Save the Pine Bush Appeals Decision Approving Illegal Landfill in the Pine Bush

For Immediate Release: June 25, 2001

ALBANY, NY: Save the Pine Bush filed an appeal to the State of New York Appellate Division, Third Department over the Albany County Supreme Court’s ruling to approve the expansion of the Albany Landfill in the Pine Bush. Save the Pine Bush is appealing on the grounds that the permit approval was illegal because the Department of Environmental Conservation’s authority to grant a variance expired on Dec 31, 1995. Lewis B. Oliver, Jr. filed the suit on behalf of Save the Pine Bush.

The City of Albany, the State of New York, and other municipalities, have been dumping their garbage in the Albany Pine Bush for over 30 years. The Greater Albany Landfill was opened in the 1960’s, and when it was near capacity in the late 1980’s, the City of Albany applied for its first expansion. The "Albany Interim Landfill" (AIL), was approved by then Department of Environmental Conservation (DEC) Commissioner Thomas Jorling in 1990, and was supposed to last no more than three years. During the "interim period, Albany was to find a suitable site or solution for its long term waste management needs. In Jorling’s 1990 decision he stated "I cannot envision any set of circumstances that would justify the extension of the life of this interim landfill or the approval of another such facility in any other part of the Albany Pine Bush." The AIL was constructed soon after and destroyed the largest population of Karner Blue Butterflies in the Pine Bush.

Beneath the Albany Pine Bush exists a large aquifer. This proposed landfill expansion, called the P-4 expansion, as well as the existing landfill, is located over the Pine Bush Formation aquifer. Not only is it against common sense to place a landfill over an aquifer, it is illegal in the State of New York. On July 9, 1986 the Commissioner of DEC designated the Pine Bush Formation as a principal aquifer, which is defined as a potential source of public drinking water.

Only 11% of land in New York State is over primary and principal aquifers. The geological definition of primary and principal aquifers is identical — the only difference between the two is that a primary aquifer is currently being used as a source of municipal water supply, while a principal aquifer is not currently be used as a source for a municipal water supply. Principal and primary aquifers are resources to be protected, not polluted.

The Department of Environmental Conservation issued the permit to expand the landfill to the City of Albany on February 29, 2000, more than four years after the deadline allowed in the DEC regulations. New York State law and many precedent setting court cases require that state departments follow their own regulations. New York Environmental Law 6 NYCRR 360-2.12 c (1) (I) states:"…no new landfill and no lateral or vertical expansion of an existing landfill may be constructed over primary water aquifers, principal aquifers…" There was an exception for the Commissioner of DEC to allow such an expansion upon a demonstration of public need, however, the time period for allowing such an expansion expired on December 31, 1995. New York Environmental Law 6 NYCRR 360-2.12 c (1) (ii) states: "…However, the maximum time period allocated by the Commissioner for any such expansion must not allow operation beyond December 31, 1995."

This plain and unambiguous language is obvious to any reader. DEC is prohibited from granting a permit to construct an landfill or landfill expansion over a principal acquire after December 31, 1995. This is the first cause of action in Save the Pine Bush’s suit.

The second cause of action in the appeal is that DEC decided not to require an adjudicatory hearing on the proposed landfill expansion was in violation of New York State Conservation Law and was arbitrary and capricious. Save the Pine Bush raised significant issues in their comments regarding the Draft Environmental Impact Statement for the Landfill Expansion. By law, DEC should have required a hearing on these issues, but they did not.

The third cause of action is that the permit for the landfill should have been denied because there is an existing plume of toxic contamination migrating from the current Albany Landfill into the Pine Bush Formation aquifer toward Lake Rensselaer. DEC should have required that a feasibility and remediation study for the plume be completed, or DEC should have held an adjudicatory hearing to determine whether the P-4 landfill expansion will contribute to the plume of pollution and whether remediation of the plume is feasible.

The fourth cause of action is that the permit should be denied is that the City of Albany did not submit an adequate Pine Bush mitigation plan. There was no mitigation plan in the Draft Environmental Impact Statement, in clear violation of the law. The City submitted an inadequate mitigation plan in the Final Environmental Impact Statement which included purchasing the Fox Run Mobile Home Village as mitigation. The City proposed purchasing the 60 acre Fox Run property. At the time of this purchase, 40 acres of the property were not developed and the mobile home park existed on 20 acres. The City was to immediately dedicate the 40 un-developed acres of the property to the Preserve, but no deadline was set to dedicate the remaining 20 acres. Residents of Fox Run were given up to 15 years to move. In about 15 years, the capacity of the P-4 landfill expansion will be filled — just in time for the City to ask for another landfill expansion in the Pine Bush.

Financially, purchasing the Fox Run Mobile Home Park was a financial decision for the City, not mitigation. Since the last landfill expansion in 1990, the City has been paying $1000 each year to each family living in the Mobile Home Park. The City did not submit an economic analysis of the cost of continuing to pay this hush money as opposed to purchasing the land. According to Save the Pine Bush’s analysis, the City actually will save money by purchasing the land.

The City’s purchase of Fox Run was used as a rationale to decrease the tipping feels received by the Albany Pine Bush Preserve Commission. As a mitigation to constructing the 1990 landfill expansion, the City was required to give $1.33 per ton to the Albany Pine Bush Preserve Commission for acquisition and management of the Preserve. DEC allowed this tipping fee to be reduced to 50¢ per ton, an over 200% reduction.

Save the Pine Bush believes that instead of reducing the tipping fee, it should be increased 500%, because the P-4 expansion is 500% larger than the expansion in 1990.

This latest landfill expansion is illegal, short sighted, and environmentally unethical. Not only will it further degrade the Albany Pine Bush, a globally rare ecosystem, but it also jeopardizes a potential water source. The City of Albany had 10 years to find an alternative solution to its garbage disposal needs. Albany politicians certainly benefit from the 7.3 million dollars in tipping fees that the landfill provides. That’s nearly 7% of the City’s budget. There is no doubt that without this revenue stream Albany politicians would have to make some tough budget decisions. However, that is no excuse to further pollute and degrade the regions most unique environmental resource. Instead of continuing the trend of abuse and neglect, we should be undoing the harm that has already been done. The original landfill is already polluting nearby ground water and streams. Rensselaer Lake and Patroon Creek are no doubt also affected by this mountain of trash. Efforts should be made to clean up what has been polluted, and prevent further contamination. The Pine Bush is internationally recognized, and has the potential to be a world class preserve. How ridiculous it must seem to the rest of the world to be dumping our garbage in the middle of such a threatened environmental treasure. Equally disturbing is DEC’s indifference to their own laws. The granting of this permit not only threatens the Pine Bush aquifer, it potentially endangers principal aquifers throughout the entire state. A heavy price to pay for our inability to reduce the amount of trash we now produce. It is our hope that in the future DEC and the City of Albany will heed the words of Governor George Pataki: "In the past, others have argued that environmental protection and economic growth were mutually exclusive. We have proven them wrong. In this new century, Americans will turn to New York to see the truth: environmental protection is the foundation for the quality of life that makes this a great state to live in , to do business in and to create jobs. Not only can we pursue these goals simultaneously, we must." A healthy Pine Bush will mean a healthy capital district.

The Pine Bush is a globally rare ecosystem and is the largest inland pine barrens of its kind in the United States. There would be no Pine Bush today if it were not for the efforts of Save the Pine Bush, a not-for-profit, all volunteer organization dedicated to Pine Bush preservation. Save the Pine Bush has been filing lawsuits against municipalities for their illegal approvals of developments in the Pine Bush for more than 23 years.


Press Release Issued Monday, June 25, 2001