The Village Board of Trustees met on Monday, May 21 2012 at 7pm in St. Mary’s Episcopal Church.  All members were present.  

PRESENTATIONS BY DOC BAYNE & WATERSHED ASSESSMENT ASSOCIATES:

Mayor Wilson opened the meeting by stating that given the events that have occurred over the last month or so, the Board felt it would be helpful for residents to see and hear some of the results of the various water testing that has been going on.  He further commented that he had gotten his start in public service in Tuxedo through his work with Tuxedo Land Trust and one of their major concerns had been potential contamination of the ground water stemming from the proposed Tuxedo Reserve development.  Because of the nature of the bedrock here in the Hudson Highlands Region, once contamination gets in it acts like an open pipe and contaminants can travel for miles.  Because of the proposed developments close proximity to Tuxedo Lake, TLT perceived a serious potential threat.  Unfortunately, it appears as though a similar situation may have taken place over the last month with the mulch pile located to the west of Tuxedo Lake.  Signs of pollution have been visible since the Fishkill at Four Corners Pond occurred this past March.  Tannic type substances have been observed flowing into Warwick Brook and concern has arisen over what may also be flowing into the WeeWah Lake.  As a result, the Village employed a couple of different water firms to conduct studies on WeeWah Lake as well as portions of Warwick Brook and a couple of other streams that feed Tuxedo Lake.  Two weeks ago, Doc Bayne, former Environmental Educator of Sterling Forest State park, gave a 30-minute presentation to the public entitled   The Mystery of The Four Corners Fish Kill.  The presentation was sponsored by the Sterling Forest Partnership and the Friends of Sterling Forest State Park and it detailed the results of his fact finding mission as he traveled up the Ramapo River up the Warwick Brook, past Four Corners Pond, to the Mulch Pile and beyond through photographs.  After seeing the presentation, the Mayor felt it was important that Doc come to a Village meeting and repeat his presentation. Representatives from Watershed Assessment Associates were also invited to attend the meeting to further explain the results of their initial tests (click here to view the WAA test results) and answer questions from the public.

Additionally, Mayor Wilson acknowledged that there has been some recent concern over the color of Tuxedo Lake, which is normally a “nice blue color” but is currently murky and green.  Some residents have been wondering if there is any connection between the discoloration and the Mulch Pile.  The Village’s initial conclusion has been that there is not a relation between the two.  Rather what is going on in Tuxedo Lake is something that is naturally occurring and has been going on for years.  Historically, the issue has been mitigated by the use of Copper Sulfate and although the Village has not had to treat the Lake for the last couple of years, the Mayor announced that the Board would discuss moving forward with the program later in the evening and that he was fairly confident that it could be easily treated and would not remain an issue for long.

Doc Bayne was then introduced.  He proceeded to give a 35-minute presentation detailing his findings as described above.  The presentation was filmed and TPFYI will make it available as soon as possible. 

Following the presentation, Mayor Wilson read aloud portions of Town Supervisor Peter Dolan’s April 23 letter to the DEC in which he states that the Town’s investigation has indicated that the “proximate cause” of the fish kill was the removal of beaver dams by the Palisades Interstate Park Commission, which lead to oxygen deprived waters and in turn killed the fish.  However, Doc Baynes presentation showed photographs of beaver dams still in place.  The Mayor commented that Jim Hall of the Palisades Interstate Park Commission had attended Mr. Bayne’s initial presentation and explicitly denied these claims stating that PIPC did not remove any dams.  

Continuing to read from the Supervisor’s letter, Mayor Wilson expressed concern with his assertion that “there are in fact no leachate discharges from the site” commenting that he had almost gotten into an argument with the Supervisor when he presented him with photos and Supervisor Dolan claimed that “the pictures lied.”  The Mayor believes that in many cases pictures can speak more than a thousand words and certainly many of the photos included in Mr. Baynes presentation suggest that leachate is being discharged. 

Shortly after the fish kill, the Village hired the firm Watershed Assessment Associates to come take a look at 4 Corners Pond as well as Warwick Brook, Patterson Brook and the stream that flows past the Potting Shed into Tuxedo Lake.  While initial testing, as well as personal observations indicate that the water is clear of pollutants, Mayor Wilson cautioned that ongoing testing will be necessary in order gain a comprehensive overview of the situation over several months.   He then introduced J. Kelly Nolan of WAA.

Mr. Nolan began by inquiring as to whether or not there were any DEC or other state officials present in the audience. 

Mayor Wilson responded that he had spoken with the DEC and that that they have been very cooperative, although Willie Janeway could not be present at the meeting.  The Mayor has confidence in the DEC.  He pointed out that according to State law, the DEC is the Trustee for New York State and its natural resources and that they have issued a notice of Violation to the Town and now the Village needs to rely on them to do the investigation.  The Village can only step forward with legal action after they have given the DEC sufficient time to do their work.  This is one of the reasons why it is so important that the Village conduct its own studies, documenting what is happening, so that if it becomes necessary, they will have evidence proving that the DEC has not done enough.

Mr. Nolan commented that the reason he had asked is because he felt that Mr. Bayne’s presentation was quite powerful and that it would be a benefit to have the DEC view it.

He then circulated a general handout regarding biological stream monitoring and specifically a program run through the EPA (Environmental Protection Agency) that mandates that the State do bio-monitoring on waters throughout the State and report their findings to the EPA.  It has been ongoing since 1972.    He went on to explain that his firm, WAA had been brought in to perform a biological assessment of Warwick Brook related to the fish kill and also to do biological stream monitoring.  What this basically entails is the collection of aquatic insect larvae, which are then examined in a laboratory.  Based on the diversity of larva found within the samples, metrics are applied to the organisms and they are then compared to healthy samples.  This allows them to make an over all gauge of the water quality and determine whether or not there was been a biological impairment.  Typically, the sampling season in NYS runs from July 1 through September, unless an assessment approach is taken, which was the case with Warwick Brook.  Using water from the Indian Kill watershed as a standard for comparison, WAA tested three sites along the Warwick Brook; one near WeeWah Lake, the 2^nd a DEC established testing site a bit further north and the 3^rd above 4 Corners Pond.  The results showed that upper most station (#3) has been severely impacted and is entirely devoid of life.  The streambed was filled with what is known as sewage fungus, a thick slime, mucus-like in texture.   The middle testing site also failed criteria and has been classified by WAA as severely impacted.  Under the analysis that was completed, New York State could list these waters as “an impaired water body” which would mean that the state would be required to develop a plan to bring the stream back up to a healthy condition.  This is not something that the state would take lightly.   The DEC consent letter is the beginning of this process.

In terms of where the pollution is coming from, Mr. Nolan commented that WAA had not been asked to indentify the source, however they have determined that the cause is excessive organic material entering the stream which in turn causes an excess of growth, particularly algae, weeds and slimes.  Photosynthesis occurs with the algae during the day and it produces a ton of O2, which goes into the water column.  However at night, when the photosynthesis stops, plants still perspire and they consume O2 and the supply becomes depleted.  This is why fish kills typically occur in the pre-dawn hours. 

The state of New York has received WAA’s report, identifying the middle and upper testing sites as biologically impaired.  They have recommended that sampling be done again in July and September.  He is somewhat surprised that the State has not stepped in and taken over.  The issue begs the question of whether or not the Warwick Brook is at its peak condition or if the situation will spread and get worse, possibly at the lower most testing site where it intersects with the WeeWah Lake.  He stressed the importance of continued biological monitoring. 

The floor was then opened to questions.

Trustee Zgonena asked Mr. Nolan what, if any, conclusions he could draw about the red foam.

Mr. Nolan responded that the discolored foam was probably related to a lot of the material that may be washing off the mulch pile.  What this does is to create a lower surface tension on the water so the bubbles are created and last longer.  The excessive tint comes from the material itself. 

Barbara Regna noted that the Patterson Brook flowed through her property and that for the last 4 or 5 years she has been observing excessive amounts of foam gathering there, particularly after storms. 

Mr. Nolan stated that he did not believe the problem was an acute one, but rather had been ongoing for some time and was now migrating its way downstream.

Anne Gwathmey asked whether or not WAA had tested any of the water from the mines located adjacent to the mulch pile.

The answer was no, however Mr. Nolan commented that he was sure it could be done.

Doc Bayne interjected that he had worked in Sterling Forest State Park for 10 years and that he went into the mines on a yearly basis to conduct surveys.  Most of the mines are flooded and the water therein is crystal clear.  Several years ago, when Sterling Forest LLC was planning to put a golf course on their land, they tested the water from the Scott Mine Shaft (a picture of which was featured in Mr. Baynes presentation…filled with red gunk) During the Sterling Forest tests, water was pumped out through an 8 inch hose for a month and then observed in order to determine whether it would sink back into the mine.  Ultimately, the water did go downstream and was pumped into Long Mine Swamp.  Nothing stained, nothing turned red and nothing died. 

Mr. Nolan stated that he had observed other mine-fed streams in the state of Virginia which were crystal clear.  There is impact from acidity, but not the excess of material that is being seen here.

Joan Alleman inquired as to the nature of the material in the Mulch Pile. 

Mr. Nolan responded that he did not know.

Mrs. Alleman stated that she was under the impression that it was supposed to be organic.

Mr. Nolan replied that it could very well be organic material but that there is too much of it and it has overwhelmed the system. 

Somebody wondered whether or not there was any monitoring of the material being brought into the Mulch Facility by the DEC, The Village or The Town. 

Mayor Wilson responded that there seemed to be very minimal monitoring going on and that this was certainly an issue, particularly as it related to the Ash Trees, which Doc Bayne discovered on the property and photographed as part of his presentation.  As there is a county-wide quarantine on these trees, they should not be going in or out, but apparently they are being moved through the facility. 

Another resident wondered if there has been enough substantial damage to warrant closing down the facility.

Mr. Nolan responded that in his opinion there has. 

When asked how long this process might take, Mr. Nolan stated that it could take years.

The Mayor interjected that because the Mulch Pile does not require a permit, there is no mechanism to shut it down unless the Town wants to do so.

Mr. Nolan was then asked whether or not he would recommend that a resident living on Warwick Brook Road who had a well 60 feet deep located 200 feet from Warwick Brook should drink the water and specifically what testing they should have done.

He responded that he couldn’t answer the question, but he encouraged them contact the Department of Health.

Mayor Wilson commented that in his view, the important question at the end of the day is whether or not the water is safe to drink.  This is the primary concern.  To that end, DPW Superintendent Jeff Voss has been doing some tests over the past couple of weeks, looking for/at roughly 120 items and whether or not they are at acceptable levels.  The results of these tests are expected sometime within the next week and will be made public via the Village website once received. 

Somebody then wanted to know whether or not the Weewah Lakes were swimmable or fishable.

Mr. Nolan replied that WAA had not done any testing on the Weewah.

He was asked why not.

Mayor Wilson reiterated that Jeff Voss had tested the Weewah lakes and that the results were due back within the week. With regard to swimming, he commented that he does not feel that it will likely be permitted any time soon.

Concern was expressed over the fact that there are no warning signs posted within the Village letting residents know that swimming is prohibited.

The Mayor admitted that this was a mistake and acknowledged that signs needed to be put up immediately.

A brief recap of the most recent Town Board meeting was then provided by a concerned resident.  He reported that Peter Dolan had announced that he would be providing the public with test results at the meeting, however no results were given.  Rather, it was discovered that the Town had only just begun testing with results not expected until August. The Supervisor has chosen not to attend either of Mr. Bayne’s presentations and even went as far as to claim he had not been invited which was not true.  Not only was the Supervisor invited to the presentations, but the invitations were extended during a Town Board meeting and are therefore a part of the public record.  The resident wanted to know whether any of the Town Board members or their water experts were currently present.  Why have they not seen the presentation?   Pictures do not lie.

Mayor Wilson pointed out that Councilman Kristian Matthews was present and had been diligent about attending Village Meetings ever since he had been elected.

The resident acknowledged this but suggested that the rest of the Town Board seemed to respond to questions from the public with attitude.

The Mayor agreed, commenting that he was familiar with the attitude as referenced.

Councilman Matthews commented that he would have been at the first presentation, however he had a family obligation and could not make it. 

Another resident commented that while she understood that everyone was concerned about the drinking water and the swimming situation, the underlying issue at hand was the fish kill and she had heard that it could take 30 to 40 years before the 300-acre area in question was returned to normal.  The States of New York and New Jersey spent a lot of taxpayer dollars to purchase the land and preserve the watershed, which has now been very severely damaged.   Sterling Forest Partnership and Friends of Sterling Forest have put together a petition and everyone was encouraged to sign in on their way out of the meeting.

Jim Hays commented that the issue of shutting the mulch facility down was terribly important.  He pointed out that while the contamination and where it may be coming from is certainly an issue; he believes there is also an issue with regard to whether the containment system for the facility was properly designed.  If it was not properly designed, that might be a strong argument that the DEC should listen to.  He recommended that the Village ask their engineers to have a look at the design. 

John Kilduff commented that the Town Engineer has claimed that the DEC approved the design and that it is not a containment system, but rather a leak system. 

Joan Alleman expressed concern about the condition of the Weewah Lake, commenting that swimming has not been possible there for the past several years due to a tremendous increase in the amount of growth on the bottom of the lake.  She pointed out that tax dollars are allocated for protective services such as police and fire, but she feels strongly that residents also deserve protection from this sort of thing.  It is incredibly serious and will surely cost everyone a great deal of money and in her view, probably never should have happened to begin with.

The Mayor agreed and commented that the weeds that Mrs. Alleman was referring to might be related to the milfoil situation about which the Board is quite concerned.  The Village has allocated roughly $25,000 towards remediation efforts.  This is a separate issue from the Mulch Pile.  Historically, getting the funding approved by the Village Board for the appropriate testing has been difficult, but the current Board is supportive and the initiative is moving forward. 

Larry Darby stated that it was clear that the WAA tests showed biological impairment, which was no surprise.  The dead fish and muscles and clams have all been clearly documented.  He attended the Town Board meeting and inquired as to whether or not the water was going to be tested for various elements of contamination as the DEC notice of violation clearly states that pollutants are being discharged.  He wondered if the Village didn’t need to have a more comprehensive plan, not just to test for biological impairment in the Weewah and Tuxedo Lake, but tracking all of the water sources, including faults, back to the mines and finding out if there is contamination along the way and if so what the source is.

Mr. Nolan responded that he believes this should be done.  Any supplemental information that the Village can provide to the State would be helpful.

Mr. Darby responded that he had looked at the state tests and it appeared that the testing had been limited to PH and one other area, neither of which constitute contamination.  There are hundreds of contaminants. 

Mr. Nolan pointed out that one of the reasons biological testing is done is that often times it can lower the cost of contaminant testing.

Mr. Darby acknowledged this but countered that in this case the pollution has already been discovered. 

Once again, Mayor Wilson commented that the Village DPW had conducted contaminant testing and was awaiting the results.

Mr. Darby wondered whether or not they had tested up along all the streams that feed the lakes.

Jeff Voss confirmed that testing had taken place on Tuxedo Lake and Warwick Brook.

Mr. Darby stated that after having seen Mr. Bayne’s presentation, he feels that samples should be pulled in many of the areas where gook was evident as he would like to know exactly what this stuff is, where it is coming from and whether or not it is a contaminant.

He further commented that he understood that the DEC was supposed to act as Trustee to the States natural resources, but in his view, this should not preclude the Village from protecting themselves.  He feels there should be a formal memorandum from Village council outlining the residents’ rights to protect themselves.  Referencing the Law of Nuisance, he suggested that there must be legal remedies available to the Village.  He would like to see the Village get some competent legal advice, assessing what the damage is and outlining their options.  He does not feel the DEC can be depended upon

Mayor Wilson responded that the Village must first establish a basis for their argument before taking legal action.

John Kilduff inquired about the specifics of the organic chemical process that was causing the water to become toxic.  He wondered if it was simply oxygen depletion that was causing the wildlife to die or if there was poison in the water as a result of the environmental overload coming from the Mulch Pile. 

Mr. Nolan replied that he could neither confirm not deny whether or not water was toxic.  What he sees is that the excess in amount of organic material is creating an oxygen depletion scenario related to photosynthesis and plant growth and that is likely what has caused the fish kill. He cannot say whether or not there are additional toxins present. 

Mr. Nolan was asked if he had ever seen this type of contamination elsewhere and responded that this was the second worst site he has worked at.  He was then asked whether or not people were drinking the water at the other site. He replied that 10 years to the day from the time he drew the first sample at the worst creek he has ever seen, it was still severely impacted.  The water cannot be drunk.  

The question of whether or not the water in Tuxedo Lake is safe to drink was then raised and somebody asked whether or not residents should drink bottled water while they were awaiting test results. 

Mr. Nolan responded that the drinking water sources were treated and that he suspects they are regularly tested anyway.  In his view, the water is not so severe that it cannot be treated for consumption. 

Mayor Wilson clearly stated that the water is safe to drink.  That being said, the Village is concerned over what may be coming into Tuxedo Lake, which is why they have conducted their own tests. Should the situation worsen over time, they will have the proof they need to take legal action.

EJ Matthews stated that he had been at the last Town Board meeting and that Supervisor Dolan seemed to be very stubborn about not shutting the facility down and did, in fact, appear to be protecting it.  The Supervisor claimed that the Mulch Pile would be reduced by 40% over a two-month span, with 20% reduction occurring each month, but Mr. Matthews is concerned that this will not alleviate the situation and that the operator might simply shift the mulch around in order to give the appearance of height reduction.  He wondered what the Villages thought on this was and further commented that he felt there had to be some way that the people could either convince the Supervisor to shut the facility down or find a loophole that would require him to do so.

Mayor Wilson replied that one of the best ways to put pressure on the Supervisor was to have a steady stream of new, concerned faces showing up at the Town Board meetings. 

One gentleman inquired as to whether or not the Village intended to look into testing the crushed concrete on the Perfect Cut site, which potentially poses a number of additional hazards for various reasons.  Knowing where the concrete came from and what has been run down it is very important.

The Mayor replied that this was a good question, however the Village was not in a position to answer it. 

Next, the gentleman wanted to know whether or not the run-off water coming from the site has been tested.

The Mayor replied that the run off water was the same water that was leaking into the wetlands.

The Gentleman stated that he understood this and further commented that the 3 pumps discharging from the site pump from 10 to 15,000 gallons per hour.  There have been discussions about installing at 10,000 gallon tank to recycle water, but one pump will recycle the tank in just one hour.  The facility is basically running 24 hours a day.

The Mayor asked Councilman Matthews whether or not he had any insight on this from a Town perspective and he responded that he did not.

It was pointed out that at the last Town Board meeting, the Supervisor had concentrated on the fact that the facility brought in $300,000 per year for the Town.  With 1500 homes in the Town, each home would have to pay $200 a year ($4 a week) to make up for this expense.  Many of the residents present felt that this expense was not much to bear for the closing down of the facility and expressed their confusion as to why it was not being shut down immediately.  The idea of putting together a referendum was briefly touched on.

The Mayor replied that the decision was in the hands of the Town Council.

One woman wondered why the Supervisor seemed so resistant to the idea of closing down the facility.

Mayor Wilson replied that it certainly raises questions of concern.

Trustee Zgonena commented that he would like to revisit the subject of organic chemistry, and specifically inquired as to what the byproducts of the organic decomposition were and what was actually reduced at the bottom of the pile.

Mr. Nolan responded that he was a biologist and not an organic chemist.  He did say, however, that during the decomposition it was likely that bacteria would multiply using the wood particles to grow on.

Trustee Zgonena wondered whether or not any bacteria were added to the pile or if it was all natural.

Mr. Nolan replied that in so much as one wanted to call a smoldering 50 foot pile of material natural it was, however it served as a breeding ground for bacteria with stuff landing on it and growing in it constantly.  Gasses are produced and heat occurs and this results in spontaneous ignition and then water is run over it and excess organic material dissolves in the water and this is what is showing up in the streams…and its producing even more growth.

Doc Bayne interjected that not only are the bacteria present, but they are being cooked within the pile.

Mr. Nolan suggested that people read a book called THE RIVER KEEPING as he feels it contains a lot of pertinent information that could be useful with what the community is currently facing.

Somebody inquired after the health of the town employees who are working on the site and wondered whether there was any protection being provided for them.

Doc Bayne commented that he had spent 5 days on the site while studying the situation and that each day he went home with symptoms of illness such as sore throat, nasal drip, itchy eyes and headache.  He has heard town workers complaining of the same symptoms.  From what he understands the Town has told these workers that if they don’t like it, they can leave. 

Mary Jo Guinchard commended the Board for everything they have been doing, but commented that the bottom line was that the community needed to know immediately about safety and precautions that should be undertaken because it could take quite some time to get results and she doesn’t feel this can wait.   She commented that the Village maintains a very strict, stern protocol in terms of building within the community and she feels the same effort should be put into this issue immediately.  She doesn’t feel that residents should be drinking the water, despite the Mayors attestation that it is safe.  She thinks the Village should be encouraging the use of bottled water until they know for sure, without a shadow of the doubt that the water is safe to drink.   Six years ago the streams in the Village were perfectly healthy.  A lot of data has been collected and photographs do not lie.  Rather than continually asking the same questions, the Village needs to determine what exactly they are going to do.

The Mayor replied that one of the things the Village had been most concerned about was getting the Orange County Health Department to come right away and assess the safety of the water for drinking and bathing.  This assessment was done and the OCHD has informed the Village that the water is safe for consumption.  That being said, the Village does not intend to simply accept this analysis and this is why they have conducted their own comprehensive testing, and will continue to do so over time. This is the information they will use as a basis for legal action if that becomes necessary.

One resident referenced the Tuxedo Dump and specifically the similarities it posed in terms of resistance to remediation from local government.  She suggested that ultimately the solution to moving that situation forward had been to use the election process to remove certain officials from office. 

Mayor Wilson agreed with this, commenting that while the most recent voting opportunity had “not worked out” there would be another opportunity this coming November with two town council seats coming up for re-election. 

Somebody then inquired as to whether or not it would be possible for the Village to take a stronger legal stance and employ an environmental attorney.

The Mayor responded that if this could be done, he would certainly BE in favor.  He further commented “nobody around here has been more pro-active in suing the town than me.”  He stressed that there is no hesitation on his part to do it, once the Village has the right case to move forward on.  They just need to wait until they can build that case.

A resident wondered whether or not the people had come together and forcefully demanded that the Supervisor close down the facility. 

The answer was yes. 

Mary Jo Guinchard commented that it was obvious to her that the

Supervisor was going to do whatever he wanted and that in her view the Village needed to find a way to go above that.  The people need to find a way to shut the facility down.

Mayor Wilson agreed but commented that unfortunately it wasn’t as simple as that.  The facility does not require a permit.  The only way it can be shut down is if the Town chooses to do so.

Mr. Darby suggested that violation of the DEC regulations could also force the facility to close.

The Mayor stated that he had discussed this with DEC head Willie Janeway at length.

Mr. Darby countered that he strongly believes the Village must obtain another legal opinion.   He cautioned that the issue went beyond simply closing the facility down to include cleaning it up as well.

The idea of bringing in the press was raised. 

One resident wondered whether or not there have been studies done on other mulching facilities in order to determine if the natural byproduct coming from this facility is consistent with the norm.  There is no question that the facility has caused environmental distress, but he wondered if the situation was unique, because if it is, then this suggests that there may be byproducts or chemicals being added to the mulch that would make the water unsafe to drink.

This question was not answered.

Somebody brought up the prior history of the Mulch Pile Operation, John Gugino.  Mr. Gugino previously operated another mulch pile facility in the Ramapo area which was shut down for environmental violations.   Mr. Gugino then attempted to open a new facility but experienced some difficulty and ended up attempting to bribe a public official, who subsequently contacted the FBI.  Mr. Gugino was convicted of a felony, and sentenced to 6 months in jail.  Shortly thereafter he contacted the Town of Tuxedo looking to obtain an open-ended one term contract to operate a facility in Tuxedo and sadly, the Board voted in favor of awarding him such a contract.

Trustee Heywood commented that the need for people to come to the Town Board meetings and voice their opinions could not be over emphasized.  The Board has been asked repeatedly to shut the facility down, at least temporarily.  The Supervisor has said that he can shut it down at any time with 30 days notice, but Trustee. Heywood feels he is oblivious to the weight of opinion in the entire community that wants to see the facility closed. 

In terms of clean water, Trustee Heywood pointed out that the Laurel Meadows Pond, located above the Mulching facility is in perfect condition.  As far as he can tell all the indications point to the conclusion that the problems are coming from the Mulch Pile.

The Mayor echoed Trustee Heywood’s sentiments with regard to attendance at Town Meetings, commenting that a persistent STRONG attendance at these meetings would send a very clear message.

Somebody cautioned that the residents must keep a close on the Town Board to ensure that they do not change the current lease, which is month to month, and make it longer. 

John Kilduff stated that he wanted to make sure that everyone in attendance understood what the Supervisor’s take on the situation was.  Following a very brief history outlining how the facility came to be located where it is, Mr. Kilduff reported that Supervisor Dolan has claimed that the facility brings in $200,000 per year, however the numbers that Mr. Kilduff has seen amount to roughly $2-400 a month.  The Supervisor however believes that the public is over reacting and that the facility is worth roughly $1000 per household in town property taxes.  At recent meetings he has challenged members of the public with this information, wanting to know what they intend to come up with to replace the “$200,000 wheel of fortune” he has created on Warwick Brook Road. 

Additionally, he seems ready to “split hairs” with regard to the composition of the organic material, clearly distinguishing between the mulch pile and a dirt pile, also located on the site.  Mr. Kilduff cautioned that residents attending the Town Board meetings must be ready to counter this argument in order to provide the necessary pushback. 

General outrage at the fact that the Supervisor had neglected to attend the current meeting was expressed.

A resident inquired as to whether or not the area around the Weewah Lake had been tested and whether or not it would be safe for children to play on the playground at the Beach Club. 

The Mayor responded that as far as he knew, it was safe to play on the dirt/sand there, but the Village was not going to allow swimming at this point in time.

The resident persisted wanting to know if the Mayor knew for sure that the sand/dirt was safe or if he was making an assumption.

Mayor Wilson commented that he was making an assumption and that the Village would follow through with making sure.

Trustee Zgonena brought the discussion back to chemistry, particularly the water in the mine shafts that is being sprayed on the pile.  He feels that the metalic composition could be creating an almost specific DNA to the pile.  He wondered whether it would be possible to analyze water that was in close proximity to the pile and then compare it to samples of the water downstream. 

Mr. Nolan reiterated that he was not a chemist but stated that it seemed reasonable that one could trace the samples from the Mulch Pile down stream.

Mayor Wilson commented that during the second part of the meeting later that evening, the Board intended to move forward with approving some further tests.  He then called upon Village Attorney Rick Golden to come forward and answer any questions about the legal process, specifically whether there might be some other reasons the Village could use to bring the issue into court with either the DEC or the Town to force a shut down of the facility.

Mr. Darby wanted to know, given the fact that the Village knows that pollutants have been discovered and that the waters downstream of the facility are suffering from biological impairment (not to mention the physical evidence of contamination in the form of red foam, dead fish), what remedies are available to insist that the DECs orders are followed and to the extent that residents are being harmed he wondered if there were remedies available under The Law of Nuisance.  He reiterated his concern over the idea that the Village might have to wait for the DEC to take action before taking any action themselves.

Mr. Golden responded that usually the most effective remedy is through the Clean Water Act, which allows for citizen suits.  The problem is that although these suits are allowed under the CWA, they will eventually be dismissed if the court determines that the DEC is following through and enforcing their own regulations.  The citizen suits are meant to substitute as sort of a private attorney general when the entity charged with enforcement is not doing their job.  This is problematic in this case because there have been DEC consent orders which they are now enforcing.  Mr. Golden stressed that he was not trying to say that this was adequate, however the law is such in the Clean Water ACT that it wants the governmental enforcement agencies to control such things and it’s only when it is found that they are not doing their job that a citizen suit will be allowed to proceed.

Mr. Darby inquired specifically about the Law of Nuisance and whether or not there might be some remedies there.

Mr. Golden responded that there are different types of actions and remedies that are available.  The question is whether or not the Village is going to be able to get anywhere with them.

Actual injury to the Village would have to be proven.

Mr. Darby countered that there had been violations with the site since 2007 and that the DEC obviously had not been enforcing the restrictions/conditions on the lease.  He feels the Village needs to begin to “get in the game” and not simply sit back and wait for the DEC.

Mayor Wilson stated that Mr. Darby was mischaracterizing the situation and that the Village had begun to do their own testing so that eventually they would have grounds to go into court. 

Councilman Matthews stated that he had specifically asked town engineer Jeff Marsden whether the DEC had told them to charge the groundwater with the runoff from the pile and Mr. Marsden said yes.  If this is true and the DEC is instructing the Town to charge the groundwater with the runoff, he wonders why anyone is hesitating to attack the DEC directly.

Mr. Golden responded that in order to file any kind of lawsuit, proof was required.  If proof that the DEC is violating its own regulations can be marshaled, then there might be a case.

Councilman Matthews expressed concern that the Mulch Pile might be too big of a deal for the DEC to handle internally.  He suggested that perhaps the DEC needed to contract somebody who deals specifically with Mulch Piles. 

Mary Jo Guinchard commented that she had dealt with the DEC quite a bit following Hurricaine Irene and had been told by them at that time that anything that wasn’t related to terrorism was at the bottom of their list.  She feels that it will be up to the residents to make sure this issue moves to the top of their list.

The Mayor responded that the indication he had gotten from his discussions with Willie Janeway was that the DEC was paying a lot of attention to the situation.  However, the Village was not going to rely solely on the DEC, which is why they have begun to do their own testing.

EJ Matthews wondered whether Mayor Wilson and Village Attorney could attend the next Town Board meeting.  He stated that he felt it might be helpful for the Village to have legal representation there.

Mayor Wilson replied that he felt that when he attended the meetings people assumed that he had an agenda which is why it was so important that more residents show up.

Mr. Golden commented that provided he did not have a conflict with another municipal client, he could attend the meeting if the Village so desired.

Mary Graetzer stressed the importance of having Village residents attend Town Board meetings, commenting that their quarrel was in fact with the Town and NOT the Village.  Meetings are the 2nd and 4^th Monday of each month.  It is crucial that residents come out and speak up.

One resident wondered how the facility was able to get away with allowing the excavator to operate so high up, commenting that he worked for a utility company and operating machinery above ones head was not allowed. 

The Mayor replied that he wondered the same thing.

Finally, the issue of Ash trees was discussed.   The DEC has a very high interest in the Emerald Ash Borer because it is an interstate problem and that Doc Bayne has clearly documented the presence of Ash Trees on the property.  If these trees can be documented leaving Orange County there will be a huge problem for the facility and surely it would be closed down.  At the last Town Board meeting, Supervisor Dolan stated that he was not aware of the DEC quarantine and he thought that because the trees came from Westchester and Rockland, it didn’t apply.  Since that time, a copy of the quarantine order has been delivered to the Supervisors’ office.  Not surprisingly, the Supervisor has not responded.

The meeting was then adjourned for roughly 20 minutes while the Board traveled back to the Village Office.

Deputy Mayor du Pont reconvened the meeting as Mayor Wilson was temporarily delayed on his return from the church.

RESOLUTION TO APPROVE BALANCE DUE ON WHITE BUFFALO INVOICE OF $6,486.20:

The Board voted unanimously in favor of authorizing payment of the remaining balance on the White Buffalo Invoice in the amount of $6,486.20

RESOLUTION TO LEVY UNPAID VILLAGE WATER ACCOUNTS FOR INCLUSION ON 2012 VILLAGE TAX BILL:

Following a brief discussion, the Board voted unanimously in favor of levying unpaid water accounts, totaling $18,856.48, for inclusion on 2012 Village tax bills.

Mayor Wilson then returned and the Deputy Mayor turned the meeting back over to his control.

The Mayor introduced Susan Shapiro, an environmental attorney who had approached him at the end of the presentation.  At the Mayor’s invitation, Miss Shapiro agreed to briefly address the Board.

She began by providing the Board with some general background information.  She is based out of Spring Valley and the primary focus of her recent work has been water related issues.  She was one of the attorneys who brought litigation against the DEC under the Clean Water Act for thermal pollution in the Hudson River because of Indian Point.  Although Miss Shapiro’s team eventually won, sending the case to the Supreme Court, the process with the DEC leading up to that point was 20- years in duration and involved a tremendous amount of negotiation.  The reality is that the DEC’s regulations allow them to fine entities, but they cannot practice certain types of enforcement and they cannot shut them down without being petitioned by stakeholders.  Miss Shapiro feels that the Village is doing the right thing by conducting its own tests and compiling evidence, but the next step should be to formally petition the DEC. She suggested that “following the money” and obtaining a copy of the contract would also be wise steps to follow.   The issue of the ash trees is enormous and could be a very direct way “to get there.”

There are two processes within the DEC, one being the informal discussion phase that is occurring presently. All the evidence must be collected, organized and presented to the DEC. The fact is that the DEC is looking to the stakeholders to do their legal work for them.

Mayor Wilson inquired of Miss Shapiro if she felt that there was anything more that the Village should be doing that they were not doing already.

She replied that she felt that actual chemical testing would be important.  Although there is a treatment plant for the drinking water, she feels the real question is not about the quality of the product coming out, but rather what is being put into the system.  The more contaminants that need to be removed, the greater the cost of processing the water becomes. She also suggested that it might be helpful to engage the TPS community.  Although many of these families do not live in the Village, they certainly have something at stake with their children in school here and could potentially be of financial assistance.  She definitely believes that somebody should follow the trucks that enter and exit the facility in order to determine where they are going and coming from.  If they are bringing the Ash trees in from outside the area, there is a major issue there.

Finally she suggested mounting a letter writing campaign, which would be a great way to create a physical record.  She encouraged residents to send their letters not only to the DEC, but also to Governor Cuomo in an effort to petition his involvement.  Individual letters create political pressure.

John Kilduff inquired as to whether or not there was any injunctive relief available to the Village that would allow them to take some sort of immediate action.

Miss Shapiro responded that the Village needed to compile the evidence before moving forward.  In order to go into to court, they will need to be able to show that they have a likelihood of prevailing and they need evidence to do that.  It would also be helpful if the Village could prove to the DEC that the Town has been providing them with false information.

PRESENTATION BY ALLIED BIOLOGICAL/RESOLUTION TO APPROVE ALLIED BIOLOGICAL CONSULTING SERVICES AGREEMENT:

On behalf of Allied Biological, Chris Doyle outlined a new proposal for copper sulfate application in Tuxedo Lake.  Copper Sulfate treatments are not new to the Village and have in fact, been going on for years under the supervision of the DPW.  Last week, at the suggestion of Environmental Committee Chair Susan Goodfellow, DPW Superintendent Jeff Voss contacted Mr. Doyle because he noticed that Tuxedo Lake was turning green and is in need of a treatment.  They discussed monitoring the phytoplankton levels in the lake in order to determine the proper timing for treatment. (discoloration of the water is not the only factor that needs to be examined before moving forward with treatment)  It was agreed that Superintendent Voss would collect a sample and submit it to Mr. Doyle, which he has done.  After completing a separate water quality reading, the Superintendent felt that the Village should move forward with the treatment and Mr. Doyle agreed based on the conditions as they were described to him.  When Superintendent Voss contacted the certified applicator that the Village has historically used to do the treatment, he discovered that this person is no longer certified in the state of New York.  As a result, he inquired as to whether or not Allied Biological could assist the Village with the treatment.  Allied believes that they can help, however the regulations have recently been changed and while a permit is not required, the Village will need obtain a Notice of Intent from the Federal Government.  Allied Biological has contacted the DEC on behalf of the Village and made the initial arrangements and the treatment will proceed as soon as possible.  Superintendent Voss has indicated that moving forward, he would like for the DPW to relinquish responsibility for the treatments to Allied Biological entirely, which is fine, however the Village is in possession of 1000 pounds of copper sulfate that must be utilized first.  Unfortunately, Allied Biological is unable to use the type of material the Village has in their machines.  So, the Village will need to do an application using their original equipment.  The Superintendent has requested that one of Allied’s certified applicators work with the DPW to do the treatment sometime within the next work and Allied has agreed. 

Mr. Doyle then briefly reviewed the options laid out within the proposal.  Option A is that Allied Biological would do the treatment using the Villages product and boat.  The cost for this would be $12,025.  This Village has enough copper sulfate for this to work one time after which (option B) Allied can become the certified applicator for the Village whenever treatments are necessary at a cost of $3,450 per treatment.  The Notice of Intent is a 5-year contract and will be set up so that the Village is recognized as the official operator.  This ensures that they do not have to use Allied if they at any time decide to go in another direction.

Trustee Heywood inquired as to whether Tuxedo Lake was in the “very early stages” of algae bloom and Mr. Doyle replied that it may have passed the early stage at this point, however he would not know for sure until he had examined the sample.

Trustee Heywood then wanted to know how soon after the treatment had been done visible results could be expected.

Mr. Doyle responded that improvements would be noticeable within hours.

Trustee Zgonena wondered if the treatment would cause the water to taste funky and Mr. Doyle responded that it would not, but that sometimes the algae could produce a funky taste in the water.  Again, he will know more once he has examined the sample. 

Trustee Heywood wanted to know how long the treatment would last.

Mr. Doyle informed him that this would depend on the conditions and what kind of nutrient loading was occurring.  Historically, before Superintendant Voss was appointed, the Village treated the Lakes 2 times a year, however Mr. Doyle does not believe this is a wise method because the water may not require such frequent treatments.  He then referenced Allied’s second proposal before the Board, which deals with phytoplankton monitoring, and commented that monitoring will give the Village a better idea of when treatments should be done.  The copper’s efficacy is based on the biomass that is in the water column.  Often times if one can see the algae with the naked eye, the window has been missed.  The treatment can still be done and it might even kill off some of the algae, but there is a good chance that it will come back right away.  This is why the monitoring is key.

The Board then voted unanimously in favor of moving forward with both of Allied’s proposals.

RESOLUTION – DECLARE LIST OF POLICE DEPARTMENT FIREARMS AS SURPLUS:

The Board voted unanimously in favor of declaring a list of shotguns as surplus and authorizing the Police Department to purchase 2 new shotguns at a cost of $221.74

RESOLUTION – APPOINT DEPUTY CLERK TO THE VILLAGE JUSTICE:

The Board voted unanimously in favor of appointing Alice Confield of the Town of Woodbury to the position of Deputy Clerk to the Village Justice effective May 21, 2012.

RESOLUTION – TUXEDO CLUB REQUEST TO HOLD FIREWORKS DISPLAY IN JULY:

The Board voted unanimously in favor of allowing the Tuxedo Club to hold their fireworks display on July 3, 2012 with a rain date of July 7, conditional upon the installation of a floating rope which will close off the area of the lake that has been affected by Eurasian Milfoil.

RESOLUTION – BUDGET TRANSFERS:

The Board voted unanimously in favor of approving budget transfers for the General and Water Funds as presented to them by the Village Clerk Debbie Matthews.

DISCUSS MANANO WATER ACCOUNT REPLAYMENT PLAN UPDATE:

Following a brief discussion, the Board voted unanimously in favor of waiving the outstanding balance of $5,904.12 (comprised entirely of interest) on the Manano water account as Mr. Manano has faithfully paid down rest of the outstanding balance as per the payment plan established several years back.

BUILDING DEPARTMENT REPORT:

Click here to view the Building Department Report.

PUBLIC COMMENT:

Susan Goodfellow provided a brief update on the Eurasian Water Milfoil situation.  Andrew Lewis from Adirondack Invasive Management, the firm hired by the Village to begin an abatement program, will be working with Mr. Doyle on coordinating when the aquatic plant survey will take place.  Once the survey has been done, the Village will have a much better sense of what is happening in Pond #3 and whether or not the Milfoil has spread to Weewah Lake.

Anne Gwathmey commented that she had contacted both Cornell University and the New York State Arborist Chapters and both are recommending that the Village hire somebody to investigate what is being stockpiled at the Perfect Cut facility. 

The Mayor inquired as to whether or not either organization had provided suggestions and Mrs. Gwathmey responded that they had not, but she was sure that they could be obtained.

John Kilduff inquired as to when the last time the drinking water had been tested, commenting that there seems to be a lot of hysteria building within the community and he would like to know the answer so that he can provide correct information when asked.

Mayor Wilson replied that the water is tested regularly and has been tested within the last 30 days. 

Mr. Kilduff then wanted to know whether or not there was any hard evidence of contamination entering Tuxedo Lake via Patterson Brook or the stream by the Potting Shed and the Mayor informed him that samples had been drawn from both these areas and were currently undergoing tests for over 120 different contaminants n.  The results are due within the next week. 

The Weewah Beach Club:

Mayor Wilson stated that he had been talking with Bonny Takeuchi regarding the Villages contract with the Beach Club and that he did not believe it was fair for the Village to charge the Club for use of the property seeing as swimming was not going to be allowed.  He proposed that the Village waive the fee as outlined in the contract.  Additionally, he stated that given the concerns about the Mulch pile, he did not see the Village opening up the Weewah for swimming anytime soon. 

Trustee Heywood agreed with this assessment, commenting that he felt the potential liability issues were too great until the Village can be 100% satisfied that there is no risk in the water.

The Mayor agreed and further commented that this would take several months to determine.

Mr. Kilduff wondered if swimming would still be prohibited even if the tests came back ok and the Mayor responded that he felt that testing needed to be conducted over time and that the Village could not rely on a snapshot.

Deputy Mayor du Pont stated that he was not sure that the tests done on Warwick Brook were coming back ok.

Susan Goodfellow commented that they were still awaiting the results from the primary pollutants screening test, due back some time this week.  These are the results that will signal what type of chemical pollutants might be in the water.  Additionally, the Village has been warned that given what will probably happen over the summer weather-wise, that the conditions in the Weewah may well get worse before they get better.  If it turns out that the cause of the problem is nothing more than an overload of organic material, then with proper caretaking of the mulch site, things will eventually improve but right now there is no feeling that things are going to look better in the Weewah this summer.

Deputy Mayor du Pont commented that what concerned him was the possibility that somebody’s child could swim in the water and then get sick.  The liability associated with this is too great.

Trustee Zgonena commented that he felt people should still be able to BBQ there and make use of the playground facility, and the Board agreed.

Trustee Neuhauser wondered whether there would be somebody there to make sure that swimming did not occur.  The answer was yes.  Additionally, fencing and signage will be installed on the site to prevent unauthorized swimming.

The Board then briefly discussed repairs to the Weewah Dam.  Mayor Wilson reported that Village engineer Rich Messer had been out to the Dam with Kristian Matthews of LEGACY STONE WORKS and that he is estimating that it will cost $75,000 to do the repairs necessary in order to bring the water levels back up.

Deputy Mayor du Pont commented that this estimate also includes repairs to the secondary spillway and he is wondering how far out repairs are being proposed.  He has no issue with repairing the spillway around the dam as well as on the left side where there is a separate entrance for water, but he does not feel that the Village should be spending money on repairs to the secondary spillway at this time.

The Mayor responded that the problem is that when the Village reaches the next stage of substantial repair, the work that is currently being proposed for $75,000 will not contribute towards the long-term solution. 

The Deputy Mayor then wondered whether or not the funding for this project would come out of the Capital Budget.

The Mayor replied that he believed it would be. 

The funding already exists even though they have not budgeted the $75,000.