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Additional Developments at Metro Enviro

August 29, 2005

A few weeks ago I wrote a letter to the editor to alert residents about a potentially serious situation developing at the Metro Enviro site. Very briefly, the situation was that a company, NIR, petitioned the federal Surface Transportation Board (STB) to be declared a railroad. Under the STB regulations this would allow NIR to operate at the site without any state or local oversight.

If NIR is declared a railroad, they will then apply to the STB for an exemption which will allow them to handle, on a 24 hour, 7 days/week basis, all kinds of waste, likely including municipal waste and hazardous wastes beyond the C&D waste that is currently handled at the site. In their initial application NIR indicated that this was their intention as well as building additional rail spurs at the site to increase capacity. This has happened at several other locations in the Northeast already.

Since my earlier letter, there have been additional developments. Both the Village and NIR have filed a number of responses to each others petitions. Further, the NYS Attorney General’s office filed a petition for the NYSDEC asking for further information on NIR’s plans. Letters from several officials were also sent to the STB asking them to deny NIR’s petition. NIR has replied to both the letters and the NYSDEC petition. The STB works quite rapidly and they do not give public notice or solicit input. The only public information is the postings of events on the website (search on Croton).

As of this writing, we do not know the STB’s decision or when it will happen. However, even as we wait for a decision, we must try to understand the options we have to prevent NIR or a similar facility from coming here. The ones that I can identify are both difficult and expensive so we need to prepare ourselves for this eventuality. Here are possible courses of action that I see ahead; they are all both difficult and expensive. I hope you will take the time to think about them, and communicate your thoughts to the people who will decide - the Board of Trustees. 1. The STB might grant NIR’s application. In that case, the Village will need to employ all avenues of appeal available. The Village will also have to prepare for another application by NIR to the STB asking for an exemption to handle other wastes.
2. The STB might stay NIR’s application or reject it without prejudice telling NIR they can resubmit with more information. If this occurs, the Village will have to respond to any resubmittals by NIR but it would buy us some time to consider another option - using eminent domain to take ownership of the site. 3. The STB might deny NIR’s application. While this might seem like a victory, it appears likely that it would only be a matter of time for another entity that already is qualified as a railroad to purchase the business as NIR intended to do. Such an entity could then operate the site immediately. They would likely apply quickly to the STB for the exemption to handle multiple types of waste. The Village would have to make the same case as it is trying to make against NIR now. This alternative might also give the Village some time to exercise eminent domain. 4. Separate from the STB-related issues above, a decision in the current ongoing lawsuit against the Village by Metro Enviro and Greentree LLC may be forthcoming. A decision favorable to the plaintiffs will likely mean the Village will appeal it. A decision favorable to the Village will likely mean Metro Enviro and Greentree will appeal it. Either way, this legal battle will probably continue at least until the STB makes a decision on NIR.

I have mentioned eminent domain a number of times as an avenue the Village might pursue. Eminent domain, although simple in concept, is a highly complex process to successfully execute. There are many rules that govern the process and, of course, if successful, the fair market value of the taking has to be paid. Based on discussions and research I have been doing, it appears that there is some question as to whether the Village could supercede an entity such as a railroad in an eminent domain proceeding. This raises the question as to whether such an action can be taken after a decision to grant railroad status is given by the STB so time may be very important in this. The Village should consider hiring a “specialist” attorney, familiar with the intricacies of eminent domain, before starting down this path. An appraisal of the property would also need to be done.

Obviously, I have no answers here. I have also greatly oversimplified the complexity of the problem so you could get through this already lengthy letter. However, I continue to believe this is the most important and potentially detrimental issue to come before Croton in my 20 years of involvement. Whatever path we take as a Village is going to be costly with attorney’s fees, appraisal fees, and possibly a purchase price. It is very important for all residents that you keep informed on this matter and that you offer you opinions and insights to your Village officials.

— Ann Gallelli

On September 1, 2005 9:14 AM, Stu said:

After taking Ann Gallelli’s advice and visiting the STB website, I found that NIr may be very close to having any permits they might need to operate the Metro Enviro site. The Westchester County Solid Waste commission has indicated they have completed all the background work on NIR’s application and the NYS DEC has taken no issue with NIR’s request to transfer Metro Enviro’s permit - only requesting more information. I wouldn’t be surprised if NIR has permits in place to operate the site in a very few days if they wish. It is not necessary for them to have a ruling from the STB to operate the site; that would only enable them to become a ‘railroad’ and leave them without the requirement to get a permit. On the other hand, perhaps NIR or its parent Regus will walk away from the whole purchase from Allied and its other sites in Westchester. If so, there will probably be another entity, private or public, waiting right around the corner. Aside from our own very legitimate concerns locally, we can’t be so myopic that we don’t see that the handling of waste is one of the biggest issues that the northeast faces and higher powers want these sites to exist.

On September 1, 2005 9:13 AM, Stu said:

After taking Ann Gallelli’s advice and visiting the STB website, I found that NIr may be very close to having any permits they might need to operate the Metro Enviro site. The Westchester County Solid Waste commission has indicated they have completed all the background work on NIR’s application and the NYS DEC has taken no issue with NIR’s request to transfer Metro Enviro’s permit - only requesting more information. I wouldn’t be surprised if NIR has permits in place to operate the site in a very few days if they wish. It is not necessary for them to have a ruling from the STB to operate the site; that would only enable them to become a ‘railroad’ and leave them without the requirement to get a permit. On the other hand, perhaps NIR or its parent Regus will walk away from the whole purchase from Allied and its other sites in Westchester. If so, there will probably be another entity, private or public, waiting right around the corner. Aside from our own very legitimate concerns locally, we can’t be so myopic that we don’t see that the handling of waste is one of the biggest issues that the northeast faces and higher powers want these sites to exist.

On August 31, 2005 10:45 PM, deepsix50 said:

Mea Culpa. I should have just pasted the erlier email from CC1 that came with the decision attachment to subscribers earlier today. That would have saved a lot of the other posts from people who don’t subscribe. As for the comments that a heavilly monitored Metro is looking better than ever, only the federal monitor found the problems, not everyone else who were supposedly monitoring it. Only a federal monitor has supoena power. No one has control over garbage other than federal authorities. See timoth Carver, The Role of Cooptation, Corruption and A Cooperative Enforcement Approach

Of course a later email went out that the place has been ordered to close. Again you can get the decision from CC1. I hope you will contact the board as recommended by CC1

To: From: Date: Wed, 31 Aug 2005 12:11:38 EST

Enclosed is Nicolai’s decision.

Here are my thoughts; bear in mind, I am not an attorney, but this is what other attorneys have said as well. Of course, you should confirm all this with the board; I am also certain that information will be placed on the village website if Janine King is available. Our motion to dismiss with respect to Metro Enviro has been granted; Metro is denied an injunction

He denies the village’s motion against Greentree and lets Greentree have an injunction. This was to be expected.

a) Metro Enviro can be told to close by the village—ordered to close —I believe we will do that right away but have NOT confirmed this with the village yet. Metro will probably try to get before the court of appeals to stop us but it is believed that they will not be successful

b) Greentree can try and lease the property to somebody BUT that somebody would have to have permits from the county and the DEC; we are in touch with all these parties all the time and haven’t seen anyone like that come forward; they would still need permits from us as far as I know

c) Greentree can try and run the place themselves but they would also need permits from everyone. We don’t see that happening given various issues reported extensively in the press, the Mack reports etc

d) Of course NIR could try and get an exemption from the STB but we don’t have their decision yet

e) Of course it should be expected that all parties will scramble and try to reopen under another operator but again all would need permits

But we’re one step closer to ridding ourselves of this dangerous operation

cc: Oros, Abinanti. Ohio AG/Ohio EPA

On August 31, 2005 9:18 PM, Mrs. Smith said:

Weewill, Why should you be surprised that Deepsix/Cudaquest/Rooney would only give half the story in their post - how convenient that they didn’t mention the fact that GreenTree LLC willl still be able to operate out of the site - it won’t be long before some other C&D facility is running there even if NIR is unsuccessful with the STB. Cudaquest and her cronies only tout selective information anyway, and far be it from her to let people know what many of us had been expecting, that we seem to be stuck with this operation, and NOW we have no control. A heavily monitored and highly fee paying Metro Enviro is looking better than ever.

On August 31, 2005 6:30 PM, weewill said:

God help us! Deepsix - Will those few of you who hang on Marie Cudequest’s every word, please wake up and see that she knows diddly squat about either the history of the future of the Metro Enviro site.

She has always been 10 paces behind the village manager, village boards and attorneys, the whole time pretending she (CCC1) was to be credited with uncovering valuable information. She continually quotes public information posted on the internet and available to anyone looking. Perhaps she does believe she’s giving the “professionals” new information. She really may not know that in 99 and 9/10ths of the time it’s old information that the attorneys and village manager already are aware of. She’s dramatic (but very transparent) speaking before the VB and TV cameras so it’s understandable that people might assume she knows what she’s talking about. But she doesn’t!

She’s in way over her head and even one of her strongest supporters has pleaded “to let the professionals” handle it. It’s time for CCC1 to cooperate instead of obstruct - to stop blaming others for the past - and stop getting in the way of the professionals.

Concentrate of rescuing canaries, kittens and cats. This will be ever so much more helpful to Croton.

On August 31, 2005 5:45 PM, Stu said:

“Deepsix” only gave you half the story. Judge Nicolai also supported the argument of Greentree LLC and rejected the Village’s bid to dismiss their case. This allows Greentree to operate the site or hire someone else to operate the site and Judge Nicolai specifically disallowed the Village from preventing them from doing that. Now we will probably have two suits to contend with. I would seriously doubt if Metro Enviro will not appeal this decision and the Village will have to defend our’win’ in this case. But I am wondering whether the Village will now decide they must appeal Judge Nicolai’s positive decision for Greentree - most likely.

On August 31, 2005 3:43 PM, deepsix50 said:

Judge Nicolai says the village can close Metro. The village has ordered it to close on Sep. 1 at 5:00. You can get the decision from CCC1 or wait until after 4 when it posted on the village website.

On August 31, 2005 2:59 PM, kimosabe said:

Well, here in the peanut gallery is another disenchanted Schmidt/Brennan/Steinberg voter. Do these guys really think that the election results mean they can just do whatever they want and the hell with everyone? It sure sems that way.

I demand to know what the plan is to stop a full time garbage dump from operating in the Village at the MetroEnviro yard. Does Schmidt have a plan? Is he punting? Or is he just faking it? I am beginning to think he is a fake.

I became convinced over time that the old Elliott administration should be voted out. I am not even sure why I thought so but there was always such discontent at the Board meetings when I saw them on TV that I just got the sense it was time for a change. Well, there is no fool like an old fool.

What have we gotten in exchange? More problems to deal with and a complete amateur at the helm. This man seems to operate behind closed doors and then just proclaim what he is going to do. What a joke.

Galeli’s letter is right on. It looks like the only way out is for the Village to own the property and there is only one way that is possible, through eminent domain. But what is Schmidt doing? As far as I can tell he is doing nothing and time is wasting.

If you don’t want to buy the property for the Village to use then maybe we should cut our losses and make a deal with Metro Enviro. Let them operate under strict control in exchange for some pledge not to sell to a garbage operation. But that option was already ruled out by Schmidt in his short sighted campaign. Remember the ‘no negotiation’ battle cry?

Between his rhetoric to never negotiate with Metro Enviro and, as Don Diego points out, his pledge to cut the Village debt, Schmidt is in a real bind. Either break a fool hardy campaign promise or do what is right. I no longer have any faith he will do what is right.

Wouldn’t it be refeshing if our petty dictator of a mayor asked people in the Village what they think, instead of slavishly following the local garbage maven and thinking he can rule alone? Not likely to happen.

So we are well and truly stuck. If I can’t move before the next mayoral election there are 3 votes in my household the good mayor and his henchmen won’t get this time. I don’t care who runs against him.

And by the way. I like the Sailing School and would love to know what this is about closing them down. Who elected anyone to do that? This is the first I’ve heard about it and I should’t be hearing it here instead of from our new ‘open’ government!!

On August 31, 2005 12:53 PM, weewill said:

It may well be that the best avenue to pursue with Metro Enviro might be to exercise the right of eminent domain but we the people sure as heck have no way of knowing that.

The current village board is worse than the last board in not getting information out there. And they ran on a platform of open government! They tell us nothing! We would have no idea at all that there even was this new threat and what it all means if it wasn’t for Ms. Galelli. As a matter of fact, unless they’re meeting in private, this board doesn’t even meet all that much. Is that open government? Is that giving information to the people and letting residents participate in these important decisions? Please village board, get the information we need and give it to us.

Make our expensive lawyers report publicly on:

1) what’s involved with the eminent domain process? 2) how much might the market value of the site be, both before and after any STB decision?
3) How much difference would a RR designation make if that should be the decision? 4) can a small village even use EM if a RR designation is given? 5) can metro north RR use it against another RR, or at all? 6) how much does Mr. Gerrard think the continuing fight will cost? 7) where will the village get the money? 8) What will it do to our debt? 9) Do we have to file eminent domain before the STB decision? 10) Can we still do it if the STB grants RR status? 12) Are we cutting off our options by waiting? 13) Isn’t it dangerous to wait to take action?

The answers to the above questions would not seem to qualify for executive session because they are exploratory and due diligence only. The Village Board promised us full disclosure and open government. It’s time for them to honor their campaign promises.

On August 30, 2005 2:38 PM, Don Diego said:

It ends up that the light at the end of the Metro Enviro tunnel is a train coming at us. A train carrying garbage to be exact. What exactly is Mayor Doctor Schmidt’s strategy to protect us from this menace? It is increasingly obvious that the wise course is condemnation of the property before it is too late. For, even if the current applicant is denied the Federal exemptions it seeks, sooner or later some entity will succeed. Then what?

Is the extent of the Mayor’s plan to get letters from politicians every time someone seeks the Federal exemption and then hope for the best? I think we are entitled to more than that. We are entitled to a Mayor and Village Board who do what it takes to protect us. Nothing less will suffice.

Ms. Gallelli makes sense. Lets bite the bullet and do what needs to be done now. The problem is that doing the right thing would be at odds with Mayor Doctor Schmidt’s campaign promise to reduce public borrowing and debt. Will he act in the best interests of the Village at large or will he and his cronies on the Village Board do what they think is best for them politically — and the Village be damned?

I voted for our new Mayor and had high hopes for him. Those hopes are rapidly fading and for the first time I regret a vote I have cast in Village elections.

Lets look at the record. Messrs. Schmidt, Brennan and Steinberg campaigned on a platform of open government. Do we have an open government? It doesn’t seem to be. They evidently knew of the dangers posed by the closing of Metro Enviro for some time, perhaps even during the campaign, but have kept silent. At a minimum, they unquestionably knew the risk of a 24 hour a day garbage operation long before they made any public statements on the issue. Even now they have yet to actively solicit public input. Hardly an open government.

But there are other issues. I am also concerned about the apparent desire to drive the Sailing School out of the Village. When I saw a bumper sticker “Sink Schmidt - Save the Sailing School” I made inquiries as to what it’s all about. I learned that pressure is being applied behind the scenes to get them out. This may or may not be best for the Village, but how about a little public discussion and input? Hardly open government there either.

And what about the planned sewer tax which I am sure will make another appearance soon. As I saw it on TV, had it not been for a few alert citizens that new tax would have been passed so fast it would make your head spin. It would have become Village law with no real thought and little public input. Sure, the new majority on the Village Board may try to claim they were responsive to the public and studied the issue further before proceeding. Bu I say bunk! They were caught with their hands in our pockets and had to wait a while before they can complete the theft! No open government there either.

I could go on, but the immediate issue is what will happen down at Metro Enviro. Will the Village take the site and use it for sorely needed public purposes? Or, will the never to come again opportunity to save the Village from a scourge far greater than Metro Enviro just slip away. Me, I’m betting we will be living with the stench - both from the Metro Enviro site and from the Municipal Building, until we can afford to take the loss, sell the house and move. Make no mistake about it, there will be a significant loss in all of our property values.

And a note to the ridiculous Mr. Pellici. I do not stand up at Board meetings and speak my mind because I fear Maria Cudequest. Plain and simple. As I have stated before, her guilty plea to charges of vandalism against her former neighbors speaks for itself. I, for one, do not believe she pled guilty because of bad legal advice, as she reportedly claims. I believe she pled guilty and paid restitution because she was recorded on video tape perpetrating her crime. If I have to sell my house and move, I would like it to be by my own choice and not, like her former neighbors, because of repeated vandalism by Ms. Cudequest.

Finally, I am tired of the transparent attempts to blame the impending fiasco at the Metro Enviro site on the old administration. There are two separate but related issues: the litigation relating to the closing of Metro Enviro and what will happen in the aftermath.

The potential for a garbage hauling operation along the tracks existed whether or not Metro Enviro had a permit for their operation, whether or not Mr. Elliott was ever Mayor and whether or not Ms. Cudequest ever moved into the Village. This was obviously known to some in the Village, including our voluble “waste activist”, but they chose to remain silent. If there is blame to be cast it may well rest with her and our over priced special Metro Enviro lawyer who was hand picked by Ms. Cudequest and former trustee McCarthy. He of all people certainly should have known and warned of this risk, even if Maria Cudequest didn’t bother to tell him.

I did not vote for Ms. Gallelli or Ms. Grant, but I am beginning to think I should have. And so I remain…

Don Diego

On August 29, 2005 4:46 PM, Mr. Red said:

The seeds of this problem was created years ago when Croton Point was a garbage dump. The county had designated this site for garbage usage which continues to this day and there seems to be too many loopholes to satisfactorily close. Unfortunately, there has been too much blame spread around. We need to hold our Village and County government accountable and demand that they take all the necessary and prudent steps to make this situation right. If not, use your vote and “throw the bums out”. That’s the power of the people. The reason administration’s changed in our little village was simply because the majority felt it was time for a change. There should be no need for party line democracy in Croton. If we feel (as a community) that the mayor and trustees are not protecting us, we need to take action.

I’m sure that the prior administration thought all of this through, however, there are too many ways to skin a cat and the laws are not geared for “the little guy”. It’s all about revenues and companies such as Metro can throw tons of cash at litigation until we lose our will to fight. I’m afraid that this might be an ultimate losing cause. But let’s hope for the best and demand that, at the very least, our elected leaders “lead” and stay away from the partisan rhetoric. That goes for us as well.

Instead of questioning why we are getting information from Ann and not the Board, be thankful that a member of the community is informing us so we can hold our governments feet to the fire.

On August 29, 2005 12:49 PM, weewill said:

My thoughts and comments are that we are in danger of having NIR or Regus or Greeentree waste transfer station replace Allied as the operators of the site. If this happens the present Metro Enviro transfer station will look pretty good in comparison. It’s been reported that counsel cautioned the previous board to be careful what they wished for and to tread accurately and legally in their deliberations. It’s because they did and built a case based on fact and history that the village won in court.

My question is — Have we lost by winning? Sounds like this new entity is much more ominous than anything MetroEnviro might have been.

On August 29, 2005 10:59 AM, Mrs. Smith said:

Thank you Ms. Gallelli for attemepting to put options in laymans terms about this quite scarey situation. I thought the current new board ran on a platform of open government - how is it that we have to hear of these developments from a private citizen, obviously working very hard to try to help Crotonites understand how grave this situation is? Why is Mayor Schmidt not updating the public and soliciting their help? I for one think that this development should be noticed to every citizen of Croton, so that they know what they are up against.


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