In December, the village of Fort Edward issued a citation to a soil-processing plant for operating outside of its land use permit. Tuesday night, the village’s Zoning Board of Appeals held a public hearing on that citation. WAMC's Lucas Willard and Aaron Shellow-Lavine discussed.
So, fill us in on what happened.
First of all, it was a packed meeting. The board had to actually move the meeting across the street to the village’s firehouse to accommodate the large crowd.
ESMI (Clean Earth) operates a facility that has been processing contaminated sediments for decades. The plant was originally permitted in 1995 to process petroleum contaminated soils. In the years since, however, the scope of substances the plant has processed has grown without really being contested.
That history of uncontested expansion is now at the center of the company’s appeal of last year’s citation.
Attorney Matt Rimkunas, represented the company at last night’s hearing, explained. Take a listen to what he laid out.
“There’s no document that says additional materials cannot be processed. And the conduct of the village in not requiring any additional approvals over 30 years when they were getting notification from DEC, when they were getting notification from the prior operator of the facility that more than just petroleum contaminated soil was being processed, that reflects that there was no such limitation,” said Rimkunas.
Now, it’s important to note that no one can locate the original, final permit approval for the plant. Not the Department of Environmental Conservation, not the village, not ESMI.
So, relying on 30 years of conduct and what documents have been found, including recorded minutes of meetings stretching back to 1991, ESMI is arguing that the “only conclusion with any rational basis” is that the plant was approved as a “soil recycling facility without any sort of material limitation.”
Village resident Ben Bramlage compiled dozens of documents that led to the citation of the plant. He said he doesn’t believe the plant was ever explicitly permitted to process “hazardous” waste.
“The village clearly does have the authority to regulate Clean Earth’s operations at least to a reasonable extent. And that belief, for me, is rooted in the fact that New York state is a home rule state, and New York authority over home rule has been upheld repeatedly in the courts. If I did not hold firm in that belief, honestly, I would have never filed the complaint,” said Bramlage.
This is part of a larger ongoing dispute over the plant’s attempt to process PFAS. What else do we need to know there?
That’s right. There’s been a concerted effort from some concerned locals to halt the plant’s attempt to secure a permit to process 5,000 pounds of PFAS contaminated soils.
The state DEC says it intends to schedule a future public comment session on that permit application, though the agency hasn’t yet announced a date.
So, last night’s hearing and the citation against the plant are separate from the PFAS issue but the background is important to understand.
Many residents, like Amanda Durkee, are worried about the lasting health impacts the plant might have on nearby residents. Take a listen to what she had to say.
“A facility should not be able to continually redefine the level of risk it brings into a community simply by invoking changing market demands. Our community is not a testing ground for evolving waste streams,” said Durkee.
The appeal was not solved last night, so what comes next?
The issue will remain open, and the discussion will continue at the Zoning Board of Appeals’ next meeting on May 21.
Another interesting note is that the board’s chair is planning to file a subpoena for Ben Nikas. He’s a lawyers who was involved during the creation of the industrial that ESMI’s plant is located on. He's also one of the principals in the company that eventually became ESMI.
He didn’t show yesterday due to a potential conflict of interest, which ESMI’s attorneys reminded him of prior to the meeting. Attorney Rimkunas maintained that no one explicitly instructed Nikus to avoid the meeting.
