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N E W S R E L E A S E COMMONWEALTH OF PENNSYLVANIA- COMMONWEALTH OF PENNSYLVANIA - Department of Environmental Protection - Southeast Regional Office/FOR IMMEDIATE RELEASE 5/24/2005
CONTACT: Deborah Fries Phone: (484) 250-5808
BROWNING FERRIS PAYS $250,000 FOR WASTE VIOLATIONS AT TRC TRANSFER STATION IN PHILADELPHIA - NORRISTOWN: Environmental Protection Regional Director Joseph A. Feola today announced that Browning Ferris Industries (BFI) Waste Systems of North America Inc. has paid a $250,000 civil penalty for waste violations found at its TRC transfer station in Philadelphia. With similar violations found at this same facility several years ago, a significant penalty was warranted to encourage BFI to come into and remain in full compliance,Feola said. Violations outlined in this penalty action were cited during inspections of BFIs facility located at 2904 Christopher Columbus Blvd. The violations occurred and were documented between July 2002 and February 2005. DEP inspectors found that BFI stored putrescible waste for longer than the 24-hour regulatory allowance; stored municipal waste outside of its approved storage area; failed to comply with its approved radiation-monitoring plan; and failed to maintain facility roadways and tipping floor areas. Under terms of the May 20, 2005, consent assessment document, the $250,000 civil penalty has been paid to the states Solid Waste Abatement Fund. For more information on waste issues, visit DEPs Web site at www.dep.state.pa.us <http://www.dep.state.pa.us/redirector?varURL=http://www.dep.state.pa.us>, Keyword: Waste Management.

Article published Tuesday, April 20, 2004

Waste hauler's actions questioned
Recyclables dumped with ordinary trash

By KIM BATES
BLADE STAFF WRITER

The sales manager of a recycling center in Defiance noticed that drivers from Tri-State Waste of Bryan weren't always making their weekly recycling drops. After several no-shows, he decided to find out what was going on.

He had another worker at his firm - Werlor Recycling Center - follow a Tri-State truck one day. The colleague took digital video of trash being collected into the same truck as recyclables in the village of Stryker. All of the items were dumped into the Williams County landfill outside Bryan. Mr. Cote, Werlor's sales manager, showed the video yesterday to members of the Four-County Solid Waste District, which includes Defiance, Fulton, Paulding, and Williams counties. Stryker village leaders said yesterday they plan to review their current recycling arrangement with Tri-State after viewing the video of glass and plastic containers dumped directly into a local landfill.

"We are concerned," said Stryker Administrator Gary St. John, who was present at yesterday's meeting. Mr. St. John said he plans to discuss the matter with the village mayor and also review records involving Stryker's contract with Tri-State Waste. A Tri-State representative could not be reached for comment late yesterday, but at the meeting, Tri-State officials said the reason the recyclables went into the landfill was because the truck had a hydraulic leak at the time. Tri-State is paid to pick up trash from Stryker residents as well as separate the recyclables. Mr. St. John said every household is assessed $3.15 a month for recycling pickup. Solid-waste board members said they will await Stryker's decision regarding the matter. From there, the board will discuss what its next action could be, said the board's attorney, Kimberly Baker of Toledo. Ms. Baker said the solid-waste district is required by law to demonstrate that 90 percent of the population has access to recycling. As a result of the Tri-State situation, Ms. Baker said the solid-waste district could ultimately opt to enact rules for local communities - such as prohibiting any recyclables from entering landfills. Mr. Cote said his company didn't raise the issue with financial gain in mind. The company only receives about $40 each week from Stryker's recyclables, which average about 2,000 pounds. "Residents pay for recycling. It's absolutely wrong for anyone to knowingly destroy those materials," Mr. Cote said.

MINUTES OF A SPECIAL MEETING OF THE BOARD OF TRUSTEES OF THE VILLAGE OF MAMARONECK HELD ON FRIDAY, SEPTEMBER 17, 2004 AT 9:00 A.M. IN THE COURTROOM AT VILLAGE HALL, 169 MOUNT PLEASANT AVENUE, MAMARONECK, NEW YORK.

Mayor Trifiletti called the meeting to order and stated that this Special Meeting was duly noticed and the purpose of the meeting was to deal with conditions at Suburban Carting Corporation (SCC) transfer station. Mayor Trifiletti showed several photographs taken last weekend when the Village was investigating an oil spill into the Sheldrake River.

The odor when the transfer station doors were opened was horrendous from garbage left in the facility in violation of their permits and approvals. In addition, a frion container was also found with the waste in their facility, which is also in violation of their permits.

Mayor Trifiletti read the proposed resolution whereby the Board of Trustees authorizes the Building Department to issue a closure order for the transfer station effective 11:59 p.m. on September 22, 2004. The resolution would also authorize the Village Attorney and Special Prosecutor to take the appropriate legal action to enforce this resolution and seek injunctive relief in the State Supreme Court.

On motion of Trustee Angilletta, seconded by Trustee Vozza: WHEREAS, there have been on-going issues of noncompliance with the conditions set forth in the approvals (the "Approvals") for the transfer station located at 306 Fayette Avenue, Mamaroneck, New York (the "Transfer Station") that is operated by Suburban Carting Corporation ("Suburban") and owned by Allied Waste Systems, Inc. ("Allied"); and

WHEREAS, after Suburban violated and continued to violate a number of the conditions set forth in the Approvals and such violations constituted a public nuisance, the Board of Trustees commenced Trifiletti v. Suburban Carting Corp., Index No. 13108/02 (Supreme Ct. Westchester Co.) (the "Lawsuit") on or about August 7, 2002 to seek an injunction restraining Suburban, Allied and 306 Fayette Avenue Realty Corp. ("306 Fayette") from operating and/or maintaining the Transfer Station; and WHEREAS, a Stipulation dated August 21, 2002 (the "Stipulation") was executed between the Village, Suburban, Allied and 306 Fayette which stayed the Lawsuit; and

WHEREAS, the Stipulation required, among other things, Suburban and Allied to appear before the Zoning Board of Appeals of the Village of Mamaroneck (the "ZBA") to address issues of compliance with the Approvals; and WHEREAS, there is presently in effect a "Consent Order" dated March 11, 2003 between the New York State Department of Environmental Conservation (DEC) and Suburban regarding the operation of the Transfer Station;

WHEREAS, on July 28, 2003, the ZBA determined that Suburban was not in compliance with the Approvals; and WHEREAS, on March 4, 2004, the ZBA determined that there were no legally required modifications to the Approvals (the "2004 ZBA Resolution"); and

WHEREAS, the stay of the Litigation was automatically lifted as a result of the 2004 ZBA Resolution because the ZBA declined to modify the Approvals; and WHEREAS, on or about March 31, 2004, the Village re-noticed its motion for a preliminary injunction in accordance with the terms of the Stipulation; and

WHEREAS, the Village in good faith is attempting to resolve the issues of noncompliance with Suburban and Allied by negotiating a stipulation in the Lawsuit; and WHEREAS, throughout this time period, odors continued to emanate from the Transfer Station in violation of the Approvals; and

WHEREAS, as a result of flooding that occurred last week in the Village and complaints by the neighbors living near the Transfer Station of continuing odors, Village officials together with County Health Department officials visited the Transfer Station on September 12, 2004; and

WHEREAS, such visit revealed large amounts of standing garbage, including frion and other substances on the floors throughout the Transfer Station in violation of the Approvals, which substances gave off a horrific odor; and

WHEREAS, the Board of Trustees is concerned about the immediate and ongoing public health, safety and welfare of all Village residents; and

WHEREAS, the continuous and repeated horrific odors emanating from standing garbage is injurious to the health and welfare of the residents in the surrounding area of the Transfer Station, jeopardizes the health and safety of Village residents, and is in violation of the Approvals; and

WHEREAS, immediate action must be taken to abate the nuisance and the continuing violations of the Code of the Village of Mamaroneck and the Approvals that exist at the Transfer Station;

BE IT RESOLVED, that the Board of Trustees hereby authorizes and directs the Building Inspector (based on this Resolution) to issue a closure order for the Transfer Station to be effective 11:59 PM on September 22, 2004 and to serve such closure order with a copy of this Resolution on Allied, Suburban and 306 Fayette on or before 5:00 PM on September 17, 2004 by delivering it to the Transfer Station; and BE IT RESOLVED that the Board of Trustees hereby authorizes the Village Attorney, Kevin J. Plunkett, Esq. and his office, and Special Counsel, Joseph C. Messina, Esq., to take the appropriate legal action to enforce this Resolution, including but not limited to seeking injunctive relief in the Supreme Court of the State of New York, Westchester County, to abate the nuisance and the violations of the Code of the Village of Mamaroneck and the Approvals.

Trustee Angilletta stated that he believes SCC continues to violate the conditions of their permit and they think they are above the law. Residents should contact their County representatives that the laws be enforced and future penalties not be reduced.

COMMONWEALTH OF PENNSYLVANIA
Department of Environmental Protection
Southwest Regional Office
400 Waterfront Drive
Pittsburgh, PA 1522212/23/2005

CONTACT:
Betsy Mallison
Phone: (412) 442-4182DEP FINES GREENRIDGE LANDFILL $9,000 FOR OFF-SITE ODORSDEP After-Hours Inspection Documented MalodorsPITTSBURGH -- The Department of Environmental Protection has fined Greenridge Reclamation Landfill $9,000 for off-site odor violations at its facility in East Huntingdon Township, Westmoreland County.

Responding to concerns raised at a public meeting in November, DEP officials visited areas where residents said odors were leaving the landfill property, a violation of state law. During after-hours inspections around the landfills perimeter, DEP officials detected the off-site odors and levied the fine.

Our department responded immediately to residents concerns by going with them into their neighborhoods to check for odors, DEP Southwest Regional Director Ken Bowman said. Staff smelled the odors along Fenton Road, above the landfill, and we met with Greenridge officials that night to document the violation.

All of this is part of the departments ongoing commitment to force environmental compliance and ensure this landfill remains a responsible neighbor, Bowman said.

DEP will begin working with East Huntingdon Township officials in 2006 to better determine the times, locations and weather conditions when landfill odors affect the community. The department will also work with all parties to find a solution to control the off-site malodors.

As part of a 2004 consent order and agreement between DEP and the company to address problem odors, Greenridge, owned by Allied Waste Industries Inc., must pay a stipulated civil penalty of up to $9,000 each day for any off-site odor violations.

Since the implementation of the consent order and agreement, odor problems have substantially decreased.

For more information on landfills, visit DEPs Web site at www.depweb.state.pa.us, Keyword: Waste Management.http://rds.yahoo.com/_ylt=A0geut9vOwhFILYATt5XNyoA;_ylu=X3oDMTE2cXVtdWFqBGNvbG8DZQRsA1dTMQRwb3MDMwRzZWMDc3IEdnRpZANGODE1Xzgw/SIG=13mjfdckf/EXP=1158253807/**http%3a//www.zwire.com/site/news.cfm%3fnewsid=14315092%26BRD=1282%26PAG=461%26dept_id=182121%26rfi=6

Westmoreland County's Greenridge Waste Services is facing more violations from the state Department of Environmental Protection, but the agency report wasn't all bad.

This week, DEP Southwest Regional Director Kenneth Bowman said his agency found 51 environmental violations on 138 trucks during inspections in the last two weeks of March at Greenridge Waste Services' landfill in East Huntingdon Twp.

Greenridge is contracted to haul trash in a number of Western Pennsylvania communities, including McKeesport, North Versailles Twp. and Pleasant Hills.

However, Bowman said, agents saw improvement in the compliance of environmental and safety regulations for waste trucks entering the landfill.

"Department staff inspect waste transporters as part of a statewide effort to ensure haulers comply with environmental and safety laws," Bowman said. "There is improvement in the number of trucks coming into the landfill that were in compliance with weight restrictions."

Last November, DEP inspectors discovered 129 overweight vehicles were accepted during the first five days of that month at the East Huntingdon Twp. landfill. In response, DEP brought in inspectors from Pennsylvania State Police Troop A in Greensburg.

Last month, Bowman said, inspectors sometimes found multiple problems on the trucks with signs, fire extinguishers, leaks, waste containment and vehicle waste enclosures. DEP issued 16 summary citations, 23 field notices of violation and 12 written warnings.

"While compliance has improved as a result of frequent inspections and enforcement, we are still disappointed to have to take this approach at this facility," the Pittsburgh regional DEP director said. "We hope that the landfill takes additional steps to prevent this serious problem from continuing and instructs its staff to better police the trucks that enter there."

Inspections are mandated under Act 90, the state's Waste Transportation Safety Act, signed by Gov. Mark Schweiker in 2002. Truckers can lose permits to haul trash if DEP inspectors find there is a history of not complying or not being able to adhere to the act.

A year before Act 90 was passed in the General Assembly, DEP launched "Operation Clean Sweep," in which 500 inspectors checked out 40,000 vehicles and found more than 11,000 violations of laws then on the books.

Greenridge is a wholly-owned subsidiary of Allied Waste Industries Inc. of Scottsdale, Ariz., after Waste Management the second largest non-hazardous solid waste management company in the U.S. Allied officials could not be reached for comment by presstime.

The East Huntingdon Twp. landfill is one of 166 operated by Allied and its subsidiaries. It takes in trash collected by other area companies, and it also has been targeted in recent years for alleged operational violations.

In March 2004, DEP alleged that odor and other environmental violations had occurred at the landfill between January 2003 and February 2004.

"We detected odors in response to citizens' complaints and we took immediate action," Bowman said. "In addition, our routine inspection uncovered a number of other violations."

They included two leachate discharges, several surface water management and erosion control violations, blowing litter, several instances of inadequate cover, a sampling violation, an exceedance of on-site leachate storage capacity and off-site migration of methane.

Last September, Bowman said, Greenridge agreed to pay a $205,000 civil penalty and stipulated civil penalties of up to $9,000 each day for any future offsite odor violations.

http://rds.yahoo.com/_ylt=A0geut9vOwhFILYAat5XNyoA;_ylu=X3oDMTE3b3R2NWVjBGNvbG8DZQRsA1dTMQRwb3MDMTAEc2VjA3NyBHZ0aWQDRjgxNV84MA--/SIG=12gcno89m/EXP=1158253807/**http%3a//www.pittsburghlive.com/x/pittsburghtrib/s_252494.html

An East Huntingdon Township landfill operation is facing a $205,000 fine imposed by the state Department of Environmental Protection for several violations, including emitting persistent odors.

Under the consent order and agreement with the DEP, Greenridge Reclamation LLC, owned by Allied Waste Industries Inc., also will pay civil penalties of up to $9,000 per day for any future off-site odor violations.

Since early last year, landfill gas management problems have been documented, and there have been numerous complaints from neighbors about odors, which have been confirmed by the DEP during off-hour inspections.

In addition to odor-control violations, there have been two leachate discharges, several surface-water-management and erosion-control violations, blowing litter, instances of inadequate cover, a sampling violation, exceeding on-site leachate storage capacity and off-site migration of methane. The landfill also did not install radiation monitoring on schedule and did not adequately train personnel in procedures.

More information about the state's wastewater issues can be obtained at www.dep.state.pa.us, keyword, DEP Waste Management.

http://rds.yahoo.com/_ylt=A0geut9vOwhFILYAZt5XNyoA;_ylu=X3oDMTE2dXViMTZ2BGNvbG8DZQRsA1dTMQRwb3MDOQRzZWMDc3IEdnRpZANGODE1Xzgw/SIG=13leo7n7t/EXP=1158253807/**http%3a//www.globeinvestor.com/servlet/ArticleNews/story/PRNEWS/20031210/2003_12_10_15_2115_1056575

MORGANTOWN, Pa., Dec. 10 /PRNewswire/ -- BFI Conestoga Landfill today said it has voluntarily agreed to a settlement with the state Department of Environmental $142,500 to resolve 19 alleged odor violations i Protection (DEP) under which it will pay a fine of ssued from early April through early November.

"We have aggressively pursued and implemented a variety of measures to minimize and control odors as is required by DEP regulations," said Terry Cooney, General Manager. "We take our responsibilities to the Commonwealth and to our neighbors very seriously, and we will continue to seek out and apply the very latest odor-control technology and techniques."

Under the agreement, Conestoga also will voluntarily restrict its intake of waste to an average of 5,500 tons per day until the expiration of the consent order on August 31, 2004, rather than its permitted average of 7,210 tons per day. However, BFI Conestoga can request a higher volume from the DEP beginning in July 2004.

"We have consistently maintained that any transitory odors allegedly detected by the Department did not constitute a violation of the regulations that require us to `minimize and control' odors," said Louis Naugle, an attorney with Reed Smith LLP and counsel to BFI Conestoga. "We have been working with the DEP for several weeks to craft a settlement agreement and felt it was important to put these issues behind us. The settlement we've reached does that."

In late October, Conestoga began trial use of a prototype technology that applies a "biofilter" to the working face of the landfill to prevent odor from reaching the air. It also began drilling a dozen new wells that will tap and flare off gas from inactive areas of the landfill.

Earlier this year, Conestoga constructed a 300-foot-long, 25-foot-high earth-covered berm to block off the working area visually, reduce noise, and lessen the chance any odor would drift off site.

The landfill also installed a mobile "misting system" situated at the working area to suppress odor from waste prior to covering. This complemented a stationary misting system already in place around the western side of the landfill. Tank trucks also are used to spray water with odor neutralizers on the working area.

BFI Conestoga Landfill is a state-of-the-art waste disposal facility on a 454-acre site located at 420 Quarry Road in New Morgan Township, just off the Morgantown exit of the Pennsylvania Turnpike.

BFI Conestoga Landfill is owned and operated by New Morgan Landfill Company, Inc., a subsidiary of Allied Waste Industries and BFI Waste Systems of North America.

http://rds.yahoo.com/_ylt=A0geuuX6RwhFewYBMKJXNyoA;_ylu=X3oDMTE3aTdlNmY0BGNvbG8DZQRsA1dTMQRwb3MDMjgEc2VjA3NyBHZ0aWQDRjgxNV84MA--/SIG=13i83a0jc/EXP=1158257018/**http%3a//village.croton-on-hudson.ny.us/Public_Documents/CrotonHudsonNY_Board/S0023C652-0023C65E

MICHAEL B. GERRARD
RICHARD WEBSTER
Arnold & Porter
399 Park Avenue
New York, New York 10022
(212) 715-1000

Attorneys for Respondents-Appellants
The Village of Croton-on-Hudson and
The Village Board of Trustees of the
Village of Croton-on-Hudson

November 2003

Page
I
II Expert Studies and Careful Deliberation Went Into Formulation of the Permit Conditions
III Permit Conditions Were Designed to Protect Public Health and the Environment
IV Is Undisputed Substantial Evidence Of Repeated Serious Violations Of These Permit Conditions
Vs Action Was Proportional To The Violations
VI Established Violations Were a Sufficient Basis for the Villages Decision
VII Stressed By Metro Enviro Transfer Actually Support Villages Position
VIII Enviro Transfer Raises Several Irrelevant Points
IX

All-Weather Carting Corp. v. Town Bd. of the Town of Islip,
137 Misc. 2d 843, 522 N.Y.S.2d 425 (Sup. Co. Suffolk Co. 1987)

Atlantic Cement Co. v. Williams, 129 A.D.2d 84, 516 N.Y.S.2d 523 (3d Dept. 1987)

Bell v. Szmigel, 171 A.D.2d 1032, 569 N.Y.S.2d 36 (4th Dept. 1991)16

C&A Carbone, Inc. v. Holbrook, 188 A.D.2d 599, 591 N.Y.S.2d 493 (2d Dept. 1992)

C.B.H. Properties Inc. v. Rose, 205 A.D.2d 686, 613 N.Y.S.2d 913 (2d Dept. 1994)

Chilson v. Bd. of Educ., 34 N.Y.2d 222, 238, 356 N.Y.S.2d 833, 845 (1974)

Northside Salvage Yard, Inc. v. Bd. of Appeals of the Town of Pittsfield16

Oyster Bay Assocs. Ltd. Pship v. Town Bd. Of Town of Oyster Bay,
N.Y.L.J. 26 (col. 5) (Sup.Ct. Suffolk Cty.), affd,
A.D.2d 410, 755 N.Y.S.2d 671 (2d Dept. 2003)

Pell v. Bd. of Educ., 34 N.Y.2d 222, 365 N.Y.S.2d 833 (1974) 11

Persico v. Incorporated Village of Mineola, Index No. 33781/96
(Sup. Ct. Nassau Co. June 10, 1998), aff'd, 261 A.D.2d 407,
687 N.Y.S.2d 291 (2d Dept. 1999) 17

PDH Properties, LLC v. Planning Bd. Of the Town of Milton, 298 A.D.2d 684, 748 N.Y.S.2d 193 (3d Dept. 2002)

Twin County Recycling Corp. v. Yevoli, 90 N.Y.2d 1000, 665 N.Y.S.2d 627 (1997)

Village of Hudson Falls v. DEC, 158 A.D.2d 24, 557 N.Y.S.2d 702 (3d Dept. 1990), affd, 77 N.Y.2d 983, 571 N.Y.S.2d 908 (1991)

Other Authorities:Page(s)
Kathi A. Drew & R. K. Weaver, Disproportionate Or Excessive Punishments:
There A Method For Successful Constitutional Challenges?,
Tex. Wesleyan L. Rev. 1 (1995).
Richard Lowell Nygaard, On the Philosophy of Sentencing: Or Why Punish?,
Widener J. Pub. L. 237 (1996)

Petitioner-Respondent,
-against-
THE VILLAGE OF CROTON-ON-HUDSON and THE VILLAGE BOARD OF TRUSTEES OF THE VILLAGE OF CROTON-ON-HUDSON,
Respondents-Appellants.

REPLY BRIEF OF THE VILLAGE OF CROTON-ON-HUDSON IN SUPPORT OF ITS APPEAL
Introduction

The Village Board of Trustees of the Village of Croton-on-Hudson (the Village Boardor Villageor Board) had before it extensive and undisputed evidence of repeated, deliberate and substantial violations of the most critical permit conditions that were designed to protect public health, safety and the environment. Enviro Transfer LLC (Metro Enviro Transfer) tries to reformulate the question by demanding substantial evidence that adverse health or environmental impacts have already occurred creating a straw man. was required, and what the record amply contains, is substantial evidence that Metro Enviro Transfer violated permit requirements that were designed to protect public health, safety and the environment. absence of proof that the violations actually caused environmental damage or harm to citizens is legally irrelevant.
The seriousness of the violations is compounded by late and reluctant disclosure by the permittee. Many were disclosed months after they occurred only upon the insistence of a federal Court-appointed monitor armed with full subpoena, deposition and investigatory powers that the Village lacks. monitorship has now come to an end and the Village has no assurance that should the violations recur, they would be discovered.
Metro Enviro Transfer seeks to confuse the issue further by arguing that a business should not be closed down for minor technical violations of permit conditions. argument is irrelevant to this case, because the violations here were deliberate, knowing and repeated, and went to heart of the permit conditions. facts about the violations and their disclosure are not only established by substantial evidence, they are undisputed. Enviro Transfer also ignores that it assented to a heavily-negotiated permit that provides for closure in exactly the circumstances present here.
Metro Enviro Transfer would establish a precedent that once a facility has begun operation, it may stay open forever, no matter how many violations occur, until the government can show that people have actually been hurt or the environment damaged. is no such rule and it should not be established. a rule would eviscerate the ability of governments to enforce permit conditions designed to prevent harm. that only occurs after people are hurt or the environment is damaged is too late. prevent such harm from occurring and deter others from similar conduct, governments must continue to be able to close businesses that repeatedly and intentionally disregard critical permit conditions. New York court has required proof of harm in addition to proof of violation of reasonable permit conditions before a permit can be revoked or not renewed.
Over a period of some two years the Village Board heard assurances from Metro Enviro Transfer that, while violations had occurred in the past, systems were in place to ensure full compliance with permit conditions. and time again, these assurances were undercut by the emergence of additional later violations. after thirteen temporary extensions of the permit and after a cascade of revelations of new violations, the Village made the common sense judgment that it could not trust Metro Enviro Transfer to comply with the permit conditions. was not a hasty decision made with little evidentiary support. was carefully considered, backed by a 15-volume record and fully explained in a detailed statement of findings, thoroughly grounded in the record. final decision is fully supported by uncontradicted evidence and the applicable law.

Extensive Expert Studies and Careful Deliberation Went Into Formulation of the Permit Conditions

Before the Special Permit for the Metro Enviro Transfer facility was issued in 1998, there were at least two comprehensive reviews of potential environmental effects by experts, as well as close scrutiny by a Citizens Committee that was itself expert. See R.A. 1810. far back as 1995, the Village Planning Board asked an expert from Roy F. Weston Inc., a well-known engineering firm, to review the potential environmental impacts of a proposed construction waste transfer facility at the site in issue. R.A. 2672. 1998, Allee King Rosen & Fleming Inc. (AKRF), a leading environmental consulting firm, completed a report for the Village Board on the application for the Special Permit that is at issue in this case. 7040-7049. addition, the Special Permit application was scrutinized by a Citizens Committee which was actively involved in developing and recommending appropriate permit conditions. 7100-7104. members of the Citizens Committee had expertise that was relevant to the application. addition, the Committee had frequent meetings with AKRF. 7100.
In its Answering Brief, Metro Enviro Transfer acknowledges that the analysis of the Village regarding the environmental impact of the Special Permit was detailed and exhaustive. of Petr-Respt at 31 n. 45. careful analysis led to development of permit conditions that were similarly detailed and were based on rational and permissible considerations of health, safety and welfare. permit was heavily negotiated, R.A. 1810-1811, and its recipient accepted it without legal challenge.

The Permit Conditions Were Designed to Protect Public Health and the Environment

The first expert to report on the potential impacts of a construction waste transfer operation at the Metro Enviro Transfer site, John C. Ryan of Roy F. Weston Inc., stated that during a site visit with the Board, the issue of potential impacts offsite from processing of unacceptable waste . . . was brought upand that there is good reason to take every measure to prevent these materials from coming onsite. 2679-2680 (emphasis in original). identified the most important deficiency of the permit application at that time as lack of an Operations and Maintenance Manual (O&M Manual) dealing with requirements for staff training and specifically with the identification and handling of unacceptable waste. 2678. also discussed other potential impacts such as traffic, air quality, noise and odor.
The report prepared by AKRF referred back to Ryans concern about public health (including issue of handling contaminated waste). 7051. the heading Public Health,AKRF reported that the O&M Manuals limits on acceptable waste and the requirements for training of employees to identify unacceptable waste had been greatly expanded based on comments from the Citizens Committee. 7058. report also dealt with traffic, community character, odor, and air quality.
The final memorandum of the Citizens Committee included in its recommendations for permit conditions a capacity limit, adoption of the recommended changes to the O&M Manual (which were partially about exclusion of unacceptable waste and training to recognize such waste) and a requirement that in the event of significant non-compliance, the Village shall be entitled to assess monetary penalties, and to order cessation of operations in the event of repeated violations. 7103. final requirement shows that the favorable recommendation of the expert Citizens Committee was based on the assumption that the permit conditions would be obeyed or the facility would be closed.
More recently, the Board had before it the affidavit of Richard S. Brownell P.E., Vice President of Malcolm Pirnie, Inc., another leading environmental consulting firm. confirmed that the conditions in the Special Permit were designed to protect health and the environment. 1730-1733. Board was entitled to rely on this extensive accumulation of expert opinion with regard to the potential health risks and environmental damage that could be caused by violation of the permit conditions.
No challenge to the validity of the permit conditions was ever mounted; to the contrary, the predecessor to Metro Enviro Transfer, which was represented by the same counsel as is appearing in this appeal, promised to abide by the conditions. 1821-1822. Enviro Transfer accepted these conditions when it purchased the facility. discussed in the Answering Brief, there were significant compliance issues at the Metro Enviro site when the Special Permit application was initially considered. of Petr-Respt at 6 n. 6. Village Board granted the Special Permit after considerable negotiation on the basis that compliance would be more easily achieved if a responsible operator were in charge. Village has not received what it bargained for a responsible operator that complies with permit conditions that were expressly designed to protect public health and the environment.

There Is Undisputed Substantial Evidence Of Repeated Serious Violations Of These Permit Conditions

Metro Enviro Transfer does not dispute that the violations actually occurred and that there is substantial evidence on the record to show that they occurred. See e.g. Annotated Statement of Findings, R.A. 1153-1167. These violations were not minor, unavoidable, isolated or technical; they were substantial, deliberate and repeated breaches of the core provisions of the permit that were designed to protect public health and the environment. 1218. Village is astonished that Metro Enviro Transfer, in its Answering Brief, suggests it operated quite successfully for several years with only minor operational incidents. of Petr-Respt at 17. fact, the facility manager deliberately and repeatedly falsified tonnage records to conceal capacity exceedance during the first five months of Metro Enviro Transfers operations.  1161.  Enviro Transfer knowingly accepted industrial waste at the behest of a senior manager of a closely related entity during a twenty-one-month period ending in March of 2002. 1157-1160. failed to train workers properly throughout its ownership of the facility, stored waste tires for much longer than the permissible period, and committed numerous other violations. 1161-1164.
Metro Enviro Transfer attempts to characterize the industrial waste violations as technical,based on an affidavit it obtained from an employee of the company that generated the waste stating that the waste was not hazardous. of Petr-Respt at 20-21. fails to note that the Statement of Findings issued by the Village Board discussed this affidavit and found it unconvincing, in part because there was no explanation of how an official in New Jersey could have personal knowledge of the contents of individual waste loads from factories in New York. 1160. addition, the self-serving affidavit gave blanket assurances of complete compliance with hazardous waste laws when violations actually disclosed on the EPA website. Id.  or not the waste was formally classified as hazardous, it had the potential to cause dangerous conditions, and the Metro Enviro Transfer facility that accepted it was designed to handle construction and demolition debris, not this kind of industrial waste.
Metro Enviro Transfer admitted in mid-2002 that when it received waste tires, its practice was to store them until the container was full, in contravention of a requirement to remove them from the property within 12 hours. 1161. Storage of used tires is a known fire hazard and can provide a breeding ground for mosquitoes. Id.  latter has become a major concern since West Nile virus has spread to Westchester County. 1758-1770. Enviro Transfer attempts to imply that this dispute was about whether the permissible period for tire storage was 12 or 24 hours. r. of Petr-Respt at 24 n. 39. issue is completely irrelevant because the tires were concededly held until the container for waste tires was full, i.e. for much longer than 24 hours. 1954.
Even at this stage of this dispute, Metro Enviro Transfer fails to appreciate the gravity of the violations that it has committed. Village has referred to a failure to establish a culture of compliance at this operation as one reason for its denial of the Special Permit. 1167. Enviro Transfers attempt to minimize the violations that have been documented further justifies the Village Boards skepticism about the ability of Metro Enviro Transfer to live up to renewed commitments, made in the face of impending closure, to ensure future complaint operation of the facility.
At the final meeting before the Village Board took its decision, the Board learned for the first time that, in addition to plastic film, some of the loads of industrial waste contained gloves and test tubes with residue from pigments. 1217. late disclosure of highly pertinent information under questioning from the Villages counsel only served to further confirm the Boards impression that Metro Enviro Transfer had failed to voluntarily disclose all relevant information with regard to the industrial waste violations.
Metro Enviro Transfer claims, without any citation to the record, that it established a record of compliance for the last two years. of Petr-Respt at 61. is totally false. fact, the training violations came to light as a result of an inspection on November 26, 2002, two months before the Boards decision on January 27, 2003. 1215-1216. addition, the Village received notification of 24 additional loads of industrial waste having been shipped through the facility on December 9, 2002, around a month and a half before the final decision was taken. 1215. January 7, 2003 counsel for Allied Waste Industries Inc. (Allied), the owner of Metro Enviro Transfer, provided documents showing that the landfill to which Metro Enviro Transfer shipped the loads containing industrial waste had been cited three times for accepting non-permitted waste. 1216. January 24, 2003, just three days before the final decision, counsel for Allied acknowledged by letter that this landfill was not authorized to accept the industrial waste that was shipped to it by Metro Enviro Transfer. 1217. same letter failed to provide information that had been requested about the physical characteristics of the industrial waste. Id.  discussed above, some such information was provided orally three days later.
Thus, the Village Board was presented with a situation where new violations were continually emerging right up to three days before the final decision was taken, and highly pertinent and damning information was not revealed until the day of the decision. Enviro Transfer was in almost continuous violation of its permit conditions from the time it took over the facility. 1218. references in its Answering Brief to successful operation and a two year record of compliance are merely wishful thinking. Court, like the Village Board before it, should not rely on the misleading statements of Metro Enviro Transfer. Record amply shows an abysmal record of non-compliance and non-disclosure.

New York law is even more deferential to the decisions of administrative bodies regarding sanctions than it is to their decisions in matters of factual interpretation.
Under CPLR 7803, in an Article 78 proceeding a question may be raised about whether there was abuse of discretion as to the measure or mode of penalty or discipline imposed. Court of Appeals has explained this means that, while findings of violations of law are reviewable under the substantial evidence standard, where the finding of guilt is confirmed and punishment has been imposed, the test is whether such punishment is so disproportionate to the offense, in the light of all circumstances, as to be shocking to ones sense of fairness.Pell v. Bd. of Educ. 34 N.Y.2d 222, 232, 365 N.Y.S.2d 833 (1974). Court went on to acknowledge that this test is somewhat subjective and clarified that a decision is shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals. Court then noted that deterrence was also a valid consideration, and more serious penalties would be appropriate for intentional violations rather than pure carelessness. Id. at 234-35.
Using this standard the Pell Court, ruling on several cases heard together, found that a teacher who falsely certified on seven occasions that he was ill was reasonably dismissed because he violated his professional obligations; a police officer who shot his gun out of a window but did not hit anyone was reasonably dismissed because the Chief of Police must protect the community from reasonably foreseen dangers; and a building inspector who took a bribe was reasonably dismissed, because he was guilty of a breach of trust. Id. at 235-39.
Although Pell dealt with dismissals from public service, the court suggested the discussion was relevant to cases where administrative agencies imposed discipline on regulated entities. Id. at 241. All-Weather Carting Corp. v. Town Bd. of the Town of Islip, 137 Misc.2d 843, 522 N.Y.S.2d 425 (Sup. Co. Suffolk Co. 1987), the town revoked the solid waste disposal permit of a carting company that had been convicted of bribing town officials. court quoted from one of the cases decided in the Pell decision as follows: [t]he question is not whether [the court] might have imposed another or different penalty, but whether the agency charged with disciplinary responsibility reasonably acted within the scope of its powers.Chilson v. Bd. of Educ., 34 N.Y.2d 222, 238, 356 N.Y.S.2d 833, 845 (1974). the Pell shock to ones sense of fairnessstandard, the All-Weather court refused to overturn the revocation of the permit, despite the companys five year unblemished record before the offense cited. Id. at 846-67, 522 N.Y.S.2d at 428.
None of the administrative bodies whose actions were reviewed in the above cases were required to make a finding of actual harm to the public. issues were of integrity and risk of harm. particular relevance is the police officer who shot his gun without apparently harming anyone. dismissal was not justified by actual harm to the public; it was justified by the need to prevent reasonably foreseeable dangers. similar approach is taken by suspending the licenses of those convicted of driving under the influence. do not punish only those drivers that have accidents, but rather all drivers who are caught when intoxicated, because we seek to minimize the risk of road traffic accidents. the Pell Court found that dismissal of a teacher was appropriate when he had made false certifications, without evidence that he taught poorly. the law punishes those who attempt crimes even if there is no actual victim.
Because Metro Enviro Transfer deliberately disregarded permit conditions designed to prevent reasonably foreseeable dangers on numerous occasions and intentionally falsified records, it does not shock ones sense of fairness that the Village Board refused to renew their permit. risk of closure may come as a shock to those operators who had hitherto regarded fines for violations as a cost of doing business, but that is precisely the purpose of the action to prevent more permit violations at Metro Enviro Transfer and deter others from violating their permits. The Court of Appeals endorsed depriving individuals of their main means of support when they endangered the public and made false certifications. similar conduct by Metro Enviro Transfer justifies a similar sanction.
The authorities cited by Metro Enviro Transfer on proportionality of punishment relate primarily to punishment for criminal violations and constitutional challenges to such punishments. authorities are largely inapposite because this case is about administrative sanctions and the Eighth Amendment does not apply. the extent that they are relevant, the articles cited by Metro Enviro Transfer confirm that the goals of prevention of further offenses and deterrence are legitimate. the Answering Brief, Metro Enviro Transfer quoted eighteenth century philosopher Cesare Beccaria as believing the purpose of punishment was to prevent the offender, and deter others, from committing similar offenses. of Petr-Respt at 62 n. 76. article from which that quote is drawn goes on to say [w]here risk of detection is known, where crime is calculated, where behavior is not determined, punishment has a place. however, the pain of punishment administered as a consequence for an offense must exceed the ...profit or positive results the offender expects to reap from his offense. Lowell Nygaard, On the Philosophy of Sentencing: Or Why Punish?, 5 Widener J. Pub. L. 237, 257 (1996). article on proportionality of sentencing that was cited no less than four times in the Answering Brief concludes [h]abitual offenders, or recidivists, are not likely to succeed in such a [proportionality] challenge, unless all prior offenses are minor. A. Drew & R. K. Weaver, Disproportionate Or Excessive Punishments: Is There A Method For Successful Constitutional Challenges?, 2 Tex. Wesleyan L. Rev. 1, 42 (1995).
As the Board made clear in the Statement of Findings, Metro Enviro Transfer habitually and deliberately violated its permit in significant ways that created a risk to the health and safety of the citizens of the Village. 1153-1167. even by the standards Metro Enviro Transfer seeks to impose on this Court, which are much stricter than the established law of New York, a proportionality challenge would fail.

The Established Violations Were a Sufficient Basis for the Villages Decision

The Village Code, the terms of the permit itself, and the hearings conducted in front of the Village Board put Metro Enviro Transfer on notice that it would be shut down for failing to comply with the terms of the Special Permit. of Respts-Appellants at 18-21. Enviro Transfer does not dispute this and its Brief barely mentions the Village Code provisions that relate to the permit and the terms of the permit itself. of attempting to refute the Villages interpretation of the relevant statutory and permit conditions, Metro Enviro Transfer argues strenuously, but entirely irrelevantly, that it would be dangerous to set a precedent that would allow a facility to be closed for a single violation.
This case has nothing to do with a Village attempting to close a business for a single violation. Metro Enviro Transfer admitted the falsification of material handling records on June 18, 2001, soon after the initial term of the Special Permit expired. 1213-1214. Village did not move precipitately to shut the facility down, even when it heard evidence that the facility manager had deliberately deceived it. was only after a long series of broken promises and additional violations that the Village took decisive action. 1166-1167. last two notices of violation were issued only a month and a half before the Board took the final decision not to renew the Special Permit. 1215-1216. reversal of the decision below would merely confirm that facility operators who do not respond to fines and instead continue to violate special permits in ways that threaten health and safety, should fear losing their right to operate. from being dangerous or disruptive,this call for careful compliance with special permit conditions is in keeping with prior precedent and settled expectations. impose conditions on special permits to ensure that the uses do not adversely affect the local community. is unquestionably for the public good.
Metro Enviro Transfers brief acknowledged the essential point of the Villages argument: the actual and/or threatened adverse impacts of violations are appropriate and necessary considerations in determining whether to close an existing business. of Petr-Respt at 37. the development of the permit conditions, two separate experts from two different engineering firms, plus an expert citizens panel, helped to design the permit conditions to minimize potential impacts on the public and the environment. Board also had the benefit of the affidavit of a third engineer, Mr. Brownell, who confirmed that the permit conditions that were violated were designed to protect public health and the environment. 1232. addition, in the findings statement, the Village Board used its own common sense judgment to conclude that it is dangerous to process industrial quantities of flammable plastic film and test tubes with pigment waste in a facility where fires occur. 1160-1161. even Metro Enviro Transfers own analysis of the legal precedents leads to the inevitable conclusion that the Villages decision not to renew the Special Permit was justified by substantial evidence of a threat of adverse impact resulting from the admitted violations. Metro Enviro Transfer itself appears to acknowledge, there is no requirement in the precedents for evidence of actual harm.

Authorities Stressed By Metro Enviro Transfer Actually Support Villages Position

Metro Enviro Transfers Brief stresses the precedent set by Twin County Recycling Corp. v. Yevoli, 90 N.Y.2d 1000, 665 N.Y.S.2d 627 (1997), which is the most recent Court of Appeals decision to consider a Special Permit renewal. of Petr-Respt at 26-28. Respondent notes, this decision turned on the fact that there had been no finding that the facility in question had violated any government regulation. Id. at 28 (emphasis added). fact is in stark contrast to this case, which is about whether undisputed evidence of multiple intentional violations can justify non-renewal of the permit. other precedents cited are not directly applicable, because they deal with initial grants of special permits, which means that non-compliance with the previous permit cannot be an issue.
The Village has cited precedent illustrating that courts have approved decisions that used violations as grounds either to revoke or deny renewal of a permit. of Respts-Appellants at 31-32. Enviro Transfer has attempted to distinguish some of these cases factually. Answering Brief notes that Bell v. Szmigel, 171 A.D.2d 1032, 569 N.Y.S.2d 36 (4th Dept. 1991), concerned a bicycle ramp on private property and that the decision did not discuss the magnitude or impact of the violations. of Petr-Respt at 36. is hardly surprising if the magnitude or impact of the violations are not part of the legal test for whether non-renewal is justified. purely on violations of permit conditions (apparently without any evidence of injury), the court upheld a zoning boards refusal to renew the permit.
Answering Brief purports to interpret Northside Salvage Yard, Inc. v. Bd. of Appeals of the Town of Pittsfield, 199 A.D.2d 1001, 608 N.Y.S.2d 13 (4th Dept. 1993), as stating that violations can only justify non-renewal if there is violation of all the conditions of the permit. of Petr-Respt at 36-37. the permit at issue in that case apparently had only one condition, this interpretation is possible, but such an interpretation makes no sense when a permit contains many different conditions. much more natural reading of the case, and one that dovetails with the language in Bell, Village of Hudson Falls v. DEC, 158 A.D.2d 24, 557 N.Y.S.2d 702 (3d Dept. 1990), affd, 77 N.Y.2d 983, 571 N.Y.S.2d 908 (1991), Persico v. Incorporated Village of Mineola, Index No. 33781/96 (Sup.Ct. Nassau Co. June 10, 1998), affd, 261 A.D.2d 407, 687 N.Y.S.2d 291 (2d Dept. 1991), and Atlantic Cement Co. v. Williams, 129 A.D.2d 84, 516 N.Y.S.2d 523 (3d Dept. 1987), is that urged by the Village, that if reasonable permit conditions are violated, substantial evidence of the violations can be used to justify non-renewal of the permit.
Metro Enviro Transfer has been unable to cite a single authority that holds in favor of the counter proposition it is attempting to advocate that it is not permissible to deny a permit renewal or revoke a permit based on substantial evidence of deliberate, significant and repeated permit violations, unless there is also substantial evidence of actual impacts upon people or the environment. See Br. of Petr-Respt at 34-37. most directly applicable precedents concerning permit renewals all support the position of the Village that permit renewals can be denied when the conditions of the permit are substantially, deliberately and repeatedly violated.
The Second Department has held that where a special permit holder has not violated its conditions, but there have nonetheless been some suspected adverse impacts, new special permit conditions can be imposed to minimize such impacts. C.B.H. Properties Inc. v. Rose, 205 A.D.2d 686, 613 N.Y.S.2d 913 (2d Dept. 1994). approach assumes that the permit conditions will be met, because tightening the permit conditions cannot be effective if the permit holder does not comply with the conditions. underlying basis of attaching conditions to special permits is that such uses can be made acceptable if the right conditions are first imposed and then observed; if the conditions are violated, the rationale for continuation of the special permit fails. allowing permit holders to violate such conditions substantially, deliberately and repeatedly without fear of losing their permits would undermine the whole basis on which special permit uses are regulated.

Metro Enviro Transfer follows the trial court in improperly urging that the decision of the DEC about renewal of its permit be considered in this decision. of Petr-Respt at 37-41. decision of DEC is entirely irrelevant to whether the Village acted in an arbitrary and capricious manner because it came after the Boards final decision was taken. was impossible for the Board to give any deference to a decision that had not even been made. if the DEC decision had been taken prior to the Boards final decision, Metro Enviro Transfer concedes that it would not have pre-empted the Board. of Petr-Respt at 37.
Cases that cite the generic standard on issuance of special permits do not help to resolve the issue in this case, beyond illustrating that irrespective of whether there is community opposition, the Board retains the ability to make commonsense judgments about whether an application should be granted, based on substantial evidence. Enviro Transfer concedes these points. of Petr-Respt at 26 & 28 n. 42. substantial evidence is provided by the extensive record of violations and failure to correct violations. evidence is simply not present when an initial permit application is decided. means that cases such as C&A Carbone, Inc. v. Holbrook, 188 A.D.2d 599, 591 N.Y.S.2d 493 (2d Dept. 1992), PDH Properties, LLC v. Planning Bd. Of the Town of Milton, 298 A.D.2d 684, 748 N.Y.S.2d 193 (3d Dept. 2002), and Oyster Bay Assocs. Ltd. Pship v. Town Bd. Of Town of Oyster Bay, 7/16/2002 N.Y.L.J. 26 (col. 5) (Sup.Ct. Suffolk Cty.), affd, 303 A.D.2d 410, 755 N.Y.S.2d 671 (2d Dept. 2003), do not assist Metro Enviro Transfer to argue that the violations must be shown to have caused actual harm to be important. See Br. of Petr-Respt at 28-31. Indeed, all three decisions recite that a special permit must be granted only if all the accompanying conditions have been met.
The Answering Brief contains a whole section that purports to show that Metro Enviro Transfer has a constitutionally protected vested right to operate. of Petr-Respt at 63-69. is incorrect, as the Answering Brief concedes when it states [t]he special permit was originally issued for the change from one nonconforming use to another in 1998. right to that nonconforming use transferred to Metro when it took possession of the Facility. of Petr-Respt at 69 (emphasis added). Metro Enviro Transfer obtained the right to operate the facility under the terms of the special permit. Village recognized that right, but that recognition did not preclude enforcement action pursuant to the terms of the permit. 1149.
Metro Enviro Transfer wastes seven pages of its Answering Brief illustrating that the trio of Court of Appeals decisions did not turn courts into rubber stampsfor Village Boards. of Petr-Respt at 52-58. Village has never urged such a proposition; rather the Village asserted that the cases, which all approved decisions of municipal administrative bodies and reversed the Appellate Division, Second Department, were a reminder to courts to show substantial deference to such bodies and not substitute the judgment of the court for the judgment of the administrative body. of Respts-Appellants at 21-24. its Brief, the Village cited seven Appellate Division cases that followed these rulings and upheld decisions of local administrative bodies, because there was substantial evidence to support them. Id. at 24-25.
Metro Enviro Transfer points out that the facility was monitored by Walter Mack, Esq., but fails to mention that Allied has taken the position that environmental compliance was not the main purpose of the monitorship and that environmental non-compliance did not justify its continuation. 1773-1774. Answering Brief implies that Mr. Mack did not find any major problems at the facility. of Petr-Respt at 12-13. fact, Mr. Mack originally discovered the capacity violations and the industrial waste violations and requested that Metro Enviro Transfer inform the Village. 1777-1778. December 2002, Mr. Mack revealed that he had found evidence of intent to violate environmental law by management level employees. A. 1781. also indicated that the only reason that the industrial waste stopped going to Metro Enviro Transfer was that it gummed up the machines used at the site. Id. was at variance with statements to the Board made by Metro Enviro Transfers counsel, which indicated (falsely, it turned out) that the waste was eventually rejected because a diligent employee repeatedly tried to prevent industrial waste being accepted. 2006.
The Village decided that it did not need to wait for the Mack Report covering the issue because it had sufficient evidence to move ahead and did not wish to further delay its decision. of relying on material not in the administrative record, as Metro Enviro Transfer has done in its discussion of the DEC decision, the Village moved to supplement the record with the Mack Report covering these issues, finally made public on July 3rd, 2003, but was unsuccessful. all the circumstances, it was inappropriate for Metro Enviro Transfer to imply that Mr. Mack in any way endorsed its operations.

For the foregoing reasons, the Court should grant Respondents-Appellantsappeal, reverse the decision below, and deny Petitioner-Respondents Article 78 Petition.

_________________________________

ARNOLD & PORTER
Michael B. Gerrard
Richard Webster
399 Park Avenue
New York, New York 10022-4690
(212) 715-1000

Attorneys for Respondents

http://www.deq.state.mi.us/documents/deq-whm-stsw-reportofsolidwastemgtfund2-22-05.pdf

Oakland Heights Development, Inc., a subsidiary of Allied Waste Industries, Inc.

Development, Inc. (Oakland Heights), to resolve alleged violations of Part 115 at

Heights failed to apply final cover to portions of the landfill unit in compliance with

and provide documentation, including observations, test data, and other records,

with the construction certification that meet the requirements of the construction

quality assurance plan and the Part 115 rules. Oakland Heights paid a civil fine

http://www.deq.state.mi.us/documents/deq-whm-stsw-reportofsolidwastemgtfund2-22-05.pdf

Waste Systems, Inc. (Allied), to resolve an alleged violation of Part 115 at the

disposal area without an operating license for a period of time. Allied filed an

AUTHORIZATION TO SETTLE ACTION BROUGHT BY STATE OF NEW YORK TO RECOVER COST OF REMEDIATION OF TOWNS FORMER LANDFILL

The following resolution was moved by Councilman Friedman, seconded by Councilman Stein and unanimously adopted by all board members:

WHEREAS, the Town Board, by Resolution No. 2003-517, agreed to enter into a Cooperation Agreement with the State of New York with respect to the recovery of the cost of remediation of the Towns former landfill, and

WHEREAS, the Town Board, by Resolution No. 2004-429, retained Kimberlea Shaw Rea, Esq. as Special Counsel with respect to any litigation brought to recover the cost of the remediation of the Towns landfill, and

WHEREAS, Kimberlea Shaw Rea, Esq. has recommended that the action commenced for recovery of the cost of remediation of the Towns landfill be settled subject to the terms of the Consent Decree, a copy of which is annexed hereto as Exhibit A,

NOW, THEREFORE, BE IT RESOLVED by the Town Board of the Town of Ramapo that it hereby agrees to settle the action commenced by the State of New York with respect to recovery of the cost of remediation of the Towns landfill subject to the terms of the Consent Decree, and

BE IT FURTHER RESOLVED that the Supervisor is hereby authorized to execute the Consent Decree in a form approved by Kimberlea Shaw Rea, Esq.

-------------------------------------------------------------------------------------X

Allied Waste Systems, Inc. (A Subsidiary of Allied Waste Industries, Inc), American Cyanamid Co. (now

----------------------------------------------------------------------------------------X

Plaintiffs State of New York and Denise M. Sheehan as Acting Commissioner of the New York State Department of Environmental Conservation and as Trustee of the States natural resources (collectively referred to as the State) and Defendants hereby agree as follows:

WHEREAS, the State alleges that the Defendants or their predecessors either arranged for the disposal of hazardous substances at, or transported hazardous substances to, or were the owners or operators of the Ramapo Landfill (Site) located off Tome Valley Road in the Town of Ramapo (Town), Rockland County, State of New York (these Defendants, except the Town, shall be referred to as the Settling Defendants and the State, the Town, and the Settling

WHEREAS, the Town and others operated a municipal landfill on the Site between 1971 and 1984, and received municipal solid waste, commercial waste, and industrial waste at the Site;

WHEREAS, pursuant to Environmental Conservation Law (ECL) § 27-1305, the Site is listed in the New York State Registry of Inactive Hazardous Waste Disposal Sites as No.

Environmental Protection Agency (EPA) pursuant to Section 105 of the Comprehensive

Environmental Response Compensation and Liability Act (CERCLA), 42 U.S.C. § 9605, on the National Priorities List, set forth at 40 C.F.R. Part 300, Appendix B, by publication in the

WHEREAS, the Town and the New York State Department of Environmental Conservation (NYSDEC) entered into an Administrative Order on Consent (Index No. W3-0083-8708), requiring investigative, removal, remedial and response measures at the Site, as those terms are defined or used in CERCLA Sections 101(23), 101(24), 101(25), 104(d) and 107(a), 42 U.S.C. §§ 9601(23), 9601(24), 9601(25), 9604(d) and 9607(a) (Response Measures), which Response Measures were undertaken in accordance with the National Contingency Plan for the Removal of Oil and Hazardous Substances, 40 C.F.R. Part 300 (NCP);

WHEREAS, NYSDEC and the Town entered into a State Assistance Contract (No. C093 003), pursuant to the Environmental Quality Bond Act of 1986, whereby the State agreed to reimburse the Town for 75% of the eligible costs for investigation, remedial design, construction of the remedial action and construction oversight to be incurred by the Town at the Site;

WHEREAS, NYSDEC has made reimbursements to the Town pursuant to such agreement in an amount in excess of $13,000,000, and the State alleges that it has incurred other response costs, including interest and enforcement costs at the Site;

WHEREAS, the Town implemented Response Measures at the Site to remedy the alleged release and/or threatened release of hazardous substances into the environment, and incurred response costs, including but not limited to, costs of investigation, removal, remedial activity, and operation and maintenance, as those terms are defined or used in Sections 101(23), 101(24), 101(25), 104(d), 107(a) and 113 of CERCLA, 42 U.S.C. §§ 9601(23), 9601(24), 9601(25), 9604(d), 9607, and 9613, in relation to the Site, which unreimbursed costs are alleged to total in excess of $6,000,000;

WHEREAS, on or about October 21, 2001, Allied Waste Systems, Inc. (for itself and as the alleged successor to Valley Carting Corp.); American Home Products Co. (now known as Wyeth Corporation acting on behalf of Lederle Pharmaceutical Division of American Cyanamid Company); Avon Products, Inc.; Beazer East, Inc. (formerly known as Koppers Company, Inc.); Ford Motor Company; Carmine Franco (Sorgine Construction); Good Samaritan Hospital of Suffern, New York; International Business Machines Corporation; International Paper Company; Nepera, Laboratories Inc.; Orange and Rockland Utilities, Inc.; Pneumo Abex LLC; Ramapo Land Co., Inc. and Waste Management of New York (as the alleged successor to Marangi Brothers, Inc.) entered into an Agreement for Recovery of Past Response Costs which compromised and settled claims by EPA for its costs related to the Site.

WHEREAS, the Town is the owner and operator of the Site and is a necessary party to these proceedings;

WHEREAS, the Parties have agreed to the provisions of this Consent Decree (Decree);

1. This Court has jurisdiction over the subject matter and the Parties to this action pursuant to 28 U.S.C. § 1331, and 42 U.S.C. § 9613 (b).

2. This Decree shall apply to and be binding upon the State, the Town, and each of the Settling Defendants. Each signatory to this Decree represents that she or he is fully authorized to enter into the terms and conditions of this Decree and to bind the party represented by her or him. Any change in governance, ownership or corporate status of a Settling Defendant including, but not limited to, any transfer of assets or real or personal property shall in no way alter such Settling Defendants rights or responsibilities under this Decree.

3. Neither this Decree, nor any terms thereof, nor the entry into this Decree, nor performance of the terms thereof, by any of the Settling Defendants or the Town shall constitute or be construed as an admission or acknowledgment by any of the Settling Defendants or the Town of the factual or legal assertions contained in the Complaint or this Decree, and the Settling Defendants and the Town retain the right to controvert in any subsequent proceedings, other than proceedings for the purpose of implementing or enforcing this Decree, the validity of the facts, allegations or determinations contained in this Decree. Neither this Decree, nor the terms thereof, nor the entry into this Decree, nor performance of the terms thereof~ by any of the Settling Defendants or the Town shall constitute or be construed as an admission or acknowledgment by any of the Settling Defendants or the Town of any liability, responsibility or fault with respect to the conditions at or arising from past or future conditions, activities or operations at the Site, or an admission of violation of any law, by any Settling Defendant or the Town.

4. a. Within three business days of the Effective Date of this Decree (as provided in paragraph 15 hereof) (Effective Date), Settling Defendants Allied Waste Systems, Inc., Wyeth Holdings Corporation, Avon Products, Beazer East, Inc., BFI Waste Systems of New Jersey, Inc., East Ramapo Central School District, Ford Motor Company, Good Samaritan Hospital of Suffern, New York, International Business Machines Corp., Nepera, Inc., Orange and Rockland Utilities, Inc., Pneumo Abex LLC., Ramapo Land Co., Inc., Waste Management of New York (collectively known as the Ramapo PRP Group), shall remit to the State the amount of $3,739,236.18 as provided by paragraph 16. Prior to the Effective Date of this Decree, the State may request that Settling Defendants Ramapo PRP Group remit a portion of this total of $3,739,236.18 to the Town of Ramapo, by wire transfer, certified or cashiers check and the Settling Defendants Ramapo PRP Group shall direct such portion of the $3,739,236.18 to the Town of Ramapo. Any such payments directed by the State to the Town shall nevertheless be deemed to be, and shall be credited as, payment to, and receipt by the State, of such funds in satisfaction of its claims in this matter, including without limitation amounts reimbursed by the State to the Town pursuant to the State Assistance Contract, enforcement costs and interest. Nothing herein, however, shall require payment prior to the expiration of the three-day time period set forth above.

4. b. Within 12 months of the Effective Date of this Decree, Settling Defendant Good Samaritan Hospital of Suffern, New York shall remit to the State the amount of $60,127.30; within 24 months of the Effective Date, Settling Defendant Good Samaritan Hospital of Suffern, New York shall remit to the State an additional payment of $60,127.31. Each payment shall be made as provided by paragraph 16.

4. c. Within three business days of the Effective Date, Settling Defendant American Tack & Hardware Co., Inc. (American) shall remit to the State the amount of $40,000; within 12 months of the Effective Date, Settling Defendant American shall remit to the State an additional payment of $40,000; within 24 months of the Effective Date, Settling Defendant American shall remit to the State an additional payment of $40,000. Each payment shall be made as provided by paragraph 16.

4. d. Within three business days of the Effective Date, Settling Defendant Carmine Franco (Franco) shall remit to the State the amount of $40,000; within 12 months of the Effective Date, Settling Defendant Franco shall remit to the State an additional payment of $40,000; within 24 months of the Effective Date, Settling Defendant Franco shall remit to the State an additional payment of $40,000. Each payment shall be made as provided by paragraph 16.

4. e. Within three business days of the Effective Date, Settling Defendant International Paper Company (International Paper) shall remit to the State the amount of $360,000 as provided by paragraph 16.

4. f. Not later than January 30, 2006, Settling Defendants County of Rockland Sewer District No. 1 and County of Rockland shall remit to the State the amount of $240,509.21 as provided by paragraph 16.

5. Failure to make any payment required in Paragraph 4.a. in a timely fashion shall constitute a default of the Ramapo PRP Group and each of its members. Failure to make any payment required in Paragraphs 4.b. - 4.f in a timely fashion shall constitute a default of the party failing to make the required payment. If any Settling Defendant defaults under this Decree, the State shall be entitled to a penalty of $5,000 per day, and said Settling Defendant shall pay attorneysfees and costs incurred by the State to enforce these provisions, in addition to the payment required under Paragraph 4, plus any interest. The members of the Ramapo PRP Group shall be jointly and severally liable for the payment of any such penalty, fees, costs and interest ensuing from a default of the Ramapo PRP Group.

6. Upon payment by each Settling Defendant pursuant to Paragraph 4 of this Decree, and subject to the provisions of this Decree, the State and the Town covenant not to sue, execute judgment, or take any civil, judicial or administrative action under any federal, state, local or common law (other than enforcement of this Decree) against each of the Settling Defendants that makes its required payment, or their affiliates, subsidiaries, related entities, predecessors, successors and assigns, and their past, present and future employees, officers and directors, for any matter arising out of or relating to the Matters Addressed by this Decree, including without limitation, any claims or causes of action for costs, damages, enforcement costs, interest, contribution or attorneysfees.

7. Each Settling Defendant agrees not to assert any claims or causes of action under any federal, state, local or common law against the State, or its employees, agencies or departments, or against the Town, or its employees or departments, or against any other Settling Defendant, or its affiliates, subsidiaries, related entities, predecessors, successors and assigns, and their employees, officers and directors, or to seek against the State or Town or any of them any costs, damages, contribution or attorneysfees arising out of any Matters Addressed by this Decree; provided, however that if the State, pursuant to the Reopener or the Reservation of Rights of this Decree, asserts a claim or commences or continues a cause of action against a Settling Defendant with respect to the Site, other than to enforce the obligations contained in this Decree, this Paragraph 7 shall not preclude the assertion by such Settling Defendant of any claims, counterclaims, defenses, or other causes of action against the State or Town or any other Settling Defendant, but only to the same extent and for the same matters, transactions, or occurrences as are raised in the claims or causes of action of the State or Town or any other Settling Defendant. Notwithstanding the foregoing, any Settling Defendant may assert any claims or causes of action against any person other than the State, the Town or another Settling Defendant, to the extent permitted by law, for any costs, damages, contribution or attorney fees arising out of any Matters Addressed by this Decree. Nothing in this Consent Decree shall affect the rights or defenses available to any Settling Defendant pursuant to any contract or indemnification agreement with respect to the Site.

8. In consideration of the payments made by the Town for the investigation and remediation of the Site, and subject to the Reopener and the Reservation of Rights of this Decree, the State covenants not to sue, execute judgment, or take any civil, judicial or administrative action under any federal or state law (other than enforcement of this Decree) against the Town for any matter arising out of or relating to the Matters Addressed by this Decree; provided, however, that if the State, pursuant to the Reopener or the Reservation of Rights of this Decree, asserts a claim or commences or continues a cause of action against the Town with respect to the Site, this Paragraph 8 shall not preclude the assertion by the Town of any claims, counterclaims, or other causes of action against the State or Settling Defendants, butonly to the same extent and for the same matters, transactions, or occurrences as are raised in the claims or causes of action of the State. Notwithstanding this Paragraph or any other provision of this Decree, the Town shall continue to be solely responsible for the Operation, Maintenance and Monitoring at the site, and all other terms and obligations of the parties set forth in Consent Decree No. W3-0083-8708, and the State Assistance Contract, No. C093003, both of which agreements were entered into between the State and the Town, remain in full force and effect.

9. Notwithstanding any other provision of this Decree, the State reserves, and this Decree is without prejudice to, the right to institute proceedings, or to issue an administrative order seeking to compel the Town and/or the Settling Defendants: (a) to perform further response actions relating to the Site, or (b) to reimburse the State for additional costs of response, in either case only if:

(i)conditions at the Site existing as of the Effective Date, previously unknown to the State, are discovered after the Effective Date, or

(ii) information existing as of the Effective Date in whole or in part previously unknown to the State, is received after the Effective Date,

and these previously unknown conditions or information together with any other relevant information indicates that the Response Measures selected for the Site are not protective of human health or the environment. For purposes of this Reopener, previously known conditions at the Site and previously known information include all conditions and information known to the State as of the Effective Date including, but not limited to, all conditions identified and information contained or submitted for inclusion in the Administrative Record, attached as

Exhibit A to the Record of Decision (ROD) for the Site, or in the files and records of the NYSDEC, EPA or the Town. Settling Defendants and the Town reserve all their rights, claims and defenses to liability if the matter is reopened under this paragraph.

10. Except as specifically reserved in Paragraphs 9 and 13 of this Decree, the State is settling all claims against Settling Defendants and the Town for the Matters Addressed by this Decree, which include (a) claims for all response costs, past and future, that have been incurred or will be incurred for the investigation and remediation of the Site, no matter when or by whom incurred, including any and all response costs incurred by any party to this action or by any other responsible party, (b) any natural resource damages at or associated with the Site, and (c) any other claims or causes of action under any federal, state, local or common law relating to the disposal or alleged disposal of hazardous substances at the Site.

11. The payments being made by the Settling Defendants represent a fair and reasonable contribution by Settling Defendants toward the total past response costs that have been incurred by the State and the Town and the total future response costs of the State and the Town that are anticipated, for the implementation of the remedial program set forth in the ROD for the Site, including post-construction, operation and maintenance, and monitoring response costs. Settling Defendants believe that the amounts paid pursuant to this Decree constitute more than their fair share of the total past response costs that have been incurred by the State and the Town, and reserve the right to assert claims for contribution against non-settling third parties under sections 107 and I l3(f)(l) or (3) of CERCLA, 42 U.S.C. §§ 9607 and 9613(f)(1) or (3), to the extent provided by law, as well as under state or common law.

12. The payments that already have been made by the Town, together with the reduction of the States claim to reflect the share of liability potentially allocated to the Town, represent a fair and reasonable contribution by the Town toward the total past response costs that have been incurred by the State and the Town and the total future response costs of the State and the Town that are anticipated, for the implementation of the remedial program set forth in the ROD for the Site, including post-construction, operation and maintenance, and monitoring response costs.

13. The Matters Addresseddo not include, and the State reserves all of its rights with regard to, the States right to bring any action or proceeding against any person, firm, corporation, or other entity other than Settling Defendants and the Town.

14. The Parties agree that by entering into this Decree the Settling Defendants and the Town, and their affiliates, subsidiaries, related entities, predecessors, successors and assigns, and their Boards, commissioners, executive directors and elected officials, officers, directors, agents, and employees are entitled to the full extent of protection from contribution actions or claims provided by CERCLA Section 1 13(f)(2), 42 U.S.C. § 9613(f)(2), and/or any other applicable federal or state law, for the Matters Addressed by this Decree. Once entered, this Consent Decree shall constitute a judicially approved settlement for purposes of CERCLA section 1 13(f)(3)(B), 42 U.S.C. § 9613(f)(3)(B).

15. This Decree shall be effective upon the date that the Court approves and enters this Decree. All times for performance of activities under this Decree shall be calculated from that date. Notice of the Effective Date shall be sent by electronic mail to the Defendants as provided in Paragraph 19 hereof.

16. All payments required to be made pursuant to paragraph 4 shall be made by wire transfer or by certified or cashiers check payable to the State of New Yorkand delivered to:

17. Nothing in this Decree shall inure to the benefit of any other person or entity not a party to this Decree.

18. This Decree may not be modified except by express written agreement of all the Parties.

19. Any notification to the Settling Defendants shall be in writing or by electronic mail and shall be deemed properly given on receipt thereof if sent to the following, or to such other person as Settling Defendants may designate by written notice to the State:

After the Effective Date, any notice to the Ramapo PRP Group shall be in writing or by electronic mail and sent directly to each member of that group.

20. The Parties to this Decree agree to be bound by the terms of this Decree and agree not to contest its validity in any subsequent proceeding to implement or enforce its terms.

21. Upon approval by the Court, this Decree shall constitute a final judgment, and the Complaint shall be dismissed without prejudice solely as to the enforcement of the Decree and matters addressed by the Reopeners.

as Acting Commissioner of the New York State Department of Environmental Conservation

The Turner Report has learned state officials are examining the connection between Allied Waste, the company that owns the Southwest Regional Landfill in Jasper County, and Advantage Waste the company that wants to buy it and operate it.
State investigators have examined information printed last month in this blog, which indicates that Allied, if not violating the antitrust order issued by a federal court, could be violating the spirit of that order.
More information about the connections between Allied and Advantage can be found at:
Documents cloud Advantage Waste issue and
Timing of Jasper County landfill push is suspicious

In a post earlier today, it was noted that Advantage Waste, the company that is wanting to buy and operate the Southwest Regional Landfill in the Purcell area of Jasper County apparently did not exist prior to the federal court order that Allied Waste divest itself of the Southwest Regional Landfill as part of the antitrust settlement that allowed it to buy Browning-Ferris Industries (BFI).
Documents uncovered by The Turner Report indicate that Craig H. Post, owner of Advantage Waste, worked for Allied Waste after the court order, and that Advantage Waste and CHP Environmental were only registered with the Missouri secretary of state's office shortly after the court-ordered settlement was finalized.
The settlement ordered Allied to divest itself of "Tate's Transfer station, located at Route 2, Box 69, Verona," including "relevant hauling assets," including "all tangible assets, including capital equipment, trucks, and other vehicles, containers, interests, permits, supplies, real property and improvements to real property, and it includes all intangible assets, including hauling-related customer lists, contracts, leasehold interests, and accounts."
Another portion of the settlement requires Allied to get rid of its commercial routes serving the city of Springfield and Greene and Christian counties, including "the collection of waste from customers and the shipment of the collected waste to disposal sites," plus "municipal solid waste," and "the business of disposing waste into approved disposal sites."
The disposal agreement signed between American Disposal Services of Kansas and BFI, both subsidiaries of Allied, and Craig H. Post, Advantage Waste owner, says "Tate's Transfer Systems, Inc., an affiliate of Allied, and CHP are parties to that certain Asset Purchase Agreement dated June 9, 2000, which provides for the purchase by CHP of certain assets and hauling routes in and around Springfield, Missouri, owned by Allied."
However, a financial statement filed June 19, 2001, with Missouri Secretary of State Matt Blunt shows Tate's Transfer System and Craig H. Post taking out a loan with Case Credit Corporation of Racine, Wis., signed by Post, with the address for both Post and the business listed as 1688 Farm Road 65, Springfield, MO.
Documents on file with the Missouri Department of Natural Resources list Post's company, CHP Environmental, Inc., "formerly known as Tate's Transfer."
If Tate's Transfer and CHP Environmental are the same, which would seem to be the indication given by the documents at the secretary of state and MDNR offices, then the company appears to be still connected with Allied Waste.
On June 29, 2005, Allied filed a list of its subsidiaries with the federal Securities and Exchange Commission. The list included both Tate's Transfer and the Southwest Regional Landfill.
As mentioned in the earlier post, the wording of the contract between Advantage Waste/CHP and Allied seemed to hinge on the opening of the Southwest Regional Landfill and that the lawsuit was put on hold at about the same time that Post started his efforts to buy the landfill.

Craig Post and his Springfield-based Advantage Waste company want to open the long-delayed Southwest Regional Landfill in Jasper County and Post's approach in his efforts to do so has been praised by the Joplin Globe's editorial writers.
"While the residents have valid concerns, Advantage Waste appears to be taking the correct approach to its idea of reviving the landfill," the Globe editorial board said in the Dec. 28 edition.
"We applaud Post and Advantage Waste for their openness," the editorial said.
It is a fortunate thing the Globe hedged its support of Post with the word "appears," for U. S. District Court records, and records filed with the Missouri secretary of state's office indicate there is some information that Post has not told area residents, including members of Citizens for Environmental Safety, the group which thus far has successfully fought the battle to keep a landfill out of their backyard.
The documents indicate the timing, not only of the latest efforts to open the landfill, but also of the creation of Advantage Waste, is suspicious and that Advantage Waste and the Southwest Regional Landfill have been connected for more than five years.
Lawsuit alleges Advantage Waste owes nearly half a million
In a lawsuit filed June 1 in U. S. District Court for the Western District of Missouri, American Disposal Services of the Ozarks and BFI Waste Systems of North America, Inc., claim Advantage Waste, Post, and two other companies owned by Post, CHP Investments, Inc., and CHP Environmental, Inc., owe them nearly half a million dollars and they are suing Post for breach of contract.
Court records indicate Post and his companies entered into a contract with American Disposal and BFI Sept. 29, 2000. "In exchange for the payments to plaintiffs," the records say, "CHP investments and its affiliates were able to dispose of up to 700 tons per day of certain waste at plaintiffs' landfills and transfer stations.'
The disposal began almost immediately after the papers were signed, but the lawsuit alleges Post and his three companies owe $463,857.65. American Disposal and BFI are seeking that amount, interest, attorneys' fees, court costs, and any other fees the court deems reasonable.
The same charges are leveled against Post and his companies on three counts: breach of contract, account stated, and unjust enrichment. The same amount of money is mentioned in each count.
Companies may be headed toward settlement
American Disposal's lawsuit against Craig Post and Advantage Waste may never come to trial. Documents filed Dec. 22 in U. S. District Court indicate both sides have asked that court action in the lawsuit be put on hold due to "ongoing settlement efforts."
"On or about Nov. 30, 2004, plaintiff American Disposal Services of Missouri, Inc., and defendant CHP Investments, Inc., among other parties, entered into an agreement regarding certain transactions between the parties. The closing date of the proposed transactions is currently contemplated to be Dec. 30, 2005. This agreement provides that the debt which is at issue in this case will be paid by mid-February 2006." If the deal works out, the documents indicate, the lawsuit will be dismissed.
Documents indicate Jasper County landfill at center of deal
While the timing of Mr. Post's recent push to open the Jasper County landfill and the announcement of settlement talks with American Disposal and BFI is highly suspect, the two companies' connection with the Southwest Regional Landfill appears to date back at least five years.
In fact, the agreement may have started with the July 20, 1999, court order which required Allied Waste Industries Inc., to divest itself of certain properties and businesses, including its option on the Southwest Regional Landfill, as part of its purchase of Browning-Ferris Industries (BFI). That order was issued to prevent Allied from establishing a waste disposal monopoly.
The court's disposal order included the following:
-"Allied's option to purchase the proposed Southwest Regional Landfill."
-"Allied's Tate Transfer Station, located at Route 2, Box 69, Verona, MO 65769. Relevant hauling assets, unless otherwise noted, means with respect to each commercial waste collection route or other hauling asset described herein, all tangible assets, including capital equipment, trucks and other vehicles, containers, interests, permits, supplies, real property, and improvements to real property (i.e. buildings and garages), and it includes all intangible assets, including hauling-related customer lists, contracts, leasehold interests, and accounts."
-"Allied's commercial routes that serve the city of Springfield and Greene and Christian counties," including municipal solid waste and "the business of disposing of waste into approved disposal sites."
Documents from U. S. District Court for the District of Columbia indicate that the final modification to the agreement was made on Aug. 9, 2000. Two days later, Advantage Waste and CHP Investments, Inc., registered with the Missouri Secretary of State's office. The registered agent for Advantage was Craig H. Post, while his father, Cornelius H. Post, was the registered agent for CHP Investments.
Agreement between Advantage, American Disposal hinged on Jasper County landfill
The connection between Advantage Waste and the Southwest Regional Landfill dates back five and a half years, according to an exhibit filed in the lawsuit against Advantage Waste.
According to the exhibit, on June 9, 2000, American Disposal and CHP entered into an agreement for CHP to take over Allied's trash routes in the Springfield area. The agreement "shall commence as of the effective date or three months following the date the Southwest Regional Landfill located at Missouri State Highway M, Township 30N, Range 32 West, Section 34, in Jasper County, Missouri, is opened. If the Southwest Regional Landfill is not opened by the fourth anniversary of the effective date, CHP shall have the option to extend this agreement for up to six additional one-year terms for a total term of 10 years if all options are exercised, provided however, any then current renewal term and all subsequent options shall terminate three months after the opening of the Southwest Regional Landfill."
The contract was entered into on Sept. 29, 2000, according to court documents. The four years ended on Sept. 29, 2004, and the lawsuit was filed about eight months later.
It would appear that the Southwest Regional Landfill has been a key factor in the existence of Advantage Waste for the entire five years since it registered in the state.
Advantage registrations coincide with announcement of possible settlement
The final indication that a more thorough examination of Advantage Waste and CHP Investments might be wise comes from the timing of the court filing of a possible settlement in American Disposal's lawsuit against Advantage and CHP.
The court documents were filed Dec. 22...the same day that a limited liability company, Advantage Waste LLC was registered with the Missouri Secretary of State's office. The registered agent was CT Corporation System, Clayton, MO., a company specializing in corporate filings which does the filing for hundreds of companies that do business in the state. One day earlier, Craig H. Post filed registration papers for Advantage Waste Service, Inc., a company owned wholly by AWS Holdings, Springfield, with Post serving as president.
Before anything is decided, state officials should get a better idea of just who it is that is actually behind the plan to open the Southwest Regional Landfill.

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