Al Turi Landfill, Inc. - Interim Decision, September 14, 1998
Interim Decision, September 14, 1998
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1010
In the Matter
- of the -
Application by Al Turi Landfill, Inc.
For a Permit to Construct and Operate a Solid Waste Management Facility
DEC Application No. 3-3330-00002-21
September 14, 1998
Interim Decision of the Commissioner
This Interim Decision relates to appeals pursuant to 6 NYCRR §624.8(d) from Administrative Law Judge (ALJ) Edward Buhrmaster's June 19, 1998 Issues Rulings in this proceeding. Appeals have been filed by the Applicant, Al Turi Landfill, Inc. (Al Turi), and intervenor Orange Environment Incorporated (OEI). Replies to the appeals were submitted by Department Staff as well as Al Turi and OEI.
In this decision I am denying the appeals in all respects. I am remanding this matter to the ALJ for further proceedings.
Al Turi seeks a Part 360 permit from the Department allowing an expansion at its existing municipal solid waste landfill in the Town of Goshen, Orange County. Al Turi's permit application includes a draft environmental impact statement (DEIS). Legislative hearings and an issues conference have been held, and the ALJ's issues ruling, now under appeal, proposes that an adjudicatory hearing be held on Al Turi's fitness to receive an expansion permit. The ALJ rejected certain issues proposed for adjudication by OEI.
Issues on Appeal
Issues in this appeal relate both to fitness of the Applicant, and to other matters.
The main focus of this case is whether the recent criminal convictions of the Applicant, its three principals, and related companies warrant denial of the requested permit. The Applicant and its principals in 1997 pled guilty to certain federal income tax evasion, extortion and mail fraud crimes in Federal Court. Staff argues that Applicant is unfit, and that the permit should be denied on this basis. Fitness is therefore an issue for adjudication under 6 NYCRR §624.4 (c)(1)(ii). The ALJ's thorough and well-written rulings state the apparently uncontested facts as to the 1997 federal criminal pleas. These facts are relevant to whether a permit should be issued, according to long-standing Department policy guidance. Also relevant is a proposal by Applicant to put the interests of two of its three principals in a voting trust, subject to Department approval. Also, a federal court monitor has been appointed to oversee activities of those convicted in the 1997 federal case, including Applicant; and Department Staff would require that the Applicant fund on-site environmental monitors in the event a permit is issued. These and other factors will need to taken into account in reaching a final decision as to Applicant's fitness to be issued a permit in this case.
Appeal with respect to fitness
Applicant does not contest that the Federal convictions are relevant and an issue for adjudication. However, Applicant has appealed from that part of the ALJ's rulings which also includes as part of the fitness question Al Turi's record of environmental compliance at the existing landfill. Specifically, OEI and Staff have called attention to three notices of violation (NOVs) issued by the Department and certain Department inspection reports relating to landfill operations and they claim that these matters are also appropriate for consideration as part of the fitness issue. For the reasons given by the ALJ report pp 13-18, I concur that these matters may be germane to an overall decision on fitness, and I deny Applicant's appeal on that point. However this Interim Decision does not make any assessment of what weight should be given to the NOVs and inspection reports.
I also conclude that the scope of the fitness issue has been rationally defined and limited by the ALJ at pp 18-19 of his report. While OEI has appealed from that part of the ALJ's ruling, OEI admits that there needs to be some boundary on how far the fitness issue should be pursued. The boundary drawn by the ALJ appears to be clear and sensible, and well within his discretion. OEI's appeal on this point is denied for the reasons given by the ALJ.
Matters raised in this appeal other than Applicant's fitness are:
- The timing for submission of certain plans by Applicant to allow for review at the hearing- Appeal by Applicant.
- Variance from the twenty-foot bedrock separation requirement - Appeal by Applicant.
- ALJ's determination not to adjudicate certain ssues - Appeal by OEI.
These matters are addressed below:
- Submission of certain plans by Applicant for review in the hearing.
Applicant appeals from those parts of the ALJ's Rulings which require Al Turi to prepare and submit for potential consideration at the hearing certain plans and documents that relate to operation and maintenance of the landfill. These include (1) a revised Contingency Plan; (2) a revised Leachate Conveyance System Plan; (3) a Horizontal Gas Collection Trench Plan; (4) a Vector Control Plan; and (5) a Wallkill River Impact Investigation Work Plan.
This aspect of the appeal by Applicant boils down to whether the above plans need to be submitted prior to the close of the record of this hearing, or whether they can be submitted later. Applicant's concern appears to be that submission of these documents now, prior to a decision on permit issuance, could trigger an opportunity for delay by potentially opening the door for the Intervenor to raise a substantiative and significant issue for adjudication. Moreover, Applicant argues that the Intervenor already has adequate information as to contingency planning, leachate control, vector control, etc. Staff takes no position.
On balance, I concur with the ALJ that each of the plans and reports should be submitted now. Submission of these documents at this time assures that OEI will have an opportunity to review them prior to close of the record, thereby avoiding a perception that Intervenor's opportunity to be heard is being truncated unfairly. On the other hand, there is no reason to conclude at this time that submission of the requested documents will necessarily trigger substantiative and significant issues, especially because, as the Applicant argues, the record already incorporates much of the factual information that these plans and reports are expected to contain.
Bifurcation of the proceedings so that the fitness issue is decided before the non-fitness issues has been resisted by the Applicant. The ALJ denied Staff's motion to bifurcate and considered all proposed issues in his issue ruling. I agree that the ALJ acted prudently in identifying the parties to the case and all potential adjudicatory issues, fitness and non-fitness, up to this point in the proceeding. The overall scope of possible issues is now defined. As a result, it is evident that fitness is by far the major issue in dispute. If the Applicant is found to be unfit, then non-fitness questions become moot. Accordingly, I direct that the ALJ and the parties should pursue the fitness question first. The plan submissions can be developed simultaneously with, or subsequent to a decision as to fitness, at the Applicant's option. The ALJ has ample discretion to work out the best way to proceed. (See NYCRR §624.8(b)(1)(xv). However, subject to such refinements as the ALJ may make, the ALJ should convene the hearing on the entire fitness issue, and then prepare a report and recommended decision for me on that issue. Pursuant to 6 NYCRR §624.13(a)(2), I direct that such report and recommended decision be provided to the parties, who will have fourteen or more days to comment to the Commissioner. A period for reply comments may also be provided for at the ALJ's option. (The parties and the ALJ should discuss the briefing times and the option of replies before close of the fitness hearing.) Thereupon I will render a decision. If my decision is that Applicant is unfit, my decision will be final when issued for the purpose of any judicial appeal. If my decision is that Applicant is fit or is fit subject to specific conditions (such as divestiture of control and on-site monitors), I will direct that the record be reopened to consider the plans and reports that the ALJ's Issues Ruling finds need to be submitted before the close of the hearing. (See 6 NYCRR 624.13(e)).
Accordingly, Applicant's appeal as to the timing of submissions of plans and reports is denied, and the ALJ's rulings are upheld on that topic.
- Variance from bedrock separation requirement.
The Department's landfill siting rules specify that there should be at least 20 feet of unconsolidated deposits underlying the proposed landfill expansion (6 NYCRR §360-2.12(a)(1)(v)). The proposed Al Turi expansion does not meet this criterion. The thickness of unconsolidated deposits beneath the expansion is less than 20 feet in some locations, but will be greater that ten feet. Al Turi asserts that an exception to the 20 foot rule applies. That is under §360-2.12(a)(2), the expansion is identified in a specific manner in the local solid waste management plan (SWMP), the 20 foot thickness criterion may be reduced. However, the ALJ found that the SWMP does not expressly identify the proposed Al Turi expansion (Report, p.52). Al Turi, on the other hand, points out that the existing landfill is mentioned in various parts of the SWMP, and that the SWMP should be interpreted as inferring that the expansion is a necessary and important part of the County's long range plan for management of solid waste.
The ALJ directed that Al Turi should apply for a variance from the 20 foot thickness criterion. Al Turi appeals, Staff takes no position, and OEI supports the ALJ's ruling.
I concur that a variance application must be filed. The SWMP does not expressly identify the expansion of the Al Turi landfill as an element of the County's plan. Accordingly, the exception of §360-2.12(a)(2) does not appear to be available. On the other hand, a variance is an available alternative, and if granted, the expansion could still be approved. The ALJ's ruling is affirmed on this point.
- OEI's appeal on SEQRA and related non-fitnessissues.
OEI's appeal is critical of the DEIS, asserting that its discussion of the expanded landfill's environmental impacts on the surrounding area is skimpy and begrudging. OEI urges reversal of the ALJ's determinations that no substantive and significant SEQRA issues have been identified with respect to community and other impacts, such as traffic, noise, odors, physical health impacts, psycho-social impacts, property value impacts, visual impacts, need and alternatives.
My review of the record and the ALJ's rulings shows that the ALJ has undertaken a thorough review of each issue raised in this category by OEI, and has correctly found that OEI has failed to come forward with substantive and significant issues for adjudication. This is not to say that impacts such as traffic, noise, odors, aesthetics, and need have been ignored or overlooked in the DEIS. These matters are in fact being considered and are part of the Department's overall evaluation of this application. However, I believe that the ALJ correctly found that OEI had not come forward with information that warrants adjudication with respect to any of these points. Moreover, the record is already developed as to most of these items, and there would appear to be sufficient information on which to base a decision, especially taking into account the fact that an existing landfill is operating on the site. Accordingly, OEI's appeal on non-fitness issues is denied.
For the foregoing reasons, the appeals of the Applicant and the Intervenor are denied. This matter is remanded to the ALJ for further proceedings.
For the New York State Department
of Environmental Conservation
By: John P. Cahill, Commissioner
Dated: Albany, New York
September 14, 1998