A Special Meeting of the Board of Trustees of the Village of Croton-on-Hudson, NY was held on Wednesday, January 27, 2003 at the Municipal Building, Van Wyck Street, Croton-on-Hudson, NY 10520.
The following officials were present:
Mayor Elliott Trustee Grant
Trustee McCarthy Village Manager Herbek Trustee Wiegman
Attorney Waldman Trustee Schmidt
Also present: Michael Gerrard, Special Counsel
A court reporter was also present at the instance of Metro Enviro and the transcript will be available in the Village Office. A video tape is also available.
1. CALL TO ORDER:
Mayor Elliott called the meeting to order at 8:08 pm. Everyone joined in the Pledge of Allegiance.
Mayor Elliott explained that the purpose of this meeting was to review the Special Permit renewal application of Metro Enviro. Mr. Steinmetz has asked to make a statement. He said that although the Public Hearing is closed, any comments will become part of the minutes of this meeting and should be directed to new information.
Mr. Steinmetz introduced Ms. Kathleen Massey from Dechart LLP, Mark Salesky, Joseph DiNapoli, Michael Altobelli, all from Metro Enviro, and also John Canning of Adler Consulting – a traffic consulting firm that worked with Metro Enviro, the Citizens Committee, and Allie, King, Rosen and Fleming (AKRF) in 1998. Mr. Steinmetz asked him to come tonight as result of comments made at the last meeting. He will be addressing whether the exceedences resulted in an adverse impact on Croton. Mr. Steinmetz reiterated his position that the Village Board should not vote on the Special Permit renewal tonight because 1) the FOIL request they served on the Village has not been completed yet 2) Metro Enviro has served a FOIL request on the DEC in an effort to get more information on the Englehard
situations and hasn’t received the results yet 3) although Mr. Canning will present traffic information tonight, he is not yet ready with a written report containing his conclusions; and 4) additional information has been given to Mr. Gerrard just today in response to his requests. As a result Mr. Steinmetz feels that the Village Board is not yet in a position to decide because of an incomplete record. Finally, he is pleased that Mr. Gerrard and he were able to memorialize an effective date for the end of operations if the Village Board does decide to deny the renewal tonight. Mr. Gerrard asked him if they had a ‘date certain’ for receipt of information from the DEC FOIL. MS. Massey said not for sure but hope for this week sometime. Regarding the traffic issue, Mr. Steinmetz reviewed the history of the 1998 traffic study – it was reviewed by the Village Board, AKRF, and the Citizens Committee. He feels it was one of the primary
predicates for the issuing of the original permit. He requested Adler to 1) relook at the 1998 study, 2) return to the site for an inspection and also the adjacent intersection and the original 6 intersections, 3) do new traffic counts (last Thurs), 4) determine the impacts of the exceedences that are part of the record, 5) validate the accuracy of the 1998 study after five years of operational information, and 6 ) update the analysis of the 6 intersections for both LOS (level of service) and impacts at key times.
John Canning of Adler Consulting brought the 1998 traffic impact study that was also worked on by Mike Lee of AKRF. He explained his study of the Days of Violation using a prepared graph. (Mr. Steinmetz asked the stenographer to swear in Mr. Canning.) He explained that there were some materials included in the original study that would have been trucked out , exempt material, but are not accepted any longer at Metro Enviro. Therefore, these materials are not being trucked out thus reducing the overall number of trucks. Mr. Canning explained the calculations that occurred in 1998. Using these figures on the days of the exceedences (21), he performed the same calculations and found that it is still very close to the tonnage of 11 tons/day that was estimated in the original study. He compared days of greatest truck activity with that projected in 1998 and found even on days of violation they were still under what was anticipated for daily truck traffic in 1998. He showed a
comparison chart with the Karta facility in Peekskill which was also done in 1998. He also found that the percentage of trucks after 3 pm – 16% - was close to what was projected in 1998. NYS Route 129 traffic volumes were also an issue in 1998. They had done a travel-route survey in 98 to identify where trucks were likely to come from – counted the cars and trucks on 129 at the time. He redid this last week; at this time of year you expect numbers to be lower but he corrected for the high season with NYSDOT equalizer numbers. The peak hour was 7:15 am to 8:15 am this year, a little later than anticipated. The level of truck of activity has not dramatically changed from that anticipated. Mr. Canning recounted the 6 intersections of the traffic study of 1998: 1)Croton Point Ave. at the station driveway, 2) intersection of south ramp of 9 with Croton Point Ave., 3) intersection of north ramp of 9 at Croton Point Ave., 4) intersection of
Benedict and S Riverside, 5) Old Post Road and Maple and 6) Maple and Grand St. All in all, traffic activity closer to the site is a little less and traffic further is pretty much what was projected in 1998. Closer to the station, average delays were as projected or a little less. At north bound ramp from 9, the delay was about 1/3 to 2/3 of what projected. The others were slightly less or close to what was projected. The traffic impact study of 98 was a good predictor of what would happen and traffic impacts have not dramatically changed since the study was done and the facility was opened. Mr. Canning described himself as a Senior Associate at Adler Consulting with 15 years of traffic engineering experience, has a traffic engineer license in Pennsylvania and Ireland, and wide range of experience in Rockland, Westchester, Fairfield and other near by areas. He stated that currently the traffic is at least 10 vehicles less than what was projected in
Mr. Gerrard – are you giving us copies of the charts? Mr. Steinmetz said he had them for the Board and gave them out. Mr. Gerrard asked when you were talking about trips, you said there was always less than the 132 trips anticipated in the 1998 study. He confirmed what was meant, i.e. 264 movements. Mr. Steinmetz said it was referred to as a ‘visit’ in the 1998 study.
Trustee McCarthy asked, on the day that tonnage exceeded 1000 tons, how many tons over 1000; Mr. Steinmetz replied – 39.6 tons; that would be 95 trucks trips on average for the full amount but the records for that day show 80-some trips. The excess amounted to only 3 trips. Trustee McCarthy asked Mr. Canning if he was aware that Mr. Barber, an alleged expert from Metro Enviro, at a previous meeting, had estimated 5 trips. Mr. Canning said no, Mr. Steinmetz stated that Mr. Canning is here to validate his 1998 study and offer his professional opinion. Trustee McCarthy stated that there are seasonal effects, this is slow time; Mr. Canning said yes. She said Mr. Canning used numbers of the DOT to adjust for this. Mr. Canning said they increased the numbers rather than present numbers that
made it appear the numbers had dropped dramatically. Trustee McCarthy asked if the cold weather of the last three weeks should also cause adjustment. Mr. Canning said not likely., especially given the morning hours when they did the analysis. Trustee McCarthy asked when did the original counts get done; March She asked how many days of counts were done in 98; Mr. canning said they didn’t do all the locations on one day but typically do for one day, usually Tuesday thru Thursday. They were done on Tuesday and Wednesday in March 1998. Also verified them against Westchester County numbers at Croton Pt. Ave.
Trustee Wiegman asked if there was any analysis of whether these numbers show statistically significant differences between 1998 and 2003 traffic counts. We don’t know whether they are a normal variation from a sample. Mr. Canning said they typically expect 10% variation..
Trustee Schmidt asked whether cars and trucks are counted separately; yes. Does weather have same impacts on both; Mr. Canning said there probably is more lowering of truck rates in the winter. Trustee Schmidt asked how can you extrapolate back to a warmer time of year; how can you use the same factor for both trucks and cars? Mr. Canning referred to one of his charts and said they were trying to show that on a day of exceeding limits, it didn’t have an adverse impact on the anticipated numbers.
Trustee Grant asked if he was personally involved in the actual work done both now and in 1998; was there a written request from Mr. Steinmetz for certain work? Mr. Canning replied that there is no letter from Mr. Steinmetz asking him for specific work but Mr. Steinmetz had asked him to perform the tasks he earlier identified – look at earlier report, go back to site and take counts at same locations and conduct an analysis of the exceedence days and also validate his 1998 study. Adler prepared a proposal for this work. Mr. Steinmetz did not write the specific questions to be answered or what result he wanted.
Mr. Steinmetz said he had no other oral presentation for the Board. He and Metro Enviro have furnished a considerable amount of information in response to the board and Mr. Gerrard’s requests. Some documents are still being waited on – from the Village and from the DEC. He reiterated that is inappropriate to vote tonight until these documents have been received. It is necessary to give Metro Enviro a full and fair opportunity to present information concerning any impacts that may have occurred. You can continue your analysis tonight without voting to deny the permit.
Mr. Gerrard stated to Ms. Massey that he received last Friday night some documents from her; asked for an explanation of certain statements made regarding Englehard shipments in response to his questions about whether the Englehard waste was or wasn’t treated prior to coming into Metro Enviro. She made the point that these loads may have been added to other waste when shipped out on rail cars. He asked if they know which Englehard location provided what in the loads. Ms. Massey replied that the 1050 Lower South St. location was mainly plastics, the loads from the other Englehard site contained some gloves, test tubes containing pigment residue, rags – rinsed prior to remove residue, filters and also included C & D; it wasn’t all industrial waste. Mr. Gerrard asked if these things were dumped on the
floor at Metro Enviro, wouldn’t it have been obvious to some workers there. Ms Massey said she can’t say but Mr. Marino did seem to know that some was inappropriate. Mr. Gerrad looked at some depositions from Walter Mack, they overwhelmingly referred to tonnages and records being falsifying and not Englehard, Why? Ms. Massey stated he hasn’t drafted his report on Industrial waste yet. Has Mr. Mack taken depositions on Industrial waste; Yes. Doe she have copies of them; Yes, she has some but not all. Mr. Gerrard asked if she can turn them over – the ones about industrial waste. Ms. Massey said she would do that for the portions that are relevant to the Village Board deliberations but not any proprietary information and she doesn’t have the exhibits. She did not understand his request to be for depositions on industrial waste. To the extent that she has them she will provide them. Mr. Gerrard asked her about the tabbed
exhibits that she passed on to him. She said she cannot explain why the monitor tabbed them as he did. She did not provide portions that are not relevant to these proceedings. Mr. Gerrard asked was that in your sole judgment; of 624 pages of Mr. Marino’s deposition, only about 100-125 pages were turned over. Was there any discussion of Englehard by Mr. Marino; she doesn’t believe so. Mr. Gerrard went over the numbers of pages of depositions for each of several people. She confirmed that she personally looked at all the pages and knows that what is not provided is not relevant to these proceedings. Mr. Gerrard asked again for full sets of all transcripts in their possession. She said she hears his request but feels it is inappropriate.
Trustee McCarthy asked if she was representing that the omitted pages deal with proprietary information; Ms. Massey said no, just not relevant. Ms. McCarthy said that is your determination, not ours. How many pages relate to proprietary material? Ms. Massey said she doesn’t know. Trustee McCarthy asked her if she had reviewed the minutes of every meeting that this issue was discussed; not every one but most. Mr. Gerrard said that the issue of what is of interest to the Village Board is difficult to assess since we have not had access to the full record and reports of the federal monitor. Trustee McCarthy asked if Mr. Steinmetz has reviewed these depositions; no he has not. Trustee McCarthy asked Ms. Massey if she knows what the chemical content of the pigment residue is; no. Can you
find out this information? Did you take notes at your meeting with Englehard; yes. Was Mr. Steinmetz invited; not relevant according to Ms. Massey. Will she turn over her notes; no, it a classic attorney work product. Trustee McCarthy requested them; Ms. Massey rejected the request.
Trustee Grant asked if it would just be easier to turn over to Mr. Gerrard everything she had received; yes it would be, but her job is to work for her clients interests and much of what Mr. Mack’ s report and research covers has no relevance to this special permit matter. Trustee Grant stated the Board would be most interested in what Mr. Marino said in its entirety.
Trustee Wiegman asked about Mr. Mack’s 15th periodic report of November, and the draft final report delivered in late December. Ms. Massey said Allied did present its position to the Court for the November update report as to parts considered confidential. Allied has not yet sent in their comments on the December draft of the Mack report. Trustee Wiegman asked how soon this might occur; Ms. Massey said perhaps this week if they are not busy preparing papers to commence a lawsuit and get an injunction.
Trustee Schmidt asked if broken test tubes wouldn’t be quite a mess on the floor; Mr. Steinmetz replied that glass comes in every day and would not have been that noticeable.
Trustee McCarthy asked who is handling Englehard’s waste now. Mr. Saleski said they are handling most recycling materials themselves – otherwise using American Standard. Mr. Gerrard asked if the transcripts are subject to a confidentiality order? Ms. Massey said yes. Allied will waive the right of confidentiality of material to satisfy the requests of the Village Board, but the Court and Monitor cannot violate this.
Mr. Steinmetz renewed his earlier request to delay the vote. There are no imminent threats of harm; they should act prudently.
2. CITIZEN PARTICIPATION:
Maria Cudequest -84 Grand Street; She said it is absurd that we cannot get the information we feel is relevant.
Richard Pellicci; Since the last meeting he has noticed truck traffic in Croton has diminished – curious if anyone knows why?
David Tuttle – 94 Grand St.; He questions and suspects the traffic report; a study done for one day on one of the coldest days is inadequate and irrelevant. Don’t delay your decision; Counsel for Metro Enviro is stalling.
Tom Brennan – 121 N riverside Ave. He is not a lawyer; heard fancy words tonight about a traffic study. Metro Enviro loaded their own guns and now we are shooting them with them; never heard a bigger bunch of garbage; not good neighbors; their own fault.
Mark Aarons – 18 Georgia Lane; Mr. Aarons asked questions about extra truck trips; concerned about the tonnage on trucks being in excess of what was originally estimated.
Roger Solymosy – Old Post Road North; He finds it fascinating that while Mr. Canning was asked to verify the 1998 report, he wasn’t asked to verify his (Mr. Solymosy’s) ‘5 little pickups’ anecdote. We do not have to rely on a formula from the state; it’s disingenuous to study a mix of vehicles, there are actual records on the numbers. He is not clear about what the 12.5% multiplier adjusts to – is January equalized to August? Or what? Estimates in 1998 were at full capacity – what is ‘full capacity’? If you conclude that someone has lied to you about one thing you have the option to decide they have lied to you about other things. The credibility of the people is one of the things before you so you are entitled to the full transcripts.
Robert Conklin – Irvington NY; If you put him out of business, you are inviting a class action suit. You are putting hundreds of people out of business. He is a hauler with 6 kids. Metro Enviro is state of the art and is a clean place. It is wrong what you are doing. If you don’t want a transfer station, just say it. It’s well run; is not as bad as the picture being painted here.
Mayor Elliott asked for a motion to go into Executive Session with Mr. Gerrard. It was made by Trustee Wiegman seconded by Trustee Schmidt and unanimously approved at 9:46. The meeting resumed at 10 pm. Mayor Elliott asked Manager Herbek to read the resolution.
On motion of TRUSTEE Schmidt, seconded by TRUSTEE McCarthy, the following resolution was adopted by the Board of Trustees of the Village of Croton-on-Hudson, New York:
WHEREAS, in a letter dated March 23, 2001, Zarin & Steinmetz, Attorneys at law, on behalf of Metro Enviro Transfer, Inc., requested a renewal of their Special Use Permit which was due to expire on May 5, 2001; and
WHEREAS, the Board approved extensions to the Permit on many separate occasions the most recent being on January 6, 2003 when the permit was extended to expire at midnight on January 27, 2003; and
WHEREAS, on December 23, 2002, the Board issued a Draft Statement of Findings on the renewal request for the Special Use Permit; and
WHEREAS, on December 31, 2002 a public notice announced that there would be a Special Hearing on the renewal request on January 6, 2003, which was subsequently postponed by one week at the request of Metro Enviro Transfer; and
WHEREAS, on January 15, 2003, the Board held the Special Hearing, heard presentations from Metro Enviro Transfer representatives, received a written response to the Draft Statement of Findings, and announced that the final decision on the renewal would be on the agenda for the January 27, 2003 Board meeting; and
WHEREAS, Metro Enviro Transfer has violated the Special Use Permit on numerous occasions, as detailed in the Statement of Findings, and on January 24, 2003, Metro Enviro Transfer admitted that a further violation of the permit occurred when mixed industrial, municipal and construction and demolition debris was shipped to the CLD Landfill, 9960 South Range Road, Salem, Ohio, 44460, on an unknown number of occasions between March 2000 to date, in violation of Ohio law, the New York State Department of Environmental Conservation permit and thus the Village permit;
NOW, THEREFORE BE IT RESOLVED: that the Village Board of Trustees does hereby decline to grant any further extensions of the Special Use Permit and declines to grant the application for renewal of the Special Use Permit, and
BE IT FURTHER RESOLVED: that at midnight on February 17, 2003, Metro Enviro Transfer is ordered to cease accepting waste and commence closing the Facility in accordance with the closure plan approved under the DEC permit, and any operations between this date and February 17, 2003 shall be in conformity with the conditions of the expired Village Permit, and
BE IT FURTHER RESOLVED: that all waste shall be removed from the Facility by 5:00 p.m. on February 24, 2003 and the Facility shall be fully secure at all times to prevent illegal dumping, and
BE IT FURTHER RESOLVED: that the Statement of Findings explains the Village Board of Trustees’ reasoning for this decision, and
BE IT FURTHER RESOLVED: that the Village Board of Trustees does hereby authorize the Village’s special environmental counsel to make appropriate revisions to the Statement of Findings to reflect discussions held and information received on January 27, 2003, and to reflect new information received between January 27 and February 17, 2003.
Discussion: Trustee McCarthy stated that the Findings Statement says enough about the violations. She always believed that the conditions of the Special Permit were meant to protect the health safety and welfare of the residents so any violations of the permit may compromise the health, safety and welfare of residents. She stated that she felt that unfortunately this Board failed to act to protect the citizens of this community. She said it was a failure of leadership and judgment. She doesn’t think you can ever be wrong by going that extra mile to protect the residents. She said this was never a question of money, rather a question of the duty of the Board. She said the burden was especially heavy on the Board members who voted for it – Mayor Elliott, Trustee Grant and then Trustee Watkins. She stated
it was a question of leadership and question of judgment. She said we do know that what information we have is sufficient to deny this permit; it doesn’t matter if there are other violations that have gone undiscovered. What we have is sufficient. She noted for the record, this is not the first time on the watch of certain members of this Board when a business at this same site fell into noncompliance. She said those who fail to learn from history are doomed to repeat it. She stated that deflecting attention from this by talking about all the great things Croton has to offer is beside the point. The violations that have come to light are substantial and significant and justify denial of this Permit.
Trustee Grant stated that Trustee McCarthy’s statement troubled her. She said for Trustee McCarthy to continue to politicize this issue after all the effort, work and discussion this entire Board has had over the past year, one would think she is running for election. Our judgment was correct to give Metro Enviro the opportunity to do the job right. They blew it and for Trustee McCarthy to politicize it is just wrong.
Trustee Schmidt stated that Metro Enviro did it to themselves. He thanked the citizens and Board members who persisted in their passionate plea to have this wrong corrected; commends them.
Trustee McCarthy said she made the comments she made tonight because she has sat here five years, heard a lot of discussion about a lot of issues. She said we all need to think about how this issue and others have been handled in this village and make the type of constructive changes that are necessary to fulfill our obligations.
Trustee Grant said she agreed fully and was waiting to see some action in accordance with that from Trustee McCarthy.
Trustee Wiegman made a motion to adjourn the meeting, seconded by Trustee Grant, and by unanimous vote, the meeting was adjourned at 10:15 pm.
Ann H. Gallelli, Secretary