Landfill Case Provides Candid Perspectives on Fractivist Tactics

Tom Shepstone
Shepstone Management Company, Inc.

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A Steuben County landfill case offers some realistic perspective on fractivist tactics, which generally consist of deceiving, pretending and stalling.

When county judges deliver decisions they often do so very candidly. They tend to be closer to the facts of cases and know what appellants are up to when they bring cases; meritless stalling techniques. Such is what the Sierra Club has been up to with their case against New York State DEC, the Town of Campbell and the Hakes C & D Disposal landfill in Steuben County, New York. Patrick F. McAllister, Acting Supreme Court Justice, for Steuben County, heard the case and his decision is a wonderful read for those of us familiar with fractivist methods.

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New York Supreme Court judges are county judges, not appeals court judges (the Empire State always has to be different you know). Notwithstanding this, Judge McAllister obviously grasps the big issues and the nature of things when it comes to fractivism. Here are some excerpts from his decision that say it all (emphasis added):

The Petitioners alleged that the DEC and Town of Campbell failed to take a “hard lookat the project and in particular the possibility of high levels of radium and radon entering the landfill because the entrance monitors are ineffective in screening for this…

The alleged violation is the failure by DEC and Town of Campbell to take a “hard lookat the scientific evidence the Petitioners submitted with regard to potential radioactivity in the landfill. The Petitioners allege DEC never conducted any test for Radon-222 in the gas collection system and leachate samples…

The Petitioners have an expert that has a theory that somehow massive amounts of uranium and other materials must have been dumped at the landfill even though the approved monitors are supposed to protect against this type of thing.

In seeking to have the petition dismissed the Respondents allege that this is nothing new, that everything the Petitioners allege has been argued before in other courts and/or that the time for alleging violations has long since run. DEC argues that what the Petitioners really wants is new laws and new regulations that impose higher standards of testing , etc. The DEC alleges this is a simple application to expand an existing landfill. This is not the place to promote new regulatory requirements. DEC has reviewed and approved everything based on the current standards

There is nothing in the current application that changes those standards. It is just that the Petitioners don’t think the current standards are safe and that higher standards should be set

Sierra Club is trying to undo those permits but never filed alleged violations. Nor have they alleged facts to support such claims

Basically all the allegations are based upon the Petitioners’ belief that the DEC and the Town of Campbell failed to address the scientific evidence concerning the Petitioners’ belief that there are high levels of radioactive materials already in the landfill. That scientific evidence claims that current monitoring efforts have failed to protect against dangerously high levels of radioactive materials from being deposited in the landfill. Thus, if the DEC and Town were to have taken the required hard look they would have disallowed the expansion or at least imposed new more stringent testing standards.

The Petitioners at oral argument further distilled their argument to the simple question of whether or not the reports of Dr . Vaughan , Dr. Carpenter and Dustin May provided sufficient credible evidence (using data from the leachate and gas collection systems) to require the DEC to take further action to ascertain what caused these periodic spikes in radioactive materials found sometimes in the current testing. Dr. Vaughan in particular extrapolates the data found from a handful of the leachate tests to hypothesize that significantly higher levels of radioactive materials have apparently been deposited in the Hakes landfill. The monitors currently used at the Hakes Landfill have been in place since 2010 and 2012. Dr. Vaughan does not think these monitors are adequate.

Despite the fact that Hakes was not asking for anything different as far as the type of material to be accepted or the daily volume of material, etc. from what had previously been accepted and approved by the DEC, the court finds the Respondents did not ignore but in fact considered the reports /opinions of Petitioners’ experts. However, the Respondents did not find those reports to be scientifically reliable. They noted that Dr. Vaughan’s research was not peer reviewed. The Respondents chose rather to believe the report of Dr. Rahon who explained how there could be variations in the collection samples without that being an indication that higher amounts of radioactive materials were present in the landfill. The DEC decided to continue the same testing methods and the same standards for admitting loads into the landfill as had been present when the 2012 permits were issued and when the Part 360 regulations were amended and approved in 2017. The DEC is confident that the current monitors would be triggered in the event someone attempted to dump a load that contained rock from horizontal drilling shafts

The court finds the Respondents took the necessary hard look when reviewing the scientific evidence. The Respondents came to a reasoned decision that had a rational basis. The record shows that all procedural requirements were met. The opinion of Dr. Vaughan may be of relevantly recent vintage, but the basic issues of what is being accepted at the Hakes landfill, how the loads are monitored, and how the landfill itself is monitored have been around for years. The court will grant the Respondents motion to dismiss this action.

Pretty decent putdown, wouldn’t you say?

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