4-C's Development Corporation - Ruling 2, March 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
SUPPLEMENTAL RULINGS ON ISSUES
DEC APPLICATION No.
The Issues Conference in the captioned matter reconvened on February 13, 1996 to discuss the remaining issues proposed in Sections III and IV of the City's petition for full party status. The discussion included the following topics: (1) existing waste on the Site, (2) the need for an Hydrogeologic Report [360-1.9(g)(1)], (3) leachate management, (4) traffic, (5) stormwater management, and (6) the need for an air contamination permit [6NYCRR Part 201].
For the reasons discussed below, there are no additional issues for adjudication. With respect to the air permit, however, the Applicant must comply with 6 NYCRR 621.3(a)(4) by submitting all necessary permit applications now, or by showing good cause not to do so. After considering the Parties briefs about the question of Other Approvals as identified in the February 7, 1996 Rulings on Issues and Party Status, I conclude that the Department must continue to process the Part 360 permit application filed by the 4-C's Development Corporation.
Finally, these rulings provide a schedule for filing appeals with the Commissioner.
The Issues Conference reconvened on February 13, 1996 at the Leonardo Da Vinci Lodge in Rensselaer, NY. Representatives from the Citizens Against Noxious Dumping Organizations (CAN DO), the City of Rensselaer and Capitol Apartments, Ltd. (the City), the Town of East Greenbush (the Town), the Rensselaer County Environmental Management Council (RCEMC), the Department Staff, and the Applicant appeared.
At the Issues Conference on February 13, 1996, the Applicant's attorney handed me the stenographic record for the January 16, 1996 legislative hearing and the January 17, 1996 Issues Conference. On February 26, 1996, I received the stenographic record for the Issues Conference held on February 13, 1996.
RULINGS ON ISSUES FOR ADJUDICATION
- Existing Waste on the Site
The Applicant deposited C&D material on the Site in 1986. This material is located west of the footprint for the proposed landfill. The regulations in effect at that time did not require a permit from the Department when, as here, certain conditions were met.
Subsequently, the Department Staff issued a permit that authorized the Applicant to dispose C&D material on the Site from 1988 to 1993. This material was placed generally at the eastern end of the Site. Although a Part 360 permit was required to operate the Facility from 1988 to 1993, the regulations in effect at that time did not require the landfill to be lined.
The current regulations, however, require a single composite liner and leachate collection system [360-7.4(b)(7)(i)]. Since the material deposited on the Site from 1988 to 1993 is in the footprint of the proposed landfill, the Applicant proposes to move this C&D material from its current location to a lined cell. The Applicant is currently revising the plans to reflect this proposal.
The Applicant, however, does not plan to move the debris placed on the Site in 1986 to a lined cell. The Applicant argued that the 1986 material was disposed on the Site in compliance with the regulations in effect at the time. In addition, the Applicant contended that the 1986 material has not caused any adverse environmental or health impact.
According to the City, the waste deposited on the Site in 1986 should not be distinguished from the C&D debris placed on the Site from 1988 to 1993. The City asserted that the Applicant should move the C&D material placed on the Site during 1986 to a lined cell.
The Department Staff argued there is no regulatory authority to require the Applicant to put the 1986 material in a lined cell. The Staff confirmed that the Applicant complied with the regulations in effect at the time when the Applicant disposed of the 1986 C&D material on the Site.
Ruling: The City did not provide, nor could I find, any legal authority to support its assertion that the Applicant should move the C&D material placed on the Site during 1986 to a lined cell. Furthermore, the City did not offer any proof to show that the 1986 material has caused an adverse environmental or health impacts. Consequently, there is no issue for adjudication about moving the 1986 material to a lined cell if the requested permit is granted.
- Hydrogeologic Report [360-1.9(g)(1)]
If a facility is proposed to be located at or within 150 feet of an inactive hazardous waste disposal site classified as Class 1, 2, 3 or 4 in the Department's Registry of Inactive Hazardous Waste Disposal Sites, 360-1.9(g)(1) requires a detailed engineering and hydrogeologic report about any impacts that the proposed facility would have on the remediation activities at the inactive hazardous waste site.
The City asserted that the Applicant must prepare the report described in 360-1.9(g)(1). According to the City, 360-1.9(g)(1) applies here because a portion of the old City of Rensselaer Landfill, which is a Class 2 Inactive Hazardous Waste Disposal Site, extends onto the Applicant's property which is the Site of the proposed C&D debris landfill. Because a portion of the former landfill and the proposed landfill would be located on the same parcel of property owned by a member of the 4-C's Development Corporation, the City argued that the requirements outlined in 360-1.9(g)(1) apply regardless of the distance between the former City of Rensselaer Landfill and the proposed landfill.
According to the Department Staff and the Applicant, however, the requirements outlined in 360-1.9(g)(1) do not apply to the proposed landfill because the proposed landfill is more than 150 feet from the former City of Rensselaer Landfill.
Discussion and Ruling: The City's proposed issue concerning the applicability of 360-1.9(g)(1) is a legal question that can be resolved here based on the following undisputed facts. The former City of Rensselaer Landfill is listed on the Department's Registry as a Class 2 Inactive Hazardous Waste Disposal Site. A portion of the former City of Rensselaer Landfill extends onto the property owned by the Applicant (or one of its principal share holders) on which the proposed landfill would also be located. The closest distance between the boundary of the former City of Rensselaer Landfill and the 50 foot buffer surrounding the footprint of the proposed landfill is greater than 150 feet.
- Leachate Management
Discussion: Originally, the City questioned whether the dimensions of the leachate impoundment basin proposed by the Applicant would be sufficient to manage the volume of leachate generated by a 25-year storm event. Based on the discussion at the Issues Conference, however, any dispute about the leachate management system at the Facility was resolved.
The leachate management system for the proposed Landfill was designed to comply with 360-2.7(b)(9)(i). Section 360-2.7(b)(9)(i) requires, among other things, that the leachate collection pipe network be sized to remove the peak flow caused by a 24-hour, 25-year storm event from a landfill cell within seven days. However, the discussion at the Issues Conference revealed that the applicable requirements for a facility such as the one proposed here are outlined in 360-7.4(a)(7)(ii). Section 360-7.4(a)(7)(ii) refers to 360-2.13(h),(l) and (m), and requires the Applicant to use good engineering practices.
By complying with 360-2.7(b)(9)(i), the Parties agreed that the Applicant's proposed leachate management system would be overdesigned compared with the requirements outlined in 360-2.13(h),(l) and (m). As a result, the City withdrew its objection, and there is no issue for adjudication.
The reporting requirements outlined in 360-1.9(g)(1), therefore, do not apply to the proposed facility because the proposed landfill would not be located at or within 150 feet of the boundary of former City of Rensselaer Landfill. Whether a portion of the former City of Rensselaer Landfill extends onto the property owned by the Applicant, and on which the proposed landfill would be located, is irrelevant to the applicability of 360-1.9(g)(1). Rather, the distance between the existing and the proposed solid waste management facilities is the significant factor in determining the applicability of 360-1.9(g)(1).
- Truck Traffic
The rulings in this matter dated February 7, 1996 (pp 8-9) addressed issues associated with truck traffic and noise as proposed by the City and CAN DO. Nevertheless, these proposed issues were discussed at the February 13, 1996 Issues Conference based on statements made in letters dated: (1) January 26, 1996 from CAN DO The Applicant's copy of this letter from CAN DO is dated January 25, 1996. , (2) January 29, 1996 from RCEMC, (3) January 31, 1996 from the Applicant, and (4) February 7, 1996 from the City.
Citing the June 20, 1995 Interim Decision in the Dailey matter, and the Commissioner's determination concerning the SEQR lead agency for this matter dated May 13, 1994, the Intervenors argued that the SEQR review of this application is not adequate with respect to potential impacts from truck traffic and from the noise associated with this traffic. According to the Intervenors, the Department must address the potential cumulative noise impacts from the proposed landfill and the RJ Valente mining operations. Both operations are located on Partition Street in the Town of East Greenbush. The City and CAN DO asserted that the operator at the RJ Valente facility has not undertaken the noise monitoring studies required by that permit. Consequently, the Intervenors contended that the Department Staff does not have the necessary data to review the potential cumulative noise impacts on Partition Street adequately.
The Applicant argued that the potential impacts from truck traffic and the noise associated with this traffic have been adequately addressed. To support its argument, the Applicant referred to the Noise Study in Appendix B of the DEIS.
The Department Staff contended that the review of the potential impacts from truck traffic and the noise associated with this traffic have been adequately addressed. The Staff stated that the potential cumulative noise impacts were also considered. In addition, the Staff pointed out that the Applicant voluntarily agreed to limit the number of truck trips to and from the Facility as a way to mitigate potential traffic and noise impacts.
Summary of Ruling and Discussion: At the February 13, 1996, I ruled that the Intervenors had not presented any new arguments or made any additional offers of proof that persuaded me to revisit my previous rulings concerning truck traffic and truck noise. Furthermore, I ruled that whether the operator of the Valente mining facility has provided the Region 4 Department Staff with the noise monitoring studies required by that permit was beyond the scope of this proceeding.
In both the June 20, 1995 Interim Decision in the Dailey matter and the May 13, 1994 lead agency determination for this matter, the Commissioner emphasized the Department's responsibility, as the SEQR lead agency, to address potential traffic impacts. The Intervenors in this proceeding, however, have mistakenly interpreted this responsibility to mean that the potential impacts associated with truck traffic from the proposed Facility must be issues for adjudication.
In Dailey, the Commissioner determined there was an issue for adjudication about increased levels of truck traffic on a Town road. The Town of Hoosick was the agency having jurisdiction over the road, and was an involved agency in the SEQR process. In Dailey, the Town of Hoosick not only requested party status in the DEC proceeding, but also offered proof to show there was a substantive and significant issue for adjudication. Although the Intervenors in this matter have objected to the Department's review of the potential impacts from truck traffic, the Intervenors have not offered any proof to show there is a substantive and significant issue for adjudication [624.4(c)].
There is also confusion about the lead agency's responsibility to review potential impacts as required by ECL Article 8 (SEQRA), and the jurisdiction that an involved agency may have over a potential impact. Those governmental agencies having jurisdiction over Partition Street are not precluded by ECL Article 8 from exerting control over any potential adverse impacts identified in the EIS [617.3(b)]. Furthermore, this authority exists regardless of whether those impacts are adjudicated in this proceeding.
The Department has properly addressed the potential cumulative noise impacts from the 4-C's Facility and the Valente Facility. The 4-C's Facility was originally permitted in 1988. Subsequently, RJ Valente filed its permit application. Since noise from the Valente operation was an addition source of potential noise impacts, the Department Staff required the sponsor of the Valente application to analyze the potential cumulative impacts from noise. Consequently, no further review of the potential cumulative impacts from noise is required within the context of this proceeding.
- Stormwater Management
In its January 12, 1996 petition for full party status, the City requested leave to supplement its petition, but did not provide any specific details about the information that the City intended to submit. During the conference call on January 22, 1996, however, the City stated it would seek to supplement its petition with an offer of proof to show there is an adjudicable issue about the storm water management plan required by the draft permit. The City renewed its request to supplement its petition at the Issues Conference on February 13, 1996.
Special Condition B1 on page 4 of 6 of the draft permit requires the Applicant to prepare a storm water management plan. Specifically, the Special Condition requires the Applicant to analyze the down gradient storm water infrastructure to show that the changes in storm water discharges from the Site after the Facility is closed from 10, 25, 50 and 100 year storm events would not adversely impact real property down stream from the Site.
The City had not asserted an issue about storm water management in its original petition. Though the City filed its petition on time, I determined at the February 13, 1996 Issues Conference that the City's proposed issue concerning storm water management was late. Therefore, I ruled that I would weigh the proposed issue against the criteria provided in 624.5(c)(2).
At the February 13, 1996 Issues Conference, I set a schedule to give the City an opportunity to address the criteria outlined in 624.5(c)(2), and to give the other Parties an opportunity to respond to the City's explanation. The City, the Town, the Department Staff, and the Applicant filed their respective papers on time. CAN DO and RCEMC did not file a response.
If a petition is filed, or, as in this case, an issue is raised, after the date set in the Notice of Public Hearing, 624.5(c) requires the Petitioner to meet the requirements outlined in 624.5(b) as well as the criteria provided in 624.5(c)(2) to raise an issue for adjudication. According to 624.5(c)(2)(i), (ii), and (iii) the Petitioner must show: (1) good cause for the late filing, (2) there would be no significant delay in the proceeding or unreasonable prejudice to the other Parties, and (3) that participation will materially assist in the determination of issues raised in the proceeding.
In a letter dated February 15, 1996, the City contended there is good cause [624.5(c)(2)(i)] because the draft permit was not available before the filing date. In addition, the City learned from the Department Staff during the January 22, 1996 conference call that the Applicant would submit the storm water management plan after permit issuance, but before construction and operation of the Facility. Finally, the City stated that it did not know whether the Department Staff or the Applicant had responded to the comments filed by the LA Group until the Issues Conference reconvened on February 13, 1996. During the public comment period following the Notice of Complete Application, the LA Group filed a letter dated July 5, 1995 that criticized the analysis in Appendix C of the DEIS (Storm Water Analysis).
The City asserted that a consideration of this issue would not significantly delay the proceeding, or unreasonably prejudice the other Parties [624.5(c)(2)(ii)]. The City argued that rulings about other proposed issues are pending from the ALJ. For example, the Parties are briefing the issue of whether the Department can suspend this hearing until the Applicant complies with local laws. [See Other Approvals below]. Furthermore, the Parties are waiting to review the Applicant's plan to control dust. The City asserted there would be no prejudice because the City provided the other Parties with notice of its proposed issue during the January 22, 1996 conference call.
The City contended that a consideration of this issue would materially assist in determining whether the Applicant's storm water management plan is adequate [624.5(c)(2)(iii)]. According to the City, this issue is significant because the City's storm water management infrastructure is downstream from the Site. Consequently, the City contended that it is prepared to offer the expert testimony of its consulting engineer who would reiterate and expand upon the LA Group's criticism of the storm water analysis discussed in the DEIS.
In a short reply dated February 21, 1996, the Town supported the City's explanation, and argued that the City's request meets the requirements in 624.5(b)(1) and 624.5(c)(2).
By letter dated February 21, 1996, the Department Staff opposed the City's request to supplement its petition. The Staff argued the City did not meet the criteria outlined in 624.5(c)(2). The Staff contended that the City's ability to assert issues for adjudication does not depend on the availability of a draft permit. In addition, the Staff argued that Special Condition B1 is not ambiguous. According to the Staff, the proceeding would be unreasonably delayed because it would be necessary to reconvene the Issues Conference to consider the proposed storm water issue, the ALJ would then have to rule on the issue, and additional time would be set aside for filing appeals.
The Department Staff asserted there is no adjudicable issue about managing storm water on the Site upon closure of the Facility. According to the Staff, the Applicant proposes to construct a 100,000 gallon retention structure, and that the resulting discharge from the Site would be less than what the Department had approved in the 1988 permit. The Department Staff argued that the LA Group's comments criticized the Applicant's methodology but did not identify any significant adverse impact. The Staff also argued that the City did not provide a citation to any provision in Part 360 that regulates the concerns raised by the City. Citing various provisions from Part 360, the Staff asserted that the regulations address water quality, and not the quantity of the runoff.
The Applicant opposed the City's request to raise an issue about storm water management in a letter dated February 21, 1996. The Applicant argued the City did not show good cause for asserting this issue late. The Applicant explained that it hand delivered the plans and engineering reports for the Facility to the City in 1994. According to the Applicant, the DEIS has been on file since 1994, and the LA Group filed its comments in July 1995. Based on the length of time that these documents have been available, the Applicant argued that the City had ample time to raise issues by the deadline established in the Notice of Public Hearing.
In addition, the Applicant argued that the City has not raised a substantive and significant issue for adjudication with respect to storm water management. Since the LA Group's criticism of the Applicant's methodology is erroneous, the Applicant concluded that the LA Group's comments, which constitute the City's offer of proof, are invalid. The Applicant contended that the LA Group incorrectly assumed that the analysis in the DEIS was for a detention facility. The Applicant acknowledged that the methodologies advocated in the LA Group's comments, such as the SCS Method, TR 55, or TR 20, should be used for detention facilities.
However, the Applicant asserted that the storm water management features proposed for the Facility would not detain runoff on the Site, but would reduce the velocity of the runoff and direct it to the existing drainage culvert under the access road. The purpose of the calculations in Appendix C of the DEIS, the Applicant contended, was to determine the adequacy of the culvert. The Applicant asserted that sound engineering practice supports using the method used by the Applicant (i.e., the Rational Method) for the storm water analysis, and that the City has not shown otherwise.
Ruling: Because my ruling dated February 7, 1996 granted the City's request for party status, the City's original petition dated January 12, 1996 satisfies the requirements outlined in 624.5(b). Furthermore, the explanation outlined in the City's letter dated February 15, 1996 satisfies the criteria in 624.5(c)(2) for raising an issue after the filing date set in the Notice of Public Hearing.
Based on the discussion in Appendix C of the DEIS, the City could have expected a draft permit condition about storm water management. However, not until after the Staff distributed the draft permit, which was four days after the deadline for filing petitions for party status, could the City have known when the Department Staff would require the Applicant's storm water analysis. Therefore, I find these circumstances to be good cause for the City to assert a storm water management issue now.
Considering this issue now will not unreasonably prejudice the other Parties since the City provided the other Parties with notice of its proposed issue during the January 22, 1996 conference call. Furthermore, the draft permit requires the Applicant to prepare a storm water analysis. In addition, there will not be a significant delay because the Applicant is in the process of revising the plans for the Facility, and these rulings also address other proposed issues. Finally, the adjudicatory hearing to consider the issues already joined may proceed at any time pursuant to the Notice of Public Hearing.
The City's participation will materially assist in deciding this issue because the City's storm water management infrastructure is downstream from the Site.
With respect to the proposed issue, the City's principal objection is the Department Staff's determination to let the Applicant provide the storm water analysis required by Special Condition B1 after permit issuance. The City's objection has merit because the storm water management plan is a significant part of the closure plan and post-closure maintenance of the Site [360-7.6]. Moreover, letting the Applicant submit this plan after permit issuance undermines the public's ability to review the Project before the Commissioner makes a final determination. [See Peckham Materials Corp. Commissioner's Interim Decision dated January 27, 1992.]
Therefore, the proposed issue about the storm water management plan will be dealt with in the same manner as the proposed issues related to dust impacts See pp 7-8 of the Rulings of the ALJ on Issues and Party Status dated February 7, 1996. . The Applicant shall prepare the storm water management plan as soon as possible for the Parties' review. After the Parties have commented on the Applicant's plan, I will determine whether there are any issues for adjudication about managing runoff from the Site when the Landfill is closed.
Though I have reserved ruling on this issue, I have the following observations, based on the record developed to date, concerning this proposed issue. First, there is a question about the primary function of the proposed storm water management feature on the Site. The Staff stated there would be a 100,000 gallon retention structure on the Site. However, the Applicant stated that the proposed feature is not designed to detain/retain runoff on the Site, but to reduce the velocity of the runoff leaving the Site. Therefore, the primary function of any proposed storm water management features should be made clear.
Second, the Applicant acknowledged that the methodologies advocated in the LA Group's comments, such as the SCS Method, or TR 55 and TR 20 Methods, should be used for designing detention facilities. Based on the article by Roy Dodson, P.E., the Applicant argued, that the Rational Method should be used on features designed to reduce the velocity of runoff. Because there is disagreement over the primary purpose of the proposed storm water management feature, there is also a dispute about choosing the appropriate method for computing peak flows. Contrary to the Applicant's assertion, I would consider a dispute between experts about which methodology should apply (i.e., the Rational Method v. the SCS Method) to be a substantive and significant issue for adjudication.
Finally, the Department Staff asserted there is no basis in Part 360 for regulating the storm water discharge rate. Then why does the draft permit require the Applicant to perform a storm water analysis? What is the legal basis for including Special Condition B1 in the draft permit?
- Air Contamination Permit [6 NYCRR Part 201]
By letter dated February 7, 1996, the City, for the first time, asserted that the Applicant would need a permit to construct and a certificate to operate an air contamination source before receiving any solid waste at the Facility. According to the City, the Facility would be an air contamination source or emission source as these terms are defined in 201.1(d).
The Department Staff stated that the Facility would be an air contamination source according to the current regulations. The Staff explained, however, that the proposed revisions to Part 201 would exempt landfills from the air regulations. Based on the assumption that the proposed revisions would be promulgated as described above, the Department Staff did not require the Applicant to file an application for an air permit. If the Part 201 revisions that are eventually promulgated do not provide an exemption for landfills, then the Staff explained that the Applicant would need to apply for an air permit.
The Applicant argued there is no basis for concluding that the Facility requires a permit pursuant to Part 201 before it begins operating. According to the Applicant, whether the Facility becomes an emission source depends on whether decomposition gases develop. Until decomposition gases develop, the Applicant contended that any assertions concerning a Part 201 permit are speculative.
Discussion and Ruling: According to 621.3(a)(4), if a Project requires more than one permit from the Department, the Applicant must submit all the necessary permit applications, or show there is good cause not to do so.
The current version of the air regulations applies to landfills. Whether future versions of the regulations will provide an exemption is speculative. Consequently, the Applicant must comply with 621.3(a)(4) by either submitting all the necessary permit applications now, or show there is good cause not to do so. [See Gernatt Asphalt Products, Inc. Commissioner's Interim Decision dated April 29, 1994.]
- Other Approvals
By memorandum dated January 23, 1996, I provided the Parties with an opportunity to brief the issue of whether the Department should suspend the review of 4-C's Part 360 permit application until the Applicant complies with all local laws. I also provided the Parties with an opportunity to address the following related questions in their briefs. The first related question was how should the involved agencies continue the environmental review for this action as required by ECL Article 8 (SEQR) and its implementing regulations. The second related question was how does the Applicant's proposal comply with the legislative purposes outlined in ECL 27-0101.
According to the schedule outlined in the January 23, 1996 memorandum, the Town, RCEMC, CAN DO, the Department, and the Applicant filed briefs and replies. The City did not file a brief or a reply.
Discussion and ruling: The issue about whether to suspend the review of the application for the proposed Facility stems from the legal and factual disputes about what the local approvals are, and whether the Applicant can obtain these approvals. The Parties correctly agreed that the Department has no authority to decide disputes concerning local approvals. [See Hingston v. New York State Dept. of Environmental Conservation, 202 A.D.2d 877, 609 N.Y.S.2d 446 (3d Dept. 1994); Town of Poughkeepsie v. Flacke, 84 A.D.2d 1,445 N.Y.S.2d 233 (2d Dept. 1981), lv. denied, 57 N.Y.2d 602, 454 N.Y.S.2d 1026 (1982).] However, the Intervenors consider the local approvals to be the threshold determination, and therefore asserted that it would be more efficient to suspend this proceeding until the Town makes its decision about the Project. I disagree.
The central flaw of the Intervenors arguments made in support of suspending this proceeding is the assumption that the Applicant will not get the necessary local approvals. Throughout their papers, the Intervenors contended that the Project does not comply with local law.
Contrary to the Intervenors' assumption, however, the legal and factual disputes concerning the local approvals have yet to be resolved. Although the Intervenors have argued that the question of local approvals is the threshold determination, an equally compelling argument is that the Commissioner's decision about the Part 360 permit application is the appropriate threshold determination. [See Town of Coeymans v. City of Albany et al and Zagata Index No. 2166-95, Supreme Court, Albany County, August 29, 1995.] The Intervenor's assumption that the Applicant will not obtain the necessary local approvals for the Project is speculative, and therefore not a sufficient basis to suspend this proceeding.
The Intervenors cited various authorities to support their position that the Department should suspend the hearing until the Applicant has complied with all local laws. These include, the NYS Constitution, ECL Article 70, previous decisions of the Commissioner and policy documents, as well as case law. As explained below, the Intervenors have not identified any authority to suspend this proceeding.
RCEMC argued that the home rule powers provided by the NYS Constitution prohibit the Department from disregarding local laws that the Town has adopted to protect and preserve public health and the environment. Based on the powers of home rule, RCEMC concluded that the Department does not have to process the application further because the Project does not comply with local law.
RCEMC's argument about home rule is not persuasive. Contrary to RCEMC's assertion, the Department is not disregarding the Town's zoning law by continuing the review of this permit application. As explained above, deciding whether the Facility is compatible with local zoning is outside the scope of this proceeding.
ECL Article 70 (Uniform Procedures Act)
The Intervenors acknowledged that ECL Article 70 requires the Department to complete the review of applications in a timely manner. The Intervenors argued, however, that this application is distinct because the Applicant has refused to state whether it will comply with General Condition No. 8 of the draft permit. This condition requires the Applicant to obtain any other necessary permits, approvals, land easements, and rights-of-way (p 2 of 6). Given the Applicant's position, the Intervenors asserted that the Department should suspend the review of the application.
This argument is without merit. First, the timeliness of the review required by ECL Article 70 is not conditioned upon whether applicants will state their intentions about complying with draft permit conditions. The Staff and the Applicant correctly pointed out that ECL 70-0119(2) and 6 NYCRR 621.7(g) require the Department to complete this hearing in a timely manner.
Moreover, it is immaterial whether the Applicant has refused to state that it will comply with General Condition No. 8. The Applicant has had an opportunity to review the draft permit, and has not raised any issues about the proposed conditions. If the Commissioner approves the Project and the Department Staff issues the permit as currently drafted, the Applicant must secure any other necessary permits, approvals, land easements, and rights-of-way before constructing and operating the Facility. By not raising an issue about General Condition No. 8 of the draft permit, it can be reasonably inferred that the Applicant has agreed to obtain these other necessary approvals. Again, whether the Applicant actually gets these approvals is beyond the scope of this proceeding.
Previous Decisions and Policy Documents
The Applicant's and the Staff's reliance on the Commissioner's Interim Decision dated November 27, 1995 in the application of Lane Construction Company is misplaced. The Interim Decision specifically considers the propriety of the Department's Technical Guidance Memorandum (TGM) MLR 92-2 dated May 4, 1992 entitled, Implementation of the New Mined Land Reclamation Amendments in Regard to Permit Processing. Here, as in Lane, there is a question about sequencing the review for DEC permits and local approvals. However, the dispute in Lane arose directly from ECL 23-2711(2)(c) of the Mine Land Reclamation Law which requires a statement from applicants about the compatibility of any proposed mining operation with local zoning. ECL Article 27, Title 7, which pertains to this Project, does not contain a similar requirement.
As an additional authority to support the continued review of the Applicant's proposal, the Staff and Applicant referred to the Department's policy memorandum by then Executive Deputy Commissioner Langdon Marsh dated December 18, 1989 entitled, Permit Processing where Local Law Prohibits Projects. CAN DO emphasized that this policy memorandum allows for a case by case review of applications to determine the consistency of this policy. CAN DO argued that such a review should take place here.
The statutory basis for the December 18, 1989 policy memorandum is ECL Article 70. Given the Intervenor's speculative assumption that the Applicant cannot secure the necessary local approvals, and the clear mandate in ECL Article 70, there is sufficient authority to continue the review of the application for the proposed Facility without having to rely significantly on the December 18, 1989 policy memorandum.Case Law
The case law cited by the Intervenors does not support their arguments for suspending this proceeding until the Applicant obtains the necessary local approvals. The Town argued that the Court in Washington County v. Persico (99 AD2d 321) considered whether the State is subject to local zoning regulations under ECL Article 27. Contending that the certificate in the Washington County matter is analogous to this permit application, the Town argued that the decision in Washington County reflects a deference to local land uses in the manner prescribed by ECL Article 27-0101.
This case is distinct from Washington County on the facts and the law. Washington County concerns the DEC Division of Water's attempt, as the applicant, to secure a certificate of environmental safety and public necessity from the Siting Board, as well as other approvals from the Department, to construct a hazardous waste facility pursuant to ECL Article 27, Title 11 (Industrial Hazardous Waste Facilities). The purpose of the Facility was to dispose of PCB contaminated material dredged from the Hudson River near Fort Edward, NY. Here, the Applicant is a privately held corporation seeking a permit pursuant to ECL Article 27, Title 7 (Solid Waste Management and Resource Recovery Facilities) to construct and operate a disposal facility for construction and demolition debris.
One of the issues considered in Washington County was whether the State, as the applicant - not as the permitting authority, is subject to the siting requirements in ECL 27-1103 which include a consideration of whether the proposed facility is consistent with local planning [27-1103(2)(f)]. The State argued that it would not need to conform to local zoning regulations because it would be performing a governmental function. The Court rejected the State's argument. In vacating the certificate, the Court found that the DEC Division of Water, as the applicant, did not prove that its application for a hazardous waste facility was consistent with the local zoning as required by 27-1103(2)(f).
Consequently, the certificate in the Washington County matter is not analogous to this permit application. Section 27-1103(2)(f) specifically requires applications for hazardous waste facilities to be consistent with the local planning. The requirements in 27-1103(2)(f) do not apply to this application, and no analogue to the requirement in 27-1103(2)(f) appears in ECL Article 27, Title 7.
Citing Zagoreos v. Conklin, 109 AD2d 281, 297; and Monroe-Livingston Sanitary Landfill v. Town of Caledonia According to the 1992 Supplementary Practice Commentary by Philip Weinberg, the decision by the NYS Court of Appeals in Monroe-Livingston Sanitary Landfill, Inc. v. Town of Caledonia is no longer valid due to the US Supreme Court's decision in the Fort Graitiot Sanitary Landfill matter. (See McKinney's Consolidated Laws of New York Annotated, Book 17, ECL 16-0101 to 33-end, 1996 Cumulative Annual Pocket Part p. 246)., 51 NY2d 679, RCEMC asserted that the Town has the right to impose additional requirements, or to deny a request for a variance or a special use permit even if the Department approves the Project. RCEMC concluded that the Town has final authority over sighting the proposed solid waste management facility.
RCEMC's conclusion about the Town having authority over the sighting of the Facility is correct provided the Town's laws are consistent with ECL Article 27, Title 7 and its implementing regulations [27-0711]. Moreover, 617.3 does not change the jurisdiction between or among agencies. Therefore, the Town may make a separate determination on zoning issues with respect to its jurisdiction.
Like this case, Zagoreos involved an applicant who needed approvals from the Department and from the local government. The utility company in Zagoreos applied for and got its permit from the Department. The Court then reviewed the validity of the Department's decision, and affirmed it [Environmental Defense Fund v. Flacke, 96 AD2d 862] before the utility company tried to get the required local approvals.
In Plante v. Jorling and Benson Brothers Disposal, Inc. Index No. 4840-93 RJI 01-93-ST4365, and Plante v. Town of Poestenkill, Index No. 179138, RCEMC contended that the State's review must defer to local law. The Staff, however, correctly distinguished this matter from the Plante cases cited by RCEMC. The application considered in the Plante cases involved an unlisted SEQR action which, unlike this action, does not require coordinated review.
The Applicant and the Staff asserted that the Court recently determined that ECL Article 70 requires the Department to process a permit application even if local law appears to prohibit a project [Valley Realty Development Co., Inc. v. Jorling [___ AD2d ___ (4th Dept., November 15, 1995)]. Although the Court examined the appropriateness of the Department's action to suspend the review of a mining application based on the requirement in ECL 23-2711(2)(c), the principal issue in Valley Realty was whether the Department properly determined that the application was incomplete pursuant to ECL Article 70.
The Court found that the Department had not complied with the requirements in ECL Article 70 concerning notices of incomplete application. The Court determined that Valley Realty's application was complete pursuant to ECL 70-0109 and 6 NYCRR 621.5(c), and directed the Department to process the application regardless of the zoning dispute. Accordingly, the Court's determination in Valley Realty supports the continued processing of the 4-C's application pursuant to ECL Article 70.
The Parties presented arguments about how the involved agencies should continue the environmental review for this action. The Town argued that the review required by ECL Article 8 (SEQRA) has not considered the current land use plan and local laws. The Town further argued that the Department's Negative Declaration with respect to the Applicant's 1988 permit erroneously stated that the use of the Site was consistent with local zoning and surrounding land uses. Given these errors in the 1988 Negative Declaration, the Town contended that the required SEQR analysis for this proposal should include a consideration of the social, economic and environmental issues asserted by the Town.
CAN DO argued that the Department Staff has not behaved as a steward of the environment as described in ECL 8-0103. To illustrate this point, CAN DO attached copies of the correspondence it has received from the Region 4 Department Staff during the public comment period, and former Commissioner Langdon Marsh's lead agency determination for this matter. CAN DO asserted that the Department should suspend the hearing until the Applicant complies with local laws.
The Department Staff stated in its brief that no one from the Town challenged the Negative Declaration when the Department issued it in 1988. Nevertheless, the time to challenge the Department's Negative Declaration concerning the Applicant's 1988 permit has passed. Although the scope of the DEIS with respect to this application is limited, the Town did not assert any issues about the sufficiency of the DEIS within the context of this proceeding.
The Applicant and the Department Staff correctly argued that this hearing must continue in order to complete the review required by SEQRA. According to 617.3(a), the Town cannot make a final determination about the Facility until the Department, as the SEQRA lead agency, completes the review. In addition, 617.3(b) allows the Town to undertake its review with respect to local laws after the Department files the Final EIS and written findings statement. Therefore, this hearing, which is part of the SEQR process, cannot be suspended while the Town makes its determination about the Project. Rather, this hearing must continue to complete the SEQRA review process.
Finally, the Parties argued whether the Applicant's proposal complies with the legislative purposes outlined in ECL 27-0101. The Town, RCEMC, and CAN DO argued that the Project contravenes the legislative purposes outlined in ECL 27-0101(1) because the Facility is not consistent with local land use planning.
Since Part 360 is a duly promulgated set of regulations, the Applicant argued that the regulations are consistent with the legislative purposes stated in ECL 27-0101. Because the Project is consistent with the regulations, the Applicant further argued that the Project is consistent with the legislative purposes outlined in ECL 27-0101.
The Staff correctly argued that ECL 27-0101 is a statement of legislative purposes and goals, rather than a statutory requirement. Nevertheless, the legislative purposes are realized in this instance by General Condition No. 8 of the draft permit which requires the Applicant to obtain any other necessary approvals. Based on the foregoing discussion, therefore, this proceeding will go forward.
Summary of Issues for Adjudication
The rulings dated February 7, 1996 identified the following issues for adjudication:
- 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.
- 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.
- To date, the Applicant has not filed its plan to control fugitive dust as required by Special Condition No. 5 of the draft permit. Consequently, 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.
The rulings discussed above identify no additional issues for adjudication. However, I have reserved ruling on proposed issues concerning storm water management until after the Parties have reviewed and filed comments about the analysis required by Special Condition B1 of the draft permit.
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. The February 7, 1996 rulings and these rulings have addressed all issues asserted by the Parties except for proposed issues concerning dust and storm water management. Though rulings about these two topics are pending, I am providing a schedule for filing appeals here.
The Parties should note that my ruling about whether the City has meet the criteria in 624.5(c)(2) with respect to the proposed storm water management issue is appealable now.
The Commissioner must receive any appeals by April 1, 1996. Appeals shall be double-spaced and not longer than 30 pages. Replies are authorized, and the Commissioner must receive them by April 15, 1996. Replies shall be double-spaced and not longer than 15 pages.
Send one copy of any appeal and reply to the Commissioner, NYS Department of Environmental Conservation, Room 608, 50 Wolf Road, Albany, New York 12233-1010. Also, send one copy of any appeal and reply to everyone named on the Service List dated February 13, 1996. Send three copies of any appeal and reply to the Administrative Law Judge. Participants who use word processing equipment to prepare the brief and reply must also submit a copy of their appeal and reply to the ALJ in electronic form on a 3.5 computer disk (double density, not high density) formatted in either WordPerfect 5.1 or ASCII.
Appeals and replies must be distributed to everyone at the same time and in the same manner.
If the Applicant chooses to waive its right to appeal my rulings with respect to either one or both of the issues identified in the February 7, 1996 ruling concerning H2S or Public Need, I will schedule the adjudicatory hearing immediately. The Applicant shall advise me as soon as possible. If the Applicant wants to proceed, I will initiate a conference call to schedule the adjudicatory hearing. Otherwise, depending on the outcome of the appeals, the adjudicatory hearing will begin shortly after the Commissioner issues an Interim Decision.
Daniel P. O'Connell
Administrative Law Judge
Dated: Albany, New York
March 7, 1996
To: Service List, dated February 13, 1996