A publication of Work On Waste USA, Inc., 82 Judson, Canton, NY 13617 315-379-9200 May 1992


400 tpd mass-burn incinerator in
Hudson Falls,New York
This is a court of law young man, not a court of justice.
Oliver Wendell Holmes, Jr. (1841-1935)

THE HUDSON FALLS INCINERATOR IS THE MOST LITIGATED MSW INCINERATOR IN THE COUNTRY. The following is a review of a handful of the lawsuits involving the Foster Wheeler incinerator project. From 1984-1988 the Hudson Falls incinerator was a 3-county project, involving Warren, Washington and Essex Counties. But Essex County (population: 34,000) withdrew from the project when their Board of Supervisors voted to reject siting the ash landfill within their borders on 4-4-88. The withdrawal of Essex County from the project reduced the amount of waste and revenue for the incinerator thus increasing the liability for Washington and Warren Counties (combined population: 118,500). The change in the project from a 3-county entity to 2 counties has been the basis of several lawsuits. In its first 2 months of operation (on line 11-5-91) the incinerator was down for 3 weeks because of lack of waste, and on May 2nd the incinerator was struck by lightning and was shut down for two weeks. Waste shortfalls have ranged as high as 300 tpd. With the put or pay contracts entered into, Washington County has become ensnared in bondage to an $86 million incinerator that it can neither provide nor attract enough waste to feed. The concerned residents of the two counties have been thrust into a classic tragedy as they did as much as any watchful citizenry could do to warn their elected officials of the money pit this project would lead them into. The reality today is that financial disaster is stalking Washington County.

November 1989 - present: Village of Hudson Falls sues. This litigation delays construction of the incinerator for 8 months. Foster Wheeler claims they are owned $10 million for costs incurred in the delay. IDA & 2 counties in litigation with Foster Wheeler over the $10 million claim. The Village of Hudson Falls, represented by Lewis Oliver, of Oliver & Oliver, Albany, NY, brought a lawsuit against the NY Department of Environmental Conservation (DEC) claiming that because of the withdrawal of Essex County from the project in 1988 a Supplemental Environmental Impact Statement (SEIS) was needed to assess the impacts from the loss of both garbage and revenue on the project. The NY State Supreme Court agreed. State Supreme Court Justice E. Kahn noted in his 11-14-89 decision that the DEC’s objections to an SEIS “is exceedingly suspect and appears to reflect an attitude by DEC that this project is going forward regardless of the substantial concerns raised by the community which will be directly impacted by construction of the project...” In 1990: The N.Y. State Supreme Court Appellate division reversed Judge Kahn’s decision and ruled in favor of the NY DEC and the 2-counties IDA that there were not enough significant changes in the project to warrant a SEIS. Because of this lawsuit, the construction of the incinerator was delayed for 8 months. Foster Wheeler says this delay cost them $10 million. The IDA and the 2 counties are in litigation with Foster Wheeler over this $10 million claim.

February 9, 1989: THE SLAPP SUIT - “Strategic Lawsuit Against Public Participation” - WARREN COUNTY AND THE 2-COUNTY IDA SUE 328 RESIDENTS. It began when 328 residents of the two counties sued their counties and the Warren-Washington Counties IDA contending that a supplemental environmental impact assessment was needed on the project to assess the changes brought about by Essex County’s withdrawal from the project in 1988, and that a public hearing was not held on one of the many bonds issued by the 2-county IDA. The Warren County Board of Supervisors together with the 2-county IDA countersued alleging “malicious interference” in their bond negotiations. They claimed that the citizens suit devalued their Moody’s bond rating thereby costing the 2-Counties an additional $1.5 million at the time of bonding. (Washington County was initially involved with this counter-suit but quickly withdrew.) A N.Y. State Appellate court ruled in favor of the citizens in the SLAPP suit in January 1990 by dismissing the SLAPP suit as unsubstantiated. The citizens spent 11 months and $40,000 defending themselves during which time the incinerator was built!

March 12, 1992: CITIZENS RESPOND TO THE SLAPP SUIT BY FILING A $32 MILLION LAWSUIT AGAINST WARREN COUNTY AND THE 2-COUNTY IDA. “Two Washington County citizens groups filed a $32 million civil lawsuit Wednesday against Warren County and the Warren-Washington Counties Industrial Development Agency, charging they violated the groups’ constitutional rights. Robert Daly, a plaintiff in the suit, said the Greenwich Citizens Committee Inc. and the Concerned Citizens of Hudson Falls/Kingsbury are striking back at the two entities that sued them more than three years ago for allegedly interfering in the Hudson Falls trash incinerator project...The suit, filed in the U.S. District Court in Albany, claims the 320 citizen group members were deprived of their freedom of speech rights, and their rights to petition the government for redress of grievances. In addition, the suit claims the plaintiffs have been subjected to personal harassment and intimidation for opposing the plant...” The Post Star. IDA officials announced that the Albany law firm of Carter, Conboy, Bardwell, Case, Blackmore and Napierski will defend the agency in the $32 million citizens group’s suit.

1-24-92: INCINERATOR OPPONENT SUED FOR $6.2 MILLION BY ROBERT BARBER, FATHER OF HUDSON FALLS INCINERATOR. BARBER SAYS HE HAD BEEN FALSELY LIBELED AS BEING MOB-CONNECTED. “Robert Barber, president of North American Recycling Systems, [see Waste Not 194] and his partner are suing a Kingsbury man for $6.2 million for libel and slander, charging that he spread rumors linking the partners to ‘the mob’ and illegal drug distribution. The suit alleges that Robert Daly, an outspoken opponent of the Hudson Falls trash plant, circulated ‘defamatory words and statements’ about Barber and his partner at North American, Michael J. Serra. The libel charges are based on a five-page handwritten document that consists of notes about Barber and Serra. It includes references to ‘the Gambino family’ and ‘John Gotti - ‘boss of bosses.’’ After a reference to Barber’s purchase of a Glens Falls trucking company, the document reads: ‘He is gradually obtaining a monopoly on garbage hauling in the area north of Albany. This is the way the mob generally operates.’ Daly acknowledged writing the notes, and said he gave them to a private investigator in February 1990 under the belief that the man was investigating Barber...Daly said he now believes the private investigator, Robert Stephens, was working for Barber when he approached Daly in February 1990. But at the time, it appeared he was collecting evidence against Barber, Daly said. Daly said Stephens told him he had a client interested in ‘nailing’ Barber and asked for anything Daly had heard about Barber's dealings and connections. Because Stephens was a former student at Hudson Falls High School while Daly was a teacher there, and because he had known him ‘for years,’ Daly said, he trusted Stephens and gave him the information with the understanding that he was not sure the information was totally accurate...Barber would not comment as to whether he hired Stephens....”-The Post Star. Robert Stephens is a private detective working in the Albany area. He previously worked for the Washington County’s Sheriff’s department. Bob Daly told Waste Not that he did not discuss his conversation with Stephens nor did he distribute his notes to anyone in the county as Barber is falsely alleging. We will keep our readers updated.

1-24-92: Local waste hauling company sues for the right to dispose of waste outside of Washington County. County’s Flow Control Law versus Interstate Commerce. “...[T]he owners of Granville Refuse Company will be back in court Friday to continue their attempt to truck and dispose local waste outside of Washington County. John and Ronald Cosey are suing the county over its refusal to grant them permission to truck waste outside the county...The Coseys are suing the county in an attempt to ship waste collected in the county to Vermont, which would be in violation of the county’s so-called ‘flow-control law.’ The law, passed last year by the county Board of Supervisors, states that haulers must dispose of local trash at county facilities. The law also states, however, that haulers are eligible to apply for a permit to take trash out of the county. Granville Refuse applied for such a permit in December, but was turned down by [Washington] county Attorney James Tomasi...”-The Post Star, Pgs. B-1 & B-3. “Granville Refuse attorney John R. Winn argued in State Supreme Court Friday that Washington County’s attempt to dictate where county generated waste can go is in violation of the federal interstate commerce clause in the U.S. Constitution...Winn cited several Supreme Court cases in which the high court ruled local boundaries could not be established if interstate commerce is impeded as a result...”-The Post Star, 1-25-92, pg. B-1. According to a Post Star 6-2-92 report: “...In March, State Supreme Court Justice John G. Dier ruled that under provisions of the solid waste law, the county could not deny [Granville Refuse] the permit request without conducting a public hearing. He also ruled, however, that the law was valid and does not restrict interstate commerce, as Granville Refuse maintained. After learning that Dier had ruled on a draft version of the county law and not the final version on file with the state, Granville Refuse Attorney John Will filed a motion to set aside the decision. Last week, Dier vacated his previous ruling because ‘the court was not provided a correct copy’ of the law.”

5-8-92: The Post-Star, the local newspaper, sues the IDA for the names of the Bondholders. The paper filed the lawsuit on April 22 against the IDA after the agency denied the newspaper’s Freedom of Information Act request for the names of the bondholders. “The trustee of the bonds sold to build the Hudson Falls trash incinerator released copies of registers for those bonds Thursday, but the documents shed little light on who actually owns the nearly $87 million in bonds. The only bondholders listed are Cedefast of New York City; Cede & Co., of Pasadena, Calif; Elite & Co., of Pasadena, Calif; and the state superintendent of insurance, who is holding the bonds as security for an insurance company. The Bank of New York, the trustee for the bonds, released copies of the bond registers to the [2-county IDA], which issued the bonds..Cede & Co. is listed as holding $8.96 million in bonds at 8.2 percent and $8.73 million at 10 percent. Elite is listed as holding $4 million at 10 percent. The state insurance superintendent is listed as holding $5.58 million in taxable bonds at 10 percent. Those bonds are apparently being held for Transamerica Insurance Co. as security for its workers’ compensation insurance operations in the state...” The Post-Star, Front page.

For more information contact: Stephanie Wenk, 518-692-7595, or Mel MacKenzie, 518-692-9626, both with the Greenwich Citizens Committee, or Bob Daly of Concerned Citizens of Hudson Falls/Kingsbury, 518-747-4418.

WASTE NOT # 196. A publication of Work on Waste USA, published 48 times a year. Annual rates are: Groups & Non-Profits $50; Students & Seniors $35; Individual $40; Consultants & For-Profits $125; Canadian $US45; Overseas $65. Editors: Ellen & Paul Connett, 82 Judson Street, Canton, NY 13617. Tel: 315-379-9200. Fax: 315-379-0448.