On May 15, 2018, the Second Circuit dismissed a petition by Finger Lakes Zero Waste Coalition seeking to compel the U.S. EPA to reopen or object to a NYSDEC Title V air permit, based on operation of a gas-to-energy plant under common control with the Ontario County Landfill (Case 16-3420). NYSDEC treated the energy plant as a separate source of emissions even though the plant is located within the landfill property and serves exclusively to burn landfill gas and thereby bring the landfill unto compliance with the Clean Air Act. This allows both the landfill and the energy to avoid emission controls that would apply if the combined emissions were considered a single source.
Finger Lakes Zero Waste Coalition has been the watchdog for this landfill for many years. The organization has made valient efforts to get the ear of Ontario County Board of Supervisors for efforts to get the County to move the percentage of waste in the county it recycles above the single digits. Although required by law since 1992 to implement aggressive recycling programs, NYSDEC allowed twenty years to go by before making a local solid waste management plan a condition to consideration of an expansion to the county landfill. It appears the agency waited too long, because by then the County had tied itself by contract to Casella Waste Systems, which runs the landfill and the county's recycling operations for profit. The size of the landfill has exceeded by multiples anything needed by the County for its own waste. The landfill now creates toxic emissions beyond the capacity of an onsite landfill gas-to-energy plant. The plant is supposed to combust the emissions at high enough temperatures to chemically destory the toxics, but in reality substantial excess emissions escape uncontrolled into the community.
After a petition to urging NYSDEC to apply its policy limiting the size of landfills failed, FLZWC petitioned EPA to object to the gas-to-energy plant's air permit. The air permit should be based on the landfill and the gas-to-energy plant as a single source of air pollution since they operate interdependently; one cannot operate without the other. EPA granted FLZWC's petition and asked NYSDEC to justify why it treats the two facilities as separate sources, avoiding full regulation. NYSDEC provided in substance the same rationale found in its initial respnse to FLZWC's comments, so FLZWC brought its case to the federal 2nd Circuit Court of Apppeals.
FLZWC v. U.S. EPA (in the 2nd Circuit Court of Appeals)