The ANR, in a July 15 decision, denied the variance request which would have “allowed for the destruction of wetlands and the resulting project would be within the isolation distances established in the solid waste rules for surface water, bedrock and groundwater.”
The state has the latitude to grant such variances if the applicant can show that complying with the regulations produces serious hardship without equal or greater benefits to the public. In issuing the denial, George Desch, director of the waste management and prevention division of the Agency of Natural Resources, noted that the landfill failed to demonstrate any actual hardship necessitating the variance.
“In fact, if there is a hardship, it is by virtue of the fact that the site cannot meet the rules and is, therefore, a poor choice in the first place,” Desch wrote.
“While the hardship criterion is central to the determination conveyed in this denial, it is important to note that it is our opinion that the proposal suffers from a basic flaw due to the nature of the proposed expansion on this site. That is, the site presents challenges that cannot be overcome by engineering alone. The site requires extensive engineering solely for construction due to the fact that there are existing limitations and challenges,” he continued.
Those limitations include the fact that a large part of the land proposed for the fourth cell does not meet the isolation distance requirement for bedrock and wetlands and other surface water bodies that would need to be destroyed or relocated. Additionally, creating the cell, with the variance, would require removing large amounts of bedrock and artificially depressing groundwater to obtain adequate isolation distances.
“The proposed isolation distances, though engineered, do not meet the minimums required in the rules and the hardship is based on the cost differential between engineered compliance and the proposal,” Desch added.
Tom Badowski, general manager of MLI said, “We are in the very preliminary stages of looking at what the denial means. We’re going to have to do a redesign of the expansion. Taking into account the variances we were denied ultimately means a smaller footprint from the standpoint of the amount of waste that can be brought into the facility.”
Abutters to the landfill filed written opposition to the variance through their attorney Zak Griefen. Griefen represented Vance and Donna Sandretto and Thomas and Karen Sandretto who live on Route 2 next to MLI.
“In order to qualify for a variance from the minimum stream setbacks and groundwater isolation distances, MLI had to show that the hardship it would face in complying with the Solid Waste Management Rule is greater than the benefits that the public receives from applying the Rule as written. MLI failed to demonstrate any actual hardship, and didn’t even attempt the public benefit balancing test,” Griefen explained.
“MLI argued that it would turn a greater profit if the variance was granted and that the public would benefit from a larger landfill. That is not a balancing, but rather two arguments laid together on one side of the scale,” says Griefen, adding “We applaud the state’s decision to apply the rule as written. The minimum setback requirements are intended to protect Vermont’s streams and rivers and provide a shield against contamination of the bedrock aquifers that provide drinking water to many Vermonters.”
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