4-C's Development Corporation - Ruling 8, December 18, 1996
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION In the Matter of
the Application for permits to operate and construct a
Construction and Demolition Debris (C&D) Landfill pursuant to
Environmental Conservation Law of the State of New York (ECL) Article 27 and Title 6 of the
Official Compilation of Codes, Rules and Regulations of
the State of New York (6 NYCRR) Part 360
in the Town of East Greenbush, Rensselaer County
- by -
4-C'S DEVELOPMENT CORPORATION
241 NORTH PEARL STREET
ALBANY, NY 12201
Supplemental Ruling on Issues:
DEC Application No.:
Based on conflicting facts and expert opinion, there is a substantive and significant issue for adjudication about the Applicant's stormwater management plan. The Parties, however, are encouraged to develop a plan that is acceptable to everyone. There is a schedule for filing appeals from these rulings.
Special Condition B1 on page 4 of 6 of the draft permit requires the Applicant to prepare a stormwater management plan. In Supplemental Rulings on Issues dated March 7, 1996, I directed the Applicant to submit a plan for the Parties' review. I determined that I would reserve ruling on whether there were any issues for adjudication about managing runoff form the Site until the Parties had an opportunity to file comments about the Applicant's plan.
In July or August, 1996 the Applicant filed a stormwater management plan (the Plan) with the Department Staff. In a letter dated August 21, 1996, the Staff found the Applicant's Plan acceptable. The Applicant then distributed copies of the stormwater management plan to the Parties and me with a cover letter dated August 26, 1996. The Spectra Environmental Group, Inc. (Spectra) prepared the Plan for the Applicant.
In correspondence dated August 21, 1996 and September 4, 1996, the City alleged a conflict of interest with the preparation of the Plan by Spectra because a member from the City's engineering firm, Rust Environmental & Infrastructure, Inc., went to work for Spectra during the pendency of this hearing. The City later withdrew its motion to disqualify Spectra in correspondence dated September 11, and 12, 1996.
ALJ O'Connell established a schedule to give the Parties an opportunity to file comments about the Plan. The City and the Town filed comments in a timely manner. The Office of Hearings and Mediation Services duly received the Staff's and the Applicant's replies on October 21, 1996.
The Parties' Positions
The City argued there was a substantive and significant issue for adjudication about the Plan because of its legal and technical defects. To support its position, the City offered the expert testimony of the LA Group, P.C. The City, however, did not identify any particular individual from that firm.
The Town also objected to the Applicant's stormwater management plan, and offered the expert testimony of Robert A. Angelini, P.E. Mr. Angelini is the Town Engineer, and Director of Building and Planning.
According to the Applicant, the Plan complies with the applicable regulations [6 NYCRR 360-2.7(b)(8) and 360-2.15(k)(2)]. The Applicant also contended that Division of Water Technical and Operations Guidance Series (TOGS) 5.1.8 [April 1990, Stormwater Management Guidelines for New Development], does not specify what analytical method should be used to design stormwater management facilities.
The Staff argued there is no issue for adjudication for the reasons asserted by the Applicant.
Draft Permit Condition and Applicable Regulations
Special Condition B1 of the draft permit requires the Applicant to analyze the down gradient stormwater infrastructure in the unnamed tributary of H-225 to and through the City of Rensselaer. The purpose of the analysis is to show that the changes in the stormwater discharge from the Site would not adversely impact the real property located in and adjacent to the watercourse. The analysis must address the runoff that may result from a 10, 25, 50 and 100 year storm event.
Subpart 360-7 outlines the regulatory criteria for the design, construction, operation, closure and post-closure maintenance of construction and demolition (C&D) debris landfills. For C&D debris landfills greater than three acres, 360-7.4(a)(2)(iii) requires an engineering report that contains an erosion and sediment control plan that conforms with 360-2.7(b)(8).
Section 360-2.7(b)(8) relates to the construction and operation of a landfill, rather than to the closure and post-closure maintenance. Section 360-2.7(b)(8) requires an erosion and sediment control plan that conforms with guidelines approved by the Department. The plan must include an analysis of the surface water run-on/runoff control systems. These systems, which may include perimeter ditches, berms, siltation fences, hay bales and sedimentation basins, must effectively control sedimentation and erosion.
Run-on control systems must be designed to prevent surface water flow onto the active portion of the landfill during the peak discharge of a 24-hour, 25-year storm [360-2.7(b)(8)(i)]. Runoff control systems must be designed to collect and control flow resulting from a 24-hour, 25-year storm. All runoff coming from active disposal areas covered with only daily cover, as well as all runoff that comes into contact with solid waste or leachate must be considered leachate and must be treated as such [360-2.7(b)(8)(ii)].
The closure and post-closure criteria for C&D debris landfills are outlined in 360-7.6(a) which requires compliance with 360-7.4(b)(8). Section 360-7.4(b)(8) requires final slopes to be between 4% and 33%. The final slopes must be stable when subjected to the peak discharge from a rainfall intensity of a 24-hour, 25-year storm event. The regulations state that a surface water drainage system may be necessary to provide this kind of protection.
There is a dispute about which method should be used to estimate the amount of runoff on the Site. As a result, the Applicant may need to redesign the stormwater management facilities proposed in the Plan to mitigate potential flooding impacts downstream.
During the public comment period for the DEIS, Dean Long from the LA Group, P.C., filed a letter dated July 5, 1995 which identified several deficiencies with the stormwater analysis presented in Appendix C. The principal defect, according to Mr. Long, is that the Applicant's consultants used the Rational Method, rather than the TR-20 or TR-55 methods, to model for rainfall runoff. Mr. Long contended that reliance on the Rational Method significantly underestimated rainfall intensity, volumes and pond inflow. Consequently, Mr. Long argued that any proposed stormwater management facilities based on these estimates would be undersized. Mr. Long also questioned the veracity of the stormwater analysis because there were no maps or calculations to support the conclusions stated in the analysis. Finally, Mr. Long contended that the analysis in Appendix C does not comply with TOGS 5.1.8 or with Town standards.
The basis for the Applicant's stormwater management plan is the data provided in Appendix C of the DEIS. Mr. Long reviewed the Plan for the City and filed comments in a letter dated September 23, 1996. Mr. Long's comments about the Plan are the same as his comments about the data in Appendix C. According to Mr. Long, the Plan is defective because the Applicant's consultants used the wrong model to estimate rainfall intensity, volumes and pond inflow.
Consequently, there is an issue for adjudication about the Applicant's stormwater management plan. The issue is substantive because conflicting expert opinion raises doubt about which method should be used to estimate rainfall intensity, volumes and pond inflow. If these estimates are incorrect, then the stormwater management facilities proposed in the Plan are not sized correctly, and the Plan would not comply with the applicable regulations. The issue is significant because the adjudicated outcome could result in a major modification to the proposed project, or the imposition of significant conditions. For example, the Applicant may need to use a different model, such as TR-20, to redo the calculations to insure that any stormwater management facilities are sized correctly.
Without any specificity, the City asserted that the Plan does not comply with the guidelines provided in TOGS 5.1.8. Evidently, this assertion relates to the Applicant's use of the Rational Method. Although TOGS 5.1.8 expressly identifies TR-20 as an acceptable model, the TOGS also permits the use of other standard engineering methods (p 4) which may include the Rational Method.
Any concern about whether the Plan meets Town guidelines will not be addressed within the context of this issue. Because the Site is located within the Town, there may be local requirements for stormwater management which the Applicant may also need to meet. However, compliance with local stormwater management requirements is beyond the scope of this proceeding.
Although the Applicant may need to redesign the Plan, permit denial would not be a likely result from the adjudication of this issue. Like dust control, stormwater management is a resolvable engineering problem. The proposed Facility would affect only about 1% of the total area of the Quakenbush Creek watershed. Despite the existing steep slopes on the Site, downstream flooding is not a problem now. Although the permeability of the Site would change if the Landfill is constructed, the proposed Plan includes changing the topography of the Site and building detention/retention facilities to reduce of the velocity of the runoff from the Site. Given the technical nature of this problem and the skills of the Parties' consultants, the Parties are encouraged to develop a stormwater management plan that is acceptable to everyone and which meets state and local requirements.
Pursuant to 6 NYCRR 624.8(d), the Parties may appeal these rulings. The schedule for filing appeals from this supplemental issues ruling will be the same as the schedule outlined in the ruling dated December 10, 1996 concerning the City's motions. The Commissioner must receive any appeals by January 10, 1997. Appeals shall be double-spaced and not longer than 10 pages. Replies are authorized, and the Commissioner must receive them by January 24, 1997. Replies shall be double-spaced and not longer than 5 pages.
Any request for an adjustment to the appeal schedule must be made to the Chief Administrative Law Judge, NYS Department of Environmental Conservation, 50 Wolf Road, Albany, New York 12233-1550, Telephone: 518-457-3468, FAX: 518-485-7714.
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. 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.
The Parties must distribute their respective appeals and replies to everyone at the same time and in the same manner.
Daniel P. O'Connell
Administrative Law Judge
Dated: Albany, New York
December 18, 1996
To: Service List