The NIMBY challenge: scrap recyclers may opt for their day in court when facing a NIMBY threat--or they may find themselves there unwillingly. (Environmental Compliance).

The often laborious steps to build, site or expand a recycling facility could sap the energy, interest and bank accounts of many companies. From receiving permits from local, regional and state agencies, hiring consultants and engineering firms to ensuring that a facility will operate in an environmentally friendly way, to convincing local legislators that their business would not do irreparable damage to the surrounding communities, the path that many recycling companies need to take can dissuade many executives from trying.

In addition to the cost to build, expand or remain in business, the time may drag on for years. And then, there often is no guarantee that the company will succeed in receiving the go-ahead from the government.

Local, regional and state agencies, as well as vocal community opposition in some instances, can make it difficult for recyclers to present their cases. And when an impassioned public reacts to NIMBY (not in my back yard) scares, whether real or absolutely inaccurate, the recycler may be in an awkward position.

Further, some recycling companies that have operated in relative isolation may come under extreme scrutiny from government entities when surrounding neighborhoods change. Some recycling yards, operating for decades far from residential areas, may see encroaching urban sprawl and resulting negative attention from new neighbors. These facilities may operate in areas zoned for industrial--even heavy industrial--activity, but the perception (and often the misperception) of what is occurring at the site can stir some communities that are seeking a "better environment.

UNDER PRESSURE. Recyclers operating in central city areas may see redevelopment or gentrification in the area that creates pressure on a recycling company to abide by new zoning standards.

While most recyclers say that they have attempted to work with local legislators and regulators to co-exist harmoniously, the unfortunate fact is that often pressure from a local community can make it extremely difficult to continue operating efficiently.

Over the past several years a host of recyclers have noted that they are seeing active neighborhood groups using a host of methods to drive many of the operations out.

From filming the goings on of some recycling yards to establishing local community groups with the sole purpose of forcing local governments to alter their attitude toward a scrap yard, a newly energized opposition to many recycling facilities has put increased pressure on recycling yards to defend their businesses.

In one case, E.L. Harvey & Sons, Westborough, Mass., attempted to expand its existing operations to an adjacent community. (See related stories in the www.RecyclingToday.com archives as well as in the first part of this series in the March 2003 issue of Recycling Today). After contentious public hearings, the recycler was given the approval to expand. However, after agreeing to some changes to the operations, differences of opinion arose. According to local press reports, the Hopkinton, Mass., Board of Health and E.L. Harvey & Sons were close to resolving their differences out of court, but abruptly the health board chairman stated a compromise might not be within reach after all.

Harvey appealed four conditions the board set on a permit to expand its recycling facility on 40 acres in Hopkinton. The parties had been working with their lawyers the past two months to reach an agreement since the board approved the company's expansion.

However, after appearing to have a compromise worked out, a snag was hit and both sides have been unwilling to settle.

Harvey appealed a condition requiring it to monitor groundwater on and down grade from the site, including the town's old landfill, which was capped in 1986.

In a local press report, Harvey attorney Stephen Richmond said he was "puzzled" by representatives by the city's latest response because the company had not changed its proposal since its last meeting with the board.

Harvey agreed to monitor, provided it could use up to three existing monitoring wells and use water standards set by the state of Massachusetts Department of Environmental Protection for solid waste facilities.

Water would be tested twice a year, and results submitted to DEP and the Board of Health.

But representatives from the city had expressed reservations. Nancy Peters, chairwoman of the city's Board of Health, expressed concern that the water standards for solid waste facilities are too lenient. "The public water supply wells are much too important to allow that," she said.

She wants the recycler to compare site groundwater to drinking water standards like it does at its Westborough facility, and to carefully monitor an area of critical environmental concern on the property.

Harvey's attorney, Stephen Richmond, said the company doesn't anticipate a problem, and fully intends to comply with designated state standards.

In a published report, CEO Jim Harvey said he was fed up with the board's inflexibility, and that he and his family have been made out as "bad guys."

"We are not out to ... hurt anybody," he said. "We're trying to run a business that's needed in this state. We've been gentlemen about this and think you're being a little hard-nosed about this."

The board and Harvey agreed on the three other conditions under appeal.

Harvey will limit truck traffic on Elm Street, can face doors to a construction and demolition recycling building northward, and can store full trucks on site overnight with watertight truck beds.

The health board approved the expansion after 35 hours of public hearings in October.

REMAINING FRIENDS. So, where does this leave recyclers who not only look to continue operating, but also at the same time co-exist in relative harmony with the community at large?

It is a tough situation, many note. In cases where neighborhoods are being redeveloped, the possibility of eminent domain, whereby a city can take over land as part of a master plan, can be dangled over a recycling facility, which is often deemed a less desirable operation.

Determining an outcome in court is one step that can be taken when recyclers feel they are being forcibly driven from their property. While this is possible, many recyclers say they are reluctant to follow this path. For one, the cost of the procedure may be significant. Retaining an attorney, and then spending months (or longer) in court with the possibility of losing the case is an unhappy prospect.

Even when companies win a case, the victory can be a hollow one. While allowed to operate, the company could be ostracized by the community at large, and may be held up to even greater scrutiny.

One scrap recycler who requested anonymity says that a company may win in the court, but they still have to operate their business. And communities can make it very difficult to stay in business.

A frustrating point many recyclers make is that while their operations may be in an area zoned for either industry or heavy industry, encroachment from newer homeowners has stirred up some complaints over existing facilities.

Pond View Recycling, a Rhode Island C&D facility, has dealt with complaints from residents who have moved into this type of zone, seemingly aware that industrial environments generate noise, dust, and other "undesirable" elements.

Despite the undesired side effects of going to court, some recyclers feel that they have no other choice. Taking their complaints or appeals to a court may be their only chance to get a fair hearing on an issue for which they've been singled out.

One of the biggest problems for recyclers is the way zoning ordinances are often changed and fine-tuned for various businesses. On the permitting side, in the past recyclers have seen their operations lumped in with solid waste facilities, making it even more difficult, as well as expensive, to get their needed permits to operate.

TEN YEARS OF WONDERING. While many companies have had intermittent confrontations with their local communities, American Iron & Metal was embroiled for a decade with the city of Minneapolis over its interest in installing an auto shredding operation. The company and the city spent 10 years in and out of court trying to resolve the issue.

American Iron has been on its existing property for more than 50 years. However, while the company had hoped to install a shredder at its main yard in the early 1990s, opposition by the city ended up freezing the capital investment project. Only after ten years of acrimony between the two sides were the recycler and the city able to settle the issue out of court.

In the meantime, says Fred Isaacs of American Iron & Metal, the company missed its window of opportunity. Now, markets have changed. Several dozen steel mills have either filed for bankruptcy or closed. Even now, with the scrap recycler given the go-ahead to install an auto shredder, many of the dynamics are different. For one, the cost of an auto shredder has risen. The company is now searching for financing to purchase its plant.

In fact, even after an agreement between the company and Minneapolis seems to be in place, there are a number of environmental issues that need to be addressed before the company can have the new shredding plant installed. Some of the steps that the company needs to do include putting a building around the shredder, as well as building up the landscaping around the shredder.

While the company ended up going to court with the city, Issacs warns against taking the legal route. "Don't go to court. You can't beat City Hall," he declares.

Even though the facility was located in a heavy industrial zone, the problem seemed to be with a small group of politicians who made things very difficult. Even though the company ended up receiving $9 million from the city, Issacs says that the money was basically enough to cover the company's legal bills. In the meantime, the company has lost ten years of potentially expanded operations at the facility.

If he could do it over, Isaacs says the company would have installed the shredder in the yard and then operated it while going through the court procedures.

AT ODDS. The inability of recyclers to co-exist with local municipalities can be caused by many reasons, often stemming from a lack of understanding between the private recycler and the community.

While some scrap recyclers have been operating for years or even decades, the hostility toward their facilities may be quite strident. R. Freedman & Sons, a scrap company that has been in operation for decades in Green Island, N.Y., is a case in point.

Tony Dawson, president of R. Freedman & Sons, says that since he acquired the operation three years ago he has run into problems with some political leaders. "I went there to be a better neighbor. However, from the very first day they made it very difficult to operate.

Dawson says that while he took ownership of the scrap yard only a few years ago, the company had been operating under previous ownership for decades.

Shortly after he bought the firm, the city forced the company to change traffic patterns, raising the cost of transporting material. In addition to redirecting the truck traffic, the city of Green Island also worked to shut down the main entrance to the yard, forcing all the trucks to use an alternate route that resulted in higher costs for the scrap recycler.

Despite the fact that the company attempted to be a "good neighbor," according to Dawson, R. Freedman & Sons has been involved in a number of lawsuits with the city over, what Dawson believes, is some of the city fathers' goal to put his company out of business.

Because of issues the city brought up with his company, Dawson said the company even filed a civil rights case against the city, claiming it was attempting to put the company out of business. That case never went to court, but that hasn't dissuaded Dawson from complaining about the difficult time the company has received at the hands of the city.

Along with shifting the traffic, the city also filed a nuisance complaint against the company. The city also had the Department of Transportation single out R. Freedman & Sons trucks for a myriad of traffic violations, Dawson contends.

As for ideas or steps to take his company would suggest to others, Dawson laughs, saying "Don't come to Green Island." It may be advantageous to focus on educating the surrounding public about the essential business scrap recyclers perform, he notes. "Keep communicating with the public at large."

The unavoidable problem is that the business of recycling itself is not the most glamorous. Grinding and shredding various materials, truck traffic and properties filled with various recyclables may look like a successful business to a recycler, but for many outside the business it more likely resembles a dumping zone.

Changing that perception can take significant effort.

The author is Senior Editor and Internet Editor of Recycling Today. He can be contacted via e-mail at dsandoval@ RecyclingToday.com.