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ACAL Continues Environmental Mission in 2008 – Part 2

 If you missed Part 1, it can be viewed on our website at www.acalnews.org.  This article was devoted to Adirondack Communities Advisory League’s (ACAL) environmental mission and the role of citizen participation in the protection of our natural resources and the health of our communities.  

There is no substitute for citizen vigilance when it comes to protecting our valuable resources.  ACAL was called into action when Moose Creek suffered repeated sediment contamination during construction of the Ava landfill.  Part 2 is dedicated to our pending Clean Water Act citizens’ suit against the Oneida-Herkimer Solid Waste Authority (OHSWA), filed in federal court on June 8, 2006.

 Part 2 – Present

 We’re approaching the three year anniversary of when major landfill construction began in Ava.  The problems for Moose Creek were immediately apparent as a large amount of land was stripped.  ACAL monitored the situation, and filed formal complaints with regulatory agencies, including the New York State Department of Environmental Conservation (NYSDEC).  When the discharges did not stop, ACAL took a legal stand for Moose Creek, a class C trout-spawning stream and tributary of the Black River.

 In 1972, Congress passed the Clean Water Act (CWA).  This powerful piece of legislation provides for the protection of the waters of the United States.  Lawmakers incorporated a provision that gives citizens the right to enforce the CWA when regulators fail to take proper action.  NYSDEC’s lack of appropriate action prompted ACAL to exercise our right to bring a citizens’ enforcement action against OHSWA.

 Initial attempts to settle the case failed.  In January of 2007, the case was moving forward in court.  In February 2007 the Authority failed to meet a deadline for discovery, but promised they would respond within 10 days.  At that time, Magistrate Peebles requested the parties participate in a settlement conference.  After multiple delays, this meeting took place in May of 2007.  Since that time, ACAL has been in settlement discussions with the Authority. 

In cases like this, it is not uncommon for the defendant to raise every conceivable motion and to use any tactic to delay or derail the lawsuit.  These tactics are used in hopes that the plaintiff will run out of money, or just give up. 

Every coordinated effort put forth by ACAL over the years required enormous amounts of time and energy.  The CWA citizens’ suit is no exception.  However, ACAL is resolved to achieve a positive outcome for the protection of Moose Creek.

Shortly after the lawsuit was filed in 2006, a preliminary search of the Authority’s records failed to reveal all stream monitoring data, in particular turbidity testing that documents stated was being done on a daily basis.  A search of the DEC records also failed to reveal this data.  However, we know that DEC issued a Notice of Violation to the Authority on Sept. 2, 2005. 

Streams and rivers are at risk when water quality regulations are not enforced, and NYS’s turbidity standard is an integral part of these laws.  In February of 2007, OHSWA submitted comments to the State in an attempt to get the turbidity standard removed from the laws.  Their recommendation, “The narrative turbidity standard should be removed from Parts 700-704 of Title 6 of NYCRR, and all other State regulations in which this standard is utilized.”  Their comments also called for a change in “flow” requirements as well.

It is also important to note that in 2004 the Authority was awarded a 15 million dollar short term loan through the Clean Water State Revolving Fund (CWSRF) by NYS Environmental Facilities Corporation (EFC) for the construction of the landfill leachate collection system.  CWA funds are available for projects that preserve, protect, and/or improve water quality.  The Project Financing Agreement states the recipient will at all times during the term of the loan be in compliance with all applicable federal, State and local laws, including the CWA.  Together, the EFC and NYSDEC are responsible for ensuring compliance.

Un-permitted discharges, acknowledged by both the DEC and the Attorney General’s Office, occurred during the term of this loan.  Yet this did not stop the EFC from approving the Authority’s application to obtain CWSRF long term financing for 25 million dollars in the summer of 2006, after ACAL’s lawsuit was filed and discharges were continuing. 

Why is it so important to fight for a small tributary like Moose Creek?  The answer can be found in a scientist publication called, “Where Rivers are Born:  The Scientific Imperative for Defending Small Streams and Wetlands”: 

“Today’s scientists understand the importance of small streams and wetlands even better than they did when Congress passed the Clean Water Act.  If we are to continue to make progress toward clean water goals, we must continue to protect these small but crucial waters.  The goal of protecting water quality, plant and animal habitat, navigable waterways, and other downstream resources is not achievable without careful protection of headwater stream systems.”

Kathy Crofoot, Director of Research

Adirondack Communities Advisory League