, allowing other municipalities/counties to dispose of their solid waste there, in order to increase the revenues and financial viability of Franklin County's landfill project. He believes it is certain that expansion of the landfill will shortly follow any initial approval, and that again, the neighboring Canadians will not be considered or consulted.

Mr. Hudon noted the County's recognition of the Quebec communities of Elgin, Godmanchester and Dundee as part of the host community is purely theoretical and means nothing in practice. He questioned what happened to the Citizens Advisory Committee, which had a Canadian representative on it, and wanted to know why application documents were available for review in several locations in Franklin County, but not in Dundee, Quebec.

Mr. Hudon said no attempt has been made to contact Canadian citizens to inform them about any "benefits package" in the event of future contamination. He noted all the County's studies and plans stop dead at the Canadian border, ignoring the people who live on the other side of that imaginary line. Likewise, the Canadians have never been consulted or advised regarding "acceptable financial assurance," or how the residents of the host community might take advantage of such assurance in the event contamination should affect them. Mr. Hudon called upon the Department to undertake negotiations with the host community as soon as possible with a view to giving the Canadians all the written guarantees they need confirming the compensation and services that would be due them should contamination leak from the landfill. Lastly, he requested DEC and the County to reconsider any plans to develop a landfill at the proposed site.

A. LINDA JULIEN, Lawyer and Liberal Party of Canada Candidate for the Riding (Electoral District) of Beauharnois-Salaberry, Québec, seeks to foster the development of coordinated environmental cooperation between the U.S. and Canada, their respective environmental agencies, the Environmental Protection Agency and Environment Canada, as well as the State of New York and the Province of Quebec and their environmental agencies, NYSDEC and MENVIQ. In this regard she called upon the DEC Region 5 Staff to take great care in ensuring that they adhere strictly to DEC regulations and that they fully respect all international and administrative legal obligations to Canada and Quebec. (Bold emphasis in original.)

Ms. Julien noted that the surface waters on the proposed site are tributary, via the Beaver Creek and the Trout River, to the Chateauguay River, from which the town of Huntindon, Quebec and many other downstream Quebec communities draw their drinking water. Major efforts are underway all along the Chateauguay watershed to improve water quality throughout the historic farming region known as the Chateauguay Valley. She stated the landfill proposal clearly contravenes the regulations set forth in 6 NYCRR Part 360 and would cause transboundary impacts which would violate a longstanding transboundary waters treaty between Canada and the U.S.

As a lawyer, Ms. Julien believes permit approval would lead to international litigation involving several parties. She suggested this matter be referred to the New York State Attorney General for examination of the international legal obligations arising from the proposal. She noted the Canadian Department of External Affairs is monitoring the proposal and suggested specific legal guidance from the U.S. State Department might be appropriate prior to the granting of any DEC permits.

Lastly, Ms. Julien stated that the instant proposal is only part of an apparent trend to locate waste sites and incinerators along the U.S. side of the border. This trend runs counter to the Quebec Farmers Union proposal to establish a waste-free zone along both sides of the border to protect the agricultural enterprises and environmental-related tourism which are the primary economic activities on both sides of the border region. Any failure of DEC to factor the cross-border impacts of the landfill into its decision making process will lead to increasing tensions among ordinary citizens and several levels of government in the two countries.

THOMAS ARMSTRONG, Dairy Farmer from Constable, New York, stated the proposed landfill will eventually put an end to his farming operation located between the site and the Canadian border. The landfill will drain through his land, and he fears the water will become contaminated. He needs the water to operate his farm, and the County is not proposing to supply farms with water. Mr. Armstrong asked that the proposal be denied.


With the summarization of the comments received as part of the hearing record, there is no further action required on the part of the Administrative Law Judge or the Office of Hearings. This Summary Report, along with the entire hearing record and complete comments, is being herewith forwarded the Department's Region 5 Office in Ray Brook, New York for any further actions which may be necessary in this matter.

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