November 28, 2021

A lack of (flow) control

Legal loophole gives haulers a way to export trash

Joe McInyre/staff photographer

A truck dumps refuse at the Cortland County landfill.

Cortland County is losing more than $400,000 a year in revenue through a loophole in a flow control law requiring haulers to dump trash at the county landfill.

The law, enacted in November, has brought more trash to the landfill, at least 9,000 more tons, but a phrase that prohibits haulers from dumping trash from neighboring counties gives haulers a way to circumvent the law’s intent.

Under the section Disposal of Solid Waste in the law, one paragraph states, “Only solid waste generated within the County will be accepted at the County Landfill … Combined loads containing solid waste from within the County as well as from a contiguous County will not be accepted for disposal at the County Landfill.”

That means if a hauler with a truck mostly full of county trash picks up trash from one household outside the county, the trash in that truck cannot come to Cortland’s landfill, Landfill Supervisor Greg Ernst said.

“It is very generic terminology,” Ernst said. “It is one of the things to be addressed in the law.” That section of the law has caused a lack of participation from a number of haulers, Ernst said.

What the data say

Landfill data, which the Cortland Standard received through a Freedom of Information Law request, show a handful of haulers have brought less trash to the landfill since flow control was enacted, compared to tonnage from the same period a year earlier. Some of the changes could be due to business fluctuations — a couple of new haulers began working in the county after flow control was enacted, creating more competition, as well. However, the largest difference was with Leach’s Custom Trash Service, which collects out-of-county trash.

Between flow control’s enactment in November and the beginning of June, Leach’s Custom Trash delivered 544 tons of solid waste to the landfill — most of it construction and demolition debris — according to county landfill records. In that same time span a year earlier, Leach collected more than 3,500 tons of solid waste, according to Leach’s annual transfer station report to the state Department of Environmental Conservation.

What is solid waste?

Solid waste means any garbage, refuse, sludge from a wastewater treatment plant, water supply treatment plant, or air pollution control facility and other discarded materials including solid, liquid, semi-solid, or contained gaseous material, resulting from industrial, commercial, mining and agricultural operations, and from community activities, but does not include solid or dissolved materials in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges.

Source: NYSDEC

Assuming a consistent haul from November 2017 to June, that means the county lost more than 3,000 tons of trash — or $195,000 at $65 a ton — that the flow control law intended it get. Over the course of a full year, that would add up to 6,300 tons, or $400,000 in county revenue.

“Rather than attempt to comply with the vague and ambiguous flow control law, Leach’s has legally transported its waste to other, far less expensive facilities,” according to a statement from Leach’s Custom Trash.

The company has nine trucks for its garbage business, said owner Greg Leach. Most contain mixed trash. The ones that don’t go to the county landfill, he said.

“We’re doing it the legal way,” Leach said. In 2017, Leach’s Custom Trash averaged about 469 tons per month of municipal solid waste alone — about 527 per month including construction and demolition debris, according to the transfer station report. The report also states in 2016 the out of county trash the company collected totaled about 52 tons, or about 4.3 tons a month.

In total, in 2017, Leach collected more than 6,300 tons of solid waste.

That’s more than $400,000 in revenue, if it all were dumped at the county landfill.

“Cortland County’s flow control law is an illegal attempt to fill an $800,000 deficit in its waste management budget at the expense of small businesses that can’t afford to foot the bill,” according to the statement from the company.

A U.S. Supreme Court ruled the practice constitutional in a 2007 case between haulers and Herkimer and Oneida counties, which run a joint solid waste program.

The Leach statement adds the county’s $65 tipping fee is about three times higher than the tipping fee at the Seneca Meadows landfill and Ontario County landfill — where Leach has previously dumped his trash. Neither landfill has a standard tipping fee.

Cortland County’s landfill data also show Cortland Sanitation, Country Meadow Trash Removal and Waste Management also dumped less trash at the landfill from November to early June, compared to the same time period the year prior. However, between the three haulers the decrease in trash to the landfill totals 31 tons, a 2 percent total drop between the three haulers.

Making it work

Other haulers changed their practices to accommodate flow control.

Doug Brown, owner of Doug’s Trash Removal of Groton, which started collecting trash in Cortland County last year, said he dedicated one of his trucks to pick up only Cortland County trash and dump it at the county landfill to comply with the law.

“It annoys me that’s what I did, but others aren’t,” Brown said.

From October 2017 to the beginning of April, he brought just five tons to the landfill, according to landfill records.

Brown said he said he has talked with other haulers frustrated that others are not dumping at the county landfill.

Syracuse Haulers, one of the largest haulers in the county, increased its dumping at the Cortland landfill by 400 tons between November and June compared to the prior November to June — 22 percent to 2,200 tons — even though it also collects trash inside the county and out, landfill data show.

Jim Zecca, who recently retired as Madison County’s director of solid waste and recycling — a position he held for about 30 years — told Cortland County legislators this week Syracuse Haulers was one of several haulers that challenged Madison County’s flow control law, and the two ended up at the state Court of Appeals.

Syracuse Haulers lost and had to pay the county a big fine, Zecca said.

“When we first started, we did have haulers that challenged our flow-control law, we brought everyone to court,” he said.

Zecca suggested the county hire a part-time enforcement officer to police flow control and illegal dumping.

“It will pay for itself,” he said.

Cortland County Sheriff Mark Helms said the Legislature has talked with him about the sheriff’s office policing flow control. It’s a task he hopes doesn’t trickle down to his office, he said. “It is a really hard thing to police in the first place.”

Flow control effects

The county has faced an $800,000 annual gap in the solid waste budget — about half due to the county’s recycling center. Flow control was enacted to help relieve that. Legislature Chairman Charles Sudbrink (R-Cincinnatus, Freetown, Taylor, Willet) said in his state of the county address last month the landfill is now paying for itself, including covering costs of previous borrowing for the landfill’s expansion as well as funding reserve accounts for equipment and closure expenses.

The county budgeted for 33,000 tons of trash to come to the landfill this year, Ernst said, adding the number was a guess. As of mid-July, he said the county is more than 800 tons short.

Sudbrink said the county is looking to revise the flow-control law.

Legislature Clerk Eric Mulvihill said the section of the law not allowing county trash mixed with out of county trash is “absolutely” a section of the law being looked at.

“We don’t want anyone using it to get around the law,” Mulvihill said.

If the county discovers a hauler is not dumping at the landfill, its permit could be suspended, Mulvihill has said. The law also allows a $2,000 fine per violation.

Flow control law history

The flow-control law wasn’t drafted in-house. In January 2015, legislators approved spending up to $10,000 to have Holbrook law firm Germano & Cahill, P.C. draft the law.

Michael Cahill of Germano & Cahill said many ideas were discussed of what to do with the law, so some provisions were put in with the intention the county would review them and request changes. It submitted its draft in April 2015, and never heard back from the county, except to pay the bill. He didn’t know it had passed last year.

County Attorney Karen Howe did not know if the law was changed between the time the draft was sent to the county to when it was adopted.

Flow control laws are “very individual” to each county, Cahill said, reflecting the county’s needs, ability to police the law and what waste the law applies to.

Cahill couldn’t recall if his firm had written the part of the law that stops mixed county trash from coming to the county landfill. He said if his firm continued working on it with the county, it would have looked at details like the county’s population, where people live, where haulers pick up trash in order to make the law fit everyone.

“You have to think about that,” Cahill said.

Revising the law

The section about not accepting mixed trash is one of several that Howe and her office are looking to revise. The county is looking to incorporate rules changes the state Department of Environmental Conservation has enacted, along with adding more regulations with electronic and e-waste products and making the rules more clear, Howe said.

The revised version of the law is still in a draft form, Howe said.

“We would like to get it done as soon as we can, but there are only a few hours of legal work a week, because we’re all parttime, and issues need to be taken care of that come up day to day, and sometimes the Legislature also makes priorities of other tasks,” Howe said.

Each week of delay means the county loses about $7,700 in tipping fee revenue.

In revising the law, Howe said she and her staff are examining other counties’ flow-control laws and will present options to the Solid Waste Committee.

No options have been presented to the committee for review, yet, Howe said.

“It’s a long law,” she said. “And it’s very involved.” Ernst said he supports allowing some out-of-county trash to come to the landfill — particularly from neighboring towns like Dryden and Groton. He understands people don’t want to turn the county landfill into a regional facility.

Several of Cortland County’s neighboring counties have flow control, and others lower tipping fees, limiting the number of haulers that would potentially dump at the county landfill.

“When we’re cheaper (tipping fee), it makes sense to come here,” he said.