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4-C's Development Corporation - Ruling 3, June 10, 1996

ALJ Ruling 3, June 10, 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:

DUST IMPACTS & PART 201 PERMIT

DEC APPLICATION No.

4-3824-00045/00001-0

SUMMARY

The rulings discussed below identify an issue for adjudication about whether the proposed Dust Control Plan would control dust so that it does not become a nuisance or hazard to health, safety or property as required by 6 NYCRR .360-1.14(k). In addition, the Applicant has shown good cause for not filing an air permit application at this time. I have reserved ruling on proposed issues concerning storm water management until after the Applicant files the analysis required by Special Condition B1 of the draft permit.

PROCEEDINGS

In their respective Petitions for Party Status, the City and CAN DO argued that the Applicant did not propose adequate measures to control the dust generated by truck traffic and daily operations at the Facility. With a memorandum dated January 12, 1996, the Department Staff distributed a draft permit for the proposed Project. Special Condition No. 5 of the draft permit requires the Applicant to develop an Operations Plan that describes how the Applicant would "prevent fugitive dust ... from crossing the property boundary" (page 5 of 6; Exhibit 2).

Since the Applicant did not have time to develop the Operation Plan to address potential dust impacts before the January 17, 1996 Issues Conference, I reserved ruling on issues concerning potential dust impacts until: (1) the Applicant prepared a plan to prevent fugitive dust, and (2) the Issues Conference participants had an opportunity to review and file comments about the Applicant's plan. (See Rulings of the ALJ on Issues and Party Status, dated February 7, 1996.)

On February 13, 1996, the Issues Conference participants discussed the applicability of 6 NYCRR Part 201 et seq. to the Project. Without further elaboration, the City argued that the Applicant would need an air permit because the proposed Facility would be an air contamination source or emission source as these terms are defined at .200.1(d). The Department Staff acknowledged that the Facility would need a Part 201 permit as the regulations are currently written. However, the Staff explained that proposed revisions to Part 201 would exempt landfills from the having to obtain air permits under certain circumstances. According to the Applicant, whether the Facility becomes an emission source depends on whether decomposition gases develop.

In supplemental rulings dated March 7, 1996, I concluded that whether future versions of Part 201 will exempt landfills from the permitting process is speculative. I ruled that .621.3(a)(4) requires the Applicant to submit all the necessary permit applications now, or show there is good cause not to do so.

With a cover letter dated April 22, 1996, the Applicant subsequently filed a Dust Control Plan (the Plan) a copy of which is attached as Appendix A. In a letter dated April 23, 1996, the Applicant explained why it should not be required to apply for an air permit pursuant to Part 201 now. By letter dated April 30, 1996, the Applicant supplemented its April 23, 1996 submission.

In a memorandum dated April 26, 1996, I established a schedule for filing comments and replies about the Applicant's Dust Control Plan and whether the Applicant showed good cause for not filing an application for a Part 201 air permit. Upon the timely receipt of comments and responses, the Issues Conference record with respect to these two concerns closed on May 29, 1996. The discussion that follows addresses the concerns about potential dust impacts asserted by the City and CAN DO, and whether the Applicant has shown good cause for not filing an application for a Part 201 air permit.

RULINGS ON ISSUES FOR ADJUDICATION

  1. Dust

    The City and CAN DO asserted that residents living adjacent to the Facility would experience adverse health impacts from the interaction of dust and H2S, and from exposure to dust contaminants, such as lead and PCBs. To mitigate these potential adverse health impacts, the City and CAN DO want a permit condition that requires the Applicant to install and maintain a monitoring system at the perimeter of the Site to determine whether and how much dust leaves the Site. According to the City and CAN DO, the permit condition should require the Applicant to modify or suspend operations at the Facility when the monitoring system shows that an excessive amount of fugitive dust is leaving the Site and thereby impact adjoining property owners.

    The City provided a detailed critique of the Applicant's proposed Dust Control Plan (the Plan). According to the City, the Plan is inadequate because it is extremely general, does not specifically identify the criteria for implementing dust suppression and abatement measures, and does not include any monitoring program. The City contended that the lack of a monitoring program in the Plan is particularly significant given the potential adverse health impacts.

    The City offered Mr. Anthony Sheeran, a professional engineer and senior environmental engineer with Rust Environment and Infrastructure of New York, Inc., as an expert witness. According to the City, Mr. Sheeran would testify that the Applicant's currently proposed dust control plan would not confine dust to the Site. In addition, Mr. Sheeran would testify about the availability of dust monitoring technology.

    In addition, the City offered Dr. James Melius as a medical expert who would testify about the adverse impacts of dust on persons suffering from asthma and other respiratory diseases, as well as the adverse effects caused by the interaction of dust and H2S. The City proffered that Dr. Melius would testify about the presence of lead and PCBs that are found in discarded construction materials, and which contaminate the dust generated at C&D debris sites.

    The City also offered Ward Stone, Director of the Wildlife Pathology Unit at the NYSDEC, as a witness who would testify about the concentration of lead in C&D debris. The City asserted that Mr. Stone's investigations at the another C&D debris disposal site called the Metz Landfill show that the concentration of lead at the Metz Landfill exceeds background concentrations.

    Given the location of the proposed Facility, the Town argued, in general terms, that the Plan should be more specific. RCEMC did not file any specific comments about the Applicant's proposed Dust Control Plan.

    According to the Department Staff, 6 NYCRR .360-1.14(k) requires the Applicant to control dust so that it does not become a nuisance or hazard to health, safety or property. The Staff argued that the Plan satisfies the regulatory criteria identified above. The Department Staff argued that the monitoring program proposed by the City and CAN DO is not necessary because visual observations are a very effective way of detecting dust. The Staff argued that the Plan would confine any dust that may be generated during regular operations to the Site, and thereby prevent it from becoming a nuisance or hazard to health, safety or property.

    In its response dated May 15, 1996, the Applicant argued that the City had mischaracterized many of the provisions of the Dust Control Plan. The Applicant addressed each of the City's criticisms individually. The Applicant emphasized that the primary method for controlling dust at the Facility is to limit its generation in the first instance. The Applicant stated that personnel at the Facility would implement the Plan when dust became visible, and that the proposed Plan provides many acceptable measures that would prevent dust from traveling to adjacent residences.

    According to the Applicant, Dr. Melius' proposed testimony about the presence of lead and PCBs in C&D debris is irrelevant to the adequacy of the proposed dust control plan. The Applicant further argued that the City did not provide any information to show that Ward Stone is qualified to offer either an expert opinion or any factual information about lead concentrations at C&D debris landfills. Finally, the Applicant contended that Mr. Sheeran's expert engineering opinion about the adequacy of the proposed dust control plan is not necessary, given the Applicant's detailed response to the City's criticisms of the Plan.

    Discussion and rulings: When, as here, the Department Staff has not raised any issue about whether the Applicant can comply with 6 NYCRR .360-1.14(k), the burden of persuasion is on the Intervenors to show that the proposed issue concerning impacts from dust is both substantive and significant [.624.4(c)(4)]. In this instance, a substantive issue about potential dust impacts would exist if there is sufficient doubt about the Applicant's ability to meet 6 NYCRR .360-1.14(k) such that a reasonable person would inquire further [.624.4(c)(2)]. A significant issue about potential dust impacts is one where the adjudicated outcome could 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)].

    The City and CAN DO have raised a substantive and significant issue about the potential health impacts that may be caused by the interaction of dust and H2S, and exposure to dust contaminated with lead or PCBs. On the one hand, the Applicant, through its proposed Dust Control Plan and the information in its letter dated May 15, 1996, claims that fugitive dust emissions can be controlled and will not become a nuisance or health hazard. Based on the City's and CAN DO's offer of proof, however, the Intervenors' expert engineering and medical witnesses would testify that dust cannot be contained on the Site, and would therefore become a health hazard.

    This issue is substantive because conflicting expert opinion raises doubt about the Applicant's ability to comply with .360- 1.14(k) which requires the Applicant to control dust effectively so that it does not constitute a hazard to health. Therefore, further inquiry is necessary.

    This issue is significant because the result of the adjudication may be the imposition of additional major permit conditions that would require the Applicant to modify the Dust Control Plan by adopting additional operational practices that either control dust generation, or limit the disposal of certain materials at the Facility to avoid contaminating the dust that may be generated at the Site with lead and PCBs. In addition, the Applicant may have to implement a dust monitoring program.

    Although the Parties have provided a great deal of information about their respective positions, it would be inappropriate to make any factual determinations or conclusions based solely on this information. To do so now would essentially result in the adjudication of the information presented so far without the benefit of an adversarial hearing. Rather, my task, at this point, is to determine whether there is a substantive and significant issue to adjudicate. For the reasons discussed above, there is a substantive and significant issue about whether the Applicant's proposed Dust Control Plan would control dust so that it does not become a nuisance or hazard to health, safety or property as required by 6 NYCRR .360-1.14(k).

  2. Air Contamination Permit [6 NYCRR Part 201]

    The applicability of 6 NYCRR Part 201 et seq. to the Project was discussed at the February 13, 1996 Issues Conference. Without further elaboration, the City argued that the Applicant would need an air permit because the Facility would become an emission source. The Department Staff acknowledged that the Facility would need a Part 201 permit based on the current version of the regulations. The Staff explained, however, that revisions to Part 201 have been proposed that would exempt landfills from the air regulations.

    In supplemental rulings dated March 7, 1996, I concluded that whether future versions of Part 201 would exempt landfills is speculative. I ruled that .621.3(a)(4) requires the Applicant to submit all the necessary permit applications now, or show there is good cause not to do so.

    In correspondence dated April 23 and 30, 1996, the Applicant explained why it should not be required to apply for an air permit now. The Applicant stated that the Department proposed amendments to Part 201 on February 16, 1996. According to the Applicant, the public has reviewed the proposed amendments, and the expected effective date of the new regulations would be June 1996.

    The Applicant contended that the amended regulations state that "ventilating systems for landfill gases, where the systems are vented directly into the atmosphere, and the ventilating system has been required by, and is operating under, the conditions of a valid 360 permit" are "exempt from permitting requirements at non-title V facilities" [Proposed 6 NYCRR .201- 3.2(c)(20)].

    Referring to the Engineering Design Report and the draft permit, the Applicant explained that the design for the proposed Facility includes a gas venting system, and that the Landfill would be operated consistent with Part 360. In addition, the Applicant contended that the Facility would not be a "Title V" facility as the federal Clean Air Act (CAA) defines that term. Based on the language of the proposed amendment, the Applicant argued that the Facility would be exempt from the permitting requirements of 6 NYCRR Part 201.

    The Applicant also contended that it is not possible now to quantify the potential air emissions from the proposed Landfill. Consequently, even if the Facility were subject to Part 201, the Applicant asserted that a Part 201 air permit application would be premature at this time.

    In addition, the Applicant provided the Parties with a copy of Air Guide 41: Permitting for Landfill Gas Energy Recovery (March 1, 1996) issued by the Department's Division of Air Resources. Based on Air Guide 41, the Applicant concluded that it is not required to submit an application for an air permit unless a flare or energy recovery device is used, or if the emissions vented directly to the atmosphere exceed the major source thresholds as they are identified in the CAA.

    As of the date of this supplemental ruling, the Office of Hearings and Mediation Services has not received a response from the City concerning the Applicant's submissions dated April 23 and 30, 1996.

    CAN DO objected to the Applicant's submissions regarding the Part 201 air permit because they are untimely. CAN DO argued that the Applicant should have appealed my ruling concerning this proposed issue to the Commissioner consistent with the appeals schedule provided in the Supplemental Rulings dated March 7, 1996. Since the Applicant's April 23 and 30, 1996 submissions restate the arguments previously made at the February 13, 1996 Issues Conference, CAN DO argued that merely restating that the proposed revision will provide an exemption does not constitute good cause.

    The Town argued that the Applicant should comply with applicable regulations in their current form regardless of what changes have been proposed.

    RCEMC argued that speculating about future amendments to the regulations does not relieve the Applicant of its obligation to comply with the regulations in effect now.

    The Department Staff argued that the Applicant has shown good cause for not filing a Part 201 permit application at this time.

    Discussion and Ruling: The City originally raised this issue. When given the opportunity, however, the City did not respond to the Applicant's submissions dated April 23 and 30, 1996. Based on the lack of a response, I infer that the City accepts the Applicant's explanation, and has withdrawn this proposed issue.

    The Department's Division of Air Resources issued Air Guide 41 on March 1, 1996. Based on Air Guide 41, I find that the Applicant has shown good cause for not filing an air permit application at this time. This ruling does not mean that the Applicant would never need to apply for a permit to operate an emissions source at the Site. The Applicant correctly pointed out that a Part 201 permit would be necessary for the proposed Landfill if a flare or energy recovery device is used, or if the emissions vented directly to the atmosphere exceed the major emission source thresholds identified in the CAA.

  3. Storm water Management

    In the Supplemental Rulings dated March 7, 1996, I directed the Applicant to prepare the storm water management plan as soon as possible for the Parties' review. I explained that after the Parties have commented on the Applicant's plan, I would determine whether there are any issues for adjudication about managing runoff from the Site when the Landfill is closed. No one appealed this ruling.

    Since the Applicant has not yet filed a storm water management plan, I continue to reserve ruling on this proposed issue.

Summary of Issues for Adjudication

The rulings discussed above identify an issue for adjudication about whether the proposed Dust Control Plan would control dust so that it does not become a nuisance or hazard to health, safety or property as required by 6 NYCRR .360-1.14(k). In addition, the Applicant has shown good cause for not filing an air permit application at this time. I have reserved ruling on proposed issues concerning storm water management until after the Applicant files the analysis required by Special Condition B1 of the draft permit.

APPEALS

Pursuant to 6 NYCRR . 624.8(d), the Issues Conference participants may appeal these rulings. However, a ruling about the Applicant's storm water management plan is pending. Therefore, I am not providing a schedule for filing appeals from the issues addressed in this ruling to conserve judicial resources.

Section 624.6(e) provides for expedited appeals and sets the time periods for filing expedited appeals or applications for leave to appeal. In addition, 624.6(b) explains how time limits should be calculated.

FURTHER PROCEEDINGS

If the Applicant chooses to waive its right to appeal the ruling about dust control, I will schedule the adjudicatory hearing immediately. The Applicant shall advise me within ten calendar days from receipt of these rulings about whether the Applicant wants to proceed with the hearing.

/s/
Daniel P. O'Connell
Administrative Law Judge

Dated: Albany, New York
June 10, 1996

To: Service List dated April 2, 1996

Attachment: Appendix A, the Applicant's Dust Control Plan

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