2003-159RESOLUTION NO. 2003-159
RESOLUTION APPROVING AND CONSENTING TO THE TERMS CONTAINED IN
AN ORDER ON CONSENT ISSUED BY THE NEW YORK STATE
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
At a regular meeting of the Town Board of the Town of Wappinger, Dutchess County,
New York, held at Town Hall, 20 Middlebush Road, Wappingers Falls, New York, on the 9th
day of June, 2003, at 7:30 P.M.
The meeting was called to order by Joseph Ruggiero, Supervisor, and upon roll being
called, the following were present:
PRESENT: Supervisor -
Councilmen -
ABSENT:
The following Resolution was introduced by
Mr. Paoloni
Joseph Ruggiero
Robert L. Valdati
Vincent F. Bettina
Joseph P. Paoloni
Christopher J. Colsey
Mr. Valdati
and seconded by
WHEREAS, the City of Poughkeepsie, the Village of Wappingers Falls, the Town of
Poughkeepsie, the Town of Wappinger and the Town of LaGrange (hereinafter referred to
collectively as the PARTIES) have previously operated a Landfill at the Dutchess County
Airport and previously known as the "Poughkeepsie-Wappinger Joint Landfill Project",
hereinafter referenced to as the "Joint Landfill"; and
WHEREAS, the PARTIES have operated the Joint Landfill pursuant to written
Agreements dated January 19, 1970 and February 28, 1972 and supplemented by an Agreement
which this Board has by separate Resolution approved and authorized (the "SUPPLEMENTAL
O: IWAPPINGEITown BoardIRESOLUTIOMLandfill-Consent Order.doe
AGREEMENT"), subject to approval of an Order on Consent from the New York State
Department of Environmental Conservation ("NYSDEC"); and
WHEREAS, pursuant to the various Agreements entered into by the PARTIES, the
operations of the Joint Landfill have been managed by a Board of Governors consisting of the
Mayors of the City of Poughkeepsie and Village of Wappingers Falls, the Supervisors of the
Village of Poughkeepsie, the Town of Wappinger and LaGrange; and
WHEREAS, in consequence of an on-site investigation of the Joint Landfill undertaken
by representatives of the New York State Department of Environmental Conservation, Region 3
(hereinafter referred to as "DEC"), DEC determined that leachate from the Joint Landfill was
being released into the adjacent Wappinger Creek; and
WHEREAS, DEC has directed that the Joint Landfill be brought into compliance with
various provisions of New York State Environmental Conservation Law and New York Codes,
Rules and Regulations (6 NYCRR) and in consequence thereof has directed that the PARTIES to
bring the Joint Landfill into compliance with Environmental Conservation Law and New York
Codes, Rules and Regulations (6 NYCRR) in accordance with the terms and conditions set forth
in a Order on Consent, a copy of which is attached hereto marked and designated Exhibit No. 1;
and
WHEREAS, the Town Board concurs with the terms and conditions set forth in the
Order on Consent, and desires that the Joint Landfill Board of Governors authorize, approve and
implement the Order on Consent.
NOW, THEREFORE, BE IT RESOLVED, as follows:
The recitations above set forth are incorporated in this Resolution as if fully set
forth and adopted herein.
O: I WAPPINGEITown Boar&RESOLUTIOMLandfill-Consent Order. doc
2. The Town Board of the Town of Wappinger hereby acknowledges that each of
the individual Board Members have read the terms and conditions set forth in the Order on
Consent attached hereto as Exhibit No. 1 and hereby approves said Order on Consent in the form
annexed hereto, subject to any modification to the Schedule of Compliance contained in
Schedule "A" therein as the same may be agreed upon by the attorneys for the PARTIES, and
subject to and limited by the Town's proportionate share of liability of 14.1728% as set forth in
the SUPPLEMENTAL AGREEMENT between the PARTIES.
3. The Town Supervisor, Joseph Ruggerio, as a member of Board of Governors of
the Joint Landfill is hereby authorized to take all steps necessary to comply with the directives
contained with the Order on Consent and to take all steps that are necessary on behalf of the
Town and the Board of Governors to implement the corrective work required by said Consent
Order and to execute said Order on Consent by and on behalf of the Town of Wappinger and by
and on behalf of the Joint Landfill Board, and further authorizes the Joint Landfill Board to
approve, execute, deliver and implement the Order on Consent, or cause the execution, delivery
and implementation of the Order on Consent in substantially the same form and substance as
annexed hereto, by and on behalf of the PARTIES.
4. This Resolution shall take effect upon the approval by all of the PARTIES and the
County of Dutchess.
The foregoing was put to a vote which resulted as follows:
JOSEPH RUGGIERO, Supervisor Voting Aye
ROBERT L. VALDATI, Councilman Voting _fie
VINCENT F. BETTINA, Councilman Voting Aye
JOSEPH P. PAOLONI, Councilman Voting Aye
O: IWAPPINGEITown Boar&RESOL UTIOMLandfill- Consent Order.doc
CHRISTOPHER J. COLSEY, Councilman Voting Aye
Dated: Wappingers Falls, New York
June 9, 2003
The Resolution is hereby duly declared adopted.
O.• I WAPPINGEI Town Board I RESOL UTIONI Landfi 11 -Consent Order. doc
JUN -03-2003 15:00 TOWN OF WAPPINGER
NEW YORK STATE
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter of the Violations of
Article 17, Article 27, as indicated
below, of the New York State Environmental
Conservation Law, by;
Respondents Joint Landfill Board of Governors and
County of Dutchess,
(Dutchess County)
VAN
914 297 4558 P.07i21
ORDER ON CONSENT
FILE NO.: R3-20020628-75
1. The New York State Department of Environmental Conservation is responsible for
the administration and enforcement of law and regulation pursuant to Article 17 and Article 27,
of the New York State Environmental Conservation Law.
2. The Respondent Joint Landfill Board of Governors (the "Board"), which is comprised
Of representatives of the City of Poughkeepsie, Village of *appingers Falls, Towns of
LaGrange, Poughkeepsie and Wappinger, operated the Dutchess County Airport Landfill (the
"Site"), located at 376 New Hackensack Road, Town of Wappinger, County of Dutchess, State of
New York.
3. A violation of this Order by either Respondent will constitute a violation by both
Respondents. Hereafter, the tern "Respondent" refers to both the Board and the County of
Dutchess, unless otherwise specified.
4. The Board operated a solid waste management facility consisting of a municipal solid
waste landfill as defined in 6 NYCRR § 360-1.2(158). The Board constructed and operated the
landfill on lands owned by the County of Dutchess pursuant to a lease agreement with the
County, which has since expired. Dutchess County did not construct or operate the landfill.
5. On March 21, 2002 and April 5, 2002, the Department of Environmental
Conservation documented violations of the Environmental Conservation Law ("ECL") and New
York Codes Rule and Regulations ("6 NYCRR") at the landfill, and specifically states that the
Board violated:
(A) ECL § 7-0803, based on the Board's operation of a leachate collection system
that discharges leachate into groundwaters of the State of New York without a
JUN -03-2003 15:00 TOWN OF WAPPINGER 914 297 4558 P.oe/21
SPDES permit.
(B) 6 NYCRR § 360-1.14(b)(2), based on the Board's failure to minimize leachate
generation and discharging Ieachate to the ground surface; several leachate seeps
were observed at the Site.
(C) 6 NYCRR § 703.2, based on the Board's violation of the narrative State
Water Quality Standards for Wappinger Creek, a class B stream. The Respondent
discharged leachate into the Wappinger Creek from the landfill causing an orange
and a green -yellow discoloration at portions of the Creek.
(D) 6 NYCRR § 360-1.14(e), based on the Board's failure to dispose of a few
hundred waste tires that are exposed on the landfill.
(E) 6 NYCRR § 360-1.14(#)(1), based on the Board's failure to properly maintain
the leachate collection system.
(F) 6 NYCRR § 360-2.17(b)(2), based on the Board's failure to properly grade the
landfill, thereby causing surface water ponding and closed depressions on the
landfill.
6. The Board has submitted a Closure Investigation Report (TIR") in accordance with
Part 360-2.15(a), which was approved by the DEC.
7. Respondent has affirmatively waived the right to a public hearing in this matter in the
manner provided by law and has consented to the entering and issuing of this Order, and agrees
to be bound by the terms and conditions contained herein.
NOW, having considered this matter and being duly advised, it is ORDERED that:
I. SCHEDULE OF COMPLIANCE. Respondent shall strictly adhere to the terms and
conditions specified in this Order and in Schedule A, the compliance schedule, which is attached
hereto and made a part of this Order.
H. APPROVALS.
(a) Respondent shall obtain whatever permits, easements, rights of entry, approvals or
authorizations as may be necessary to carry out their obligations under this Order, and as may be
required as to any prospective undertakings that may affect the Site. This Order shall not relieve
Respondent of the obligation to comply with any other laws, rules or regulations of the State of
New York or any other governmental authority which are applicable to Respondent's activities,
nor preclude or limit any enforcement action as may be authorized by law for non-compliance
with such laws, rules or regulations.
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JUN -03-2003 15:01 TOWN OF WAPPINGER
4 G7 f +a.�u • .-- --
(b) After the Department's receipt of any report, plan or other submittal made pursuant to
the Schedule of Compliance which requires the Department's approval, the Department shall
notify Respondent, in writing, of its approval or disapproval of each submittal. Any notice of
disapproval issued by the Department shall state the reasons for the Department's disapproval. If
the Department approves a submittal, Respondent shall implement it in accordance with the
requirements of the Schedule of Compliance, as approved. If the Department disapproves a
submittal, within thirty (30) days after Respondent receives written notice of disapproval,
Respondent shall submit a revised submittal in accordance with the Department's objections.
Respondent may seek clarification of any basis of the Department stasis disapproval. The
Department shall not unreasonably disapprove any submission made under this Order and its
Schedule of Compliance. After the receipt of Respondent's revised submittal, the Department
shall notify Respondent, in writing, of its approval or disapproval. If the Department approves
the revised submittal, Respondent shall implement it in accordance with the Schedule of
Compliance and terms, as approved. If the Department disapproves the revised submittal,
Respondent shall be in violation of this Order.
(c) If the Respondent is awaiting a response from the Department for a minimum of 45
calendar days and provides written notice to the Department regarding its need for such response,
the Department shall respond within fifteen (15) days of receipt of such notice with its approval
or disapproval, in whole or in part.
III. MU PENALTIES.
(a) PAYABLE PENALTY: In respect of the violations described in this order, a
civil penalty in the amount of Twenty -Five Thousand Dollars ($25,000) is hereby assessed
against Respondent, jointly and severally, all of which is suspended upon Respondent's
compliance with this Order and the attached Schedule/of Compliance.
(b) STIPULATED PENALTIES: It shall be a violation of this Order if the
Respondent fails to complete the work identified in Schedule A within the time period provided.
If such a violation occurs, the following stipulated penalties for such violation shall be due and
payable:
PITT(*) •. •„14 _.
1sT day through 300` day $100
31" day through 60" day $200
each day thereafter $300
(c) In the event that Respondent fails to pay any penalty due pursuant to Section
III (a) and (b) by the date due, this Order together with a notice of noncompliance specifying the
amount due may be filed and enforced by the Department as a civil judgment for the total penalty
M
4558 P. 10/21
amount set forth in the notice of noncompliance, in the State of New York, without the need for
any further proceedings whatsoever.
(d) With regard to any penalty due pursuant to Section III (a) and (b) which is not
paid by the specified due date, each Respondent shall be liable for and shall pay interest from the
due date at the rate specified by section 3-a of the General Municipal Law for interest on a
judgment.
(C) Penalties shall not be imposed against the Respondent, in accordance with
Section III (a) and (b), if Respondent's failure to meet such deadline is caused by matters which
are beyond the control of Respondent, including all matters specified in Sections II(c) and V.
IV. FULL SETTLEMENT,
The Department shall not institute any action or proceedings or penalties or other relief
for the violations described herein, so iong'as Respondent remains in compliance with this Order.
Any failure by Respondent to comply Hilly with the terms of this Order may subject the
Respondent to further enforcement action for the violations described above. Compliance with
this Order shall not excuse and/or not be a defense to charges of any violations of the ECL or any
regulation or permit issued thereunder, which may occur subsequent to the date of this Order.
V. FORCE MA►JEURE.
Respondent shall not be in default of compliance with this Order on Consent to the extent
that Respondent may be unable to comply with any provision of this Order on Consent because
of the action of a national, state (excluding the DEC) or 1aJce1 government body (excluding
Respondent), or court or administrative law judge or hearing officer, an act of God, war, strike,
riot or catastrophe as to any of which the negligence or willful misconduct on the part of
Respondent was not a proximate cause_ Respondent shall provide notice to the Department in
writing immediately upon its becoming unformed of such event, or as soon as reasonably possible
thereafter, and Respondent may request a modification to this Order by the Department in
accordance with the provisions of Section VI hereof.
VI. AMENDMENTS.
(a) This Order on Consent shall not be changed or modified except by an instrument
in writing signed by duly authorized representatives of each of the parties.
(b) If, for any reason, Respondent desires that any provision of this Order be changed,
including modifications to any schedule appended hereto, Respondent shall make timely written
application therefor to the Department setting forth reasonable grounds for the relief sought,
together with supporting documentation, if any, tending to establish such grounds. Such request
shall be made as soon as reasonably possible after Respondent learns of the grounds for such
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WAPPINGER 914 297 4558 P.1121
relief. Where, as may be determined by DEC, a request for a modification is wade in timely
fashion and is properly supported and justified in light of all circumstances, including
Respondent's compliance history and the potential environmental consequences of such
modification, DEC agrees that such relief will not be unreasonably denied. The granting of a
requested modification may be conditioned upon Respondent's acceptance of additional terns,
such as payment of penalties and/or suspension, modification or curtailment of operation.
(c) Nothing herein shall be deemed to limit in any way the Department's rights to
modify, suspend or revoke pursuant to Part 621.14 of 6 NYCRR.
V11. ACCESS TO FACILITIES.
For the purpose of insuring compliance with this Order on Consent, and with applicable
provisions of the ECL and regulations promulgated thereunder, representatives of the Department
shall be permitted access to all facilities (consistent with county airport rules and regulations and
pertinent FAA regulations) subject to this Order on Consent and in accordance with the approved
Post Closure Monitoring Maintenance Manual, and to all relevant records relating thereto during
reasonable hours, in order to inspect and/or perform such tests as may be deemed appropriate to
determine the status of Respondent's compliance. Dutchess County shall continue to provide the
Board and the Department with reasonable access to the Site for the purpose of complying with
the terms of this Order.
VIII. NOTICES.
(a) All notices of any nature forwarded to the Respondent with regard to this Order
on Consent shall be in writing and sent by registered, certified, or overnight mail postage pre.
paid, by regular mail, or by hand -delivery, to the respective addresses set forth below or to such
Other persons and addresses as the Respondent or the Department may designate in writing:
To the Respondent:
Joseph Davis
Dutchess County Airport Joint Landfill Board Chairperson
I Overocker Road
Poughkeepsie, NY 12603
Carol A. Bogle
Senior Assistant County Attorney
Dutchess County Attorney
22 Market Street
Poughkeepsie, NY 12601
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Jl1N-03-2003 15:02 TOWN OF WAPPINGER
with a copy to:
Corporation Counsel
Town of Poughkeepsie
1 Overocker Road
Poughkeepsie, NY 12603
Stephen Wing
Assistant Corporation Counsel
City of Poughkeepsie
City Hall
P.O. Box 300
Poughkeepsie, NY 12601
Joseph Ruggiero, Supervisor
Town of Wappmger
P.O. Box 324
Wappingers Falls, NY 12590
To the Department:
Andrew D. Lent, Engineering Geologist IT
DEC Division of Solid and Hazardous Material
200 White Plains Road, 5* Floor
Tarrytown, New York 10591
with a copy to:
Regional Solid Waste Engineer
N'YSDEC
21 South Putt Corners Road
New Paltz, New York 12561
(b) Notices sent solely by facsimile transmittal shall not be deemed to be adequate
notice under this Section. The original document from which such facsimile transmittal
originated must be forwarded by one of the methods listed in subsection (a), above, in order to
qualify as adequate notice hereunder.
IX. ENTIRE CONSENT ORDER.
The provisions hereof shall constitute the complete and entire Consent Order between
Respondent and the Department with respect to the subject matter thereof. No terms, conditions,
understandings or agreements purporting to modify or vary the terms hereof shall be binding
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JUN -03-2003 15:03 TOWN OF WAPP I NGER
unless made in accordance with Section VI hereof. No informal advice, guidance, suggestions or
comments by the Department regarding reports, proposals, plans, specifications, schedules or any
other writing submitted by Respondent shall be construed as relieving Respondent of its
obligations to obtain such formal approvals as may be required by this Consent Order.
X. SUMMARY ABATEMENT.
The terms of this Order shall not be construed to prohibit the Commissioner or her duly
authorized representative from exercising any summary abatement powers, either at common law
or as granted pursuant to statute or regulation.
M. SUCCESSORS AND ASSIGNS.
The provisions of this Order on Consent shall be deemed to bind Respondent, its officers,
directors, agents, employees, contractors, successors and assigns, and all persons, firms and
corporations acting under or for it, including, without limitation, any successor in title to the
facilities mentioned herein or any interest therein.
XII. EFFECTIVE DATE.
The effective date of this Order is the date that the Commissioner or her designee signs it.
The Department will provide Respondent (or the Respondent's counsel) with a fully executed
copy of this Order as soon as practicable after the Commissioner or her designee signs it.
XIII. AUTHORITY TO SIGN.
The individual signatories of this Order represent that they have the authority to bind the
respective parties by execution of this Order.
This document has been reviewed by Region 3
Division of Legal Affairs and approved as to form.
Vincent Altieri
Regional Attorney
Date:
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914 297 4558 P.14/21
DATED: New York
, 2003
New York State Department of
Environmental Conservation
ERIN M. CROTTY, Commissioner
By:
MARC MORAN
Regional Director
TO: Joseph Davis, Chairperson
Joint Landfill Board -of Govemors
I Overocker Road
Poughkeepsie, NY 12603
,Idavis snet.net
Rich Olsen, Corporation Counsel
Town; of Poughkeepsie
1 Overocker Road
Poughkeepsie, NY 12603
Rolsen mCr,Gom
Stephen Wing
Assistant Corporation Counsel
City of Poughkeepsie
City Hall
P.O. Box 300
Poughkeepsie,
NY 12601
c i � LYN'OL ` � com
Carol A. Bogle
Senior Assistant County Attorney
Dutchess County Attorney
22 Market Street
Poughkeepsie, NY 12601
cbo eQco.d=h-css.ny us
JUN -03-2093 1503 TOWN OF WAPPINGER 914 297 4558 P.1521
Respondent Joint Landfill Board of Governors acknowledges the authority and
jurisdiction of the Commissioner of Environmental Conservation of the State of New York to
issue the foregoing Order, waives public hearing or other proceedings in this matter, accepts the
terms and conditions set ;forth in the Order and consents to the issuance thereof.
STATE OF NEW YORK )
ss:
COUNTY OF
On this day of , in the year 200___, before me, the
undersigned, personally appeared
personally known to me or proved to me on the basis of satisfactory evidence to be the
individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in hiwber/their capacity(les) as shown m the instrument, and
that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of
which the individual(s) acted, executed the instrument.
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WAPPINGER 914 297 4558 P.16i21
Respondent County of Dutehess acknowledges the authority and jurisdiction of the
Commissioner of Environmental Conservation of the State of New York to issue the foregoing
Order, waives public hearing or other proceedings in this matter, accepts the terms and
conditions set forth in the Order and consents to the issuance thereof.
STATE OF NEW YORK
ss:
COUNTY OF �
On this day of , in the year 200____,,, before me, the
undersigned, personally appeared
personally known to me or proved to me on the basis of satisfactory evidence to be the
individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their capacity(ies) as shown in the instrument, and
that by his/her/their signatiue(s) on the instrument, the individual(s), or the person upon behalf of
which the individual(s) acted, executed the instrument.
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P. 17/21
Schedule A
Wfthin (30) days of
The Board shall implement the August 2002 Interim Landfill
the Execution of this
Environmental Monitoring Plan (Interim EMP) in accordance with the
Order:
August 27, 2002 conditional approval letter until the Department approves
the Post -Closure Monitoring and Maintenance Manual. A copy of the
Interim EMP and the conditional approval letter are attached as Exhibit I.
Within (45) days of
The Board shall submit a Supplemental CIR Work Plan which
the Execution of this
satisfactorily address each of the issues listed in the CIR conceptual
Order.
approval letter dated April 10, 2003. A copy of the April 10' letter is
attached as Exhibit II.
By December 31, The Board shall submit two (2) copies of a conceptually acceptable
2003: Landfill Closure Plan, which is subject to DEC approval in accordance
with Section II (b) of the Order. The CIosure Plan shall be in compliance
with the applicable Part 360 regulations and include a plan to upgrade or
decommission the leachate collection system. When approved, the Closure
Plan shall be incorporated into this Schedule and Order as Exhibit B.
By April 1, 2004: The Board shall submit two (2) copies of a conceptually acceptable
Landfill Post -Closure Monitoring and Maintenance Manual in accordance
with Part 360-2.15(i)(7), effective December 31, 1988. The Manual shall
also contain County access procedures as to the site. The Manual is
subject to DEC approval in accordance with Section 11(b) of the Order.
The Manual shall be submitted as a stand-alone document, separate from
the Closure Plan. When approved, the Manual shall be incorporated into
this Schedule and Order as Exhibit III.
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Within (45) drys of
Respondent shall begin installation of a landfill final cover system in
DEC's appal of
accordance with the DEC -approved Closure Plan, which is subject to DEC
the Closure plan;
approval in accordance with Section II (b) of the Order. Installation of the
landfill final cover system includes clearing the grubbing the area in
preparation of future landfill closure construction activities.
By December 31,
Respondent shall complete installation of the landfill final cover system
2005:
including placement of the vegetative layer seed mixture, or a mutually
agreeable alternative. Such installation(s) shall be subject to DEC
approval,
By bVlarcb 31,2006:
Respondent shall submit two (2) copies of a Landfill Closure Certification
Report providing the information listed in Part 360-2.15(d)(7), revised
November 24, 1999, which is subject to DEC approval in accordance with
Section II (b) of the Order. The Certification Report shall be signed and
sealed by a licensed New York State professional engineer and shall be
satisfactory to the Department.
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