NY.gov Portal State Agency Listing Search all of NY.gov
D E C banner
D E C banner

Disclaimer

The New York State Department of Environmental Conservation has added a link to a translation service developed by Microsoft Inc., entitled Bing Translator, as a convenience to visitors to the DEC website who speak languages other than English.

Additional information can be found at DEC's Language Assistance Page.

4-C's Development Corporation - Decision, January 22, 1998

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road

Albany, New York 12233-1010

In the Matter

- of -

An application for permits to operate and construct
a Construction and Demolition Debris (C&D) Landfill pursuant to
Environmental Conservation Law of the State of New York (ECL) Article 27 and Title 6 of the
Official Compilation of Codes, Rules and Regulations of
the State of New York (6 NYCRR) Part 360
in the Town of East Greenbush, Rensselaer County

- by -

4C'S DEVELOPMENT CORPORATION
241 North Pearl Street
Albany, New York 12201

DEC Application No. 4-3824-00045/00001-0 DECISION

January 22, 1998

DECISION OF THE DEPUTY COMMISSIONER

Because Commissioner Cahill served as the Department's General Counsel during the time that adjudicatory hearings took place in this case, responsibility to make this Decision has been delegated to the Deputy Commissioner for Natural Resources.

The attached Hearing Report of Administrative Law Judge (ALJ) Daniel P. O'Connell on the application of the 4C's Development Corporation for permits to construct and operate a construction and demolition debris (C&D) landfill in the Town of East Greenbush, Rensselaer County, is adopted as my Decision in this matter, subject to my comments below. The Hearing Report, along with the other materials incorporated by reference into the Report, are also accepted as the Final Environmental Impact Statement (FEIS) for this action, in which the Department is the lead agency pursuant to the State Environmental Quality Review Act (SEQRA).

Two issues were adjudicated in this matter: (1) the potential impacts from hydrogen sulfide, and (2) the social and economic benefits of the Facility. Two other issues related to potential impacts from dust, and stormwater management were initially identified for adjudication, but the Parties settled these issues without a hearing. As explained in the Report, the settlement documents have been incorporated into the draft permit by reference.

On the first issue, I agree with the ALJ that the proposed landfill will not generate significant amounts of hydrogen sulfide gas. Additionally, I conclude that the vent system outlined in the Applicant's gas control plan will comply with the operating standards outlined in the applicable sections of 6 NYCRR Part 360. Consequently there will be no adverse environmental or health impacts associated with hydrogen sulfide.

The second issue relates to a provision in SEQR [§617.14(f)(1), effective June 1, 1987] that requires a description of the project's public need and benefits, including its social and economic considerations. Where the proposal would result in adverse environmental impacts that cannot be mitigated or avoided, the social and economic considerations need to be weighed thoroughly [Application of Wilmorite, Commissioner Decision dated May 24, 1982; and Application of Pyramid Crossgates, Commissioner's Decision dated November 28, 1980].

Here, the Parties have settled the issues related to potential dust impacts and stormwater management. Consequently, there are no unmitigatable or unavoidable adverse environmental impacts associated with those issues. In addition, the environmental or health impacts associated with hydrogen sulfide will be mitigated. Therefore, I agree with the ALJ that further discussion of the social and economic benefits of the Project is not necessary.

In their closing briefs and replies, the intervening Parties attempted to raise an issue about potential cumulative noise impacts from truck traffic by inappropriately linking the review of the captioned permit application with a permit condition related to the Valente mine, which is located north of the proposed 4C's Landfill on Partition Street Extension. The Applicant (and the operator of the Valente mine) have agreed to mitigate any potential cumulative noise impacts from truck traffic by limiting the daily number of truck trips to their respective facilities.

In the April 7, 1997 Interim Decision, my predecessor determined that the Applicant's compliance history would be considered in reaching a final decision, though a hearing was not necessary to resolve any factual disputes. The Interim Decision encouraged the Parties to state their positions on this point in their closing briefs and replies. The City, RCEMC and the Department Staff elected to do so. Upon review of the arguments, I agree with the detailed analysis provided in the Report. There is nothing in the record to show that the Town or the City initiated any enforcement actions against the Applicant. Furthermore, I concur with the ALJ's conclusion that the Applicant's compliance history in this case does not warrant modification of the terms of the draft permit.

For the first time in their closing briefs, the intervening Parties asserted that the Applicant's proposal does not comply with the State's solid waste management policy. The Parties' attempt to raise a new issue at this point in the proceeding is untimely. Moreover, the policy outlined in ECL §27-0106 identifies land burial as an acceptable method for the disposal of solid waste.

Finally, the FEIS, which includes the record of this proceeding, affords an adequate basis for rendering the SEQRA findings which are necessary for this Project to be approved [§617.9(c)]. I certify that:

  1. The requirements of 6 NYCRR Part 617 have been met;
  2. Consistent with social, economic and other essential considerations from among the reasonable alternatives thereto, the action hereby approved is one which minimizes or avoids adverse environmental effects to the maximum extent practicable, including the effects disclosed in the final environmental impact statement; and
  3. Consistent with social, economic and other essential considerations, to the maximum extent practicable, adverse environmental effects revealed in the environmental impact statement process will be minimized or avoided by incorporating as conditions to the decision those mitigative measures which are identified in the draft permit prepared by DEC Staff, as supplemented and amended by the ALJ's Hearing Report.

The Department Staff is hereby directed to issue the permit as drafted which also includes the various agreements and plan revisions developed during the course of the hearing and as identified in the attached Report.

To provide other agencies and the public with an opportunity to consider the FEIS, the effective date of this decision shall be 10 days hence [§617.9(a)].

For the New York State Department
of Environmental Conservation

/s/
By: Peter S. Duncan
Deputy Commissioner

Albany, New York
January 22, 1998

STATE OF NEW YORK

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

50 Wolf Road

Albany, New York 12233-1550

In the Matter

- of -

An application for permits to operate and construct a Construction and Demolition Debris (C&D) Landfill
pursuant to Environmental Conservation Law of the State of New York (ECL) Article 27 and Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR) Part 360
in the Town of East Greenbush, Rensselaer County

- by -

4-C'S DEVELOPMENT CORPORATION
241 North Pearl Street
Albany, New York 12201

DEC Application No.4-3824-00045/00001-0

Hearing Report and Final Environmental Impact Statement

- by -

/s/

Daniel P. O'Connell

Administrative Law Judge

Office of Hearings and Mediation Services

Phone: 518-457-3468

HEARING REPORT / FINAL ENVIRONMENTAL IMPACT STATEMENT

TABLE OF CONTENTS

SUMMARY 2

PROCEEDINGS 3

Project Description 3

SEQR Status 3

Applicable Statutory and Regulatory Provisions 3

Legislative Hearing 3

Issues Conference 4

Adjudicatory Hearing 5

Official Notice 5

Summary Positions of the Parties 6

FINDINGS OF FACT 7

Site and Project Description 7

Production of H2S at other Sites in NYS 8

Production of Decomposition Gases 9

Potential Health Effects from Exposure to H2S 10

Managing Decomposition Gases 11

The FICA Landfill 12

The Applicant's Compliance History 14

DISCUSSION 16

Production of H2S at other Sites in NYS 17

Production of Decomposition Gases 17

Potential Health Effects from Exposure to H2S 23

Managing Decomposition Gases 24

Potential Cumulative Noise Impacts from Truck Traffic 27

Balancing Social and Economic Benefits [Need] 28

The Applicant's Compliance History 29

The NYS Solid Waste Hierarchy 33

Due Process Issues 34

CONCLUSIONS 34

RECOMMENDATION 35

Copies of the FEIS are on file in the Department's Office of Hearings and Mediation Services, Room 423, 50 Wolf Road, Albany, New York 12233-1550, as well as at the Department's Region 4 Office, 1150 Westcott Road, Schenectady, New York 12306-2014.

SUMMARY

The following is a Summary of the Hearing Report/Final Environmental Impact Statement (FEIS) for this matter. ECL Article 8 (State Environmental Quality Review Act) and its implementing regulations 6 NYCRR Part 617 [§617.14(e), effective June 1, 1987] require the Summary.

The 4-C's Development Corporation (the Applicant) filed an application with the Department of Environmental Conservation Region 4 Staff (the Department Staff) for permits to resume the construction and operation of a 12.4 acre landfill for construction and demolition (C&D) debris (the Project or Facility). The Department had permitted the Facility in 1988. Since then, however, the permit expired when the Applicant did not timely file a renewal application. The Site of the Applicant's proposal is southeast of Partition Street Extension, east of and adjacent to, the City of Rensselaer, in the Town of East Greenbush, Rensselaer County.

A legislative hearing convened on January 16, 1996 to receive comments on the proposed Project and the Draft Environmental Impact Statement (DEIS). The Issues Conference began on January 17, 1996 and continued on February 13, 1996. The adjudicatory hearing addressed four issues concerning the potential adverse impacts from hydrogen sulfide, dust, and stormwater, as well as the social and economic benefits of the Facility. During the hearing the Parties settled the issues related to dust and stormwater management. The adjudicatory hearing record addresses the remaining two issues concerning potential adverse impacts from hydrogen sulfide, and the social and economic benefits of the Facility.

The evidentiary record of the adjudicatory hearing is incorporated by reference into this Hearing Report/FEIS. The administrative hearing record includes the DEIS and application materials, the comments received during the public comment periods and at the legislative hearing, the Applicant's response to comments, rulings, interim decisions, all correspondence in this matter after the date of the hearing notice, all hearing exhibits, the stenographic transcript of the hearing, and post-hearing briefs and replies. The administrative hearing record in this matter is the basis for the FEIS and for the Deputy Commissioner's Decision.

Section 617.14(i) requires a response to all substantive comments filed. With a cover letter dated October 30, 1997, the Applicant submitted a responsiveness summary of the same date, which addresses the public comments received during the review of this permit application. This document is identified in the hearing record as Exhibit 33.

The Hearing Report finds that the proposed Landfill would not produce significant amounts of hydrogen sulfide (H2S). Consequently, there are no unmitigatable or unavoidable impacts associated with the Project. Therefore, a balancing of the social and economic benefits of the Project is not necessary. The Report recommends that the draft permit should be issued to the Applicant.

PROCEEDINGS

Project Description

The 4-C's Development Corporation, Albany, NY, proposes to construct and resume the operation of a landfill for construction and demolition (C&D) debris. The Facility would occupy 12.4 acres on a 62-acre parcel located southeast of Partition Street Extension, east of and adjacent to the City of Rensselaer, in the Town of East Greenbush, Rensselaer County.

The Department issued a permit for the Facility in 1988. Since then, however, the permit expired when the Applicant did not timely file a renewal application. The current application seeks both to renew and to modify the 1988 permit. Under the terms of the prior permit, the former landfill was not lined. As required by the current regulations, however, the proposed Facility would include a single composite liner and leachate collection system [§§360-7.4(b)(7)(i) and (ii), effective October 9, 1993]. The proposed Landfill would include several cells that would be constructed, filled, and capped sequentially.

SEQR Status

The Region 4 Department Staff conducted a coordinated review as provided by ECL Article 8 and 6 NYCRR Part 617. The Staff, as the lead agency, issued a Positive Declaration on June 24, 1994. The Applicant prepared a Draft Environmental Impact Statement (DEIS) which the Department Staff accepted for public review and comment on May 31, 1995.

Applicable Statutory and Regulatory Provisions

This application was filed and processed pursuant to ECL Article 3, Title 3 (Department of Environmental Conservation, General Functions, Powers, Duties and Jurisdiction), Article 8 (Environmental Quality Review), Article 27 (Collection, Treatment and Disposal of Refuse and Other Solid Waste), Article 70 (Uniform Procedures); and 6 NYCRR Part 360 (Solid Waste Management Facilities, effective October 9, 1993), Part 617 (State Environmental Quality Review, effective from June 1, 1987 to December 31, 1995), Part 621 (Uniform Procedures), and Part 624 (Permit Hearing Procedures).

Legislative Hearing

The Notice of Public Hearing, dated December 4, 1995 (the Notice), appeared in the Department's Environmental Notice Bulletin on December 13, 1995. The Applicant published the Notice in the Troy Record on December 19, 1995. As provided by the Notice, Administrative Law Judge Daniel P. O'Connell presided over the legislative hearing concerning the application and DEIS at 7:00 PM on January 16, 1996 at the Melvin Roads American Legion Hall, Post No. 1231 in East Greenbush, NY.

More than 200 people attended the legislative hearing. The forty-three speakers included the Applicant's representatives, the Department Staff, local officials, and residents from the Town of East Greenbush and the City of Rensselaer. Many individuals and organizations submitted written statements. Although some supported the Project, most opposed the Applicant's proposal. Overall, the comments made at the public hearing focused on the proximity of the proposed Facility to residential areas, public health impacts, odors, noise, and traffic.

Issues Conference

The Issues Conference began on January 17, 1996 and continued on February 13, 1996 at the Leonardo Da Vinci Lodge, Rensselaer, NY. A local citizens group called Citizens Against Noxious Dumping Organizations (CAN DO), the City of Rensselaer and Capitol Apartments, Ltd. (the City), and the Town of East Greenbush (the Town) filed petitions for full party status. The Rensselaer County Environmental Management Council (RCEMC) filed a request for amicus status.

David A. Engel, Esq., and Andrew W. Gilchrist, Esq., from Harris, Beach & Wilcox, LLP, Albany, NY, represented the Applicant.

Ann Lapinski, Esq., Assistant Regional Attorney, and David Keehn, Esq., Assistant Regional Attorney, appeared for the Region 4 Department Staff.

Rosann Quinn, President, as well as David Baker and Frank Ginther represented CAN DO throughout the proceedings.

Michael J. Moore, Esq., and Dean S. Sommer, Esq., from Ward, Sommer & Moore, LLC, Albany, NY, represented the City of Rensselaer and Capitol Apartments, Ltd.

James E. Dering, Esq., from Gleason, Dunn, Walsh & O'Shea, Albany, NY, appeared for the Town of East Greenbush.

Ken Dufty, Executive Director for the Rensselaer County Environmental Management Council represented RCEMC.

A site visit was made on February 13, 1996 after the Issues Conference.

During the course of the hearing, ALJ O'Connell issued rulings that addressed requests for party status, proposed issues for adjudication, as well as many other motions filed by the Parties. Interim Decisions were issued on May 1, 1996 and on April 7, 1997. Attached as Appendix A to this Hearing Report is a list of significant rulings with a brief description of the topics addressed in the ruling.

Adjudicatory Hearing

The adjudicatory hearing convened on May 6, 7, and 15, 1996, June 4, 5, 6, 11, and 13, 1996, September 5, 1996, and May 6, 1997 to address the following issues. The first concerns the potential adverse impacts from H2S. Specifically at issue was: (1) whether the Applicant must modify the contingency plan required by §360-7.4(a)(6)(ix) to control the production and emission of H2S from the Facility during the operation, closure and post-closure of the Landfill, and (2) whether the Applicant must modify the proposed gas control system required by §360-7.4(b)(9) to control the production and emission of H2S from the Facility during the operation, closure and post-closure of the Landfill.

The second issue identified for adjudication relates to the public need for the proposed Facility. If the potential adverse health and environmental impacts from H2S could not be mitigated or avoided completely, then SEQR requires a balancing of the social and economic benefits of the Project against the unmitigatable or unavoidable impacts [§617.14(f)(1), effective June 1, 1987; Application of Wilmorite, Commissioner's Decision dated May 24, 1982; and Application of Pyramid Crossgates, Commissioner's Decision dated November 28, 1980].

The Parties settled two issues. With respect to potential dust impacts, the Parties agreed to the terms of a modified Dust Control Plan prepared by the Applicant. The modified Dust Control Plan will be incorporated into the draft permit at Special Condition B-5. The Parties also settled an issue related to stormwater management. Exhibit 31 is the stormwater analysis required by Special Condition B-1 of the draft permit. The Applicant has agreed to implement the Stormwater Management Plan identified as Exhibit 32.

The record of this proceeding closed on November 24, 1997 upon the receipt of the Department Staff's letter dated November 21, 1997 concerning the accuracy and adequacy of the October 30, 1997 Responsiveness Summary.

Official Notice

During the proceeding, official notice [§624.9(a)(6)] was taken of the following:

  1. DEC Solid Waste Management Plan 1995-1996, Updated (March 1996), and Responsiveness Summary (March 1996);
  2. Greater Troy Solid Waste Management Plan, Volumes I and II (September 1991);
  3. Public Workshop in 6 NYCRR Part 360, Subpart 360-2, Landfills (January 1996); and
  4. National Institute for Occupational Safety and Health (NIOSH) Pocket Guide to Chemical Hazards (June 1994).

Summary Positions of the Parties

The Applicant explained that its case would address three points with respect to the H2S issue. First, the Applicant asserted that the proposed Facility would not be a significant source of H2S. Second, if the Facility began to emit significant amounts of H2S, the Applicant argued that it could abatement these emissions completely. Third, the Applicant contended there would be no adverse health impacts regardless of whether the Facility emits H2S.

The Applicant offered the expert testimony of David Alexander, Vice President, Environmental Services, Galson Corporation; Mark Millspaugh, P.E., Vice President, Spectra Environmental Group, Inc.; and Kenneth G. Symms, Ph.D., DABT(1), Environmental Standards, Inc. Messrs. Alexander and Millspaugh testified that the proposed design and operation of the Landfill would prevent it from emitting a significant amount of H2S. These expert witnesses also offered opinions about various abatement measures that would be available if the Facility started to emit H2S or other decomposition gases. Dr. Symms testified that the Landfill would not cause any adverse health impacts, if it emitted H2S.

On the question of the social and economic benefits of the Project, the Applicant proffered Antoinette Cristo, President and Treasurer, Cristo Demolition, Inc. and the 4-C's Development Corporation. Ms. Cristo testified about the limited availability of disposal sites for C&D debris in the greater Capital Region(2), and the economic benefits that this Facility would provide. Mr. Millspaugh also provided expert testimony about the lack of C&D disposal sites in the greater Capital Region.

The Region 4 Department Staff argued that the Facility, as conditioned by the draft permit [Appendix B], would conform to all applicable statutory and regulatory requirements. The Department Staff did not call any witnesses, but cross-examined the other Parties' witnesses.

The City of Rensselaer and Capitol Apartments, Ltd. (the City and CALP) oppose the Project. The City and CALP argued that the Applicant must modify its design plan because there have been problems associated with the production of H2S at other C&D debris landfills in New York. The City argued that the H2S released from the Facility would adversely impact the health of the nearby residents. In addition, the City asserted that the Facility is not needed because there are alternative sites for the disposal of C&D debris in the greater Capital Region.

The City offered the expert testimony of Anthony R. Sheeran, P.E., Rust Environmental & Infrastructure, Inc., who testified that the Facility would produce significant amounts of H2S. In addition, Mr. Sheeran testified that many alternative sites are available for the disposal of C&D debris. James Melius, M.D., Dr.P.H., offered expert testimony about the adverse health effects associated with exposure to H2S.

The local community group called Citizens Against Noxious Dumping Organizations (CAN DO) opposes the Project. CAN DO argued that the decomposition of the organic materials deposited in the Facility would produce significant amounts of H2S which would adversely impact the health of local residents. According to CAN DO, the adverse health impacts associated with exposure to H2S are significant here because of the proximity of the proposed Facility to homes. In addition, CAN DO argued there is no need for the Facility. To support its case, CAN DO relied on the expert testimony of Mr. Sheeran and Dr. Melius.

The Town of East Greenbush and the Rensselaer County Environmental Management Council (RCEMC) received amicus status. These Parties oppose the Project, and argued that local zoning prohibits the proposed Landfill. The Town and RCEMC attended the hearing, and filed closing briefs and replies. However, they were not permitted to call or examine any witnesses during the hearing because of their amicus status [§624.5(e)(2)].

As provided by §624.8(b)(1)(vi), ALJ O'Connell summoned Joseph Yavonditte, P.E., Environmental Engineer II, NYS Department of Environmental Conservation. The City had subpoenaed Mr. Yavonditte in June 1996 to testify at the hearing. Without offering any reason, however, the City decided not to call him. Mr. Yavonditte provided factual testimony about the on going remediation at the FICA Landfill in Dutchess County.

FINDINGS OF FACT

Site and Project Description

  1. The 4-C's Development Corporation, Albany, NY, (the Applicant) proposes to construct and resume the operation of a landfill for the disposal of construction and demolition (C&D) debris (the Landfill or Facility). The Facility would occupy 12.4 acres on a 62-acre parcel located southeast of Partition Street Extension in the Town of East Greenbush, Rensselaer County. The Site is east of and adjacent to the City of Rensselaer.
  2. The Applicant lawfully disposed of C&D material on the Site in 1986. This material is west of the footprint for the proposed Landfill, and would not be disturbed during the construction and operation of the Facility. The regulations in effect then did not require a permit from the Department when, as here, certain conditions were met.
  3. The Department issued a permit that authorized the Applicant to dispose of C&D material on the Site from 1988 to 1993. The material deposited on the Site during this permit term was placed generally at the eastern end of the Site, and within the footprint of the currently proposed Landfill.
  4. Although a Part 360 permit from the Department was required to operate the Facility from 1988 to 1993, the regulations in effect then required "base systems" [§360-7.9(g), effective December 31, 1988] rather than liners. The current design for the Facility, however, includes a single composite liner and leachate collection system as required by §§360-7.4(b)(7)(i) and (ii) [effective October 9, 1993].
  5. The Landfill would include several cells that would be constructed sequentially. Since the material deposited on the Site from 1988 to 1993 is in the footprint of the proposed Landfill, the Applicant would remove that debris from its current location, and place it in the first newly constructed cell. Just before the first cell is filled, the Applicant would begin to construct the second cell. After the first cell is filled, it would be capped, and the second cell would be filled. This process would be repeated until the Facility reaches its total capacity. The maximum elevation of the Landfill, including final capping materials, would be 220 feet above mean sea level.

    Production of H2S at other Sites in NYS

  6. In the late-1980's, the NYS Departments of Health, and Environmental Conservation jointly investigated several landfills located in the mid- and upper-Hudson Valley region that had begun operations in the 1970's and early-1980's. The joint investigations showed that these facilities produced excessive amounts of H2S. The facilities were: (1) the Ferro Brothers C&D Debris Landfill in Catskill, Green County, (2) the Moran C&D Debris Landfill in Philmont, Columbia County, (3) the LaMunyan C&D Debris Landfill in Clermont, Columbia County, (4) the Kenilworth Lane C&D Debris Landfill in Harrison, Westchester County, (5) the Al Rose C&D Debris Landfill in Northumberland, Saratoga County, (6) the FICA Landfill in Poughkeepsie, Dutchess County, and (7) the Metz Landfill in Bethlehem, Albany County.
  7. The original designs for the Ferro Brothers, Moran, LaMunyan, Kenilworth Lane, Al Rose, FICA, and Metz Landfills did not include impermeable liners, or leachate collection systems.

    Production of Decomposition Gases

  8. Landfills produce gases when micro-organisms, primarily bacteria, decompose the organic material deposited in landfills. Carbon dioxide (CO2) and methane (CH4) are the most common gases, and together make up about 95% of the total amount of the decomposition gases produced at landfills. Gases from volatile organic compounds make up about 5% of the total amount of the decomposition gases produced at landfills. Generally, H2S is a trace constituent of the landfill gases.
  9. Under standard conditions, hydrogen sulfide (H2S) is a colorless gas. It is commonly identified by its characteristic odor of rotten eggs. H2S has a molecular weight of 34.1, and is soluble in water.
  10. Desulfovibrio is a common genus of bacteria that reduces sulfates (SO4-2) to produce H2S. In a construction and demolition debris landfill, the gypsum in wall board, plaster, and to a limited extent, the lignin in wood products contain sulfates.
  11. Desulfovibrio is a strict anaerobe, which means that it can thrive only in the absence of oxygen. To thrive, this genus of bacteria also requires temperatures between 25C - 35C (77F - 95F), a pH range of 6 - 9, and water.
  12. Generally, when operations commence, atmospheric oxygen is readily available to the micro-organisms present in the shallow waste mass of the landfill. As additional material is layered over the original debris, atmospheric oxygen does not penetrate into the waste mass. Eventually, the aerobic (or oxygen-dependent) bacteria present in the original or lower layers of the debris consume the oxygen as they breakdown the organic material in the C&D debris. After the aerobic bacteria consume all the oxygen in the original or lower layers of debris, they die. This process creates an anaerobic condition in the lower layers of the waste mass.
  13. The resulting metabolic by-products from the aerobic, or oxygen-dependent, bacteria are CO2, and heat. The amount of heat generated from the metabolic activities of aerobic bacteria can raise the temperature of the waste mass by 10 to 20 C above the ambient temperature.
  14. The pH of the waste mass depends on the pH of the leachate. Generally, the pH of leachate is within a range of 6 - 9 which is suitable for the growth of Desulfovibrio, if all other necessary conditions exist.
  15. The accessibility of sulfate compounds in C&D debris influences the rate of growth of Desulfovibrio and the amount of H2S produced. The accessibility of sulfate compounds in C&D debris increases if the materials are shredded or pulverized by increasing the surface area of sulfate containing materials. Alternatively, the accessibility of sulfate compounds in C&D debris is lower if the materials are not shredded or pulverized because the sulfates would not be readily available to Desulfovibrio.
  16. During normal operations, rain and melted snow would enter the waste mass at the Site. The waste mass would retain at least some water in the voids among the waste materials, the way that a sponge holds water.
  17. The amount of water that the waste mass would retain depends on the size of the voids. Large voids in the waste mass increase the porosity of the waste mass, and allow water to drain more easily from the waste mass.
  18. Smaller voids, however, decrease the porosity of the waste mass and would tend to retain comparatively more water.
  19. Under saturated conditions, all voids in the waste mass would be filled with water.
  20. The application materials estimate that the ratio of the volume of voids to the volume of the waste material would be .52. This means that slightly more than 50% of the volume of the Landfill would be empty space. This high level of porosity would promote the drainage of excess water from the waste mass.
  21. Design features for the proposed 4C's Landfill include a liner and leachate collection system, which are designed to prevent the waste mass from becoming saturated.
  22. The liner would prevent ground water from entering the waste mass in the 4C's Landfill. In addition, the liner would help to direct any excess water in the waste mass to the leachate collection system. The leachate collection system, then, would remove any excess water from the waste mass, and prevent the waste mass from becoming saturated.
  23. A saturated waste mass is a necessary condition to promote the excessive growth of Desulfovibrio in a way that produces significant amounts of H2S. In addition, the "free available moisture" that would likely be present in the waste mass of the Landfill would not be sufficient to promote the growth of Desulfovibrio in a way that would produce significant amounts of H2S.

    Potential Health Effects from Exposure to H2S

  24. Within several broad concentration ranges, most individuals would have similar symptoms if exposed to H2S. For example some people can smell H2S at concentrations of .7 parts per billion (ppb).
  25. Most people would consider the odor from H2S offensive at concentrations from 5 to 10 parts per million (ppm).
  26. At concentrations between 20 to 100 ppm, H2S can cause eye irritation such as burning, tearing and conjunctivitis, as well as nausea and headaches.
  27. At higher concentrations, like 200 to 300 ppm, H2S can irritate respiratory passages and cause edema.
  28. Breathing H2S at concentrations greater than 1,000 ppm can cause coma with death resulting from respiratory paralysis.
  29. Human reactions to H2S depend on the concentration, the length of time exposed to H2S, and the frequency of exposures. These factors are, in turn, influenced by a number of other circumstances such as weather conditions, wind speed and direction, the terrain, the presence of any trees or other barriers, as well as the distance to receptors.

    Managing Decomposition Gases

  30. The 4C's Landfill would be capped with an impermeable membrane system through which vents would be placed to relieve the pressure from any gases that the waste mass may generate after closure. Any decomposition gases generated by the Facility would be released passively through the vents in the cap.
  31. The vents would be installed during the phased closure of the cells with a minimum of one vent per acre. The vents would consist of a slotted vertical collector originating in the waste mass. In what is referred to as the gas vent layer of the landfill cap system, two slotted horizontal collectors would extend from the vertical collector. In the next layer of the cap system, which is known as the barrier protection layer, the vertical collector would become a solid vertical vent riser.
  32. Along the area where the vertical vent riser passes through the barrier protection layer, a tee would be placed on the vertical vent riser. Extending horizontally from this tee would be a pipe with a gate value. At the time of installation, these gate valves would be closed.
  33. In the barrier protection layer of the cap system, a series of elbows and tees would connect the horizontal extensions from the vertical vent risers to a manifold/header system thereby connecting all the vents together. A transmission header would extend through the length of the Landfill to the western side of the Facility.
  34. The vertical vent riser would continue and extend through the cap system. At a location just above the final grade of the landfill cap, another gate valve would be placed on the vertical vent riser. The vertical vent riser would extend upward for about another 3 feet.
  35. If the Landfill generates significant amounts of decomposition gases, the passive vent system could be converted to an active gas collection system in the following manner. The gate valves located above the final grade of the landfill cap on the vertical risers of the vents would be closed, and the other gate valves in the barrier protection layer of the cap system would be opened. By manipulating the valves in this manner, the individual vents would be shut off and all decomposition gases would pass through the manifold/header system to the western side of the Facility.
  36. If necessary, a blower could be attached to the end of the header/manifold system to collect decomposition gases. Treatment systems such as a flare or scrubber could also be added. A flare that would burn off the decomposition gases, and a scrubber would chemically treat the landfill gases with nitrate or other alkaline solutions to form other compounds.

    The FICA Landfill

  37. The FICA Landfill is located in the Town of Poughkeepsie, Dutchess County. The Department began monitoring the landfill in the late-1970's or early-1980's when the Department permitted the facility as a sanitary landfill. J&T Recycling operated the FICA Landfill.
  38. After a fire broke out and hazardous substances were detected at the FICA Landfill, environmental remediation of the site became necessary. Later, in the Fall of 1992, odor abatement measures were incorporated into the remediation plan because the landfill began to emit significant amounts of H2S.
  39. The Department Staff and J&T Recycling's consulting engineers developed remediation and closure plans for the FICA Landfill. A significant part of the remediation plan was the construction of a lined cell, 6 acres in size, with a leachate collection system for C&D debris. The new cell was built against the existing waste mass to stabilize steep slopes and to contour the landfill for capping.
  40. The tipping fees collected from the disposal of C&D debris in the newly constructed cell were put in an escrow account. These fees were the only source of funding for the remediation and closure plans, and subsequently, the odor abatement measures.
  41. The remediation plan called for filling the newly constructed cell with nonpulverized C&D debris from the mid-Hudson Valley region. The local supply of nonpulverized C&D debris was limited, however, and pulverized C&D debris from the New York metropolitan area was accepted to fill up the new cell so that the FICA Landfill could be capped.
  42. Before the FICA Landfill was capped, the new cell began to generate significant amounts of H2S. After repairing the leachate collection system, J&T Recycling's contractor, Black Top Maintenance, did not remove a cap at the end of a leachate collection line in the newly constructed cell. As a result, the new, lined cell filled up with water and saturated the pulverized C&D material deposited in it. The error concerning the leachate collection line was discovered when the level of water in the landfill cell exceeded the elevation of the liner system causing leachate to spill out of the landfill.
  43. Beginning in the Fall of 1992, the following odor abatement measures were implemented at FICA. First, the vent stacks were raised to dissipate landfill gases and the odors associated with them. When the odors persisted, the vents were plugged and the fissures in the cover material were sealed to prevent gases from escaping from the landfill. Though initially effective, odors returned when the pressure from the decomposition gases in the landfill built up and opened new fissures in the cover material.
  44. Next, the vents were unplugged and carbon canisters (carbon filters) were attached to each vent stack at the FICA Landfill. Due to the amount of decomposition gases escaping from the landfill, the canisters, which were moderately inexpensive and effective, had to be changed frequently thereby making their long term use expensive. In addition, canisters could not be installed along fissures in the cover material or at other areas where landfill gases were leaking from, such as the nearby shale outcropping on the site.
  45. In December 1993, J&T Recycling's contractor linked together all the vents in the C&D debris cell and some of the vents in the older sections of the FICA Landfill with pipes to form a manifold system as part of a permanent gas collection system.
  46. EG&G Rotron donated the "Biocube" to abate odors at the FICA Landfill. Although Rotron promised to deliver and install the Biocube so that operations could begin by February 11, 1994. The Biocube did not start operating until about March 11, 1994.
  47. As the manifold system directed the decomposition gases into the Biocube, micro-organisms should have biochemically degraded the landfill gases. At the end of May 1994, however, odors were still a problem at the FICA site. In mid-September 1994, the Department Staff determined that the Biocube was not effective, and directed J&T Recycling to get a flare.
  48. J&T Recycling rented a small flare to supplement the Biocube at the FICA site. In November 1994, the Department Staff determined that the combination of the Biocube with the small flare did not meet the demands of the site. Consequently, J&T Recycling bought a full-size flare from Flare Industries, Inc., Austin, TX, for less than $150,000.
  49. In March 1995, the Department Staff informed J&T Recycling's consulting engineer that the full-scale flare was not abating odors adequately. The temperature of the exhaust gas was too low (i.e., < 1400°F). As a result, the decomposition gases were not completely burned before being released to the atmosphere.
  50. The Department Staff authorized the use of supplemental fuel (propane) to raise the flare's combustion temperature, and directed J&T Recycling to upgrade the manifold system with UV resistant PVC pipe.
  51. As of February 22, 1996, the full-scale flare had been operating at the FICA Landfill for several months. Subsequent to that time, the flare was put on a timer to optimize the use of the full-scale flare by minimizing the use of supplemental fuel and by allowing a sufficient amount of decomposition gases to accumulate in the landfill. If excess gases build up before the flare started, however, untreated gases would leak out of the landfill. There is no additional information in the record of this proceeding about whether the installation of the landfill cap at the FICA site has been completed.

    The Applicant's Compliance History

  52. By letter dated February 17, 1987, F. Joseph Stockbridge, P.E., then Senior Sanitary Engineer in DEC Region 4, verified the Staff's inspection of the 4C's Facility on February 13, 1987. The letter identifies three deficiencies concerning daily cover, the proximity of waste to surface water, and site access. In addition, the letter identifies other requirements that the Applicant needed to do to qualify for the exemption from Part 360.
  53. The deficiencies described in the Department Staff's February 1987 letter were never the subject of any enforcement action.
  54. In addition, the Applicant corrected the deficiencies described in the February 1987 letter because the Applicant received a permit from the Department in December 1988.
  55. By letter dated April 8, 1992, George Elston, Environmental Engineering Technician III from DEC Region 4 stated that the Applicant corrected any deficiencies identified during his inspection which occurred some time before April 8, 1992.
  56. The Department did not pursue any enforcement action as a result of the inspection documented in Mr. Elston's letter dated April 8, 1992.
  57. With a cover letter dated May 26, 1993, Connie Welton, a resident of the Town of East Greenbush, enclosed 24 complaints concerning the 4C's Landfill to Joseph Cherubino, the Building Inspector for the Town of East Greenbush. According to Ms. Welton's letter, residents living near the Site were complaining about salvaging activities, and debris not being covered. In addition, there were complaints that the Site was an attractive nuisance because it was not properly fenced, that the Facility was operating outside its permitted hours, that debris was inappropriately being burned on the Site, and that unauthorized materials were being disposed of at the Site.
  58. There is nothing in the record to show that the Town of East Greenbush initiated any enforcement action against the Applicant in response to the complaints described in Ms. Welton's May 26, 1993 letter.
  59. By letter dated June 20, 1996, the Applicant's attorney informed the Parties to this proceeding and ALJ O'Connell that the New Options on Waste (NOW) facility at the Port of Albany had been temporarily shut down, thereby preventing the Applicant from emptying its dumpsters at that facility. Consequently, the Applicant had placed the dumpsters loaded with C&D debris at the Site of the proposed Landfill on or around June 20, 1996 until operations at the NOW facility resumed shortly thereafter.
  60. By letter dated June 28, 1996, the Department Staff's attorney asserted that the Applicant's actions described above violated the ECL and Part 360. Mr. Keehn, Assistant Regional Attorney from DEC Region 4, advised the Applicant to stop storing loaded dumpsters on the Site immediately, or the Department would initiate an enforcement action against the Respondent.
  61. With a cover letter dated August 28, 1996, Mr. Keehn distributed an Order on Consent dated August 28, 1996 (DEC Case No. R4-1892-96-07) concerning the 4C's Development Corporation and Cristo Demolition, Inc.
  62. The August 28, 1996 Consent Order alleged that the 4C's Development Corporation and Cristo Demolition, Inc. violated §360-1.5(a) on November 30, 1994 and again on November 30, 1995 by disposing of solid waste at the Site of the proposed Landfill without a permit from the Department. Section 360-1.5(a) prohibits the disposal of solid waste except at authorized facilities.
  63. In addition, the 4C's Development Corporation and Cristo Demolition, Inc. allegedly violated §360-11 in June 1996 by storing dumpsters loaded with C&D debris at the Site without the proper registration or permit from the Department. Subpart 360-11 requires transfer station operators either to register the facility with the Department or to get permits from the Department.
  64. According to the Order on Consent, the 4C's Development Corporation and Cristo Demolition, Inc. paid a total civil penalty of $500.
  65. Prior to November 30, 1994 and November 30, 1995, the Applicant notified the Town and the Department Staff that it was going to dispose of solid waste at the Site of the proposed Landfill on those two dates.
  66. In a letter dated September 19, 1995, Louis Lourinia, Building and Zoning Administrator for the City of Rensselaer, explained to Ms. Cristo that he had received complaints regarding the storage of loaded dumpsters at 83 Second Avenue in the City of Rensselaer. In his letter, Mr. Lourinia directed the Applicant to stop storing loaded dumpsters at this site because the Applicant did not have a permit to operate a transfer station or approval from the City of Rensselaer Planning Commission.
  67. In another letter dated December 4, 1996, Mr. Lourinia again stated that Cristo Demolition had left loaded dumpsters at the 83 Second Avenue site for up to three weeks. Mr. Lourinia explained that the DEC had not issued a permit to operate a transfer station at this site to Cristo Demolition. Furthermore, the City Planning Commission had not authorized these activities. In his December 1996 letter, Mr. Lourinia ordered Cristo Demolition to remove the dumpsters immediately.
  68. The attorneys for the City and the Applicant exchanged correspondence dated December 5, 9, and 19, 1996. In the correspondence the attorneys debated whether storing loaded dumpsters at 83 Second Avenue was lawful. However, neither the NYSDEC nor the City of Rensselaer initiated any enforcement action against the Applicant concerning the activities described by the City Building Administrator's letters dated September 19, 1995 and December 4, 1996.

DISCUSSION

This hearing addressed four issues: (1) the potential impacts from hydrogen sulfide (H2S), (2) potential dust impacts, (3) potential impacts from stormwater, and (4) the social and economic benefits of the Facility. During the hearing, the Parties settled the issues related to potential impacts from dust and stormwater. These agreements [Exhibits 31 and 32] have been incorporated by reference into the draft permit [Special Conditions B-1 and B-5]. The Parties developed a record about the remaining two issues.

The issue concerning the potential impacts from H2S addressed questions of whether the Applicant would need to modify the contingency plan required by §360-7.4(a)(6)(ix), and the gas control system required by §360-7.4(b)(9). The Parties presented evidence about the conditions necessary for the growth of Desulfovibrio -- the principal micro-organism present in landfills that produces H2S. In addition, the Parties developed a record at the adjudicatory hearing about the potential adverse health impacts associated with exposure to H2S.

The issue concerning the social and economic benefits of the Facility relates to the environmental review required by ECL Article 8 and 6 NYCRR Part 617 (SEQR). SEQR [§617.14(f)(1), effective June 1, 1987] requires a balancing of the social and economic benefits only if the Project would cause adverse environmental impacts that could not be completely mitigated or avoided (Application of Wilmorite, Commissioner's Decision dated May 24, 1982; and Application of Pyramid Crossgates, Commissioner's Decision dated November 28, 1980).

In their closing briefs and replies, the Parties discussed potential cumulative noise impacts from truck traffic, and the Applicant's compliance history. The discussion that follows addresses all of the points identified above.

Production of H2S at other Sites in NYS

In the late-1980's, the NYS Departments of Health (DOH), and Environmental Conservation (DEC) jointly investigated several landfills located in the mid- and upper-Hudson Valley region that had begun operations in the 1970's and early-1980's The joint investigations showed that these facilities produced H2S in excess of the usual trace amounts. The facilities were:

  1. the Ferro Brothers C&D Debris Landfill in Catskill, Green County,
  2. the Moran C&D Debris Landfill in Philmont, Columbia County,
  3. the LaMunyan C&D Debris Landfill in Clermont, Columbia County,
  4. the Kenilworth Lane C&D Debris Landfill in Harrison, Westchester County,
  5. the Al Rose C&D Debris Landfill in Northumberland, Saratoga County,
  6. the FICA Landfill in Poughkeepsie, Dutchess County, and
  7. the Metz Landfill in Bethlehem, Albany County.

The record of this proceeding does not provide any detailed information about how the Ferro Brothers, Moran, LaMunyan, Kenilworth Lane, and Al Rose landfills were constructed. With respect to C&D debris landfills, however, Part 360 began requiring liners and leachate collection systems after December 1988 [See §§360-7.9(g) and (h), effective December 31, 1988]. Based on the regulations in effect at the time, it can be reasonably inferred, therefore, that these sites were not lined and did not have leachate collection systems. With respect to the FICA and Metz Landfills, Mr. Millspaugh's uncontroverted testimony at the adjudicatory hearing shows that these facilities originally were not lined and did not have leachate collection systems.

Production of Decomposition Gases

The Parties' consulting engineers agreed that landfills produce gases when micro-organisms, primarily bacteria, decompose the organic material deposited in landfills. Carbon dioxide (CO2) and methane (CH4) are the most common landfill gases, and together make up about 95% of the total amount of the decomposition gases produced at landfills. Gases from volatile organic compounds may make up to 5% of the total amount of the decomposition gases produced at landfills. Though generally a trace constituent of landfill gases, the question of whether the proposed 4C's Landfill would generate significant amounts of hydrogen sulfide (H2S) was the central issue in this proceeding.

Under standard conditions, H2S is a colorless gas that can be identified by its characteristic rotten egg odor. H2S has a molecular weight of 34.1, and is soluble in water.

The Parties' expert witnesses identified Desulfovibrio as a common genus of bacteria that reduces sulfates (SO4-2) to produce H2S. In a construction and demolition debris landfill, the gypsum in wall board, plaster, and to a limited extent, the lignins in wood products contain sulfates.

Desulfovibrio is a strict anaerobe which means that it can only thrive in the absence of oxygen. To thrive, this genus of bacteria also requires temperatures between 25C - 35C (77F - 95F), a pH range of 6 - 9, and water.

The Parties' witnesses provided expert testimony about each of the factors identified above which influence the growth of Desulfovibrio. The following discusses each factor. The City's expert engineer, Anthony Sheeran, P.E., explained how anaerobic conditions would develop at the Landfill. Generally, when operations begin, Mr. Sheeran stated that atmospheric oxygen would be readily available to the micro-organisms present in the relatively shallow waste mass. As additional material is layered over the original debris, however, atmospheric oxygen could not penetrate into the lower layers of the waste mass. Mr. Sheeran explained that the aerobic (or oxygen-dependent) bacteria present in the original or lower layers of the debris would eventually consume the oxygen and die. This process creates an anaerobic condition in the lower layers of the waste mass.

On behalf of the Applicant, David Alexander, opined that anaerobic conditions would not develop in the lower layers of the waste mass. Because rain is saturated with oxygen, Mr. Alexander stated that the rain water would oxygenate the waste mass as it percolates through the C&D debris to the leachate collection system.

With respect to the development of anaerobic conditions, Mr. Sheeran's opinion should be accepted over Mr. Alexander's for the following reasons. First, Mr. Sheeran's opinion, that over time the amount of oxygen in the waste mass would eventually be consumed by aerobic bacteria, is consistent with the undisputed fact that most landfills generate some methane which requires anaerobic conditions. Second, there would be a great deal of variation in the frequency and the amount of rain that would fall on the waste mass. Hence, the amount of oxygen penetrating the waste mass would vary accordingly. Furthermore, a significant source of water would be melted snow, but the record contains no information about how much oxygen, if any, would be dissolved in melted snow. Finally, the aerobic organisms in the newer, or upper, layers of debris would be expected to remove any oxygen that may be dissolved in the rain as the water percolates through the waste mass to the bottom of the Landfill.

Concerning temperature, Mr. Sheeran stated that the resulting metabolic by-products generated by oxygen-dependent bacteria are primarily CO2 and heat. According to Mr. Sheeran, the amount of heat generated by the aerobic bacteria can raise the ambient temperature of the waste mass by 10 to 20C to the range where Desulfovibrio could grow. Mr. Sheeran, explained that the new debris layered on top of the original debris would insulate the original debris, and thereby help to retain the heat generated by the aerobic bacteria. Without providing any additional explanation, however, the Applicant's experts, Mr. Alexander and Mark Millspaugh, P.E., testified that most landfills do not achieve temperatures as high as 25°C - 35°C (77°F - 95°F).

Since excessive amounts of H2S were produced at the Ferro Brothers, Moran, Kenilworth Lane and other sites identified above, it can be reasonably inferred that the necessary temperature range [25°C - 35°C (77°F - 95°F)] was reached at these sites. This inference supports Mr. Sheeran's testimony and refutes the Applicant's experts. Therefore, Mr. Sheeran's opinion that the aerobic break down of the organic material in C&D debris could raise the ambient temperature of the waste mass by 10 to 20°C should be accepted.

The Parties' experts agreed that the best way to measure the pH of the waste mass is to measure the pH of the leachate. The Parties' expert witnesses further agreed that the pH of leachate is usually within a range of 6 - 9 which is a suitable pH for Desulfovibrio, if all the other conditions have been met.

The Parties' expert witnesses acknowledged that the accessibility of sulfate compounds in C&D debris influences the rate of growth of Desulfovibrio and the amount of H2S produced. The accessibility of sulfate compounds in C&D debris increases if the materials are shredded or pulverized by increasing the surface area of sulfate containing materials. Alternatively, the accessibility of sulfate compounds in C&D debris is lower if the materials are not shredded or pulverized because the sulfates would not be readily available to Desulfovibrio.

Despite the draft permit condition prohibiting pulverized C&D debris [Special Condition C-7(a)], Mr. Sheeran stated that isolated pockets of pulverized C&D material would develop throughout the waste mass as equipment runs over the existing waste mass to compact the debris and to place new debris in the Landfill. According to Mr. Sheeran, isolated areas of more densely packed C&D material would develop and have smaller voids relative to the surrounding materials. Because these smaller voids would retain more water compared to the rest of the waste mass, Mr. Sheeran stated that these isolated pockets would eventually become saturated, and promote the excessive growth of Desulfovibrio with the resultant production of significant amounts of H2S.

Mr. Sheeran's opinion, however, is speculative, and therefore should be rejected. It would be reasonable to expect that the waste mass would not be uniformly compacted, and that the density of portions of the waste mass could change over time. There is, however, nothing in the record to support Mr. Sheeran's opinion that the relatively more densely packed areas of C&D debris would be of a sufficient size and number to produce excessive amounts of H2S by Desulfovibrio.

Of the factors identified by the expert witnesses, no factor was more hotly contested than the amount of water needed to promote the excessive growth of Desulfovibrio. The Applicant's experts, Messrs. Alexander and Millspaugh, stated that the waste mass must be saturated with water to produce significant amounts of H2S. Under saturated conditions, all the voids in the waste mass would be filled completely with water. The City's expert, Mr. Sheeran, however, stated that a minimal amount of water retained by the waste mass would be enough to promote the excessive growth of Desulfovibrio. Mr. Sheeran characterized this amount of water as the "free available moisture."

The Parties' experts agreed that rain and melted snow would enter the waste mass as part of the normal operation of the Landfill. The Parties' experts also agreed that the spaces, or voids, throughout the debris would retain at least some water the way a sponge holds water.

Mr. Sheeran explained that the amount of water that the waste mass retains depends on the size of the voids. Generally, larger voids increase the porosity of the waste mass, and allow water to drain easily from the waste mass. Smaller voids, however, decrease the porosity of the waste mass and would retain comparatively more water.

The Applicant's experts explained that the waste mass would not became saturated for the following reasons. First, the waste mass would be very porous. The high porosity of the Landfill waste mass would be maintained primarily by the prohibition against the disposal of pulverized C&D debris. Based on this prohibition, the Applicant estimated that the ratio of the volume of voids to the volume of the waste mass would be .52. During cross-examination, the City's expert, Mr. Sheeran, acknowledged that a .52 ratio was a reasonable estimate. The .52 ratio means that 52% of the volume of the Landfill would be voids or empty space.

In addition to the high percentage of voids in the waste mass, Mr. Millspaugh explained that the Facility would have certain features that are designed to prevent the waste mass from becoming saturated. First, a leachate collection system is designed to collect and remove leachate from the waste mass. Second, the liner is designed to contain the leachate and direct any leachate to the leachate collection system. In addition, the liner is designed to prevent any groundwater from seeping into the Landfill.

Mr. Sheeran, however, explained that the saturated conditions proffered by the Applicant's witnesses are not needed to promote the excessive growth of Desulfovibrio. Once debris is placed in the proposed Landfill and exposed to the elements, Mr. Sheeran stated that the voids in the waste mass, regardless of their size or the overall porosity of the waste mass, would retain enough water for Desulfovibrio to thrive, assuming all other conditions are met. As previously mentioned, Mr. Sheeran characterized the amount of water retained in the voids of the waste mass as the "free available moisture."

Mr. Sheeran based his opinion, in part, on the Applicant's acknowledgment that the 4C's Landfill would produce methane. Since methane-generating and sulfate-reducing bacteria require similar conditions, Mr. Sheeran reasoned that the proposed Landfill would produce H2S in addition to methane. Based on his experiences, Mr. Sheeran also stated that capped, lined landfills with functioning leachate collection systems generate decomposition gases because "free available moisture" is available.

Although methane-producing and sulfate-reducing bacteria require similar conditions, the basis for Mr. Sheeran's opinion, as outlined in the preceding paragraph, is inconsistent with the undisputed fact that landfills typically produce comparatively much more methane than H2S. Due to this inconsistency, Mr. Sheeran's opinion should not be accepted.

In addition, the expert testimony offered by the Applicant's witnesses is more persuasive than that offered by the City's witness based on the information presented in the record about H2S production at other landfills. Since the Ferro Brothers, Moran, LaMunyan, Kenilworth Lane, Al Rose, FICA and Metz landfills did not have liners and leachate collection systems, it can be reasonably inferred that the waste mass at these facilities retained more water than what Mr. Sheeran has characterized as "free available moisture."

The inference that the waste mass at the landfills jointly investigated by the DOH and DEC was actually saturated is supported by Mr. Millspaugh's personal experiences at the FICA Landfill. Mr. Millspaugh explained that the FICA Landfill in the Town of Poughkeepsie, Dutchess County, was a former municipal solid waste facility. A fire broke out at the Facility, and a large amount of water was poured onto the existing landfill to extinguish the fire. After chemical analyses of the runoff from the smoldering landfill established the presence of hazardous constituents, Mr. Millspaugh stated that the Department listed the FICA Landfill as a hazardous waste site.

After the fire, Mr. Millspaugh explained that the operator of the FICA Landfill, J&T Recycling, retained the Dunn Corporation as the consulting engineering firm to investigate the landfill, and to develop remediation and closure plans. While working at the Dunn Corporation, Mr. Millspaugh developed the plans which included building a lined cell, 6 acres in size, with a leachate collection system. As specified in the plan, the cell was built against the waste mass to stabilize the existing steep slopes. After the newly constructed cell was filled, the entire site was then graded and capped.

According to Mr. Millspaugh, non-pulverized C&D debris from the Dutchess County area was going to be used to fill the newly constructed, lined cell. A sufficient amount of debris was not available to fill the cell; however, so debris from the NYC metropolitan area was used. Much of this C&D debris was pulverized. Mr. Millspaugh stated that each load was visually inspected, and monitored with an organic vapor analyzer to insure that the material delivered to the FICA site was construction and demolition debris.

Subsequently, the FICA Landfill began to generate significant amounts of H2S. According to Mr. Millspaugh, this occurred for two reasons. First, most of the C&D debris deposited in the cell was pulverized, which made sulfates more available to Desulfovibrio. Second, the pulverized material became saturated with water. Mr. Millspaugh explained that after repairing or replacing a portion of the leachate collection system in the newly constructed, lined cell, the contractor did not remove the cap at the end of the leachate collection line. As a result, the new, lined cell filled with water, like a bathtub, and saturated the pulverized C&D material deposited in it. The error concerning the leachate collection line was discovered when the level of water in the FICA Landfill exceeded the elevation of the liner system, and leachate began spilling out of the landfill.

The intervening Parties offered nothing to contradict the accuracy or completeness of Mr. Millspaugh's testimony concerning his experiences with the leachate collection system at the FICA Landfill. Consequently, significant weight should be assigned to Mr. Millspaugh's explanation for why the newly constructed, lined cell at the FICA Landfill produced excessive amounts of H2S.

Therefore, a saturated waste mass is a necessary condition to promote the excessive growth of Desulfovibrio in a way that produces significant amounts of H2S. Furthermore, the following factors would limit the growth of Desulfovibrio at the proposed 4C's Landfill, and thereby limit the amount of H2S produced. First, the leachate collection system and the liner are designed to prevent the waste mass from becoming saturated. Second, the draft permit prohibits the disposal of pulverized and shredded C&D debris. The purpose of this draft permit condition [C-7(a)] is to maintain the high porosity of the waste mass which in turn would promote the drainage of any excess water from the waste mass. The prohibition against pulverized and shredded materials would also insure that only recognizable C&D debris would be disposed of in the proposed Facility.

Moreover, the "free available moisture" that would likely be present in the waste mass of the proposed Landfill would not be sufficient to promote the excessive growth of Desulfovibrio and produce significant amounts of H2S. Rather, the "free available moisture" that be would present in the waste mass would result in the expected mixture of decomposition gases which typically includes only a trace of H2S.

Potential Health Effects from Exposure to H2S

The Applicant argued that the proposed 4C's Landfill would not adversely impact human health. To support this argument, the Applicant offered the expert testimony of Kenneth G. Symms, Ph.D., a toxicologist, who is a certified Diplomat of the American Board of Toxicology (DABT).

The City, however, offered the expert testimony of James M. Melius, M.D., Dr.P.H., who stated that exposure to H2S from the Facility would adversely effect the health of nearby residents. In his former capacity as the Director for the Division of Occupational Health and Environmental Epidemiology at the NYS Department of Health, Dr. Melius and his Staff along with Staff from the DEC investigated the landfill sites identified above, which produced excessive amounts of H2S.

Within several broad concentration ranges, the Parties' health experts generally agreed that most individuals would have similar symptoms if exposed to H2S. For example, some people can smell H2S at concentrations as low as .7 parts per billion (ppb). Most people, however, would consider the odor from H2S offensive at concentrations between 5 to 10 parts per million (ppm). At concentrations of 20 to 100 ppm, H2S can cause eye irritation such as burning, tearing and conjunctivitis, as well as nausea and headaches. At higher concentrations, like 200 to 300 ppm, H2S can irritate respiratory passages and cause edema. Finally, breathing H2S at concentrations greater than 1,000 ppm can cause coma with death resulting from respiratory paralysis.

The health experts offered by the Parties further agreed that the effects from exposure to H2S depend on the concentration, the length of the exposures, and the frequency of exposures. These factors are, in turn, influenced by a number of other circumstances such as weather conditions, wind speed and direction, the terrain, the presence of any trees or other barriers, as well as the distance to receptors.

As explained above, the design, construction, and operation of the 4C's Facility would be substantially different from the design, construction, and operation of the other facilities identified above. The 4C's Facility would have a liner and leachate collection system -- where the Ferro Brothers, Moran, LaMunyan, Kenilworth Lane, and Al Rose landfills did not. In addition, the design of the 4C's Facility has been amended to facilitate the conversion of the passive vent system to an active gas collection system, if necessary.

Based in large part on the results of the joint investigations by the NYS Departments of Health and Environmental Conservation, Part 360 was amended in late 1988 to address the potential adverse impacts from decomposition gases. Currently, §360-1.14(m) requires landfill owners and operators to control odors so that they do not constitute a nuisance, or hazard to health, safety or property. In addition, §360-1.14(w) requires owners and operators to close landfills properly, and to maintain the closed facilities in a way that prevents or remedies adverse environmental and health impacts, like gas migration.

With the required design features described above, the Facility would produce only trace amounts of H2S. This is considerably less than the amount of H2S produced by the landfills jointly investigated by the DOH and DEC. Consequently, the Applicant would be able to manage odors and gas migration, and thereby prevent or remedy any adverse environmental and health impacts associated with H2S as required by §§360-1.14(m) and (w).

Managing Decomposition Gases

Another question associated with potential H2S impacts was whether the Applicant's proposed passive vent system would control odors and any other adverse impacts related to decomposition gases. The Applicant argued that its proposed passive vent system would comply with the applicable regulations particularly since no more than the usual trace amounts of H2S would be produced at the 4C's Landfill.

The City and CAN DO argued, however, that an active gas collection system was necessary. Based on events at the FICA Landfill, the intervening Parties are principally concerned about how quickly the Applicant could implement abatement measures if the proposed passive vent system had to be converted to an active gas collection system. In addition, the intervening Parties are concerned about the Applicant's ability to finance the conversion.

The 4C's Landfill would be capped with an impermeable membrane system through which vents would be placed to relieve the pressure from any gases that the waste mass may generate after closure. Based on the application materials, any decomposition gases generated by the Facility would be released passively through the vents in the cap.

The vents would be installed during the phased closure of the cells with a minimum of one vent per acre. The vents would consist of a slotted vertical collector originating in the waste mass. In the gas vent layer of the landfill cap system, two slotted horizontal collectors would extend from the vertical collector. Subsequently, the vertical collector would become a solid vertical vent riser that would extend 3 feet above the final grade of the landfill cap.

At the hearing, the Applicant's experts stated that in the unlikely event that Landfill generated significant amounts of decomposition gases, the passive vent system could be converted easily to an active gas collection system. To convert the passive vent system into an active gas collection system, the Applicant's experts explained that the individual vents could be connected together with pipes to form a manifold system. Then, any landfill gases generated by the Facility would be pumped to a central location for treatment by a flare or scrubber. A flare would burn off the combustible gases. Mr. Millspaugh explained, however, that the effectiveness of a flare would depend on the BTU (British Thermal Unit) value of the gases. According to Mr. Millspaugh, scrubbing is a chemical process that mixes the landfill gases with nitrate or other alkaline solutions to form other compounds.

After the adjudicatory hearing ended, the Applicant filed a Revised Decomposition Gas Control Plan, dated July 31, 1997. Though based on the use of passive vents, as originally proposed, the revised plan includes the additional components described by the Applicant's expert witnesses that would be necessary to convert the passive vent system to an active gas collection system.

According to the revised plan, the following components would be added. First, a gate valve would be added to the vertical vent riser at a location just above the final grade of the landfill cap. Second, a new tee would be added to the vertical vent riser along the area where the vertical vent riser passes through the barrier protection layer of the cap system. Extending horizontally from the new tee would be a pipe with a second gate valve. At the time of installation, the second set of gate valves located in the barrier protection layer of the cap system would be closed. A series of elbows and tees would connect the new horizontal extensions from the vertical vent risers to a manifold/header system. As a result, all vents would be connected together. A transmission header would extend through the length of the Landfill to the western side of the Facility. (See Appendix C attached to this Report)

The revised plan explains that manipulating the first gate valve on the vertical vent riser would mechanically control the rate at which decomposition gases could be emitted from individual vents and landfill cells. If necessary, the first gate valve could be closed completely and the second gate valve opened. As a result, all decomposition gases would pass through the manifold/header system. As described at the hearing, a blower or treatment system, if needed, could be attached to the end of the header/manifold system to collect and treat gases generated by the 4C's Landfill.

In a letter dated August 22, 1997, the Department Staff explained that they had reviewed the revised plans, and would incorporate them by reference into Special Condition B-6 of the draft permit.

As previously mentioned above, §360-1.14(m) and (w) requires landfill owners and operators to control odors, and to maintain closed facilities in a way that prevents or remedies adverse environmental and health impacts, like gas migration. Provisions in Subpart 360-7 [Construction and Demolition Debris Landfills] expand upon these general requirements. Section 360-7.4(a)(6)(ix) requires landfill owners and operators to have contingency plans in place to address odors and other adverse impacts from H2S. Section 360-7.4(b)(9) requires landfill gas control systems to prevent concentrated amounts of landfill gases from migrating off-site.

The applicable regulations do not mandate the implementation of active gas collection systems to control potential adverse impacts from decomposition gases. Rather, the regulations set an operational standard that provides the necessary flexibility to implement the appropriate technology needed to meet this standard. For the reasons outlined above, the proposed 4C's Landfill would not produce significant amounts of H2S. Consequently, the vent system outlined in the Applicant's Revised Decomposition Gas Control Plan (July 31, 1997) would comply with the operational standards outlined in §§360-1.14(m) and (w), as well as §360-7.4(a)(6)(ix) and §360-7.4(b)(9).

As explained above, the intervening Parties are principally concerned about how quickly the Applicant could implement odor abatement measures if the proposed passive vent system had to be converted to an active gas collection system. The events at the FICA Landfill are the basis for the Parties' concern. The documents, collectively identified in the hearing record as Exhibit 29, provide a chronology of the remedial, closure, and odor abatement measures implemented at the FICA Landfill.

The tipping fees collected from the disposal of C&D debris in the newly constructed cell at the FICA Landfill were the only source of revenue to pay for the remediation and closure of the landfill. Then, in the Fall of 1992, complaints about H2S odors prompted the implementation of odor abatement measures.

After one year of trying various "low-tech" measures to abate odors, the FICA Landfill continued to generate large amounts of H2S. Consequently, in December 1993, the Department Staff overseeing the remediation of the landfill required the contractor to link the vents together to form a manifold system as part of an active gas collection system. With the manifold system in place, attempts at using the Biocube to break down the landfill gases biochemically, first by itself and then in conjunction with a small flare, were unsuccessful. In November 1994, a full-scale flare was brought to the FICA site. Correspondence from March 1995 shows, however, that problems persisted with the full-scale flare. These problems were related, in part, to the poor quality of the materials used to construct the manifold system.

As of February 22, 1996, the full-scale flare had continued to operate at the FICA Landfill. Subsequent to that time, the flare was put on a timer to optimize its use by minimizing the need for supplemental fuel and by allowing a sufficient amount of decomposition gases to accumulate. The record of this proceeding does not include any additional information about the FICA Landfill after February 1996.

The Applicant's revised plan speaks directly to the intervening Parties' concerns about how easily the passive vent system could be converted to an active gas collection system, and whether the Applicant could finance the conversion. According to the revised plan, as each cell is capped, the vents for that particular cell would be installed and connected together with a series of valves, fittings, and pipes, thereby sequentially developing the manifold/header system. The terms of the draft permit prohibit the construction of a new cell until the previously constructed cell is properly closed and capped. If necessary, and at any point during the operation of the 4C's Facility, the passive vent system could be converted to an active gas collection system by manipulating the gate valves that would have already been installed on the individual vents. The Applicant's gas control plan, therefore, contrasts sharply with the circumstances described above concerning the FICA Landfill.

Potential Cumulative Noise Impacts from Truck Traffic

In the Interim Decision dated May 1, 1996 concerning this matter [p. 4], the Commissioner held that noise from truck traffic was not a substantive and significant issue for adjudication. In their closing briefs, however, the intervening Parties argued that the May 1, 1996 Interim Decision is no longer valid. Based on a letter dated May 15, 1997 from Carl Johnson, then Director of DEC Region 4, the City argued that the Applicant should supplement its Noise Study [Appendix B of the DEIS] in a manner consistent with Special Condition 38b of DEC Permit No. 4-3899-6/1-0.

The Department issued DEC Permit No. 4-3899-6/1-0 for a sand and gravel mine to RJ Valente, Inc. on April 26, 1993. The permit is effective until May 1, 1998. The Valente mine site is located north of the 4C's Site on the western side of Partition Street in the Towns of North and East Greenbush. All traffic from the Valente site and the 4C's Landfill must travel through the City of Rensselaer because Partition Street dead ends in the Town of North Greenbush.

The Applicant was already operating its C&D debris landfill at the 4C's Site under the terms of its previous permit when Valente filed its mining permit application with the Department. Therefore, the environmental review for the Valente project included a cumulative noise analysis for truck traffic because it was going to be the next potential source of noise.

In addition to the cumulative noise analysis filed with the mining permit application, Special Condition 38b of the Valente permit requires the mining operator to develop a protocol for monitoring sound levels generated by mining operations and truck traffic. Until Valente collects the required monitoring data, the Valente permit caps the total number of daily truck trips traveling either to or from the mine at 200. The Valente permit condition states further that depending on the results of the noise monitoring studies, the Department may need to adjust the cap on truck trips.

The Department, however, never enforced Special Condition 38b of the Valente permit. Then, in a letter dated May 15, 1997 to members of CAN DO, Mr. Johnson explained that the Region 4 Department Staff would contact Valente about the monitoring studies required by Special Condition 38b. Consequently, the intervening Parties want the record concerning this application to remain open until either Valente complies with the terms of its permit, or until the Applicant undertakes a study similar to the one outlined in Special Condition 38b of the Valente permit.

Contrary to the intervening Parties' assertion, the forthcoming data from Valente is not necessary to complete the environmental review of the Applicant's proposal. First, whether Valente has complied, or will comply, with Special Condition 38b, or any other condition of its permit, is irrelevant to the captioned matter. Consequently, Mr. Johnson's May 15, 1997 letter, which only addresses the terms of the Valente mining permit, does not invalidate the May 1, 1996 Interim Decision concerning in this matter.

Second, at no time during this proceeding did any Party, or prospective Party, offer any proof that contradicted the Applicant's noise analysis, or any of the data and assumptions relied upon as the basis for the analysis presented in Appendix B of the DEIS. Based on the uncontroverted analysis, Special Condition C-1(b) of the draft permit [page 5 of 6] limits the total number of daily truck trips to and from the 4C's Landfill to 70.

Finally, the DEIS acknowledges that potential cumulative noise impacts from truck traffic on Partition Street are possible. This acknowledgment is not new since Valente addressed the question of potential cumulative noise impacts from truck traffic in its application. The Applicant's Noise Study also acknowledges that any potential noise impacts from truck traffic on Partition Street can be mitigated by limiting the daily number of truck trips to and from the Valente mine, the 4C's Landfill, or both.

Balancing Social and Economic Benefits [Need]

As explained above, the issue concerning the social and economic benefits of the Facility relates to the environmental review required by ECL Article 8 and 6 NYCRR Part 617 (SEQR), which is separate from any regulatory requirements outlined in 6 NYCRR Part 360. SEQR requires a balancing of the social and economic benefits only if the Project would cause adverse environmental impacts that cannot be completely mitigated or avoided [Application of Wilmorite, Commissioner's Decision dated May 24, 1982; and Application of Pyramid Crossgates, Commissioner's Decision dated November 28, 1980].

For the reasons set forth above, there would be no potential adverse environmental impacts associated with H2S or noise from truck traffic that could not be completely mitigated or avoided. As a result, it is not necessary to address the social and economic benefits of the Facility as part of the environmental review required by ECL Article 8 and 6 NYCRR Part 617. Therefore, it is not necessary to make any findings or conclusions about this particular issue.

The Applicant's Compliance History

In a ruling dated December 10, 1996, I denied the intervening Parties' motions to include the Applicant's compliance history as an issue for adjudication. After considering appeals from the ruling, Acting Deputy Commissioner Frank M. Dunstan issued an Interim Decision on April 7, 1997, and found that the Parties did not substantially dispute the events and circumstances described in the Parties' motion papers. Consequently, the Acting Deputy Commissioner ruled that an adjudicatory hearing to determine facts about the Applicant's compliance history was not necessary. The Interim Decision, however, provided the Parties with a second opportunity to present arguments in their respective closing briefs and replies about the weight that should be given to the circumstances associated with the Applicant's operations.

The City, RCEMC, and the Department Staff provided additional argument. In its closing brief, the City referred to the August 28, 1996 Order on Consent and argued that the Consent Order demonstrates that the Applicant violated the ECL and applicable provisions of Part 360. The City also contended that the circumstances described in letters from the City's Building Department constitute the illegal operation of a transfer station [§360-1.2(a)(172)] in Rensselaer because the Applicant neither obtained a permit nor registered the facility with the Department as required by Subpart 360-11. The City asserted that the Applicant is a persistent violator who would not operate the proposed Landfill in a manner consistent with the requirements outlined in the ECL, the implementing regulations, and the draft permit.

Similarly RCEMC cited the August 28, 1996 Order on Consent in its closing brief, and also argued that the Applicant is a persistent violator.

In their reply brief, the Department Staff characterized the incidents described in the August 28, 1996 Order on Consent as minor. Furthermore, the Staff argued that the violations alleged in the August 1996 Consent Order should not be considered because the assessed civil penalty of $500 was substantially less than the $25,000 limit outlined in the Record of Compliance Enforcement Guidance Memorandum (p. 6). The Staff argued that the administrative decisions previously cited by the intervening Parties in the prior motion concerning the Applicant's compliance history are distinguishable from this case.

For the purposes of discussion, the following circumstances and events identified by the Parties concerning the Applicant's compliance record are accepted as true. By letter dated February 17, 1987, F. Joseph Stockbridge, P.E., then Senior Sanitary Engineer in DEC Region 4, verified the Staff's inspection of the 4C's Facility on February 13, 1987. The letter identifies three deficiencies concerning daily cover, the proximity of waste to surface water, and site access. In addition, the letter identifies other requirements that the Applicant needed to do to qualify for the exemption from the version of Part 360 in effect at that time.

The deficiencies described in the Department Staff's February 1987 letter were never the subject of any enforcement action. In addition, it can be reasonably inferred that the Applicant corrected the deficiencies described in the February 1987 letter because the Applicant received a permit from the Department in December 1988.

In a letter dated April 8, 1992, George Elston, Environmental Engineering Technician III from DEC Region 4, stated that the Applicant corrected any deficiencies identified during his inspection which occurred some time before April 8, 1992. The Department did not pursue any enforcement action as a result of Mr. Elston's inspection.

With a cover letter dated May 26, 1993, Connie Welton, a resident of the Town of East Greenbush, enclosed 24 complaints concerning the 4C's Landfill to Joseph Cherubino, the Building Inspector for the Town of East Greenbush. According to Ms. Welton's letter, residents living near the Site were complaining about salvaging, and debris not being covered. In addition, there were complaints that the Site was an attractive nuisance because it was not properly fenced, that the Facility was operating outside its permitted hours, that debris was inappropriately being burned on the Site, and that unauthorized materials were being disposed of at the Site. There is nothing in the record of this proceeding to show, however, that the Town of East Greenbush initiated any enforcement action against the Applicant in response to these complaints.

By letter dated June 20, 1996, the Applicant's attorney informed the Parties to this proceeding that the New Options on Waste (NOW) facility at the Port of Albany had been temporarily shut down, thereby preventing the Applicant from emptying its dumpsters at the NOW facility. Consequently, the Applicant had temporarily placed the dumpsters loaded with C&D debris at the Site of the proposed 4C's Landfill around June 20, 1996 until operations at the NOW facility resumed shortly thereafter.

In a letter dated June 28, 1996, the Department Staff's attorney stated that the Applicant's actions at the Site around June 20, 1996 violated the ECL and Part 360. Mr. Keehn, Assistant Regional Attorney, advised the Applicant to stop storing loaded dumpsters on the Site immediately, or the Department would initiate an enforcement action against the Applicant.

On August 28, 1996, the Department and the 4C's Development Corporation and Cristo Demolition, Inc. entered into an Order on Consent (DEC Case No. R4-1892-96-07). The 4C's Development Corporation paid a civil penalty of $500. The Consent Order alleged that the 4C's Development Corporation and Cristo Demolition, Inc. violated §360-1.5(a) on November 30, 1994 and again on November 30, 1995 by disposing of solid waste at the Site of the proposed Landfill without a permit from the Department. Section 360-1.5(a) prohibits the disposal of solid waste except at authorized facilities.

The Applicant, however, had notified Town officials and the Department Staff prior to November 30, 1994 and November 30, 1995 about the Applicant's intent to dispose of solid waste at the Site of the proposed Landfill on those two dates.

In addition, the August 1996 Consent Order alleged that the 4C's Development Corporation and Cristo Demolition, Inc. violated §360-11 in June 1996 by storing dumpsters loaded with C&D debris at the Site without the proper registration or a permit from the Department. Subpart 360-11 requires transfer station operators either to register the facility with the Department or to get permits from the Department.

In a letter dated September 19, 1995, Louis Lourinia, Building and Zoning Administrator for the City of Rensselaer, explained to Ms. Cristo that he had received complaints regarding the storage of loaded dumpsters at 83 Second Avenue in the City of Rensselaer. In his letter, Mr. Lourinia directed the Applicant to stop storing loaded dumpsters at this site because the Applicant did not have a permit to operate a transfer station or approval from the City of Rensselaer Planning Commission.

In another letter dated December 4, 1996, Mr. Lourinia from the City of Rensselaer reported that Cristo Demolition had continued to leave loaded dumpsters at the 83 Second Avenue site for up to three weeks. Mr. Lourinia explained that the DEC had not issued a permit to Cristo Demolition for a transfer station at this site. Furthermore, the City Planning Commission had not authorized these activities. In his December 1996 letter, Mr. Lourinia ordered Cristo Demolition to remove the dumpsters immediately.

The attorneys for the City and the Applicant exchanged correspondence dated December 5, 9, and 19, 1996, and debated whether storing loaded dumpsters at 83 Second Avenue is lawful. However, neither the NYS DEC nor the City of Rensselaer initiated any enforcement action against the Applicant concerning the activities described by the City Building Administrator's letters dated September 19, 1995 and December 4, 1996.

The Department's Record of Compliance Enforcement Guidance Memorandum dated March 5, 1993 (EGM) establishes the policy that persistent or significant violators of the ECL should not receive new permits or be able to renew existing permits if they violate laws directly related to their ability to carry out regulated activities in a lawful and environmentally responsive manner (p. 1). The EGM lists six categories of events that should be considered. Of the six categories listed, only the second one, (b), is relevant to the captioned permit applications. It states:

b. Whether a permittee or applicant has been determined in an administrative, civil or criminal proceeding to have violated any provision of the ECL, any related order or determination of the Commissioner, any regulation of the Department, or any similar statute, regulation, order or permit condition of the federal or other state government, or agency, on one or more occasions and in the opinion of the Department, the violation that was the basis for the action posed a significant potential threat to the environment or human health, or is part of a pattern of non-compliance (pp. 4-5).

None of the events outlined above meet the criteria outlined in the EGM. The Staff's February 1987 and April 1992 correspondence are not evidence of any violations that have been adjudicated or otherwise resolved through an Order on Consent. There is nothing to show that the Town initiated any enforcement action against the Applicant in response to Ms. Welton's May 26, 1993 letter and the enclosed complaints filed by the Town's residents. Consequently, there has been no demonstration that the Applicant violated any Town ordinances or the terms of the cut and fill permit issued by the Town.

Similarly, the attorneys' December 1996 letters show there is a issue of law about whether the circumstances described in Mr. Lourinia's correspondence were violations of City ordinances, the ECL, or Part 360. There is nothing, however, to show that the City initiated any enforcement action against the Applicant in an attempt to prove the allegations or to resolve the legal question. Consequently, the allegations are unproven, and should not be considered further.

Upon entering into the August 28, 1996 Order on Consent, the Applicant did not admit to committing any violations. Nevertheless, the allegations were resolved through this common enforcement instrument. Though the EGM expressly states that enforcement actions can be excluded from consideration if the civil penalty assessed is less than $25,000 (p. 6), the following discussion is provided for the Deputy Commissioner's consideration. In addition, it is assumed, for the purpose of discussion, that the Applicant committed the violations alleged in the Consent Order.

According to the Order, the 4C's Development Corporation and Cristo Demolition, Inc. allegedly violated §360-1.5(a) on November 30, 1994 and again on November 30, 1995 by disposing of solid waste at the site of the proposed landfill without a permit. Section §360-1.5(a) prohibits the disposal of solid waste except at authorized facilities.

The Applicant contended, and the Parties do not dispute, that the Applicant undertook these actions, with notice to the Town and the Department Staff, to preserve the Applicant's rights concerning the continuous use of the Site. I find that providing the Town and the Department Staff with notice before undertaking the actions that took place on the Site on November 30, 1994 and November 30, 1995 substantially mitigates the significance of these actions, if these actions are violations of §360-1.5(a). Moreover, the Department Staff did not react unfavorably to these events until August 1996. Similarly, neither the City nor the Town included any information about the November 1994 and 1995 events in their respective petitions for full party status even though Town officials may have actually witnessed these events.

With respect to the other events addressed in the Consent Order, the 4C's Development Corporation and Cristo Demolition, Inc. allegedly violated §360-11 in June 1996 by storing dumpsters loaded with C&D debris at the site of the proposed landfill. Subpart 360-11 requires operators either to register transfer facilities with the Department or to get permits from the Department.

By letter dated June 20, 1996, the Applicant's attorney notified everyone involved in this proceeding that the Applicant had placed dumpsters load with C&D debris at the Site. According to the Applicant, the New Options on Waste (NOW) facility, which was the final destination for the debris, was closed temporarily.

Although the intervening Parties argued that this activity was a flagrant violation that occurred during the pendency of this permit hearing, the Applicant does not have any control over operations at the NOW facility. The storage at the Site was temporary, and ceased when the NOW facility reopened. In addition, the Consent Order does not establish or allege that any environmental harm resulted from the temporary storage.

The Department Staff correctly argued that the circumstances discussed above are distinguishable from the administrative decisions cited by the intervening Parties in their prior motion papers. The previously referenced administrative decisions are addressed in detail in the December 10, 1996 ruling. Since the Parties did not provide any additional argument about them in their closing briefs and replies, the analysis from the December 10, 1996 ruling is not repeated here, but is incorporated into this Hearing Report by reference.

Based on the current guidance provided in the Record of Compliance Enforcement Guidance Memorandum, the Commissioner should not deny or otherwise modify the draft permit.

The NYS Solid Waste Hierarchy

In their closing briefs, the intervening Parties asserted for the first time in this proceeding that the proposed Facility should not be permitted because it is inconsistent with the State's solid waste management policy [ECL §27-0106]. The City and RCEMC asserted that the New Options on Waste (NOW) facility at the Port of Albany recycles C&D debris, and that the 4C's Landfill, if approved, would create a disincentive to recycling C&D debris.

All participants in this proceeding had an opportunity to propose issues for adjudication, and that opportunity has passed. The intervening Parties did not address the criteria outlined in §624.5(c) when they asserted an issue about the State's solid waste management policy in closing statements and replies. Therefore, they are barred from raising any new issues now.

Moreover, though ranked fourth below the second ranked options of reusing and recycling, burying solid waste in an approved landfill is consistent with the solid waste management policy outlined in ECL §27-0106.

Due Process Issues

In its closing brief, the Town asserted that, on numerous instances, ALJ O'Connell inappropriately limited the intervening Parties' cross-examination of the Applicant's witnesses, and thereby violated the intervening Parties' due process rights. The Town provided several examples from the hearing transcript in an attempt to support its assertion.

The City and CAN DO requested and received full party status in the proceeding. The Town, however, obtained amicus status. Given the Town's status, the Town did not have a right to examine witnesses [§624.5(e)(2)]. Therefore, the Town cannot be aggrieved by any limits that may have been placed on the other intervening Parties.

Objections to questions posed during the examination of witnesses, the ALJ's rulings and the rationale for those rulings, and any exceptions or objections to those rulings are developed fully in the record.

CONCLUSIONS

  1. The 4C's Landfill, as controlled by the draft DEC permit, is designed not produce significant amounts of H2S.
  2. Since the proposed 4C's Landfill has been designed to not produce significant amounts of H2S, the Applicant would be able to manage odors and gas migration, and thereby prevent or remedy any adverse environmental and health impacts associated with H2S as required by §§360-1.14(m) and (w).
  3. The vent system outlined in the Applicant's Revised Decomposition Gas Control Plan, dated July 31, 1997 complies with the operational standards outlined in §§360-1.14(m) and (w), as well as §360-7.4(a)(6)(ix) and §360-7.4(b)(9).
  4. Special Condition C-1(b) of the draft permit limits the total number of daily truck trips to and from the 4C's Landfill to 70. Any potential cumulative noise impacts from truck traffic on Partition Street in the City of Rensselaer can be mitigated or avoided by limiting the daily number of truck trips to and from the Valente mine, the 4C's Landfill, or both.
  5. ECL Article 8 and its implementing regulations, Part 617 (SEQR), require a balancing of the social and economic benefits only if the proposed Landfill would cause adverse environmental impacts that cannot be mitigated or avoided completely [Application of Wilmorite, Commissioner's Decision dated May 24, 1982 and Application of Pyramid Crossgates, Commissioner's Decision dated November 28, 1980]. Since there would be no unmitigatable or unavoidable impacts associated with H2S or noise from truck traffic, it is not necessary to address the social and economic benefits of the Facility.
  6. The Department's Record of Compliance Enforcement Guidance Memorandum dated March 5, 1993 (EGM) establishes the policy that persistent or significant violators of the ECL should not receive new permits or be able to renew existing permits if they violate laws directly related to their ability to carry out regulated activities in a lawful and environmentally responsive manner. None of the circumstances identified in the hearing record concerning the Applicant's compliance history meet the criteria outlined in the EGM. The Town of East Greenbush and the City of Rensselaer did not initiate any enforcement actions against the Applicant. The violations alleged in the August 28, 1996 Order on Consent are not significant based on the guidance provided in the EGM.
  7. The proposed 4C's Landfill would be consistent with the State's solid waste management policy outlined in ECL §27-0106.
  8. The Responsiveness Summary, identified as Exhibit 33, adequately and comprehensively addresses the oral and written comments made on the DEIS. This is with the exception of those comments that relate to the issues that were adjudicated. Those comments are addressed in the hearing record and by the Hearing Report.

RECOMMENDATION

The draft permit, which incorporates by reference the various agreements and plan revisions developed during the course of this proceeding, should be issued to the Applicant.

Attachments:

  • Appendix A, List of Significant Rulings by the ALJ, and the Interim Decisions.
  • Appendix B, Draft Permit.
  • Appendix C, Revised Decomposition Gas Control Plan, July 31, 1997.

1. DABT means Diplomate of the American Board of Toxicology.

2.For purposes of discussion, the greater Capital Region includes the Counties of Albany, Columbia, Greene, Rensselaer, Saratoga, Schenectady and Washington.

  • PDF Help
  • For help with PDFs on this page, please call 518-402-9003.
  • Contact for this Page
  • Office of Hearings and Mediation Services
    NYS DEC
    625 Broadway, 1st Floor
    Albany, NY 12233-1550
    518-402-9003
    Send us an email
  • This Page Covers
  • Page applies to all NYS regions