croton blog for croton-on-hudson new york

A Starkly Clear Choice

December 11, 2005

The recent Surface Transportation Board decision (see “STB Denies NIR Application Without Predjudice”) was a victory for the Village, but only a procedural one denying a summary decision for the applicant. The result will be full application and more extensive hearings, all requiring a lot of expensive legal time for the Village attorneys. Because there is so much at stake for both sides (an operation probably worth 20 to 30 million dollars to them; prevention of a largely unregulated waste/garbage transfer station for us), the loser at this hearing will file a Federal lawsuit challenging same, and the loser of that lawsuit will file an appeal, up to the United States Supreme Court if possible.

Also looming is a fight with Westchester County over waste permits, and litigation with Allied on their claim they never needed a special permit in the first place (see: “Stecich Prepares for WCSW Commission Decision on Regus Licensing”).

We are in a legal morass, looking at years of expensive litigation, which will, I believe, cost us over one million dollars. Given the money involved and the value of the operation they could lose, our opponents are not going to quit, nor will they, as suggested by David Goldman’s letter in last week’s Gazette, rent their space to another kind of business, (the return they could get from this would be relatively minimal).

Before the Court of Appeals decision, the old Metro Enviro operators had an incentive to cheat – they could make more money and apparently thought the worst they could get would be a slap on the wrist. Under a proper settlement, however, Allied would have a strong disincentive to cheat, since getting caught would, under Court of Appeals precedent, allow us to shut them down, and/or deny any special permit renewal, thus interrupting their sure and steady profits and plunging them back into uncertain litigation. We don’t have to have any confidence in Allied’s business ethics, but we can have some confidence that a large public company will act in its own best interest, which sticking to a settlement would be.

Pros of a settlement:

  • Immediate payment of a large sum of money to compensate us for past legal expenses,
  • Payment of up to one million dollars in fees, leading to significantly lower Village taxes,
  • Avoidance of huge legal fees which would lead to higher taxes, and
  • Avoidance of possible loss of litigation leading to unregulated garbage transfer station.

Cons of a settlement:

  • Having to live with carefully monitored (at their expense) and screened construction debris only transfer station (yes, Mr. Goldman, that is exactly what it would be)

As far as I’m concerned, this is a starkly clear choice – the benefits of a settlement would be huge, and the detriments minor. I continue to maintain that most Crotonites would never know this facility existed if it weren’t for all this publicity.

The prior board may have made a mistake by giving Metro Enviro a permit in the first place, but we are way past that now, and the current board will be greatly compounding this mistake, to the detriment of all Village residents, if they don’t settle on the very favorable terms I believe we can probably still get.

Unfortunately, however, the board seems to be listening to the small group who are so emotionally involved with this issue and so angry with the prior board and prior operators, that they are not thinking clearly and rationally about what is best for the Village.

— Bruce Kauderer

Related: “Schmidt Considering All Options on Metro Enviro

On December 16, 2005 10:27 AM, weewill said:

It’s definitely time for the Mayor and Trustees to clue us into what they have in mind. We NEED to be a part of that decision because it’s our money they would be spending on more probably fruitless litigation.

We can be fairly certain the DEC will be issuing the new license now that the WCSW committee has given it. Ohio also renewed their Ohio license despite the reported “violations” that have been corrected.” To compare the Ohio landfills to this C&D transfer station is a stretch for our village attorney and was labeled as such by the County Commission.

We need to strike the best deal possible for this village and hard as it is to do, this board may need to sit down with Regis and explore all legal avenues of cooperation. It’s even more of a stretch for our Mayor and village board and a few local residents to think they know better than all the professional organizations trained to monitor and protect these operations (Ohio DEP, the County Solid Waste Commission and the NYS DEP). If that was so, we could abolish all the commissions and committees and save taxpayers a heck of a lot of money.

On December 12, 2005 7:07 PM, bayswaterguy said:

Far be it from me to believe that the mayor’s hand-picked attorney wouldn’t grossly mischaracterize the facts learned from Ohio. I, for one, will wait to see what the Solid Waste Committee reports before I believe what is likely a puff job by our esteemed counsel for the mayor’s benefit.

On December 12, 2005 5:40 PM, Pat Barua said:

There are at least three things wrong with Mr. Kauderer’s proposal.

First, Regus has an abysmal record of environmental compliance, including conduct eerily reminiscent of the Walter Mack reports, as detailed in the Village’s submissions to the Westchester County Solid Waste Commission (see especially the new letter sent by our Village Attorney on December 9th).

Second, the value of the Metro Enviro site is contingent on the ability to operate a waste transfer station on it indefinitely. Amortization, as explained here recently by Trustees Kane and Wiegman, addresses that issue.

Third, the prospect of the Village having to go all the way to the Supreme Court to prevent Regus from operating an unregulated waste transfer station via the STB loophole seems farfetched. As Ann Gallelli recently noted, other municipalities have asked the STB to declare that waste facilities operated by rail carriers are still subject to state and local regulation. The Village should support this effort, even if by a simple two-page letter.

Prominent federal, state and local politicians are supporting an effort to close the loophole as well. If either the agency or political effort is successful, the Village may not even need to go to court on this issue. In any event, the loophole is much more difficult to exploit if the Village has the proper zoning and amortization provisions in place.

Therefore, I remain unconvinced by Mr. Kauderer’s arguments. A waste-transfer-station-free Village is now the status quo and I continue to support old and new efforts to keep it that way.


Recent Articles