This article previously appeared in WaterFront.

ALBANY, N.Y.—A lawsuit filed today against Seneca Meadows Inc. and the state Department of Environmental Conservation seeks a court order to block the landfill’s proposed expansion on the grounds that unabated landfill odors violate its neighbors’ constitutional right to breathe clean air.

The complaint was filed in Albany County Supreme Court by two environmental groups, two businesses and two individuals who claim to have been harmed by odors that are both extremely annoying and potentially hazardous to their health.

“Any approval of SMI’s proposed expansion by NYSDEC would continue and exacerbate the existing nuisance experienced by the plaintiffs, as well as the substantial interference to the rights of the public at large in violation of the Green Amendment,” the complaint alleges.

SMI, the state’s largest landfill, is running out of space. Its DEC-issued state permit expires in December 2025. It has applied to the agency for a new permit to add 47 acres of new landfill liner area and to increase its height by 69.5 feet — enough to provide the capacity to continue operations through 2040.

The lead plaintiff in the lawsuit is the environmental group Seneca Lake Guardian, which has led a recent public campaign to try to compel SMI to close in 2025. 

The plaintiffs are represented by Philip Gitlen of the Albany law firm Whiteman, Osterman & Hanna and Douglas Zamelis, an environmental attorney from Cooperstown. Gitlin is a former general counsel of the DEC.

The DEC is also a defendant in a similar January 2022 lawsuit against the state’s second largest landfill, High Acres, over alleged failures to mitigate odors at that facility southeast of Rochester. The case was filed just four weeks after the effective date of the state’s Green Amendment, which guarantees a constitutional right to “clean air, clean water and a healthful environment.”

In the High Acres case, a Monroe County Supreme Court dismissed the landfill — but not the DEC — as a defendant. Judge John J. Ark ruled that “complying with the Constitution is not optional for a state agency.”

In an appeal of that ruling by the DEC, State Attorney General Letitia James has argued that the Green Amendment cannot be enforced without enabling state legislation that specifies the definition of “clean air” and the express legal duties of the DEC.

The odor lawsuits against High Acres and Seneca Meadows are major tests of how the state court system will interpret the scope of the Green Amendment in New York State.

While Judge Ark, who has retired, ruled that the Green Amendment can’t be used as an enforcement tool against a private company, the plaintiffs in both cases argue that it can be — if the company’s activities are closely associated with state authority.

Echoing plaintiff arguments now on appeal in the High Acres case, today’s complaint against Seneca Meadows states:

“DEC’s regulation, oversight, and onsite monitoring of the landfill constitutes meaningful participation in the landfill’s operation. SMI’s acts and omissions are so entwined with governmental policies and are so governmental in nature that they constitute governmental action; and such action violates plaintiffs’ constitutional rights to clean air.”

Under Gov. Kathy Hochul, the two landfills play key roles in the state’s waste disposal policy. Both import most of their waste from outside the Finger Lakes region —  much of it from New York City.

High Acres is owned by Waste Management Inc., the nation’s largest waste company. Seneca Meadows is owned by Waste Connections Inc., the third largest. Both are publicly-traded, and both are based in Texas. (Although Judge Ark dismissed High Acres as a defendant, Waste Management filed an appeal of the judge’s December 2022 order).

The plaintiffs in the Seneca Meadows complaint are SLG, Seneca Falls Environmental Action Committee (SFEAC), Waterloo Contractors Inc. (WCI) d/b/a Waterloo Container Co., Absolute Auto Repair inc., Valerie Sandals, and Heather Bonetti.

SFEAC is an environmental group based in Seneca Falls, where most of its members reside. 

WCI, one of about 1,200 members of SLG, makes wine bottles and accessories at its facility directly across state Route 414 from Seneca Meadows. It claims its business has been harmed by landfill odors, noise, truck traffic and seagulls. 

Absolute Auto, which is located a short distance south of the landfill on Route 414, claims similar harms.

“SMI, by not controlling vectors, such as gulls, has caused gulls to roost and defecate on WCI’s and Absolute’s property, disgusting employees and customers and unreasonably interfering with business,” the lawsuit alleges. 

Sandlas, who lives in Seneca Falls about three miles east of the landfill, cites lung problems related to landfill odors.

Bonetti is a teaching assistant at Waterloo Middle School who alleges that her students have been “distracted and sickened by odor” from the landfill, which straddles Seneca Falls and Waterloo.

According to the lawsuit, DEC is “unreliable” as an enforcer protecting the community from harmful air pollutants. 

DEC regulations that implement the state Environmental Conservation Law define an air pollutant as a “chemical, dust, compound, fume, gas, mist, odor, smoke, vapor, pollen or any combination thereof,” the lawsuit states, emphasizing the word odor. SMI’s state permit includes the same language.

Plaintiffs claim the agency has the legal authority to enforce the regulations but has failed to do so. 

“DEC has never issued a notice of violation to SMI for landfill odor,” the lawsuit alleges.

The complaint seeks a court order to enjoin the agency from approving SMI’s application for a permit to expand. 

DEC has declared itself the lead agency in the analysis of that application, and it has required the landfill to prepare a draft environmental impact statement for the project. 

In December 2022 the agency issued a draft scoping document that identifies (and limits) issues that must be addressed in the DEIS.

Although DEC was required to issue a final scoping document by Feb. 7, 2023, the lawsuit alleges, the agency still has not issued one more than a year later.

The suit notes that the landfill’s air emissions include chemicals that are human carcinogens. Furthermore, the state Department of Health has identified a lung cancer cluster “in the vicinity” of the landfill that cannot readily be traced to common causes of the disease such as cigarette smoking or exposure to radon.

According to the complaint, the DEC has not responded to a request by the Seneca County Health Department for information on “the potential connection between these air contaminants and the cancer cluster.”

Specifically, the Seneca Health Department, in a Sept. 29, 2023 letter, called on the DEC to include in its final scoping document the precise identification and measurement of chemical constituents of landfill gas. 

The Seneca Falls Town Board also voted unanimously to pass a resolution calling for the state to investigate high lung cancer rates in census tracts around Seneca Meadows, which were detailed in a report by WaterFront.

That report showed that census tracts near SMI had unexpectedly high cases of lung cancer compared to outlying census tracts during the periods 2011-2015 and 2013-2017. 

WaterFront asked the DOH to provide more recent lung cancer data by census tract, but the agency declined to do so. Several environmental activists have complained that the DOH decision to “suppress” the data shields polluters.

Months later, in response to a FOIL request by WaterFront, the DOH stated that it had discontinued tracking lung cancer cases by census tract in 2017. 

The DEC’s “failure to bring enforcement against SMI for its violation” of the state’s Environmental Conservation Law has resulted in “the continuation of persistent and noxious odors from the landfill,” today’s complaint alleges.  

Any DEC approval of SMI’s proposed expansion “would continue and exacerbate the existing nuisance” and interfere with the rights of the public at large under the state’s Green Amendment, it states.

Kyle Black, manager of Seneca Meadows, said he was not aware of the lawsuit and had no comment. DEC officials did not immediately respond to an emailed request for comment.