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4-C's Development Corporation - Ruling, February 7, 1996

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

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, NY 12201

DEC APPLICATION No.

4-3824-00045/00001-0

SUMMARY

According to the Department Staff, the Applicant's proposed landfill for construction and demolition debris in the Town of East Greenbush, Rensselaer County would conform to all applicable statutory and regulatory requirements, as conditioned by the draft permit. The Applicant has accepted the draft permit which is attached to these rulings as Appendix A. Consequently, 6 NYCRR 624.4(c)(4) of the hearing regulations places the burden of persuasion on the intervening parties who must show that the issues proposed by them are both substantive and significant.

Based on the City of Rensselaer's and CAN DO's competent offer of proof, I identified one issue for adjudication concerning the potential adverse environmental and health impacts of hydrogen sulfide during the January 17, 1996 Issues Conference. I excluded proposed issues about truck traffic, noise, a compliance report, and the Applicant's compliance history. Summaries of the rulings made at the Issues Conference appear below.

During the Issues Conference, I reserved ruling on other proposed issues. The following includes rulings on the matters on which I reserved, as well as rulings on the petitions for full party status and amicus status. Instructions for filing appeals are provided below.

PROJECT DESCRIPTION

The Applicant, 4-C's Development Corporation, Albany, NY, filed an application with the Staff from the Region 4 Office of the Department of Environmental Conservation (the Department Staff) for a permit 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. The Site is located southeast of Partition Street Extension, east of and adjacent to the City of Rensselaer in the Town of East Greenbush, Rensselaer County.

STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA)

The Applicant's proposal is an unlisted action according to ECL Article 8 (State Environmental Quality Review Act) and its implementing regulations, 6 NYCRR Part 617. After conducting a coordinated review, the Region 4 Department 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.

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, I presided over a legislative hearing concerning the application and DEIS on January 16, 1996 at the Melvin Roads American Legion Hall, Post No. 1231 in East Greenbush, NY.

Over 200 people attended the legislative hearing. The 43 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 there is some support for the Project, most oppose the Applicant's proposal. In general, 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 at the Leonardo Da Vinci Lodge in Rensselaer, NY. A local citizens group called Citizens Against Noxious Dumping Organizations (CAN DO), the Town of East Greenbush (the Town), as well as the City of Rensselaer and Capitol Apartments, Ltd. (the City) 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 appeared for the Region 4 Department Staff. CAN DO was represented at the Issues Conference by its President, Rosann Quinn. James E. Dering, Esq. from Gleason, Dunn, Walsh & O'Shea, Albany, NY appeared for the Town. RCEMC was represented by Ken Dufty, Executive Director. Michael J. Moore, Esq. from Ward, Sommer & Moore, LLC represented the City.

To date, the Office of Hearings has not received the stenographic record of the January 16, 1996 legislative hearing and the January 17, 1996 Issues Conference.

RULINGS ON ISSUES FOR ADJUDICATION

At the Issues Conference, the Staff stated that the Project, as conditioned by the draft permit, would conform to all applicable statutory and regulatory requirements. Accordingly, the Staff concluded there were no issues for adjudication if the Applicant accepted the draft permit conditions.

The Applicant accepted the draft permit, and contended there were no issues for adjudication.

Standards for Determining Issues

Section 624.4(c) outlines the standards for adjudicable issues. When, as here, the Department Staff has determined that the Project, as conditioned by the draft permit, will conform to all applicable statutory and regulatory requirements, the burden of persuasion is on the potential party advancing the issue to show that the proposed issue is both substantive and significant [624.4(c)(4)].

An issue is substantive if there is sufficient doubt about the Applicant's ability to meet the applicable statutory or regulatory criteria such that a reasonable person would inquire further. To determine whether an issue is substantive, the ALJ must consider the proposed issue in light of the application and related documents, the draft permit, the content of any petitions filed for full party status and amicus status, the record of the Issues Conference, and any subsequent written arguments authorized by the ALJ [624.4(c)(2)].

To be substantive, the issue cannot be based merely on speculation but on facts that can be subjected to adjudication [In the Matter of Concerned Citizens Against Crossgates v. Flacke, 89 AD2d 759 (3rd Dep't, 1982), aff'd, 58 NY2d 919 (1983)]. In addition, an issue can be demonstrated by identifying a substantive defect or omission in the application materials [In the Matter of Oneida County Energy Recovery Facility, Interim Decision, July 27, 1982; In the Matter of Halfmoon Water Improvement Area, Interim Decision, April 2, 1982; In the Matter of Broome County Department of Public Works, Commissioner's Decision, June 11, 1984].

An issue is significant if the adjudicated outcome can result in permit denial, a major modification to the proposed project, or the imposition of significant conditions in addition to those proposed in the draft permit [624.4(c)(3)].

At the Issues Conference on January 17, 1996, I identified one issue for adjudication concerning hydrogen sulfide gas production at the Facility. I excluded proposed issues about truck traffic, noise, a compliance report, and the Applicant's compliance history. Summaries of the rulings made at the Issues Conference follow.

During the Issues Conference, I reserved ruling on other proposed issues. The following includes rulings on the matters that I reserved, as well as rulings on the petitions for full party status and amicus status.

Since the transcript of the Issues Conference is not yet available, I have relied on the petitions for full party status and amicus status, the Applicant's written response, and my notes from the Issues Conference. As explained below, the Issues Conference participants have the right to appeal all rulings about issues for adjudication and requests for full party status and amicus status regardless of whether I made the rulings at the Issues Conference or here. The proposed issues are addressed in the order they were discussed at the Issues Conference.

  1. Other Approvals See the Town's Petition pp 7-12; RCEMC's Petition pp 2-4; and the Applicant's Response pp 16-19.

    Because landfills are a prohibited land use in the Town of East Greenbush, the Town and RCEMC argued that the Applicant would need either to obtain a variance from this prohibition, or show that the proposed Facility is a pre-existing, non-conforming use. In addition, the Town and RCEMC argued that the Applicant must obtain a cut and fill permit as required by Local Law No. 1 of the Year 1987. The Town and RCEMC asked the Department to hold 4-C's Part 360 permit application in abeyance until the Applicant complies will all local laws. Subsequently, RCEMC reasserted its argument in a letter dated January 19, 1996, and provided citations to support it.

    The Department Staff argued that the Uniform Procedures Act (ECL Article 70) and its implementing regulations require the Staff to process the 4-C's Part 360 permit application. The Staff pointed out that the draft permit is conditioned upon the Applicant obtaining any other necessary approvals [See General Condition No. 8 of the draft permit, page 2 of 6.] Since the Department is the SEQR lead agency, the Staff also asserted that the Department must complete the SEQR process before the Department or the Town could issue any approvals [617.3(a)].

    The Applicant argued that the Town and RCEMC had not identified any statute, regulation, case law, or DEC policy to support their request that the Department hold 4-C's Part 360 permit application in abeyance until the Applicant has complied with all local laws. To support its argument, the Applicant referenced the Commissioner's Interim Decision dated November 27, 1995 in the Matter of Lane Construction Co., and other court decisions.

    Ruling: At the Issues Conference, I reserved ruling on this proposed issue. Subsequently, in a memorandum dated January 23, 1996, I provided the Issues Conference participants with an opportunity to brief this issue. The question of whether the Department can hold 4-C's Part 360 permit application in abeyance until the Applicant complies will all local laws is a legal or policy question that meets the criteria of 624.4(c). The January 23, 1996 memorandum set a schedule for filing briefs and replies. I must receive the replies by February 19, 1996, and then will distribute a ruling about this issue after that date.

  2. Public Safety See the Town's Petition pp 12-13.

    The Town asserted there is an issue about whether the Applicant's Site is a legal nuisance. The Town further explained that this issue encompasses quality of life concerns.

    The Department Staff argued that the Town's concerns should be framed as public health and safety concerns. Although the Staff acknowledged that SEQR would require a consideration of potential public health and safety impacts, the Staff contended that the SEQR review in 1988 for the prior permit considered these potential impacts. Citing Atlantic Cement v. Williams, 129 A.D.2d 84, 90-91 (3d Dep't. 1987), the Staff asserted that the SEQR review for the current proposal could only consider new or different impacts from those impacts considered previously.

    The Applicant asserted the Town's argument that the Facility would be a nuisance is speculative.

    Ruling: I reserved ruling on this proposed issue at the Issues Conference. For this proceeding, I will frame the proposed nuisance issue as a public health and safety concern. Although the Court's holding in the Atlantic Cement matter precludes a reconsideration of potential public health and safety impacts as part of the current SEQR review, the Department Staff considered these issues during the review for the 1988 permit. Nevertheless, 360-1.11(a) authorizes the Department Staff to condition the Part 360 permit in a manner not explicitly required by Part 360 to mitigate impacts to the maximum extent practicable.

    According to the engineering report and the DEIS, there are plans for a 6 ft. high fence on top of a 4 ft. high berm along the southern and eastern sides of the Site. On the remaining sides of the Site, the Applicant would rely on the natural contours of the property to serve as barriers, and thereby control access to the Facility. According to the plans, there would be an access gate at the Facility's entrance with fencing and the appropriate signage. According to the plans, the footprint of the landfill would be well within the boundaries of the Applicant's property which provides an additional buffer area.

    The Town did not propose any additional mitigation measures or offer any proof to show that further mitigation is necessary. Also, the Town offered no proof to show that the Applicant's design plan would inadequately protect public health and safety. Consequently, there is no issue for adjudication.

  3. Hydrogen Sulfide (H2S) See the City's Petition pp 9-13; CAN DO's Petition pp 5-9; and the Applicant's Response pp 3-5, 15.

    Summary of ruling: At the Issues Conference, I determined that the potential environmental and health impacts from H2S would be an issue for adjudication. According to the expert medical and engineering witnesses offered by the City and CAN DO, significant quantities of H2S would be produced thereby causing adverse environmental and health impacts. The Applicant's consultant, however, will testify that only a minimum amount of H2S would be produced which would not cause any adverse environmental or health impacts.

    This issue is substantive because conflicting expert opinion raises doubt about the Applicant's ability to comply with the regulations, and therefore requires further inquiry. Of specific concern is whether the Applicant can comply with 360-1.14(m) which requires the Applicant, as the owner or operator of the Facility, to control odors so that they do not constitute a nuisance or hazard to health, safety or property, and 360-1.14(w) which requires the Applicant to properly close the landfill and maintain such closure to prevent or remedy adverse environmental or health impacts from such things as gas migration and odors.

    Subpart 360-7 [Construction and Demolition Debris Landfills] further expands upon these two general provisions. Section 360-7.4(a)(6)(ix) requires the Applicant to have a contingency plan in place to address odors and other adverse impacts from H2S. Section 360-7.4(b)(9) requires the Applicant to design a landfill gas control system that prevents concentrated amounts of landfill gases from migrating off-site. Based on the proof offered by the City and CAN DO, there is a question about whether the Applicant's contingency plan and proposed passive gas venting system meet these requirements.

    This issue is significant because the result of the adjudication may be permit denial, or the imposition of permit conditions that would require the Applicant 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) to control the production and emission of H2S from the Facility during the operation, closure and post-closure phases of the landfill.

    At the Issues Conference, the Applicant inquired whether this issue included the potential adverse health impacts associated with exposure to H2S. I responded affirmatively. The regulations expressly require the Applicant to avoid such potential impacts and to design the Facility accordingly.

  4. Dust See the City's Petition pp 13-14, 21-22; CAN DO's Petition pp 9-10; and the Applicant's Response pp 5, 11-12, 15.

    According to the City and CAN DO, the Applicant has not proposed adequate measures to control the dust generated by truck traffic and daily operations at the Facility. In addition, the City and CAN DO asserted there are two distinct health risks related to dust exposure. First, dust further aggravates any impacts associated with exposure to H2S. Second, the dust resulting from operations would be contaminated with lead from the debris deposited at the Facility, and thereby cause the adverse health impacts associated with exposure to lead.

    Summary of ruling: At the Issues Conference, I reserved ruling on this issue until the Applicant has complied with Special Condition No. 5 of the draft permit (page 5 of 6). According to the terms of this Special Condition, the Applicant must prepare a "Facility Operation Plan" that must include a plan to prevent fugitive dust, among other things.

    I stated that the Issues Conference participants may review and file comments about the fugitive dust plan before I determine whether there is an adjudicable issue about dust. Therefore, after the Applicant prepares the fugitive dust plan, I will set a schedule for the other Issues Conference participants to comment about it. I am optimistic that the Applicant's plan to prevent fugitive dust will adequately address the concerns raised by the City and CAN DO.

  5. Truck Traffic See the City's Petition pp 19-20; and the Applicant's Response pp 9-11.

    Special Condition 1(b) on page 5 of 6 of the draft permit limits truck traffic to "35 round trips, or 70 one way trips into or out of the facility," and references page 14 of the DEIS Section 2.3.2.4 [Waste Vehicle Generation].

    The City, however, requested clarification about whether the traffic limit includes the traffic associated with bringing cover material to the Facility or taking leachate from the Facility. The Applicant explained that the limit on truck traffic would include truck trips associated with bringing cover material to the Facility, as well as trips for taking leachate and unauthorized wastes away from the Facility.

    Summary of ruling: The City and the Applicant agreed to discuss language that would modify Special Condition 1(b) to include the Applicant's explanation of what the 35 round trips or 70 one way trips would include. If the Department issues a permit for the Facility, however, the Department Staff will have the responsibility of enforcing the condition. Consequently, the Staff must approve any revision to Special Condition 1(b).

    Accordingly, the issue of truck traffic would be resolved if the City and the Applicant can agree on language, and if the Department Staff approves the revision. I will need to revisit this issue, however, if the City and the Applicant cannot agree on any revised language, or if the Department Staff does not approve the revised language.

  6. Noise See the City's Petition pp 20-21; and the Applicant's Response p 11.

    At the Issues Conference, I divided the discussion about noise into three parts: truck noise, construction noise, and operational noise.

    Summary of ruling: At the Issues Conference, I ruled that truck noise is not an issue for adjudication. The City asserted that the Federal Highway Administration guidelines should be used to limit truck noise to 67 dBA. However, the City did not cite any relevant legal authority that would allow these federal guidelines to be used as the noise standard in this case.

    During the Issues Conference, I ruled that construction noise is not an issue for adjudication. The basis for this ruling is the Second Interim Decision in the matter of Saratoga County Landfill, dated October 3, 1995, which states, in pertinent part, that "[s]ection 360-1.14(p) is read to apply to operational noise and not construction noise." The Second Interim Decision in the Saratoga matter states further that the basis for the determination is the Final Environmental Impact Statement and Responsiveness Summary to the Part 360 rule revisions completed in August 1988, and the Solid Waste Management Facility Guidelines, dated May 1981.

    There is no issue for adjudication about operational noise. The draft permit requires the Applicant to operate the Facility at sound levels that do not exceed the suburban noise standard provided in 360-1.14(p)(1). This standard limits sound levels to 62 dBA from 7 A.M. to 10 P.M., and to 52 dBA from 10 P.M. to 7 A.M. No one at the Issues Conference contended that the Applicant could not meet this standard.

  7. The Contingency Plan See the City's Petition pp 24-26; and the Applicant's Response pp 12-13.

    A Contingency Plan is required by 360-1.9(h) and 360-7.4(a)(6)(ix). The City contended that the Applicant's contingency plan is deficient in three respects: (1) the plan implies that the City of Rensselaer will provide emergency services even though the Facility is located in the Town of East Greenbush [360-1.9(h)(1)(i)], (2) the plan does not provide alternate ways for emergency vehicles to access the Facility [360-1.9(h)(1)(iv)], and (3) the plan has no discussion about controlling odors from H2S gas emissions [360-7.4(a)(6)(ix)].

    The City offered Michael Burns, Acting Director of Planning for the City of Rensselaer, and Henry Kolakoski, Chief of the Clinton Heights Fire Department from the Town of East Greenbush, as witnesses. According to the City, these witnesses would testify that the Applicant has not made any arrangements with any local emergency personnel. With respect to the second alleged defect, the City wants the Applicant to study the feasibility of building an additional access road to the Site. Concerning the third alleged defect, the City wants the Applicant to develop and implement a plan to monitor and control H2S gas emissions.

    The Department asserted that the Applicant's contingency plan complies with the regulations. According to the Department Staff, the City's interpretation that alternate evacuation routes must include alternate access for emergency vehicles is overly broad. In an emergency, the Staff explained that employees and others at the Facility could evacuate the Site by alternate routes as required by the regulations. The primary evacuation route would be for people to leave the Site and travel west along Partition Street toward the City of Rensselaer. The alternate route would be for people to leave the Site and travel north along Partition Street. Although the alternate evacuation route eventually leads to a dead end, people can move far enough away from the Facility to be out of danger.

    Referring to Appendix V (Contingency Plan) of the Engineering Report, the Applicant argued that its contingency plan meets the requirements outlined in the regulations. The Applicant further explained that the City of Rensselaer has traditionally provided fire protection to the residences and businesses on the portion of Partition Street which extends from the City into the Town of East Greenbush. The Applicant referred to the Rensselaer County Fire Mutual Aid Plan, and contended there would be adequate resources available to address any potential emergency at the Facility. With respect to alternate evacuation routes, the Applicant contended that the Facility is reasonably accessible to emergency vehicles, and that alternate evacuation routes are available in the event of an emergency.

    Discussion and Ruling: I reserved ruling on this issue at the Issues Conference. Sections 360-1.9(h), and 360-7.4(a)(6)(ix) outline various requirements for the contingency plan. The purpose of the plan is to set up procedures for handling emergencies at the Facility such as fires, accidents, or equipment breakdowns.

    Section 360-1.9(h)(1)(i) requires a description of the arrangements made between the Applicant and local emergency organizations. In the contingency plan, the Applicant proposes to conduct a tour of the Facility to help the local emergency response agencies become familiar with operations at the Facility. Emergency agencies from the Town of East Greenbush, however, are conspicuously absent from the list provided in the contingency plan even though the Site of the proposed Facility is located entirely within the Town of East Greenbush.

    I could not find any information in the application materials or in the record of this proceeding to determine the complete scope of the emergency services that the Town provides. For example, there is no information about who provides police protection in the Town of East Greenbush. Henry Kolakoski, Chief of the Clinton Heights Fire Department in the Town of East Greenbush, however, did appear at the legislative hearing and filed a letter dated January 19, 1996 during the public comment period. According to Chief Kolakoski, his fire company, rather than Rensselaer's Fire Department, would respond to the Facility in the first instance. Though Chief Kolakoski's statement and letter are unsworn, I find them reliable given the geographic location of the Site. In addition, based on the Applicant's reference to the Rensselaer County Fire Mutual Aid Plan, it can be reasonably inferred that the Clinton Heights Fire Department would very likely respond to the Facility.

    Therefore, the City has raised a substantive issue about whether the Applicant's contingency plan complies with 360-1.9(h)(1)(i) to the extent that the Applicant has not identified all the appropriate emergency response agencies. Since the Facility would be in the Town of East Greenbush, the Applicant should include the Clinton Heights Fire Department, as well as any Town police agency, if one exists, in the site tour and briefing. Consequently, the Applicant shall modify its contingency plan accordingly.

    Consistent with 360-1.9(h)(1)(iv), the Applicant's contingency plan does identify alternate evacuation routes. The City's interpretation that the alternate evacuation routes required in 360-1.9(h)(1)(iv) must include alternate access for emergency vehicles is too broad. I accept the Department Staff's interpretation of 360-1.9(h)(1)(iv) as summarized above, and rely on it as the basis for determining there is no issue for adjudication.

    Section 360-7.4(a)(6)(ix) provides for a contingency plan that incorporates the information required by 360-1.9(h), and which further requires the Applicant to address odors associated with H2S, among other things. As explained above, the question of whether the Applicant's contingency plan complies with 360-7.4(a)(6)(ix) is part of the issue concerning the H2S. The Applicant may need to modify the contingency plan to better address the requirements outlined in 360-7.4(a)(6)(ix) depending on the result of the adjudication of the H2S issue.

  8. Compliance Report See the City's Petition pp 15-16; and the Applicant's Response p 7.

    Summary of ruling: The City asserted that the Applicant has not provided the compliance report required by 360-1.9(d)(2). According to the Department Staff, however, the information in the DEIS and the Engineering Report satisfy the requirements outlined in 360-1.9(d)(2). At the Issues Conference, I concurred with the Department Staff's interpretation, and concluded that the information in the DEIS and the Engineering Report provide the information required by 360-1.9(d)(2). Consequently, there is no issue for adjudication.

  9. Compliance History See the Town's Petition p 13; RCEMC's Petition pp 4-7; and the Applicant's Response pp 7, 19-20.

    Based on past operations at the Site, the Town and RCEMC asserted there is an issue about the Applicant's ability to comply with the regulations and the terms of any permit, that the Department may issue. The Town, CAN DO, and RCEMC offered copies of complaints from residents about prior operations at the Site. RCEMC wants the Applicant to provide financial assurances, and to fund an independent environmental monitor for the Facility.

    The Staff noted that the draft permit requires a performance bond (Special Condition No. 5 of the draft permit, page 3 of 6). The Department Staff explained that 6 NYCRR 621.3(f) provides the Staff with the authority to stop processing a permit application if an enforcement action against an applicant is pending. Although the Staff inspected the Facility and investigated complaints during the period when the Facility was previously permitted, the Department Staff stated that the Applicant's operations complied with the terms of its permit and the regulations in effect at the time. Accordingly, the Department Staff did not find it necessary, or appropriate, to exercise the discretion provided by 621.3(f).

    Summary of ruling: The compliance history issue proposed by the Town and RCEMC is different from the City's proposed issue about the Compliance Report required by 360-1.9(d)(2). When I determined there was no issue for adjudication about the Applicant's compliance history, I stated at the Issues Conference that I relied on the Department Staff's explanation, as summarized above.

    It is particularly significant that the Department Staff did not initiate any enforcement actions against the Applicant when the Applicant operated the Site under the terms of the 1988 permit. Despite the complaints filed with the Town, I add further here that the Town and RCEMC offered nothing to show that the Town had pursued enforcement actions against the Applicant for violating the terms of the cut and fill permit which the Town had issued for prior operations at the Site.

  10. Defects in the DEIS See the City's Petition pp 22-24; and the Applicant's Response p 12.

    The City asserted there are two defects in the DEIS. First, the City alleged that the DEIS does not adequately discuss how the Applicant will mitigate the effects of hydrogen sulfide gas. Second, the City contended that the DEIS inadequately discusses the "public need" for the Facility.

    1. H2S Mitigation

      Summary of Ruling: One of the purposes of this hearing is to complete the SEQR process. The potential adverse impacts of hydrogen sulfide gas is an issue for adjudication. Consequently, the record of the adjudicatory hearing will supplement the information in the DEIS concerning H2S mitigation, and thereby correct any potential defect about the sufficiency of the DEIS with respect to this topic.

      At the Issues Conference, I reserved ruling on whether the DEIS adequately discusses the public need of the Project. My ruling on this proposed defect in the DEIS follows.

    2. Public Need

      The City asserted that the discussion in the DEIS about the public need, as well as the economic and social benefits of the Applicant's proposal, as required by 617.14(f)(1), is not adequate. Although the DEIS states there is a disposal crisis in the Capital Region for C&D debris, the City offered Joseph Slack, P.E. from Rust Environment & Infrastructure as a witness who would testify to the contrary. To further support its position about the absence of a disposal crisis in the Capital Region for C&D debris, the City contended that the Applicant's previously permitted facility accepted only 10 percent of the C&D debris authorized by its DEC permit in 1989, and pointed out that the Facility has not operated for more than two years.

      The Department Staff argued that a discussion about the public need for the Facility is only required if the Project would cause significant adverse environmental impacts.

      CAN DO took exception to the Department Staff's statement about there being no significant adverse environmental impacts from the Project.

      According to the Applicant, the DEIS complies with 617.14(f)(1). The DEIS explains that the Facility is needed because of a lack of disposal sites for C&D debris in the Greater Capital Region. According to the DEIS, the lack of facilities is contributing to a C&D debris disposal crisis [DEIS pp 21-22, Section 2.5 (Need for the Project)].

      The Applicant further explained that it did not voluntarily stop operations at the Site during the pendency of the review of the current permit application. Rather, the Applicant stopped operating when the Department Staff determined that the Applicant was not entitled to an extension of the previous permit as provided by 401.2 of the State Administrative Procedures Act (SAPA).

      Discussion and ruling: I concur with the Department Staff that 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). Adverse economic or social impacts have been examined only to refute an applicant's assertions about the economic or social benefits that would offset unmitigatable environmental harm (Application of Red Wing Properties, Inc., Interim Decision of the Commissioner dated January 20, 1989; Application of Dailey, Interim Decision dated May 14, 1992; Application of Tompkins County Board, Rulings of the ALJ dated March 30, 1990).

      Thus far, the only substantive and significant issue for adjudication involves the potential environmental and health impacts associated with H2S. As explained above, I have reserved ruling on the dust question. Furthermore, the City has recently asserted there is an issue about storm water management. The adjudication of this issue will serve two purposes. First, it will provide the basis for determining whether the Applicant must modify the contingency plan required by 360-7.4(a)(6)(ix), and the 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 phases of the landfill.

      Second, the adjudication of this issue will also provide a basis for deciding whether any adverse impacts associated with H2S can be completely mitigated or avoided. In other words, the adjudication will settle the following questions: (1) whether the Applicant can comply with the requirements in Part 360, and (2) whether a balancing of social and economic benefits is necessary to meet the requirements in SEQR.

      There is a dispute about the need for the Project, and the social and economic benefits associated with the Project. According to the DEIS, the Facility is needed to abate a C&D debris disposal crisis in the Greater Capital Region. The City and CAN DO, however, have offered a competent witness to rebut the Applicant's assertions in the DEIS. According to the Intervenors' witness, there is not a disposal crisis for C&D debris in the Greater Capital Region.

      Therefore, since the balancing process required by SEQR may become necessary, the Parties will have an opportunity to develop a record about the potential social and economic benefits of the Project. The Applicant may further substantiate the information in the DEIS concerning the C&D debris disposal crisis in the Greater Capital Region. The City and CAN DO may show why there is not a disposal crisis for C&D debris in the Greater Capital Region.

Other Issues

In a memorandum to the Issues Conference participants dated February 1, 1996, I determined there was a need to reconvene the Issues Conference to discuss the issues proposed in Sections III and IV of the City's petition for party status (pp 14-18). The participants are in the process of determining their availability, and the Applicant will inform the participants and me of the date, time and location for the Issues Conference. Therefore, I will need to make additional rulings about other issues that have been proposed for adjudication.

Summary of Issues for Adjudication

  1. The potential impacts of H2S gas emissions are an issue for adjudication. There are two questions: (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 phases 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 phases of the landfill.
  2. If it is determined that the adverse health and environmental impacts from H2S cannot be completely mitigated or avoided, SEQR requires a balancing of the social and economic benefits of the Project against these unmitigatable or unavoidable impacts. Consequently, the Applicant will have an opportunity to substantiate the information in the DEIS concerning the C&D debris disposal crisis in the Greater Capital Region. The City and CAN DO will be given an opportunity to present their evidence to show there is not a disposal crisis for C&D debris in the Greater Capital Region.
  3. Until after the Parties have filed their briefs and replies, I reserve ruling on whether the Department has the authority to hold 4-C's Part 360 permit application in abeyance until the Applicant has complied will all local laws.
  4. I reserve ruling on proposed issues concerning dust impacts until after the Parties have reviewed and filed comments about the Applicant's fugitive dust plan.

RULINGS ON REQUESTS FOR FULL PARTY STATUS AND AMICUS STATUS

As provided by 6 NYCRR 624.5, the Parties to any adjudicatory hearing are the Applicant, the Department Staff and those who have been granted full party status. The criteria for determining whether the Administrative Law Judge should grant petitions for full party status are provided in 624.5(d)(1).

Upon review of these criteria and the petitions for full party status, I find that the City of Rensselaer and CAN DO have filed acceptable petitions as required by 624.5(b)(1) and (2). As discussed above, the City and CAN DO have raised a substantive and significant issue for adjudication concerning the potential adverse health and environmental impacts from H2S. Finally, the City and CAN DO have shown an adequate environmental interest. Therefore, I grant the City's and CAN DO's requests for full party status.

The Town of East Greenbush filed a petition for full party status. I deny the Town's request for full party status. The Town did not raise a substantive and significant factual issue for adjudication, or show that it could make a meaningful contribution to the record concerning the substantive and significant issue raised by the City and CAN DO [624.5(d)(1)(ii)].

In the alternative, the Town requested amicus status if I denied its request for full party status. The Rensselaer County Environmental Management Council also filed a petition for amicus status. The criteria for determining whether the ALJ should grant petitions for amicus status are provided in 624.5(d)(2).

After reviewing these criteria and the petitions for amicus status, I find that the Town and RCEMC have filed acceptable petitions as required by 624.5(b)(1) and (3). As discussed above, the Town and RCEMC have raised a legal or policy question about whether the Department can hold 4-C's Part 360 permit application in abeyance until the Applicant has complied will all local laws. Finally, the Town and RCEMC have shown an adequate environmental interest. Therefore, I grant the Town's and RCEMC's requests for amicus status.

APPEALS

Pursuant to 6 NYCRR 624.8(d), the Issues Conference participants may appeal these rulings on issues and requests for full party status and amicus status. However, the Parties are briefing a legal/policy issue, and rulings on dust impacts as well as other issues proposed by the City and CAN DO are pending. Furthermore, the transcript of the Issues Conference held on January 17, 1996 is not yet available. For reasons of administrative efficiency, the schedule for filing appeals from these rulings will be established after I have ruled on all proposed issues, and after the transcript of the Issues Conference is available.

/s/

Daniel P. O'Connell

Administrative Law Judge

Dated: Albany, New York

February 7, 1996

To: Service List, dated January 16, 1996

Attachment: Appendix A, Draft Permit

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