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4-C's Development Corporation - Interim Decision, May 1, 1996

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

50 Wolf Road

Albany, New York 12233-1010

In the Matter

- of the -

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

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

INTERIM DECISION

May 1, 1996

INTERIM DECISION OF THE COMMISSIONER

This is an appeal pursuant to .624.8(d) of the Department's Rules of the Issues and Party Status Rulings of Administrative Law Judge Daniel P. O'Connell in this matter. As explained below, his Rulings are affirmed and the appeals are denied.

4-C's Development Corporation ("4-C's") seeks a permit to construct and operate a landfill to receive construction and demolition ("C&D") debris. The facility would be located on the south side of Partition Street in the Town of East Greenbush, near the eastern boundary of the City of Rensselaer. The landfill facility would occupy 12.4 acres of a 62 acre parcel owned by persons affiliated with 4-C's. The 12.4 acre facility area was previously permitted for C&D debris disposal by the Department in 1988. Under that permit, only Cristo Construction Company could dispose of C&D waste at the facility. 4-C's applied for renewal of that permit in 1993. However, the 1988 permit expired, and the existing facility has not been receiving waste material since December 8, 1993. The current application seeks both to renew and modify the 1988 permit. Under the prior permit, the landfill was unlined. Under the new permit it would be lined. Also, the new permit would allow C&D wastes to be disposed of by not only Cristo Construction, but by others as well.

A draft environmental impact statement (DEIS) was prepared, and the application was deemed complete on May 31, 1995. A legislative public hearing was held on January 16, 1996. Considerable public interest and concern was expressed at that hearing, focusing on traffic, noise, landfill gasses, groundwater contamination, and related matters. An issues conference was convened on January 17, 1996.

Administrative Law Judge Daniel P. O'Connell presided at the legislative hearing and the issues conference. He also denied various requests to adjudicate certain issues. This appeal deals with those denials. ALJ O'Connell made bench rulings on certain issues at the Issues Conference. He also made written Rulings on Issues and Party Status on February 7, 1996, and made a Supplemental Ruling on issues on March 7, 1996. Judge O'Connell concluded that an adjudicatory hearing should be held on the issue of the potential impact of hydrogen sulfide ("H2S") gas emissions. He further found that if adverse impacts from H2S cannot be completely mitigated or avoided, there would need to be a balancing of social and economic benefits against the unmitigable impacts. He also reserved ruling on dust control, pending receipt of 4-C's dust control plan.

As to party status, ALJ O'Connell granted party status to (1) the City of Rensselaer and Capitol Apartments, LP (hereinafter collectively called the "City"); and (2) Citizens Against Noxious Dumping Organizations (hereinafter called "CAN DO"). He denied the Town of East Greenbush's (the "Town") petition for full party status, but granted the Town status as an amicus. He also granted the petition for amicus status filed by the Rensselaer County Environmental Management Council ("RCEMC").

Appeals from the ALJ's rulings have been received from:

  • The Town - The Town appeals the ALJ's determination to deny it full party status. It also appeals the ALJ's determination not to adjudicate its proposed issues on applicability of local law and on the applicant's past record of compliance.
  • The City - The City appeals on the issue of cumulative noise impacts from truck traffic from the proposed 4-C's landfill and the RJ Valente sand and gravel mine; this issue relates to truck traffic noise on Partition Street, which is and would be used by trucks entering and leaving both facilities. The City also appeals from the ALJ's Ruling (March 7 at p. 3) that applicant need not submit a report under .360-1.9(g)(1) on whether the proposed landfill would not interfere significantly with remediation of a former City landfill, now a class 2 inactive hazardous waste site, located on the 62 acre parcel owned by 4-C's affiliates, but more than 150 feet from the 12.4 acre facility site at which the new landfill is proposed to be constructed.
  • CAN DO - CAN DO appeals from the ALJ's rulings on truck traffic noise, and on the issue of applicability of certain local laws to 4-C's proposed landfill.
  • RCEMC - RCEMC appeals on the issue of the applicability of local laws.

The Town Party Status

In petitioning for party status, and in the present appeal to the Commissioner, the Town's principal issues are legal ones concerning the applicability of local laws and past complaints about applicant's activities. No offers of proof on factual issues were made by the Town. Accordingly, the ALJ, consistent with 6 NYCRR .624.5(b), denied the Town's request for full party status, but granted it amicus status (March 7 Ruling, p. 15). The Town's initial petition in fact requested amicus status in the event its request for full party status was denied. As amicus, the Town can submit briefs, and may (at the ALJ's discretion) request oral argument. I will not disturb the ALJ's conclusion as to the Town's amicus status. The Town has not raised a substantive and significant issue of fact, or made a showing that its participation as a full party would contribute meaningfully to the adjudicable issues raised by the other parties.

Compliance with Local Law and the Sequencing of DEC and Local Government Approvals

The Town, RCEMC, and CAN DO each argue that the 4-C's landfill project is prohibited by the Town's land use regulations. They argue that DEC should suspend these proceedings pending resolution of these issues at the local level (CAN DO brief, p. 7; Town brief, pp. 8-12; RCEMC brief, pp. 2-3). The Town alternatively argues that local zoning issues should be adjudicated (Town brief, pp. 4-7).

I concur with the ALJ's Ruling on this issue (March 7 Ruling at pp. 12-18). Essentially, the applicant's ability to obtain zoning and other permits is not a matter to be adjudicated or resolved by DEC. Any DEC permit, if issued, in this matter would provide that the permittee is responsible for obtaining other required permits or approvals, including Town permits. But it is well established that interpretation of zoning codes, issues of prior non-conforming use, and similar questions need to be decided by the local government having jurisdiction, subject to judicial review if necessary. (Town of Poughkeepsie v. Flacke, 84 AD2d 1, 445 NYS2d 233 (2d Dept. 1981), lv. denied, 57 NY2d 602, 454 NYS2d 1026 (1982)).

While arguments were made that DEC should stand aside to allow disputes with the Town over local approvals to first be resolved, the ALJ was correct in rejecting them. The UPA, ECL Article 70, does not permit DEC to put applications in indefinite "hold" pending the outcome of local permit requests. Moreover, DEC consideration of a proposed project and related SEQRA review prior to local consideration is appropriate. Such DEC consideration provides the local authorities, at the time the proposal comes before it, with the terms and conditions of DEC's approval. This gives the local government capability of focusing on the actual project proposal, free of speculation as to whether it might be changed or be denied in the DEC permit process. See Matter of Lane Construction, Interim Decision of the Commissioner, November 27, 1995. The Lane case under the Mined Land Reclamation Law, while not directly applicable here, reflects a preference for initial permit sequencing at the DEC level. Initial sequencing of permit processing through DEC is therefore appropriate.

Noise

The City and CALP (Capitol Apartments LP) assert that they appeal "[t]he failure of DEC Staff to even consider and then, as necessary, take steps to mitigate the potential cumulative noise impacts of both the proposed 4-C's landfill and the RJ Valente sand and gravel mine." However, that assertion is incorrect, as discussed further below.

CAN DO appeals the ALJ's Rulings (pp. 8-9 of his February 7, 1996 decision, and pp. 4-6 of his March 7 decision) which denied CAN DO's request that the issue of impact of truck traffic on Partition Street be adjudicated.

The ALJ ruled that truck noise is not an issue for adjudication (February 7 Ruling at p. 9). Following further discussion on the truck noise question when the issues conference reconvened on February 13, the ALJ confirmed his Ruling (see Ruling of March 6 at pp. 4-6). He noted that the Intervenors did not make an offer of proof on the issue of truck traffic noise, including cumulative impacts from the Valente mine trucks using Partition Street. Importantly, he further noted that this issue had been properly addressed in the draft environmental impact statement (Id.).

I see no basis on which to disturb the ALJ's conclusions on the matter of truck noise. The DEIS considers noise impacts, including truck traffic on Partition Street. That analysis includes ambient noise levels attributable to truck traffic from the RJ Valente mine in combination with noise from trucks entering and leaving the landfill. (DEIS at p. 37 and Appendix B). It appears from the analysis in the DEIS that the actual number of truck trips per day under the proposed new permit will not be increased over the trips used in the previous analysis done in connection with the Valente permit analysis. In fact there would be a slight reduction. The City's assertion that the cumulative noise impacts of the landfill and mine, and truck traffic on Partition Street were not considered is actually a plea that the noise data from the period when the landfill was in use should be supplemented. However, the data used appears to have been appropriate for the circumstances to which it was used.

Report on Impact of the Former City Dump

The City appeals from the ALJ's refusal to require the applicant to prepare a report on whether the landfill would interfere with remediation of a former City dump located on a portion of the 62 acre parcel, but more than 150 feet from the 12.4 acre area to be used for the proposed landfill. This issue arises because of .360-1.9(g)(1) which provides:

"If the facility is proposed to be located at an inactive hazardous waste site classified as Class 1, 2, 3 or 4...; or if it is proposed to be located next to one and less than 150 feet separating the boundary of the facility and the border of the classified site that abuts the facility boundary, then the applicant must submit...sufficient information to allow the department to determine whether the proposed activity would interfere significantly with any potential ongoing, or completed [remediation of the inactive site]."

The facts are not in dispute: Part of the former City dump lies on a part of the 62 acre parcel that contains the 12.4 acre facility site, but lies more than 150 feet away. The question is whether the entire 62 acre parcel or only the smaller part of it that contains the former City dump is an "inactive site" for purposes of .360-1.9(g)(1). While the former City dump is listed in the Department's Quarterly Report of Inactive Waste Sites, no metes and bounds description of it is provided. But, it is clear, as the parties stipulated, there is more than 150 feet of distance between the facility boundary and any part of the location of the former City dump. That is the fact on which the ALJ based his decision.

I concur with the ALJ's reasoning, which Staff supports, that the existence of more than 150 feet separation between the old dump and the proposed 12.4 acre facility site proposed for use as the new landfill provides a rational basis for not requiring the report in this case. Moreover, Staff's conclusion that the report is not needed in this case is essentially the same as a determination that the proposed new landfill will not significantly interfere with remediation of the old one, which obviates the need for the report.

Conclusion

Based on the foregoing, the appeals of the Town, CAN DO, the City and RCEMC are denied. The matter is remanded to ALJ O'Connell for further proceedings consistent with his Rulings to date in this matter.

For the New York State Department
of Environmental Conservation
/s/
By: Michael D. Zagata, Commissioner

Dated: Albany, New York

May 1, 1996

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