Al Turi Landfill, Inc. - Ruling, June 19, 1998
Ruling, June 19, 1998
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter of
the Application of
AL TURI LANDFILL, INC.,
for permits to construct and operate an expansion of its landfill
in the Town of Goshen, Orange County.
RULINGS OF THE ADMINISTRATIVE LAW JUDGE
ON PARTY STATUS AND ISSUES
DEC Application No. 3-3330-00002-21
BACKGROUND AND BRIEF PROJECT DESCRIPTION
Al Turi Landfill, Inc. ("the Applicant") proposes to construct and operate an expansion of its landfill on Hartley Road in the Town of Goshen, Orange County. The project involves a lateral expansion into an 18-acre area adjacent to the southeast boundary of the existing landfill footprint and a 17-acre vertical expansion above the eastern portion, including closed sections, of the existing landfill, increasing the maximum height of the landfill to 650 feet above sea level from the currently approved elevation of 525 feet above sea level. The lateral part of the expansion area is currently vacant or occupied by the scale house, roads and other accessory landfill uses. The expansion area would accept a maximum of about 8400 tons of non-hazardous solid waste per week, which is equal to the currently approved weekly tonnage. The life of the landfill expansion is expected to range from 7 to about 11 years, depending on the rate of waste receipt, providing an additional 4 million cubic yards of operational airspace.
Solid waste landfilling at the Al Turi facility has been ongoing since 1968. Al Turi Landfill, Inc. purchased the site in 1974 and has been landfilling there since that time. Site operations at the old Al Turi Landfill, immediately north of the current landfill, began in 1968 and ended in 1983, and that landfill is now designated as a Class 2 inactive hazardous waste disposal site.
To move ahead with its expansion project, the Applicant requests a permit to construct and operate a solid waste management facility. The issuance of such permits is controlled by the Department of Environmental Conservation ("the Department" or "DEC") pursuant to Title 7 of Article 27 of the Environmental Conservation Law ("ECL").
In conjunction with its permit application, the Applicant is also requesting the following four variances from the requirements of Part 360 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR Part 360"):
- A variance from the prohibition against siting a landfill over a primary water supply aquifer or principal aquifer [6 NYCRR 360-2.12(c)(1)];
- A variance from the requirement to conduct a site selection study [6 NYCRR 360-2.12(a)];
- A variance from the minimum required separation between the base of the constructed liner system and the seasonal high groundwater elevation [6 NYCRR 360-2.13(d)]; and
- A variance from the use of select soil in the overliner system [6 NYCRR 360-2.13(j)].
As lead agency under the State Environmental Quality Review Act ("SEQRA", ECL Article 8), DEC determined that the project is a Type I action and issued a Positive Declaration on October 27, 1989. A two-volume Draft Environmental Impact Statement ("DEIS") dated March, 1996, was prepared for this project. The DEIS has been supplemented by two additional submissions, one dated February, 1997, and the other dated June, 1997. The project was noticed as complete by Department Staff on December 10, 1997.
LEGISLATIVE PUBLIC HEARING
A Notice of Public Hearing, dated January 8, 1998, was published in the Department's Environmental Notice Bulletin on January 21, 1998, and as a legal notice in the Middletown Times Herald-Record on January 15, 1998.
The notice announced a hearing to be held in Goshen on February 8, 1998, to address public questions on the project and receive comments on the DEIS. That hearing was later canceled due to the weather-related closure of the facility where the hearing was to have been held.
The notice also announced a second hearing to receive comments on the entire application, including the DEIS. That hearing went forward as scheduled during the evening of February 19, 1998, at the C.J. Hooker Middle School, 41 Lincoln Avenue, Goshen. About 100 people attended, and there were 10 speakers from the general public. Also, the record was held open until March 2 for the submission of written comments.
Oral and written comments were mostly negative about both the existing landfill and the planned expansion. Organizations speaking against the project included Orange Environment, a citizens' environmental group that also petitioned for party status, and Residents for Planned Development, a non-partisan government watchdog group dedicated to quality-of-life issues. Thomas Pahucki, an Orange County Legislator representing the 21st District (Goshen), submitted a letter requesting that the landfill be capped and closed in the interest of bringing economic vitality to the Route 17-M corridor, and questioning why the DEC would grant variances to requirements established to protect the public health.
Many public speakers challenged the character and fitness of the Applicant and its principals in light of their recent court convictions in felony matters involving defrauding the federal government. While Department Staff asserted that the expansion permit should be denied because the Applicant is unfit, Orange Environment argued that the Applicant's existing permit should be revoked for the same reason. Members of the public expressed concern about possibly hazardous materials entering the landfill if the Applicant could not be trusted to monitor itself and the Department could not maintain constant vigilance. One speaker said the Department should investigate the Applicant's reported links to organized crime.
Neighbors of the landfill voiced concerns about the landfill's impact on public health. Oral and written comments included many complaints about landfill-generated odors affecting nearby residents as well as drivers along Route 17-M. Orange Environment noted that recurrent odor problems had been documented in the Department's own inspection records, and there was concern that these problems might worsen if the landfill gets higher.
Another major concern was about the landfill's impact on groundwater resources, especially since part of the vertical expansion would be over a principal aquifer. Residents who live close to the landfill suggested that the leakage of leachate from the facility could affect their drinking water wells, and one woman said she was already recording unsafe levels of lead from an undetermined source. Many commenters were against the granting of variances to regulations that prohibit siting landfills over principal aquifers and require at least five feet of separation between the base of a constructed liner system and the seasonal high groundwater elevation, arguing that the regulations provide essential safeguards in the event of project failure.
Landfill opponents made these other arguments as well:
- The DEIS developed on the Applicant's behalf is shallow and self-serving, and does not credibly address issues such as need and alternatives.
- Concerns about the landfill's possible impact on public health have mounted since the DEIS was scoped in 1989, and should have been addressed in the document.
- There is a traffic hazard at and near the landfill entrance on Route 17-M given the route's already congested state and the dangers of accidents associated with slow-moving trucks entering and leaving the facility.
- The landfill contributes to noise disturbances off-site, especially at the Jesus Christ Triumphant Church on Route 17-M.
- The vertical expansion of the landfill will exacerbate visual impacts to the surrounding community.
- Leachate from the existing landfill is contaminating groundwater and spreading into the Wallkill River, in violation of the federal Clean Water Act.
- Recycling and incineration are preferable to landfilling, and another facility such as the Pencor-Masada waste-to-energy plant now proposed in Middletown, would better meet the area's waste management needs.
These and other issues were raised in Orange Environment's petition for party status, and are addressed in my issues rulings.
While expressed public sentiment was overwhelmingly against the project, a few supporting comments were also received. These included statements of two landfill employees, one of them its operations manager, who said they are in good health despite many years of working at and, in one case, living near the facility. These comments countered others which suggested the landfill might be causing cancers and respiratory problems in nearby residents.
A comment supporting the project also noted that if the expansion is not approved and the landfill is required to close, Orange County will have one less waste disposal option. Another noted that the landfill had received an industry award for its record of operations, which was noted also by the Applicant's representatives.
As announced in the hearing notice, an issues conference was held on February 25, 1998, at the Goshen Town Hall. The purpose of the conference was to determine what issues bearing on permit issuance would require adjudication and who, among the petitioners for party status, would participate in an adjudicatory hearing, should one be required. Participants at the issues conference were the Applicant, DEC Staff, and two prospective intervenors, Orange Environment and Orange County.
The Applicant was represented by Stephen L. Gordon, Christopher McKenzie and Michael Murphy, Esqs., of Beveridge & Diamond, P.C., in New York City.
DEC Staff was represented by Jonah Triebwasser, Esq., of the Department's Region 3 office in New Paltz.
Orange Environment was represented by its legal counsel, Scott Thornton, Esq., of New Hampton, and Michael R. Edelstein, Ph.D., of Goshen, the group's president.
Orange County was represented by David L. Darwin and Susan Stockburger, Esqs., of the County's Department of Law, and William Gunther, deputy commissioner of the County's Department of Environmental Facilities and Services, all with offices in Goshen.
The application documents were formally identified at the issues conference and marked as exhibits (Nos. 11-44), as outlined in the transcript and later confirmed in a summary prepared by the Applicant. Department Staff presented a draft permit (Ex. No. 45) which it said would still need extensive revision after Staff reviewed technicalsubmittalss the Applicant had recently made.
Motion to Bifurcate
Department Staff moved that the hearing be bifurcated so that the issue of the Applicant's fitness could be heard and decided by the Commissioner before other, technical issues about the project itself were identified and addressed. Orange Environment and Orange County supported the motion, agreeing with Staff that if the Applicant is determined to be unfit, a permit could be denied on that basis and there would be no need to identify or address issues concerning the project design. The Applicant opposed the motion, saying there is no regulatory authority to bifurcate the hearing in the manner proposed by Staff, and that doing so would actually lengthen the hearing, given appeals of any fitness determination the Commissioner might make.
I denied the motion to bifurcate because none of the parties could show me, and I myself had not found, any case precedent for the practice, with the exception of one, In the Matter of Biotech Mills, Inc. [Decision of the Commissioner, May 18, 1983], involving a SPDES permit renewal, where an adjudicatory hearing was bifurcated to first determine the permittee's fitness in light of alleged past non-compliance with permit limits. In that case, however, all the parties agreed to the bifurcation, whereas in this case the Applicant opposed Department Staff's motion.
I also noted that while the Department's permit hearing procedures do not explicitly prohibit bifurcation, they do not authorize or, for that matter, contemplate it either. Finally, I noted that if the Commissioner found the Applicant fit, or if a court reversed a fitness determination that went against the Applicant, a consideration of the application's technical aspects would have been needlessly delayed, perhaps for a very long time.
Rather than bifurcate the proceeding, I said fitness would be considered in my issues ruling at the same time as the other proposed issues. However, I affirmed that fitness would be adjudicated, consistent with 6 NYCRR 624.4(c)(1)(ii), to the extent Staff continued to cite it as a basis for permit denial.
Because the application documents had been revised shortly before the issues conference and Staff intended to revise its draft permit to account for the new information, Orange Environment and Orange County requested an additional month to supplement their petitions. Department Staff concurred with the request, and the Applicant opposed it.
Citing 6 NYCRR 624.4(b)(1) and noting the voluminous nature of the application and the amount of new information on key application elements, I granted the request and set new deadlines for Staff's revised draft permit (March 23) and supplemented petitions from the prospective intervenors (March 30).
Reconvening of Issues Conference
At my directive, the issues conference reconvened on April 7, 8 and 9, also at the Goshen Town Hall. Orange County's amended petition for party status was marked as Exhibit No. 68, and Orange Environment's was marked as Exhibit No. 69. Department Staff presented a revised draft permit (Exhibit No. 61; attached as Appendix "A" to these rulings) but held to its previous position that the permit should not be issued because the Applicant is unfit. With regard to a proposal made by the Applicant to resolve the fitness issue (Exhibit No. 63), Staff said it was premature to discuss it substantively until the parties to this hearing were determined, at which point Staff said it would be happy to discuss the proposal with everyone involved. Staff also said that it had no issues unrelated to fitness that it wanted to raise in this proceeding.
The Applicant has suggested some minor revisions to the draft permit, mostly with regard to the timing of submissions, as noted below. Staff is considering the Applicant's proposals, and may adjust the permit terms. In general, the Applicant describes the permit as "reasonable and acceptable," and contends that it can comply with its terms.
STANDARDS FOR ADJUDICABLE ISSUES
Generally speaking, an issue is adjudicable if (1) it relates to a dispute between the Department Staff and the Applicant over a substantial term or condition of the draft permit; (2) it relates to a matter cited by Department Staff as a basis to deny the permit and is contested by the Applicant; or (3) it is proposed by a potential party and is both "substantive" and "significant." [6 NYCRR 624.4(c).]
While the Applicant has proposed some minor changes to the draft permit, it does not dispute any of its substantial terms or conditions. Staff, however, has cited the Applicant's fitness as a basis for permit denial. Therefore, one issue - - the Applicant's fitness - - automatically requires adjudication.
No issues have been proposed by Orange County, although it still seeks party status based on its interest in the hearing's outcome. Whether the issues proposed by the other potential party, Orange Environment, are "substantive" and "significant" requires consideration, since the Applicant challenges the need to litigate any non-fitness matters.
An issue exists as to whether the Applicant is suitably fit to receive the landfill expansion permit. This issue must be considered based on three considerations: (1) recent felony convictions of the Applicant, its three owners, and several companies in which the owners have or had major interests; (2) three tickets alleging environmental violations which were settled by payment of fines; and (3) a series of inspection reports documenting other alleged environmental violations. In addressing this issue, the hearing must also consider a proposal by the Applicant to remove two of its three principals from the landfill's operation, and thereby eliminate fitness concerns.
As a required supplement to its permit application, the Applicant submitted a "Record of Compliance" statement (Conference Exhibit No. 50) on a form provided by the Department. That statement acknowledges that as part of a single proceeding against 21 defendants in the case of United States v. Gigante, et. al., No. 96 Crim. 466 (S.D.N.Y.), in the fall of 1997, the Applicant and its three owners pled guilty in Federal court relating principally to the filing of false tax returns in the 1980's.
The Applicant, Al Turi Landfill, Inc., pled guilty to the crime of conspiracy in the filing of false tax returns, admitting that "from in or about 1983 through in or about 1988, Al Turi together with J&T Recycling Corp. and others conspired willfully and knowingly and unlawfully to defraud the United States by impeding the lawful functions of the Internal Revenue Service." The Applicant admitted that in furtherance of that conspiracy, on various occasions from 1983 through 1988, it issued checks to J&T Recycling Corp. for nonexistent equipment rentals. [See Exhibit No. 51, superseding information; and Exhibit No. 52, plea minutes of September 30, 1997.]
As part of the same proceeding, pleas to crimes were also entered by Nicholas Milo, Thomas Milo, and Louis Corso (each of whom has a one-third ownership interest in Al Turi Landfill, Inc.), and by several other companies in which these men were large stockholders.
- Nicholas Milo pled guilty to the crime of conspiracy to commit false filing of a tax return and to commit extortion. He acknowledged that between 1984 and 1988 he received money from Allen Ferraro, a principal of APF Carting, which was paid on Ferraro's belief that other carters would not compete against him in Westchester County. Milo said he received this money as the sole owner of J&T Recycling Corp., which operates a landfill in Dutchess County and was also engaged in equipment rental. Milo said that J&T falsely reported the money in its books and records as income from equipment rental, while at the same time issuing checks to Route 55 Corporation that it falsely recorded as payments for equipment rental. [See Exhibit No. 53, superseding information; and Exhibit No. 54, plea minutes of September 30, 1997.]
- Thomas Milo pled guilty to the crime of conspiracy to commit mail fraud and filing a false tax return. He acknowledged that in the period between 1981 and 1987, he was aware that Louis Mongelli, through his company, ISA New Jersey, had obtained extensions to a contract for the Westchester County transfer station. He said that pursuant to an agreement with Mongelli that was not disclosed to the County, he and Mongelli agreed that Mongelli, Milo, and certain of Milo's companies would share the profits Mongelli was making on the contract. He added that between 1981 and 1987 Mongelli made significant payments to him and certain of his companies, including Mamaroneck Truck Repair. According to Thomas Milo, the payments were disguised through the issuance of false and fictitious invoices that went through the mail, and he and others agreed to use these invoices in the preparation of various corporate tax returns. [See Exhibit No. 55, superseding information; and Exhibit No. 56, plea minutes of September 30, 1997.]
- Louis Corso pled guilty to assisting in the filing of a false tax return. He said that in 1990, Enviro Express, a company in which he had purchased a 50 percent interest, filed a false tax return for the calendar year 1989, unlawfully deducting $120,000 in payments to Compaction Systems Corp. of Connecticut, Inc., as consulting expenses. Mr. Corso acknowledged that he assisted in the return's preparation, knowing that the $120,000 in payments were unlawfully deducted. [See Exhibit No. 57, superseding information; and Exhibit No. 58, plea minutes of October 7, 1997.]
Also, in guilty pleas accepted by the Court on September 30, 1997:
- Trottown Transfer, Inc. (100% owned by Suburban Carting Corp., which is 100% owned by Thomas Milo), Chestnut Equipment Leasing Corp. (100% owned by Thomas Milo), DMF Excavating Corp. (dissolved, formerly 40% owned by Thomas Milo), Mamaroneck Truck Repair, Inc. (100% owned by Suburban Carting Corp.), and Recycling Industries Corp. (100% owned by Thomas Milo) admitted that from in or about 1963 to mid-year 1993, they conspired between and among themselves and others to have false documents prepared which would enable false, misleading information on tax returns to be filed on their and others' behalf.
- Suburban Carting Corp. (100% owned by Thomas Milo) admitted that as part of a conspiracy from 1960 to 1993 it made and subscribed to certain income tax returns on behalf of itself and other corporations, that were not truthful and accurate, in violation of Title 26 of the United States Code. In addition, it admitted that it offered to pay money to a labor official in violation of law, and that on various occasions between 1960 and 1993 it accepted checks upon fictitious and mischaracterized invoices.
- J&T Recycling Corp. (100% owned by Nicholas Milo) admitted that as part of a conspiracy with others between 1984 and 1988, it received money from Allen Ferraro, a principal in APF Carting Co., that it falsely recorded in its books and records as income from equipment rental. J&T also acknowledged that during the same period of time, it issued checks to Route 55 Corp. that it falsely recorded as payments for equipment rental.
- Enviro Express (50% owned by Thomas Milo, 50% owned by Louis Corso) admitted that in 1990 it filed a false 1989 tax return by taking certain false deductions for payments to Compaction Systems Corp.
- Acorn Equipment Leasing (40% owned by Thomas Milo) admitted subscribing a 1989 federal tax return that was false in that it reflected as deductions certain payments that were either based on fictitious invoices, or included artificially inflated purchase prices, thereby resulting in overstated deductions and understated income. Acorn acknowledged that when the return was subscribed, its agent, Thomas Milo, knew that it was false.
These pleas and subsequent convictions of Al Turi Landfill, Inc., its three principals, and corporations in which these principals were large shareholders are relevant to the permitting decision in this matter pursuant to the Department's Enforcement Guidance Memorandum (EGM) issued August 8, 1991, as revised February, 1993. According to that memorandum, the Department may consider as a basis for permit denial "whether the applicant or permittee has engaged in conduct that constitutes fraud or deceit," and "whether a permittee or applicant has been convicted of the crime of filing a false instrument or making a false statement to the Department or any other agency regarding compliance with the laws of any state or the United States." [Record of Compliance EGM, pages 4 and 5.]
Past fraudulent activity by the Applicant and its principals is especially relevant to the permitting decision, since the Department, as a regulating authority, needs assurance that it can trust a permittee's honesty and integrity. Even where the activity is not related to the Applicant's landfill operation, and is not directed at DEC, this agency must still consider how it bears on the Applicant's character.
The Department's EGM reflects an intent that DEC consider events which have occurred within 10 years of the date of completion of the record of compliance form. In this case that would encompass events going back 10 years from November 4, 1997, when the Applicant's form was signed by its president, Joseph Gambino. While many of the activities outlined above are at least 10 years old, the pleas and convictions are relatively recent, and for criminal matters, the EGM indicates that the agency should review convictions occurring over the last 10 years. [EGM, p.4.]
However, while all of the matters outlined above warrant consideration as a basis for possible permit denial, the EGM also requires that the Department consider evidence that would negate their effect, such as "a demonstration that the violator is rehabilitated and has re-established a reasonable record of compliance with the relevant laws." [EGM, p.4.]
With respect to the criminal matters outlined above, the fitness issue must also be adjudicated in light of Corrections Law Sections 752 and 753. Section 752 prohibits permit denial by reason of the Applicant's previous convictions for one or more criminal offenses, or by reason of a finding of lack of "good moral character" based on such convictions, unless: (1) there is a direct relationship between one or more of the previous criminal offenses and the permit sought; or (2) the issuance of the permit would involve "an uureasonable risk to property or to the safety or welfare of specific individuals or the general public."
In making its permitting decision, the agency must consider:
- The state's public policy to encourage the licensure of persons previously convicted of one or more criminal offenses;
- The specific duties and responsibilities necessarily related to the licensure sought;
- The bearing, if any, the criminal offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities;
- The time which has elapsed since the occurrence of the criminal offenses;
- The age of the person at the time of the occurrence of the criminal offenses;
- The seriousness of the offenses;
- Any information produced in regard to the person's rehabilitation and good conduct; and
- The legitimate interest of the public agency in protecting property, and the safety and welfare of specific individuals or the general public. [Corrections Law Section 753.]
Al Turi does not dispute the fact that an agency, under the proper circumstances, has the authority to deny a permit based upon an applicant's record of compliance. However, it says the agency must also consider factors that mitigate or even nullify the relevance of a negative compliance history.
Chief among such factors, the Applicant contends, is its proposal to effectively remove Thomas and Nicholas Milo from control over the corporation's operation or management. According to this proposal, first made in a letter to Department Staff dated February 24, 1998 (Exhibit No. 48) and then detailed in a subsequent letter of March 10, 1998 (Exhibit No. 63):
- Nicholas and Thomas Milo's interests in Al Turi Landfill - including economic interest, ownership interest, stock ownership, investment interest and equipment ownership - - would be transferred to a voting trust pursuant to an agreement the form of which would be approved in advance by the Department.
- Nicholas and Thomas Milo would forfeit all control over the landfill's operation and management, and two independent trustees subject to the Department's approval, one for each of them, would manage their shares.
- Louis Corso, the other one-third owner, would continue as Al Turi's managing director, a post he has held since 1990, and the current president, Joseph Gambino, and the existing employees would all remain in place.
- If at any time the Department became dissatisfied with the performance of the appointed trustees, the Department would have authority to require their replacement.
The Applicant's proposal requires the Department's cooperation to implement, and Staff has declined to comment on it until the parties to adjudication are established. If the Applicant wants to amend its application to incorporate the proposal, the hearing shall consider whether it is practicable and whether it would effectively accomplish its stated intent, "to ensure that Thomas and Nicholas Milo have no direct or indirect influence over the operation, financing or management of Al Turi, including authority to direct officers or employees, consultation regarding business affairs, and involvement in day-to-day operations." (Letter of Applicant's counsel, Stephen Gordon, dated March 10, 1998, Exhibit No. 63, p.1.)
The parties will be allowed to argue these points after the Applicant is questioned about how the proposal would work. Several questions come to mind immediately. What if the Applicant continues to propose trustees that are not deemed approvable by the Department? May the Department then name the trustees? And what if the Department, dissatisfied with a trustee's performance, cannot agree with the Applicant about a replacement? Perhaps most important, how would the independence of trustees be assured, and how would the Department monitor their performance? These and potentially other questions need to be answered, and the proposal refined if necessary to address any legitimate concerns.
The proposal is intended to make irrelevant the compliance history of Nicholas and Thomas Milo and the companies they control, focusing attention on Louis Corso's record. The Applicant contends that it can demonstrate its rehabilitation since Mr. Corso took charge of Al Turi, and that despite Internal Revenue Service audits every year between 1990 and 1996, no other federal tax violations have been found.
According to the Applicant, its trust proposal is a firmly established mechanism that courts and agencies like DEC have used to address similar compliance issues. In fact, the Applicant argues, its trust proposal is based, in large part, on the trust established pursuant to a 1995 DEC consent order for Modern Landfill, Inc., whose principals had pled guilty to counts of racketeering and other related charges.
At the Department's request, the Applicant is prepared to memorialize its proposal in an enforceable administrative Order on Consent to be signed by the Department, Al Turi, Thomas Milo, Nicholas Milo, and Louis Corso. Whether the Department should sign such an order or otherwise enter into the proposed arrangement is a matter of policy which needs to be considered as part of the fitness issue.
Even if the Department has made similar arrangements with other permittees, there is no apparent requirement obliging it to do so in all cases. Therefore, the Department must consider the benefits of the arrangement against the burdens on the Department to, in effect, police the trusteeship. The Department should also consider whether its powers in the appointment and replacement of trustees would inappropriately involve the agency in the landfill's operation, blurring the line between regulator and regulatee.
Arguably the Department could insist that if the Applicant wants to eliminate the influence of Nicholas and Thomas Milo, they should have to sell their shares, rather than place them in a trust which allows them to make money from a business they no longer control. There is also the potential that the project may be approvable, but not the Applicant, because the trust proposal is problematic or, even if it is not, because it does not sufficiently diminish the fitness concern.
Because Department Staff has not yet reacted to the trust proposal, an opportunity must first be provided for it to state its position. Orange Environment, having weighed in on the fitness question, then also needs an opportunity to raise issues, assuming the proposal is formally made part of the application.
It is possible that in considering the proposal, the need for or utility of the extra space made available by the landfill expansion would have to weighed against the obligation of the Department to police the trustee arrangement. And on the issue of need, there is an obvious split between the Applicant and Orange Environment.
According to the Applicant, the expansion is important to meet the state's goal of self-sufficiency in solid waste management, and to meet the demands of Al Turi's customers in the lower Hudson region, who without the landfill expansion would be forced to dispose of their waste out-of-state, at higher cost. The Applicant argues that the expansion of its existing landfill, where the infrastructure is already in place, diminishes the need for new landfill sites. Also, it notes that Orange, Ulster, Dutchess, Columbia, Greene and Rockland counties have all failed to locate new landfill sites after site selection studies.
Orange Environment counters that the expansion is not needed, and that alternative landfill sites are available at a reasonable price within reasonable hauling distance, though not necessarily in New York. In its filing, Orange Environment says it has contracted with the Washington-based Institute for Local Self-Reliance, which is examining alternative landfill disposal sites within the hauling region that can meet the public need for waste disposal.
While "need" is typically considered to be a SEQRA issue, to be weighed against unavoidable or unmitigatable adverse environmental impacts, that does not preclude its consideration, outside the SEQRA context, in relation to a policy judgment by DEC whether to accept the Applicant's trusteeship arrangement and thereby allow the expansion to go forward.
In summary, the hearing must address the Applicant's past criminal history, subject to a possible narrowing of the review provided the Applicant makes its proposal for a trust agreement part of its application. To the extent the trust proposal becomes part of the application, the hearing needs to consider whether it would effectively remove Nicholas and Thomas Milo from control of the landfill's operations, and whether the Department, as a matter of policy, should participate in the arrangement.
Environmental Compliance History
In addition to its criminal history, the hearing must also consider the Applicant's environmental compliance history. This history includes alleged violations for which the Applicant was ticketed and paid fines, and other alleged violations as documented in inspection reports, for which no enforcement action has been undertaken. Department Staff contends that the Applicant's history of federal crimes is sufficient by itself to warrant denial of the permit application. However, to supplement its case, it intends to produce evidence bearing on the Applicant's record of environmental compliance, as outlined below.
Ticketed Violations of Environmental Law
The Applicant's record of environmental compliance includes three tickets, issued by DEC's Environmental Conservation Officers, which were addressed in local justice courts. The tickets alleged the following violations:
- On January 22, 1993, violation of ECL Section 17-0501 for "allowing organic or inorganic matter to discharge into the waters of the State causing a contamination of water standards." The situation involved a heavy rain event in which stormwater containing some clay sediment was running off the landfill property. The Applicant claims that the stormwater had not come in contact with any solid waste or leachate, and that as soon as it discovered the situation, it was remedied by installing silt fences, hay bales, and siltation ponds. The Applicant pled not guilty, and the matter was resolved by payment of a $1,500 fine.
- On May 16, 1995, violation of 6 NYCRR 360-2.17(j) for "recirculating leachate without Department approval and no double liner." The incident arose as Al Turi personnel were removing some ponded stormwater runoff and pumping it into a water wagon tank. While pumping, the operator noticed a leak in the water wagon, immediately stopped pumping, and moved the wagon to the top of the landfill cell, where it continued to leak over a lined area that drains into a double-composite lined area. The Applicant claims that moving the leaking wagon to the leachate storage lagoon, where such runoff is ordinarily disposed, would have caused the water to be released into the environment over a long section of the unlined access roadway. The Applicant pled not guilty, and the matter was resolved by payment of a $200 fine.
- On December 27, 1995, violation of 6 NYCRR 360-1.7(a)(1)(i) for "operating a solid waste facility without a DEC Part 360 permit; for driveway site." The charge related to fill material delivered by a third party to an area just north of the Al Turi landfill for construction of a road. NYSDEC determined that the material was unacceptable. Al Turi pled not guilty, and the matter was resolved by payment of a $2500 fine.
These three alleged violations are relevant to the issue of Al Turi's fitness according to the Record of Compliance EGM, which says that DEC should consider whether during the last 10 years a permittee or applicant has been determined in an administrative, civil or criminal proceeding to have violated any provision of the ECL or any regulation of the Department. [EGM, p.4.] Such violations are relevant if "in the opinion of the Department, the violation that was the basis for the action posed a significant potential threat to the environment or human health, or is part of a pattern of non-compliance." [EGM, p.5.] Whether these violations meet those criteria, and the weight to be accorded them, must be considered at hearing, since the Applicant argues that they are unrelated and of no great consequence, there having been no environmental injury.
The Applicant contends that the three matters cited above cannot be considered since the assessed penalties are considerably below the $25,000 threshold that would make the violations significant under the Record of Compliance EGM. However, the $25,000 threshold is not firm; it governs only the "initial" stage of compliance review. (EGM, p.6.) "Enforcement actions can be excluded from consideration if the civil penalty assessed is less than $25,000," as Administrative Law Judge ("ALJ") Daniel O'Connell noted (at page 30) in the hearing report attached to the January 22, 1998, 4-C's Development Corporation Decision of the Commissioner. However, this is not a requirement, contrary to the Applicant's assertion. In fact, DEC's record of compliance form (Exhibit No. 50, Question 8.a.) requests information on ECL violations regardless of the amount of any assessed fine or penalty.
As to how the violations should be considered, I agree with the Applicant that lack of environmental harm, if demonstrated, is a mitigating factor. (See, A-1 Compaction Corp., Decision of the Commissioner, June 23, 1994, at p. 26.) Also, imposition of modest penalties, much less than allowed by statute, suggests that violations are considered to be relatively insignificant.
If the Applicant's environmental compliance record was limited to the three violations noted above, I would even consider not making it an issue, since the violations, standing alone, might not reasonably create a basis for permit denial. However, that record must also be considered in light of environmental violations by companies other than Al Turi in which the Applicant's principals have been officers, directors, or large shareholders. These violations include three charged to Suburban Carting Corp. (100% owned by Thomas Milo), one charged to Enviro Express, Inc. (50% owned by Thomas Milo, and 50% owned by Louis Corso), and one charged to F&H Sanitation, whose secretary is Thomas Milo. (See Record of Compliance Form, Exhibit No. 50, Answer to Question No. 8.b.)
Finally, adjudication of the fitness issue must allow for consideration of DEC's own reports documenting inspections of the Al Turi landfill facility. The filing of Orange Environment includes (as Appendix 1) its summary of such reports for the years 1993 to 1996, which the organization secured pursuant to the Freedom of Information Law. For each of the four years, Orange Environment notes a number of times that it claims the reports indicate certain operating standards were not met. The summary indicates an arguably significant number of violations of standards governing such things as the placement of cover, and the control of dust, odors, and leachate.
While Staff claims that the reports are a "small part" of its case, Staff said at the conference that it would call the inspectors and introduce their reports as part of the fitness issue. This would avert the need for Orange Environment to call the inspectors itself, and probably allow a more efficient presentation of their findings, since the inspectors are Department employees.
Sample inspection report forms produced by Department Staff (Exhibit Nos. 71 and 72) include a list of Part 360 requirements against which landfill operations are measured. If the inspector notes that a requirement has been violated, he checks the form and records the facts in a separate notebook. The facility operator is notified of violations during the inspection visit so that corrective action can occur immediately. According to Region 3 Staff, violations are not referred for enforcement unless they reflect ongoing problems or a major problem on a specific day.
The Applicant contends that the inspection reports are not germane to its record of compliance since they are merely part of a process by which DEC and landfill personnel are able to identify and address "housekeeping items" that arise during the landfill's operation. I disagree. The inspection reports document what Department Staff perceives to be violations of Part 360.
While these alleged violations have not been adjudicated and the Applicant has not been provided a formal opportunity to contest them, that does not preclude their consideration here, if not as a basis for penalties, then as a gauge of the Applicant's fitness. The Record of Compliance EGM provides explicitly that allegations of violations of DEC regulations can be included and proven in any administrative action to deny a Department permit. [EGM, p.5] Contrary to the Applicant's argument, it does not matter what the violation is or whether the allegation is made by Department employees or intervening third parties.
The Applicant contends there are no factual disputes to resolve because DEC previously determined that the items noted in the inspection reports did not warrant enforcement action. However, the failure to enforce does not mean a violation did not occur; the Department has discretion to enforce or not. Also, the Applicant has not conceded that it did actually violate the regulations. It stipulates only that the reports document what the inspectors noted or perceived. If the Applicant contests any of the inspection report findings, the hearing must allow it an opportunity to be heard, either by cross-examining the inspectors or producing its own evidence.
Relevance of Environmental Compliance History
The Applicant's environmental compliance history is relevant to its fitness because it may reflect on its ability or competence to meet the requirements of Part 360 and any expansion permit that is issued. Past non-compliance with Part 360 could suggest that measures in place at the landfill are insufficient to address certain environmental hazards. On the other hand, it could suggest that those measures have not been consistently implemented, which is a fitness matter. Even if violations have not recurred on consecutive inspections, their recurrence on a periodic basis, or on a certain number of visits over a period of years, may still suggest a problem that requires our attention in this proceeding.
Apart from permit denial, consideration of this issue could result in modifications of permit conditions or recommendations for more vigorous Department enforcement. However, as I said at the issues conference, my intent is not to put DEC on trial, and I would not pursue the issue, as Orange Environment would like, to consider whether DEC is able to meet its public protection mandate.
To reasonably limit the consideration of unenforced Part 360 violations, I will allow a review of inspection reports extending back to 1993, the first year encompassed by Orange Environment's offer of proof. I will also give greater weight to the more recent reports, since they better reflect the quality of the existing operation. I am interested in which particular violations have been cited most frequently, and why.
I will also consider what benefit there would be from the more rigorous DEC monitoring that is anticipated for any facility expansion, and from the appointment of a federal monitor to oversee Al Turi's operations. On the first point, Staff's draft permit (Exhibit No. 61) requires Al Turi to fund environmental monitors who "shall be present during all aspects of facility operation and construction at times designated by the Department." [Special Permit Condition No. 57.] On the second point, a federal monitor has been appointed to a minimum five-year term to oversee the landfill's operation and management, pursuant to a stipulated monitor agreement (Exhibit No. 60) which has been filed in Federal District Court. According to the Applicant, the federal monitor's mandate is to ensure that the facility complies with all applicable laws, including New York's environmental statutes and regulations.
Matters Beyond Consideration
While the hearing will rather expansively consider the Applicant's fitness to receive the expansion permit, certain limits will be recognized. For instance, the hearing will not consider matters related to the federal court action other than what is reflected in the plea allocutions, understandings between the government and the defendants, and the conviction certificates themselves. While the defendants were indicted for various alleged crimes, their pleas were to superseding informations, not the original charges.
Also, we will not consider fitness-related claims by Orange Environment growing out of investigatory hearings by the Environmental Committee of the New York State Assembly under the leadership of chair Maurice Hinchey, now a U.S. Representative (26th District, N.Y.). According to a letter from Congressman Hinchey (Exhibit No. 69, Appendix No. 2), his investigation of the state's waste hauling and disposal industry resulted in a 1986 report documenting the connection between organized crime and the Al Turi landfill operators, as well as the landfill's use for extensive illegal toxic waste dumping.
The report or, for that matter, Congressman Hinchey's testimony about his investigation need not be admitted here because the state is already aware of the past use of the landfill for disposal of toxic wastes. In fact, the old part of the landfill, over which part of the expansion would occur, is classified as an inactive hazardous waste disposal site. Also, whether the Applicant is associated with organized crime is secondary to consideration of its actual criminal record.
Congressman Hinchey's letter refers to a practice by carters controlled by organized crime to mix (or "cocktail") hazardous and toxic wastes with ordinary refuse and construction and demolition debris in order to hide the regulated wastes and avoid the costs of their lawful disposal. While he says there is no reason to believe these practices are not continuing in relation to the Al Turi landfill, his letter offers no evidence that they do. Certainly if there is proof in this regard, it should be shared with Department Staff, since DEC regulates the types of waste the landfill is allowed to accept.
Finally, the findings of the Assembly investigation should not be admitted here since they are not equivalent to facts determined after adjudication. A legislative hearing addressing the Applicant's enterprise does not afford it the same due process rights - - to confront adverse witnesses and to challenge adverse testimony - - as those afforded in a judicial proceeding. Therefore, it would unfairly prejudice the Applicant to receive the committee reports or take testimony about them.
Orange Environment has also indicated that Congressman Hinchey would attest to the intent of the State Legislature that unsuitable characters not be granted permits. But this argument does not depend on Mr. Hinchey's testimony; it can be made directly by Orange Environment, based on statutes, case law, the Department's EGM, and DEC precedents from prior permit hearings. At any rate, the Applicant concedes that fitness is a legitimate permitting consideration, and therefore no testimony is needed.
Also, the hearing will not consider anonymous complaints from neighbors that the landfill is a community nuisance. Orange Environment indicated that due to intimidation by the Applicant, people living near the landfill were reticent to report odors or other violations and to speak at hearings. To allay their fears, Orange Environment proposed that I take their testimony while in some manner protecting their identity. But as I said at the conference, this would present insurmountable problems since it would affect the Applicant's right to confront adverse witnesses.
At any rate, the complaints of people who did testify at the legislative hearing belie the claim that the surrounding community has been silenced. And I can address the nuisance-related concerns, which focus primarily on odors, through the testimony of the DEC inspectors, thereby obviating the need to hear from the neighbors themselves.
Finally, the hearing will not consider Orange Environment's claims that authorities of the Town of Clarkstown, in Rockland County, and the City of New York have both recently denied permits to principals of the Applicant based on character unsuitability. Orange Environment offered a decision of New York City's Trade Waste Commission denying applications by Suburban Carting Corp. and Prime Carting, Inc. for licenses to operate as trade waste businesses. The applicants - - which the Commission found were both controlled by Thomas Milo - - were found unfit to operate in the waste carting industry due in part to the federal convictions that are outlined in this ruling.
Orange Environment wants to use Clarkstown's and New York City's decisions to establish that DEC would not be the first regulator to use character as a basis to deny permits to the Applicant or its affiliates. But DEC does not need these precedents to deny permission for the landfill expansion. Rather than being influenced by other agencies' permitting decisions, DEC must instead take its own look at the underlying record of compliance.
NON-FITNESS ISSUES PROPOSED BY ORANGE ENVIRONMENT
Orange Environment proposes issues for adjudication under the State Environmental Quality Review Act ("SEQRA") and the Department's regulations for solid waste management facilities (6 NYCRR Part 360). It wants a Supplemental Environmental Impact Statement prepared. It wants information that Staff's draft permit allows to be provided after permit issuance to be provided now, in the context of this proceeding.
State Environmental Quality Review Act (SEQRA)
As noted earlier in these rulings, DEC was lead agency for the review of this project under SEQRA, ECL Article 8. DEC issued a Positive Declaration on October 27, 1989, having determined that the project is a Type I action. A two-volume DEIS, dated March, 1996, was prepared for the project (Exhibits No. 17 and 18), and was supplemented by two additional submissions, one dated February, 1997 (Exhibit No. 19) and the other dated June, 1997 (Exhibit No. 20).
Because the determination of significance was made prior to January 1, 1996, the Department's Part 617 regulations that took effect on June 1, 1987, govern the project's SEQRA review and are cited in these rulings, not the current regulations. [See 6 NYCRR 617.19, effective January 1, 1996.] However, the project is being considered in terms of the current Part 360 regulations, since it was noticed as complete after those regulations took effect. [See 6 NYCRR 360-1.7(3)(vi).]
Orange Environment claims that SEQRA has not been satisfied because the public's input to scoping the DEIS occurred in 1989, and because no new scoping opportunities have been provided since, despite changes in the application. However, formal scoping is optional, not mandatory, under the SEQRA regulations [6 NYCRR 617.7(a)], and the lead agency has discretion whether to invite the public to participate in the scoping process. [6 NYCRR 617.9(b).] Therefore, the failure to reopen scoping in light of application revisions cannot be considered a procedural defect.
Orange Environment claims that changes to the application since 1989 have made the current proposal essentially a new one. In fact, the current proposal is different from the one first submitted. While the affected acreage has diminished, the vertical expansion is higher than first proposed, and the project is expected to last longer. However, as Staff points out, the proposal is essentially similar to the one first proposed, just refined over the years. And the bottom line is not whether the project has changed; it is whether the project, as now proposed, would have significant, unaddressed environmental impacts of a kind not associated with the original one. In this regard, Orange Environment did not convince me that the project had changed significantly.
Orange Environment moved that the application be defined as new and all administrative and SEQRA procedures restarted, in order to allow for new scoping opportunities for the public. In the alternative, it moved that a new scoping hearing be held, based on which the Applicant would be required to submit a supplemental EIS. Neither effort is necessary or even worthwhile. The hearing we are now conducting - - allowing public comment on the DEIS and the opportunity to raise SEQRA issues - - has effectively accomplished the same purpose as any re-scoping of the DEIS. At best, new opportunities for public scoping could be justified only by the fact that nine years have elapsed since the original application was submitted. And, as the Applicant argued, "the mere passage of time rarely warrants an order to update information considered by an agency," since such a requirement "would render the administrative process perpetual and subvert its legitimate objectives." See, Jackson v. NYS Urban Development Corp., 503 N.Y.S.2d 298, 310 (1986).
Orange Environment claims that the DEIS omits items it proposed for discussion during the 1989 public scoping. However, the DEIS must be compared only to the written scope developed by DEC, since the agency, not the public, dictates what the document must address.
Also, Orange Environment asserts that the Applicant failed to highlight waste reduction, recycling and reuse, and waste-to-energy, aspects of solid waste management that were actually included in the written scope. In fact, the DEIS does include data on recycling, reuse, waste-to-energy and landfilling in a discussion of how New York manages its waste. (DEIS, Exhibit No. 17, Section 2.5.1.) Under a discussion of project need and the New York State Solid Waste Management Plan, the Applicant notes that though landfilling is at the bottom of the state's priorities for solid waste management, it remains the predominant method of solid waste disposal in New York, and is essential to the state's objective of self-sufficiency in the management of its solid waste.
Orange Environment claims the DEIS is deficient because it fails to address potential adverse cumulative impacts of operations at the Al Turi and Orange County landfills, which were identified as one of the reasons for DEC's Positive Declaration. However, as Staff responds, the Orange County Landfill ceased operating in January of 1992, and therefore impacts of the combined operations of the two landfills is a non-issue.
Orange Environment contends that the DEIS should include a full discussion of the potential hazards associated with the receipt and disposal at the landfill of municipal solid waste (MSW) incinerator ash. However, the landfill already receives such ash with DEC approval, consistent with Part 360. The ash must be tested to assure it is not hazardous; if it tests as hazardous, it must be disposed of elsewhere. Because of this, the Applicant does not need a hazardous waste management facility permit, and the siting procedures for such a permit do not apply to this application, contrary to Orange Environment's petition.
Need and Alternatives
Orange Environment claims that the issue of need has been inadequately addressed in the DEIS. The Department's SEQRA regulations require that the body of the DEIS contain "a concise description of the proposed action, its purpose, public need and benefits, including social and economic considerations" [6 NYCRR 617.14(f)(1)] (Emphasis added). The Applicant discusses the need for the landfill expansion at Sections 1.3 and 2.5 of the DEIS (Exhibit No. 17), as well as DEIS Appendix "D" (part of Exhibit No. 18), a 1996 evaluation of waste disposal needs for communities serviced by the existing landfill. The Applicant concludes that the landfill expansion is important to meeting the waste disposal needs of its serviced communities because "landfill closures have increased due to economic burdens associated with operating these sites in compliance with changing environmental requirements, limitations placed upon available space (capacity) at existing municipal and commercial landfills in the State, the prohibitive cost of constructing and operating new landfills, political constraints associated with public opposition to the siting of new landfills, and the current lack of economically and operationally feasible resource recovery or other technology alternatives for the region." (DEIS Appendix "D", p.22.)
According to Orange Environment, the Applicant's discussion is inadequate because it rests only on the needs of its customers, without discussing the needs of surrounding neighbors who bear the brunt of odor, noise, traffic and other environmental impacts. Actually, while a DEIS must discuss a project's potentially significant environmental impacts, that discussion is separate from the "need" analysis. While the Applicant and Orange Environment clearly disagree about whether this particular project is needed, one cannot claim that the topic has been overlooked in the DEIS.
Orange Environment also claims that the discussion of alternatives is inadequate. DEC's SEQRA regulations provide that the body of the DEIS include "a description and evaluation of the range of reasonable alternatives to the action which are feasible, considering the objectives and capabilities of the project sponsor," including the no-action alternative and, as appropriate, alternative sites, technology, scale or magnitude, design, timing, use, and types of action. [6 NYCRR 617.14(f)(5).] The Applicant's discussion of alternatives to the proposed action is in Chapter 5 of the DEIS (Exhibit No. 17). In addition to the no-action alternative, the DEIS considers alternative locations, construction schedules, scales and magnitudes, and designs, all in relation to a landfilling project.
Orange Environment claims that the discussion of alternatives is deficient because Al Turi has failed to show that its property might not be used to support options other than landfilling, such as a facility that would reprocess or recycle solid waste. However, such alternatives are not feasible in light of the objectives and capabilities of the Applicant. The site is already a landfill, and the Applicant's objective is to provide a disposal site for its customers. Disposal sites will continue to be needed because not all waste can be reprocessed or recycled. As Staff argues, it makes little sense for Al Turi to build a recyclables handling facility since recycling is anticipated before waste arrives at the landfill. In fact, according to Staff's draft permit, the landfill could not accept waste that originates from a municipality that has not implemented a recyclables recovery program. (Special Condition No. 69.)
Orange Environment faults the Applicant for not addressing the Pencor-Masada plant in its DEIS, saying the potential for its construction eliminates the need for this landfill expansion, and that, according to the state's solid waste management hierarchy, the plant would be preferable to the landfill. However, as part of an alternatives analysis, the Applicant is not obliged to weigh the merits of its project against others' proposals that are even further from being realized.
DEC Staff confirmed that while the Pencor-Masada project had been scoped, no DEIS or permit application has yet been received. The plant's technology, which involves producing ethanol from organic waste, is being tested on a small scale out-of-state. According to Orange Environment, the project sponsors have already contracted for more than half of Orange County's waste stream, in the event the project goes ahead. However, the project remains speculative at this point, and therefore should not be used to diminish any existing need for the Al Turi expansion.
Orange Environment cites the Commissioner's 1988 denial of Orange County's landfill application as a precedent for the consideration of alternatives. That application was denied principally on the basis that the County had failed to adequately consider alternatives to the project - - particularly recycling and the development of alternative sites - - as required by SEQRA. The Commissioner ruled that where a landfill such as the one proposed by the County would be sited over a principal aquifer, SEQRA, as interpreted in the Commissioner's Organization and Delegation Memorandum #85-38 on Landfills and Sensitive Aquifers, required the application to include an evaluation of alternative technologies and sites sufficient to determine whether there were any reasonable alternatives to the proposed project. [In the Matter of the Orange County Department of Public Works, Decision of the Commissioner, July 20, 1988, p.1.]
Al Turi's landfill expansion, like the landfill proposed by Orange County, would be over a principal aquifer. However, Al Turi, unlike the County, is a private project sponsor and therefore is required under SEQRA to discuss only alternative sites in which it has an ownership interest. That discussion is included in Section 5.3 of the DEIS. There is no discussion of non-landfill technologies, but as noted above, such technologies are not consistent with the objectives and capabilities of the Applicant.
Orange Environment contends that the 1985 aquifer policy cited in the Orange County landfill decision has been disregarded. However, the policy (Exhibit No. 76) was intended to expire after final promulgation of regulations prohibiting landfills over primary and principal aquifers. Such regulations are now in place and the aquifer policy has in effect been subsumed in them.
Staff concedes that a part of the proposed vertical expansion would be over a previously identified principal aquifer. However, the Applicant is seeking a variance from the siting prohibition, which requires a demonstration that the proposed activity would have no significant adverse impact on public health or the environment. Therefore, while the aquifer policy has been discontinued, the intent of the regulation - - to protect potential and actual water supplies - - is still carried on. Also, as the Applicant argues, its application for a variance from the requirement of a site selection study addresses what would otherwise be a duty under Part 360 to consider alternative locations.
While there is no basis for requiring the Applicant to supplement the DEIS on issues of need and alternatives, it is premature to rule out need as a hearing issue. As noted above, need for the landfill expansion may be a factor for the Department to consider in relation to the Applicant's trusteeship proposal. As an issue under SEQRA, need could also require adjudication if it is shown that the project will have some particular adverse environmental impact which cannot be mitigated or avoided. [In the Matter of Hydra-Co. Generations, Inc., Interim Decision of the Commissioner, April 1, 1988.]
Deferral of Information in Staff's Draft Permit
Orange Environment contends that the terms of Staff's draft permit allow the Applicant to defer submitting key studies and plans until after the permit is issued, when such documents should have been part of the application. Because the public would not have the same opportunity to raise issues based on documents provided after this hearing is over, Orange Environment argues that if Staff's draft permit is adopted, the public's ability to participate in this proceeding will have been improperly limited.
As noted above, Staff revised its draft permit after I ruled that the hearing would not be bifurcated and the fitness issue heard and decided first. The revised permit (Exhibit No. 61) was provided on March 23, and has not been altered since. According to Department Staff, the revised permit is meant to encompass not only the landfill expansion, but the completion of activities at other portions of the site. Therefore, it is not a "new" permit, but a modification of an existing permit. Staff says many of the contested conditions were written to preserve its right to get more information before construction or operation of the expansion can proceed.
In particular, Orange Environment challenges Special Conditions No. 4, 6, 7, 8, 9, 10, 12, 51 and 52. Each of these conditions is considered separately below:
No. 4. This condition requires the Applicant to revise the PVC final cover investigative plan for the older capped portions of the site to address Department comments, and to implement the approved plan in accordance with a schedule acceptable to the Department. Upon completion of the investigation, the Applicant is required to submit a report detailing the results of the investigation and describing corrective actions which are necessary to address any deficiencies identified in the existing cap. Finally, corrective actions specified in the approved report must be carried out in accordance with a schedule which is acceptable to the Department.
Orange Environment says that this condition recognizes deficiencies in the existing cap system that are pertinent here because the application assumes the integrity of the cap for the landfill's vertical expansion. However, according to Department Staff, the condition relates to a portion of the landfill that is closed and over which no expansion will occur. An initial plan, Staff says, was required under the existing permit. According to the Applicant, the plan was first submitted in August of 1996. Staff says it would require the plan's revision whether or not the expansion is approved. The Applicant has agreed to finalize the plan and does not contest the condition as written.
Ruling: Based on Staff's representations that "the older capped portions of the site" referred to in the condition would not be underneath any vertical landfill expansion, the revision of the investigative plan and the implementation of measures to correct deficiencies in the existing cap are not relevant to this hearing. This hearing is concerned only with the expansion project and, by extension, any permit conditions that bear upon that expansion.
No. 6. This condition requires the Applicant to submit a revised contingency plan for approval by the Department a minimum of 90 days prior to any construction of the expansion. The plan would require Department approval prior to the expansion's operation. It would have to address how all operational contingencies would be handled, including receipt of an unknown or hazardous waste observed or otherwise detected by an employee.
According to 6 NYCRR 360-2.10, a contingency plan discusses technically and financially feasible courses of action to be taken in responding to emergencies or other special conditions. A contingency plan is a required part of every application for a solid waste management facility [6 NYCRR 360-1.9(h)] and of every application for an initial permit to construct and operate a landfill. [6 NYCRR 360-2.3(g)].
The Applicant has revised its contingency plan to address the landfill expansion (see Exhibit No. 26), but not to the satisfaction of Department Staff. According to Staff, the condition is intended to secure additional detail on specific aspects of the plan. The Applicant describes this as "fine-tuning," noting that it has already responded to previous Staff comments on the plan. Orange Environment says the remaining plan revisions, as requested by Staff, should be produced as part of this proceeding to allow the public an opportunity to review them and attempt to raise hearing issues.
Ruling: I agree with Orange Environment that the finalization of a contingency plan acceptable to DEC Staff should be done now rather than after any decision to issue the permit. An adequate plan for addressing certain contingencies is a requirement of the Part 360 regulations, as noted above. A plan acceptable to Staff for the landfill expansion has not yet been provided, and deferring the needed detail until after a permit is issued effectively deprives Orange Environment, as a prospective intervenor, of an opportunity to raise issues based on the absent information. At any rate, until Staff is satisfied with the plan for contingencies arising out of the proposed landfill expansion, the plan's acceptability remains a potential issue between Department Staff and the Applicant.
No. 7. This condition requires the Applicant to submit a Wallkill River impact investigation work plan and a draft corrective measures assessment report within 90 days after the effective date of the permit. According to Staff, the work plan (also discussed in Special Permit Condition No. 45) relates to the existing landfill as well as the expansion, while the draft corrective measures assessment report (also discussed in Special Permit Condition No. 47) relates only to the existing facility, since the expansion is not in place yet and therefore could not be subject to corrective measures. Staff says the work plan relates to the expansion because it is part of the surface water quality monitoring program Staff would require if the expansion goes forward. According to Staff, the work plan is associated with the environmental monitoring plan that has already been submitted (Exhibit No. 35-C) as required by 6 NYCRR 360-2.11(c). Based on the outcome of the investigatory work, Staff says the monitoring plan might require adjustment.
Orange Environment contends that the information requested in Special Permit Condition No. 7 should be provided now, arguing that if it is deferred until after permit issuance, continuing damage to the Wallkill River - - a so-called "key impact issue" - - will be insulated from public review.
Ruling: Because the corrective measures assessment report does not relate to the expansion, it is beyond the scope of this hearing. However, the Wallkill River impact investigation work plan relates to a potential impact of the expansion project, and is part and parcel of the environmental monitoring plan which is an essential element of a landfill permit application [6 NYCRR 360-2.3(h)]. By regulation the monitoring plan must describe all proposed on-site and off-site monitoring, including the location of all environmental, facility, and other monitoring points, sampling schedule, analyses to be performed, statistical methods, and reporting requirements. [6 NYCRR 360-2.11(c).] This is the type of information that the work plan, as detailed in Special Condition No. 45, is intended to present. To assure the plan's adequacy to address potential impacts to river water quality, it should be part of the permit application, not a submission to be made after a permit is issued.
No. 8. This condition requires the Applicant to submit, no later than 90 days prior to the construction of the expansion, an approvable plan for the installation of horizontal gas collection trenches. According to Department Staff, such a gas collection system would be similar to ones that have effectively addressed landfill-generated odors in California. Staff says it is seeking an engineering plan showing the placement of the trenches. According to Staff, the trenches are not required under Part 360.
Orange Environment contends that if the plan for trench installation is deferred until after permit issuance, a key aspect of the facility's design and operation will be placed outside of adjudication.
Ruling: The plan for installation of horizontal gas collection trenches must be provided now, as part of the expansion application, to better assure it will be workable as implemented. This is especially important since odor control has been documented by DEC's inspectors as a recurrent problem at the existing facility, and is a principal source of neighbors' complaints. While the trenching is not required by Part 360, the Department needs to assure itself that odors will not be a community nuisance before it approves the expansion. This requires a plan reviewed and approved by the Department before the expansion can proceed.
No. 9. This condition forbids the commencement of construction until a leachate conveyance system plan is submittted and approved by the Department. Leachate collection and conveyance calculations are already part of a submission of the Applicant (Exhibit No. 30-A) which is considered part of the engineering report for the expansion. Staff is requesting the additional information to demonstrate that the leachate collection and removal system will be maintained for the landfill expansion in a free-flowing condition to prevent excessive leachate head accumulation on the lower liner [in accordance with 6 NYCRR 360-2.9(j)(4)] and to assure that the system is designed to allow the unobstructed flow of leachate to the treatment system for both the primary and secondary collection zones. According to Staff, some of the clarifications requested might lead to changes in the landfill design. Staff acknowledges that the information is relevant to whether or not leachate could be prevented from escaping the landfill expansion, an issue proposed by Orange Environment.
To be complete, a landfill application requires, as part of an operation and maintenance manual, a leachate management plan, which must address the leachate collection, storage, removal, and treatment systems to be utilized, and must discuss the specific design and operational features related to these systems. [6 NYCRR 360-2.9; 6 NYCRR 360-2.3(f).]
Ruling: Because the leachate conveyance system plan is sought by Staff to demonstrate compliance with a Part 360 requirement, it must be provided before permit issuance, as part of this proceeding.
No. 10. This condition requires that, within 30 days after any permit becomes effective, the Applicant must submit a revised engineering report, contingency plan, operation and maintenance manual, and construction quality assurance/construction quality control plan, each document updated with information previously accepted by the Department. The intent of the condition is to have each document stand on its own, without reference to other submissions. Staff says that by inserting this condition, it does not intend that new information be produced, only that existing information, gathered over the course of a number of submissions, be re-organized. Orange Environment contends that if the re-organization is necessary for proper understanding of the project, it should be required now to facilitate public review.
Ruling: Since the condition does not contemplate the provision of new information after permit issuance, it is not objectionable. While the existing application documents require some cross-referencing to understand, they are organized in a sufficiently comprehensible manner for the purpose of public review.
No. 12. This condition requires that, no later than 90 days prior to any construction of the expansion, the Applicant must submit for DEC approval a revised estimate of certain closure and post-closure costs. The current estimate is several years old and does not account for subsequent inflation. Section 360-2.19(b) of the Department's landfill regulations requires that the owner or operator have a detailed, Department-approved written estimate, in current dollars, of the cost of hiring a third party to close the largest open portion of the landfill at any time during the landfill's active life in accordance with the closure plan. A complete landfill application must contain the most recent closure cost estimate for the landfill. [6 NYCRR 360-2.3(m).] Orange Environment says the revised estimate of closure costs should be provided in a manner timely to this review, to ensure it is adequate.
Ruling: The revised estimate of closure and post-closure costs may be deferred until after issuance of any permit, provided the estimate is submitted and approved by the Department prior to construction of the expansion. Since the rate of inflation is unpredictable and it is unclear whether or when the expansion will be approved, it makes little sense to make new projections of closure costs now. The current estimate, in 1995 or 1996 dollars, satisfies Part 360 requirements for a complete application.
No. 51. This condition requires that, prior to the operation of the expansion area, the Applicant must submit a plan for the Department's approval evaluating alternatives, other than those implemented already, that can be used to control vectors attracted to the facility. The condition allows the Department to require the implementation of these additional vector controls if, in the Department's sole discretion, the controls currently in place are determined to be inadequate. Department Staff says its principal concern is with seagulls and other birds that would be attracted to the landfill. Staff wants some contingency arrangement, beyond what is already proposed, if in the future there is a problem. According to the contingency plan for the proposed expansion (Exhibit No. 26, Section 3.6), limiting the size of the working face, as well as applying and maintaining cover, will reduce the area of landfilled material which is seasonally attractive to birds, and devices to frighten birds from the site - - including cannons and electronic bird distress calls - - will be used.
Orange Environment claims that the plan requested by Staff should be submitted now, and that deferring the matter until after permit issuance effectively cuts the public out of the discussion. Orange Environment is also concerned about the measures already proposed, noting that noise from bird-scaring devices is a community impact, and that birds temporarily dispersed from the landfill will go into the surrounding neighborhood.
Ruling: Although Staff claims that the existing facility has generally maintained compliance with the operational requirement of vector control [6 NYCRR 360-1.14(l)], the condition that the Applicant evaluate alternatives other than those already implemented suggests dissatisfaction with the measures now proposed for the expansion, and the potential for those measures' adjustment. A detailed description of the courses of action which should be taken in responding to vector problems is a required element of the contingency plan required as part of a complete landfill application [6 NYCRR 360-2.10(b), 360-2.3(g)]. Therefore, the vector control plan should be finalized now, before any permit issuance, allowing the public, in whose interest vector control is required, to raise concerns about measures that could be used.
No. 52. This condition requires that, prior to any construction of the expansion, the Applicant must submit a plan for a noise study to be conducted to show compliance with 6 NYCRR 360-1.14(p). The Applicant has already analyzed potential impacts of the proposed expansion upon existing ambient noise in the vicinity of the landfill site [DEIS, Exhibit No. 17, Section 4.5.2]. Staff's condition is designed to ensure that adequate follow-up using actual noise levels occurs once the expansion begins operating. Orange Environment says a noise study demonstrating compliance with Section 360-1.14(p) is required prior to construction.
Ruling: Because the Applicant has already performed a noise study projecting impacts from the landfill expansion, it has met the requirements of Part 360 and SEQRA. As a practical matter, a study of actual noise levels cannot be conducted until after the expansion begins. The permit condition ensures that the plan for that subsequent study is adequate. Orange Environment does not have a noise expert and made no offer of proof that would call into question the results of the noise study that was performed as part of this application. Therefore, no additional studies are required at this time.
Summary of Rulings
To assure the public a full opportunity to review and raise issues about the permit application, certain plans, as outlined above, need to be submitted or revised now rather than after any permit is issued. This additional information is "reasonably necessary" to determine whether or on what terms the project is approvable, and may be requested at any time during the review process, even after Staff has noticed the application as complete. [6 NYCRR 621.15(a).] The information is needed to consider the project's environmental impacts and as part of plans (such as the contingency plan, environmental monitoring plan, and leachate management plan) which are required as parts of a complete application [6 NYCRR 360-2.3.]
Rather than set a deadline for the additional information, with the penalty of permit denial if the deadline is not met, the Applicant should endeavor to provide the additional information to Department Staff as soon as possible, understanding that until it is provided, further consideration of the application will be delayed. In the alternative, the Applicant could agree to defer providing the additional information until the fitness issue is adjudicated.
Once the additional information is provided, Orange Environment must have an opportunity to review it and, if it chooses, revise its statement of proposed issues. Likewise, Staff must have an opportunity to provide its own comments. The issues conference needs to be reconvened to consider potential issues, but only to the extent such issues arise from the newly furnished information.
Other Permit-Related Matters
At the issues conference the Applicant outlined various proposals of its own to modify Staff's draft permit. Some would delay the timing of submittals (for special permit conditions No. 6 and 8), one affects how a testing program is implemented (No. 42), and one would correct an apparent typographical error (in condition No. 50, changing 300 to 500 parts per million [ppm]). The Applicant would like special permit condition No. 62-a altered so it could reuse soils from the original Al Turi landfill (which is classified as an inactive hazardous waste site) elsewhere on the site, provided that the soils are tested first for contamination.
At the conference Staff asked the Applicant to confirm its recommended changes in writing, allowing Staff an opportunity to consider them more fully and, if Staff deemed it appropriate, revise the draft permit. Although the Applicant confirmed its proposed permit revisions in a letter dated April 21, 1998, I have not received a revised draft permit and am unaware how matters stand between the Applicant and Department Staff.
To the extent Staff agrees to any of the Applicant's proposed changes, I and the others on the service list must be informed promptly. To the extent Staff declines to make any of the requested changes, the Applicant may propose them to me directly. Of course the permit shall also be considered altered by my rulings on the conditions contested by Orange Environment, as outlined above, and by any Commissioner's decision based on appeals of my rulings.
Specific Community Impacts of Landfill Expansion
Orange Environment proposes that certain project impacts upon the surrounding community are bases for modification or even denial of a permit authorizing the landfill expansion. The Applicant and Department Staff contend that these impacts, as described below, do not require adjudication. The Applicant contends generally that the expansion would not result in an increase in baseline impacts. In other words, it claims the potential impacts from the expansion would merely substitute for the impacts of the existing landfill. In any event, the Applicant contends that it has adequately addressed the landfill's potential impacts in the DEIS and supported its conclusions with data which are also part of the application. The Applicant claims that the assertions of Orange Environment amount to little more than speculation and conjecture without any factual basis.
Each impact included in Orange Environment's filing is considered separately below based on the record developed at the issues conference.
Orange Environment claims that the DEIS for the landfill expansion reveals a fatal flaw in the Applicant's ability to provide safe access and egress from the facility. Direct traffic access to and egress from the main entrance to the landfill facility is presently provided via a two-way entrance and exit driveway located along the north side of State Route 17-M, with an employee entrance located on the west side of Hartley Road, north of Route 17-M.
According to Orange Environment, the DEIS notes unacceptable levels of service for the unsignalized intersection of Hartley and Gate School House roads with Route 17-M just east of the landfill entrance, as well as at the unsignalized exit to Route 17-M from the landfill gate. Orange Environment says the DEIS fails to look at the safety issues attendant to these levels of service, namely the extreme risk of accidents as traffic enters and leaves Route 17-M. Its point is that Al Turi's entrance is situated at a hazardous and highly congested point, where slow-moving large trucks can easily contribute to vehicular accidents, near-misses and bottle-necks.
Orange Environment wants a full evaluation of alternative points of entrance and exit, alternatives for managing traffic at the landfill entrance, and an analysis of the consequences as road use continues to increase and already critical points undergo even greater pressure. As a possible outcome of further study, Orange Environment says the landfill might be required to create a new entrance on Hartley Road, and to bear the costs of placing a traffic light on Route 17-M at its intersection with Hartley and Gate School House roads as a condition of the entrance relocation. Also, Orange Environment claims, steps to prevent use of back roads for entry should be required.
The Applicant commissioned a traffic impact study as part of its DEIS. The study (included in Exhibit No. 18) was prepared to document the existing traffic conditions and potential short- and long-term traffic service impacts associated with the landfill facility, and to determine the need, if any, for appropriate operational improvements required to accommodate both the existing and expansion-generated traffic volumes on Route 17-M. Evaluation of projected traffic operating conditions based on full-capacity operation (8400 tons per week) indicated that the expansion would not cause any significant deterioration in traffic service levels at critical intersections on Route 17-M, and would not cause a significant disruption of the traffic movement along the route.
Based on the Applicant's study, Staff is generally satisfied that the expansion activities will not introduce significant new traffic into the area, and that existing traffic conditions will not worsen significantly if the expansion is approved.
Ruling: Traffic safety impacts alleged by Orange Environment shall not be adjudicated in this proceeding, except if required based on input from the New York State Department of Transportation (NYSDOT). DEC lacks expertise on these impacts and measures to mitigate them; however, I appreciate Orange Environment's concerns. The Applicant's own study reveals the low levels of service along Route 17-M at the landfill entrance and at the intersection just east of the entrance.
The low levels of service suggest congestion and delays, particularly at peak commuter traffic periods. The morning rush hour is a special concern because it coincides with a period during which the landfill would be receiving waste. [See special permit condition No. 38, which sets weekday operating hours of 6 a.m. to 4:30 p.m.] Also, the receipt of up to 8,400 tons of waste per week under terms of the draft permit represents a substantial increase from the 4,500 tons per week that was being received when the traffic impact study was performed. Finally, according to state transportation officials cited in the study, a 2 percent yearly increase in traffic along the Route 17-M corridor in Goshen is considered reasonable. In this context, the fact the expansion would not cause a significant deterioration in levels of service does not provide comfort, since the levels of service are already bad.
While I appreciate Orange Environment's concerns, I must also note that Route 17-M is a state highway. The New York State Department of Transportation (NYSDOT) received a copy of the notice of hearing, but did not appear or file comments on the DEIS. While Orange Environment correlates low levels of service with a high risk of accidents, it does not have a traffic safety expert to back up its claims. Orange Environment said it intended to call Fred Budde, an Orange County planner, to discuss impacts of traffic flow on Route 17-M in light of data now being collected for the County Planning Department as part of a traffic study. But when pressed at the issues conference, Orange Environment conceded it was not certain where the County's traffic study stood, what it had determined so far, or whether it had found anything running counter to the Applicant's traffic impacts analysis.
The Applicant's study acknowledges that the expansion would worsen the situation for traffic exiting from the project site driveway, which is now controlled by a "STOP" sign. But it says this "minor" decrease in traffic service will not disrupt the through traffic flows on the Route 17-M mainline. According to the study, exiting traffic from the driveway will primarily experience a slight increase in traffic delays to await suitable opening gaps in adjoining mainline traffic flows. The study says that the possible need to mitigate safety concerns at this intersection by installation of a new traffic signal "will be reviewed further and coordinated with the NYSDOT during the DEIS review process." However, it is unknown what review has occurred since this statement was made in February, 1996.
In a case similar to this one, opponents of a mining project under review in a DEC hearing alleged traffic safety impacts in relation to another state highway, Route 7 in Rensselaer County. In a decision addressing appeals of the ALJ's issues ruling, the Commissioner ruled that more extensive involvement from NYSDOT was needed to supplement the EIS and enable DEC as lead agency to make SEQRA findings about the safety of Route 7 traffic. [In the Matter of William E. Dailey, Inc., Interim Decision of the Commissioner, June 20, 1995.] The decision was premised on NYSDOT, rather than DEC, having the requisite subject matter expertise. In Dailey, doubts on traffic safety had been raised by the intervenors' own traffic impacts analysis; however, in this case the doubts arise from the Applicant's study.
In the Dailey decision, the Commissioner found no adjudicable issue regarding Route 7, reasoning that "SEQRA does not require the Department to use the adjudicatory forum for purposes of resolving all comments related to the DEIS. Thus, where the agency with the traffic expertise and jurisdiction over impacts related to a State highway has provided its analysis in the SEQRA process, an adjudicatory hearing on this issue is not required. Instead, I find it sufficient for SEQRA purposes that DOT provide its detailed response to the alleged defects as described above and set forth in the intervenors' petitions." [Dailey, at p.6.]
Here, rather than adjudicate traffic impacts, DEC should do as the Commissioner instructed in Dailey: secure DOT's analysis of traffic safety impacts by providing the Applicant's traffic study, with a copy of Orange Environment's petition, to DOT, and get that agency's input on whether the expansion would pose a traffic safety hazard and, more particularly, whether the facility entrance should be signalized. To the extent the Applicant would oppose any measures NYSDOT would recommend, such measures could be considered in this hearing upon the application of DEC Staff or NYSDOT directly, since it would bear on the SEQRA findings that DEC is required to make as lead agency.
In summary, Department Staff shall furnish the Applicant's traffic study, a copy of Orange Environment's petition, and a copy of these rulings to NYSDOT, soliciting that agency's input on traffic safety impacts of the proposed expansion. Staff shall also copy me and all others on the service list with NYSDOT's response.
Orange Environment proposes that the landfill's noise impacts be adjudicated pursuant to SEQRA and the noise limits established at 6 NYCRR 360-1.14(p) for solid waste management facilities. While Orange Environment takes no issue with the methodology of the Applicant's noise study, it claims that nothing has been made of significant noise impacts at the Jesus Christ Triumphant Church, across Route 17-M from the landfill, and at the intersection of Route 17-M and Gate School House Road, where a residence is located. Orange Environment claims there is no credible basis for the conclusion in the DEIS that, after the expansion begins, noise levels along and south of Route 17-M will continue to be controlled by Route 17-M's vehicular traffic.
Orange Environment has done no noise study of its own, but claims that evidence in the DEIS is sufficient to raise noise as an issue for adjudication. Orange Environment is prepared to call a witness, Dr. Margaret Gibbs, to discuss the psychological impact of noise, and reserves the right to call an additional noise expert if required to fully examine the issue, although that additional expert was not identified in the group's petition or at the issues conference. According to Orange Environment, noise impacts are a basis for permit denial or modification. Mitigation proposed by Orange Environment includes a requirement that all equipment used at the landfill, as well as all vehicles using it, employ the latest noise reduction equipment, including alternatives to back-up beepers. Also, Orange Environment would like to see noise levels at the church controlled to below 60 decibels.
To consider noise impacts, the Applicant performed a study devised to add theoretical noise inputs from certain types of expansion-associated landfill operations to ambient noise level measurements. In this way, theoretical noise levels were determined for noise measurement locations during all stages of the project. [Exhibit No. 17, DEIS, p. 4-13 and 4-14.] According to the Applicant's analysis [Exhibit No. 17, DEIS, Table 4-4], the proposed landfill operations at various stages of development may create increased noise levels during operational hours for receptors to the north of Route 17-M near the landfill, but these levels will not exceed the limit set in Part 360-1.14(p) for residential/suburban areas. The analysis also showed that receptors along or south of Route 17-M would not perceive any major changes in noise levels due to the proposed project, since these levels would continue to be controlled by Route 17-M's loud vehicular traffic, the noise from which would subsume any effect of the landfill.
The Applicant acknowledges high existing ambient noise levels (in the 75-78 dBA range) at the Jesus Christ Triumphant Church and south of the intersection of Route 17-M and Gate School House Road southeast of the landfill. [DEIS, Exhibit No. 17, Table 3-8, referencing noise levels at monitoring locations identified at DEIS p.3-22.] The Applicant attributes them to roadway noise (not noise from landfill operations) because of relatively stable day-time noise measurements (varying by less than 1dBA) regardless of whether the landfill is operating. Because noise levels along Route 17-M are virtually the same whether or not the landfill is open, the Applicant discounts Orange Environment's claim that noise from trucks entering and exiting the landfill is a significant influence.
Department Staff agrees with the Applicant that noise does not require adjudication. Staff says the issue can be removed from consideration simply on the basis of special condition No. 52 of its draft permit, which requires that a follow-up noise study to show compliance with Section 360-1.14(p) be carried out after permit issuance "in a time frame acceptable to the Department."
Ruling: Noise impacts alleged by Orange Environment shall not be adjudicated. While Orange Environment disagrees with the noise analysis performed on behalf of the Applicant, it has not produced a competent offer of scientific proof suggesting that noise impacts at its points of concern would be controlled by the landfill expansion and not by vehicular traffic along Route 17-M. Proposed testimony about the psychological impact of noise, to determine what level of noise should be tolerated, would not be helpful since 6 NYCRR 360-1.14(p) already establishes maximum noise levels for landfill operations, and thereby sets the standard for what is acceptable.
As for the conditions proposed by Orange Environment, competent evidence suggests that Route 17-M, and not the landfill operation, is responsible for high noise levels at Jesus Christ Triumphant Church. Accepting that evidence in the absence of an offer to the contrary, Al Turi cannot control the noise levels at that location.
Orange Environment would like to see alternatives to back-up beepers, but did not offer any when asked. At one point during the discussion, Staff indicated it would like to see site equipment fixed with infra-red back-up beepers that are silent unless the equipment is backing up and something is behind it. However, Staff also said it had no strong feelings about the subject, and then said it lacked authority to require the infra-red beepers in this case. For its part, the Applicant opposed any condition compelling it to install infra-red beepers on its site equipment.
While there is no question that back-up beepers make an annoying sound, there was no offer that they are having enough of an off-site impact to require retrofitting of the Applicant's on-site equipment.
Finally, Staff's requirement that a noise study be performed once any expansion begins is irrelevant to my determination not to adjudicate noise impacts. What matters is that a noise study has already been performed and that Orange Environment has failed to cast doubt on its conclusions.
Orange Environment proposes that the impacts of landfill odors on the surrounding community be adjudicated as a basis for permit denial or modification. Orange Environment contends that Al Turi has failed over a period of many years to control off-site odors, which it describes as disruptive, disturbing and revolting to people driving on Route 17-M and living in a large area defined by the Wallkill corridor. Orange Environment cites DEC's inspection reports for the years 1993 to 1996, which indicate recurrent violations of the Part 360 standard for odor control. According to Orange Environment, the import of landfill odors has been missed entirely in the DEIS.
Orange Environment believes odors are a potential basis for denying the permit pursuant to 6 NYCRR 360-1.14(m), which requires that odors be effectively controlled so that they do not constitute nuisances or hazards to health, safety or property. Short of permit denial, Orange Environment contends that mitigation beyond measures used in the past is necessary, including ceasing the acceptance of sewage sludge at the facility.
Staff's draft permit would require the Applicant to respond to odor complaints made by the public on a hotline maintained by the landfill operators on a 24 hour per day, 7 day per week basis, and advertised on a sign posted near the facility entrance. [Special Conditions No. 27 and 44.] Orange Environment says that the hotline should not be operated by the landfill itself, and that the phone number should also be listed in the phone book and advertised in the local media. Also, Orange Environment says odor impact compensation is required to provide an incentive for odor reporting, and that Al Turi should have to buy air conditioning and pay related electrical costs for all buildings affected by odors.
According to the DEIS [Exhibit No. 17, Section 4.5.3], odors emanating from the landfill are caused by the decomposition of placed waste. The DEIS acknowledges that the existing operation has resulted in periodic detection of off-site odors, and that if left uncontrolled, these odors could become a nuisance to receptors in the landfill vicinity. However, the DEIS also identifies steps to limit odor impacts, including the continued expansion of existing landfill gas recovery and conversion systems, the maintenance of as small a working face as practicable, the placement of daily cover, and the closing and capping of filled areas as quickly as possible.
For the landfill expansion area, the Applicant intends to install horizontal gas collection trenches in the landfill refuse [see special permit condition No. 8, requiring a plan for their installation], which it says have been demonstrated at other landfills to be extremely effective in controlling odors. In addition to DEC's monitoring, which is confirmed in inspection reports, the Applicant says it performs its own monitoring and takes immediate measures to mitigate odors traced to the landfill.
The Applicant says that Orange Environment's claim of widespread odor impacts fails to consider contributions by other nearby odor generators, including All Waste Systems, Inc. (a waste storage facility and container storage area), the Village of Goshen Sewage Treatment Plant, the Orange County Landfill, the Mid-Hudson Psychiatric Center Sewage Treatment Plant, and the City of Middletown Sewage Treatment Plant. According to the Applicant, Orange Environment makes no showing that the Al Turi Landfill, rather than any of these other facilities, is the source of the alleged off-site odors along the Wallkill corridor.
The Applicant emphasizes that despite any past odor problems, these problems have never resulted in DEC issuing a notice of violation or otherwise taking enforcement action. Also, says the Applicant, it has never received a complaint on the odor hot line it has operated since 1996.
Department Staff says the gas collection trenches referenced in special permit condition No. 8 should greatly improve the efficiency of the landfill's existing gas collection system, more effectively controlling odors by extending the system into the waste mass at the working face. Also, should odor problems persist, Staff says it will have its own environmental monitors, paid for by Al Turi, to address them. [See Special permit conditions No. 57-59.] Staff says it intends to have a monitor onsite at the landfill at all times that the facility is operating. For these reasons, Staff says there is no need to adjudicate odor issues.
Ruling: Past odor problems shall be considered in the context of the fitness issue to the extent they are documented in the Department's own inspection reports. However, pending receipt of the Applicant's plan to install horizontal gas collection trenches in the expansion area, as ordered elsewhere in these rulings, it is premature to determine whether adjudication of odor control measures will be necessary.
The past odor problems need to be considered to determine how widespread they were and why they occurred. Was it because odor control measures then in place were ineffective, or because such measures, while effective, were not being implemented? The answers to these questions could suggest a fitness problem to the extent measures were not actually implemented, or a problem as to the measures' adequacy, if they were used but did not succeed in abating odors. This issue shall be pursued by taking testimony from DEC inspectors who have been to the facility since 1993. Pursuit of the issue is not precluded by the fact no previous enforcement actions have been undertaken.
It is premature to determine what additional adjudication will be required with regard to odor control measures. First, the Applicant needs to submit its plan for the gas collection trenches, and an opportunity must be provided for other parties to comment. The need for further adjudication would depend on whether some party can then argue that the implementation of measures at the existing landfill, plus those planned for the expansion, would not effectively control odors, preventing an off-site nuisance situation.
Visual and Aesthetic Impacts
Orange Environment says the Applicant's intent to raise the landfill from 525 feet above sea level (the currently approved elevation) to 650 feet will dramatically increase its negative visual and aesthetic impact. According to Orange Environment, this issue could lead to permit denial because it says, at 650 feet, the expansion would be visible from many vantage points for miles around. However, short of permit denial, Orange Environment favors efforts to mitigate impacts, including landscape screenings on and off the property, off-site landscape enhancements as compensation for on-site landscape diminishment, erection of aesthetic barriers to block visual impacts, and compensation to landowners for the period of years during which viewshed impacts occur. Orange Environment contends that visual impacts can serve as a basis for not permitting the vertical portion of the expansion, even if the lateral expansion is allowed to proceed.
Orange Environment is prepared to call Dr. Louis Mills, a Ph.D. resource management specialist, on this issue. His critique of the DEIS with regard to visual impacts is embodied in a letter attached as Appendix 7 to Orange Environment's petition. Basically, Dr. Mills argues that the existing study does not account for the scenic values and preferences of area residents, and does not illustrate impacts of color and landform shape, given its reliance on balloons approximating the maximum landfill height, which do not reflect landform contours.
The Applicant commissioned an in-field visual impact assessment which is described in Section 4.8.9 of the DEIS [Exhibit No. 17], and followed it with additional surveys which are documented in Exhibits 19 and 20. These additional surveys contain computer-enhanced color views depicting how the expansion would look from major vista points, the approach favored by Dr. Mills. The DEIS concludes that the most significant visual impacts would be realized in areas adjacent to the site (Route 17-M, Hartley Road, Cheechuck Road, and Owens Road) which it said (and my site visit confirmed) are mostly areas of low density, rural land use. By contrast, the study concluded that areas of high density development would be impacted minimally by the expansion.
Al Turi intends to mitigate visual impacts by planting trees along the perimeter of the property and erecting a berm along Hartley Road. The DEIS also notes that visual impacts will be short-lived because, after the final cover is placed on the landfill, the landfill will be revegetated to allow the site to be ultimately used as a passive conservation/wildlife area. According to the Applicant, Orange Environment has provided no reasons why these measures would be inadequate to mitigate identified visual impacts, and therefore no issue exists to adjudicate.
Department Staff also agrees that visual impacts do not require litigation. The "before and after" depictions of the landfill expansion in the computer-enhanced color photographs satisfy Staff that the size and girth of the landfill expansion, when seen in the context of its generally hilly surroundings, would not be extreme or out of the ordinary, and would not require mitigation beyond that which is already proposed. Staff disagrees with a recommendation that visual impacts be studied beyond a five-mile distance from the landfill, saying that in the rolling countryside represented by the landfill vicinity, the landfill would not be visible.
Ruling: Visual and aesthetic impacts of the landfill expansion upon the surrounding community shall not be adjudicated. While during its active operation the landfill will certainly have a displeasing visual impact upon its immediate surroundings, nothing indicates that the impact will be significant or that adequate mitigation has not been proposed. Also, there is no evidence, or even suggestion, that the landfill expansion would obstruct views from any feature or site of recognized historic or cultural significance, which in the past has made visual impacts a basis for further Department inquiry. [In the Matter of Peckham Materials Corp., Commissioner's Decision, January 28, 1994, and Issues Ruling, February 12, 1993.]
The application does include computer-generated photographic depictions of the landfill expansion from various nearby points, as sought by Orange Environment's expert. While that expert, Dr. Mills, questions why impacts were not studied from beyond a five-mile radius, Orange Environment offers no reason to expand the study's focus. Also, Orange Environment has not done its own visual impacts analysis. Finally, Orange Environment has offered no legal authority or precedent for compensating nearby land owners for diminished views during the period the expansion is operating.
Property Values Impacts
Orange Environment says the study of local property values contained in the DEIS (Exhibit No. 18, Appendix "J") is grossly invalid, distorted and inaccurate, as detailed in its petition for party status [Exhibit No. 69, p.31-33], and a letter from Judy New, a realtor the group would call as its witness [Exhibit No. 82]. Orange Environment says it is clear that the study data were chosen selectively in order to show an increase in property values near the landfill, and that the study fails to account for properties that could not be sold or had arrested development potential due to landfill impacts. Therefore, Orange Environment requests a "competent" study as part of a supplemental EIS. While Orange Environment concedes that property values impacts are not necessarily a basis for permit denial, it says they are a basis for permit modifications requiring "price and salability" protection for all property owners within a mile of the project site. Orange Environment says the Applicant should have to post a bond which would be used to compensate neighbors who cannot sell or rent for at least the equivalent price of mutually agreed upon comparable properties.
The Applicant's study compared sales of properties within one mile of the landfill (the impact area) to sales for properties between one and two miles of the landfill for the period between 1968, when the landfill began, and 1995. Excluding non-representative sales such as those not considered arms-length transactions and then comparing the prices of sales and resales, a percent price change per year was calculated for both the impact and the non-impact areas. The median percent price change per year for the two study groups was then compared.
The study determined that the proximity of the landfill relative to the two study areas resulted in no significant difference in appreciation or depreciation of property values, and projected that this would remain the case if the landfill is expanded. Department Staff says it did not independently review the study's conclusions since it has no expertise in this area. The Applicant says the study was not required by the Department, and was furnished strictly for informational purposes and to show its good will, since it perceived there was public concern about the issue.
Ruling: Impacts of the project upon property values in the surrounding community shall not be considered as a hearing issue. Property value impacts are not considered to be environmental impacts under SEQRA. Quoting the Commissioner's January 20, 1989, interim decision in the Matter of the Application of Red Wing Properties, Inc.: "To the extent that the underlying causes of potential property value changes may be related to the environmental impacts of [a] project, they are reviewable under SEQRA . . .The reduction of property values, considered in isolation, cannot, however, be considered an environmental impact even under the broad definition of "environment" contained in ECL Article 8." [Red Wing Properties, Inc., pages 1 and 2].
At most, property values impacts could be considered as an "economic, social or other essential consideration" pursuant to ECL 8-0109, to be taken into account if adverse environmental impacts cannot be completely mitigated or avoided. [Red Wing Properties, Inc., p.2.] Because the odor issue, for instance, remains open pending receipt of the Applicant's plan for gas collection trenches, it is not yet clear to what extent all environmental impacts of the expansion can be addressed. But if, after mitigation, any residual environmental impacts of the project are judged acceptable under SEQRA, further restrictions on the project in order to preserve property values could only be imposed by local authorities. [In the Matter of the Application of William E. Dailey, Inc., Interim Decision of the Commissioner, May 14, 1992, p.1, citing Red Wing Properties, Inc.].
While the law allows some consideration of property values under SEQRA, it is not warranted here due to the conclusory manner in which Orange Environment's offer of proof was made. Even assuming that the Applicant's study methodology was flawed, Orange Environment did not demonstrate how a different methodology would yield a different conclusion. Also, the methodology proposed by Orange Environment raises questions of its own. How, for instance, could one determine whether a property failed to sell because of its proximity to the landfill, and not for some other reason?
Even if one did accept that the landfill expansion would diminish property values, Orange Environment offered no legal authority or precedent for ordering that landfill neighbors be compensated. If significant environmental impacts could not be adequately mitigated or avoided, the Department's recourse would be to deny the expansion permit, not to direct the payment of damages.
Land Use Plan
As a corollary to the property values issue, Orange Environment wants any permit conditioned to require the Applicant to provide a land use plan for the post-closure status of the landfill and properties that Al Turi, its owners and associates own east and north of the facility. Orange Environment says the plan should be required within 6 months of permit issuance, developed with the involvement of local residents, and subject to secret ballot approval by a majority of landowners within a mile of the landfill. Alternatively, Orange Environment wants the Applicant to put easements on its land so that it is left perpetually open.
Ruling: The appropriateness of such a condition shall not be adjudicated. Orange Environment cited no legal authority or precedent for inserting such terms into the Department permit. Beyond that, land use matters are the traditional domain of localities, not the state.
Orange Environment argues that expansion of the landfill will continue to have significant adverse "psycho-social" impacts upon people who live near the facility. Orange Environment cites existing studies (attached as Appendices 8 and 9 to its petition) which it says document stress and other adverse impacts due to the landfill over the years. According to Orange Environment, the DEIS basically dismisses quality of life as an impact issue, and fails to mention the public's fears about environmental and health hazards associated with the landfill.
Orange Environment is prepared to call experts to criticize the DEIS, discuss needed research, and suggest mitigation that might be included in the permit. These witnesses would include Dr. Michael Edelstein, Orange Environment's president and an environmental psychologist and professor at Ramapo College in New Jersey, whose resume is attached as Appendix 12 to Orange Environment's filing; Dr. Margaret Gibbs, a clinical psychologist and now Provost of Farleigh Dickinson University, whose statement is attached as Appendix 10 to Orange Environment's filing; and Dr. Janice Halstrup, a clinical psychologist and epidemiologist in SUNY Buffalo's Department of Psychology, whose statement is attached as Appendix 11 to Orange Environment's filing. (Drs. Edelstein and Gibbs are responsible for the studies attached to Orange Environment's petition.)
Orange Environment also proposes that the ALJ hear sworn testimony from people living near the landfill about how Al Turi has affected their lives, such testimony to be given "in a situation of total protected anonymity, either in a cleared courtroom with controlled access, by remote source, behind a screen, with voice changes, and/or in whatever way total anonymity can be protected to the satisfaction of the residents." [Orange Environment's filing, Exhibit No. 69, p. 37.] Anonymity is required, according to Orange Environment, because of residents' fear of retaliation by the Applicant, its owners and associates.
The Applicant's discussion on "Quality of Life and Well Being" is in Section 4.9.2 of the DEIS [Exhibit No. 17.] The DEIS acknowledges that the expansion may have the potential for impacting the quality of life for residents within the affected area, but says these impacts can be addressed through mitigation of physical nuisance impacts which cause the perception of a diminished quality of life.
The Applicant says psycho-social impacts cannot be considered a "substantive" issue because they do not relate to statutory or regulatory criteria applicable to the project [6 NYCRR 624.4(c)(2)], and cannot be considered "significant" either because, without being related to such criteria, they could not result in permit denial, major project modification, or the imposition of permit conditions beyond those already in the draft permit [6 NYCRR 624.4(c)(3)]. The Applicant says that Orange Environment has failed to show why mitigation measures proposed as part of the application will not adequately address any adverse impacts. Also, it says that SEQRA does not require that the DEIS include "a full-scale psychological investigation of everyone in the vicinity of the landfill."
Department Staff says it has no expertise in the area of psycho-social impacts but argues that strict adherence to Part 360 requirements should protect the public's physical and psychological health.
Ruling: Psycho-social impacts of the landfill expansion shall not be adjudicated. To the extent that the expansion would have environmental impacts that would legitimately cause stress, anxiety, or similar feelings in neighbors of the landfill, the DEC hearing forum is equipped to address those impacts, thereby addressing public concerns indirectly. But the hearing forum is not able to fairly and objectively determine or effectively address psycho-social impacts on landfill neighbors, and a permit should not be denied or modified based on such impacts alone.
Orange Environment argues that psycho-social impacts were adjudicated in a hearing on an earlier expansion of the Al Turi facility, and in a hearing on the application of CECOS International, Inc., for a certificate of environmental safety and permit to construct a hazardous waste management facility, Secure Chemical Residue Facility No. 6, in the Town of Niagara, New York. The hearing reports in these matters illustrate the pitfalls and nonproductiveness of adjudicating such impacts in the manner proposed by Orange Environment.
In the prior Al Turi hearing, Dr. Edelstein testified on behalf of the Town of Goshen, which was dissatisfied with the degree to which the EIS dealt with the expansion project's "social" impacts. The assigned Administrative Law Judge, Robert P. O'Connor, noted that Dr. Edelstein prepared a report on this subject [which has been resubmitted as Appendix 8 to Orange Environment's filing in this matter], based on interviews he conducted.
Quoting from Judge O'Connor's findings of fact:
"Dr. Edelstein conducted the survey and wrote the report from his own position of being in opposition to the extension and continuation of the landfill. Because of agreements of confidentiality for the interviews, Dr. Edelstein's testimony and the subjective report are replete with generalities and hearsay. The report does, however, bring together in one place the perceptions of the landfill in the minds of some of the Town's citizenry." [In the Matter of the Application of Al Turi Landfill, Inc., Final EIS and Hearing Report by ALJ, p. 19, Finding of Fact No. 50, attached to a Decision of the Commissioner dated February 27, 1981.]
While the project's adverse social impact on the neighborhood was identified as a hearing issue, the hearing report does not indicate the legal basis for consideration of such impacts. Also, the ALJ's finding does not relate to a conclusion in his report and is not mentioned or pursued in the Commissioner's decision allowing the expansion to proceed.
In the CECOS matter, Dr. Edelstein testified on behalf of citizens' organizations opposed to the project, addressing the issue of psychological impacts. Apart from being considered as to whether the siting of SCRF 6 would be in the public interest, an issue peculiar to the siting of an industrial hazardous waste facility, psychological impacts were expressly identified as an issue for adjudication in the Interim Decision of the Siting Board as an impact relevant to the balance of environmental, social, economic and other essential considerations which the SEQRA process is designed to address [see, ECL 8-0109(8)].
The discussion of the ALJ, Andrew S. Pearlstein, is contained in pages 128 to 135 of his Hearing Report and Recommended Decision, dated August 21, 1989. Quoting Judge Pearlstein:
"While there is a sufficient legal basis to include assessment of psychological impact in the hearing process for an application under SEQRA, the hearing demonstrated the practical difficulty involved in assessing the evidence on this type of issue in a hearing before the Department of Environmental Conservation." [Hearing Report, p. 129.]
Judge Pearlstein noted that Dr. Edelstein, on behalf of the intervenors, conducted a telephone survey and group interviews with people in the community, focusing on the qualitative patterns of their responses to actual or perceived risks of exposure to toxic contamination. The ALJ later faulted the research as biased, noting that "Dr. Edelstein's contacts, even in the supposedly random telephone survey and group interviews, were almost entirely with individuals and that element of the local population who are the most dedicated opponents of the SCRF application." [Hearing Report, p. 129.]
Ultimately, Judge Pearlstein concluded that "when measured against accepted scientific standards, it is difficult to assess the validity of Dr. Edelstein's methodology . . . He forthrightly admitted that his method is largely subjective and qualitative, rather than quantitative. There is little established empirical data base or literature upon which Dr. Edelstein may build. There is thus only a meager basis upon which to assess the validity of Dr. Edelstein's qualitative conclusions or to judge whether they may be reproduced by other researchers." [Hearing Report, p. 130.]
Concluding his discussion, the ALJ said:
"In summary, there is insufficient evidence in the record to find that the SCRF 6 application will have any psychological impact as measured by stress on individuals in the community. There is some evidence, however, that the granting of this application will have a psychological impact on a significant element of the community which may be characterized as an almost symbolic event leading to feelings of powerlessness and inequity. Since this response does not appear justified by the actual environmental impacts of the Project, it should not constitute grounds for denial of the application. The psychological impact does, however, warrant the imposition of explicit permit conditions requiring CECOS to continue and expand community outreach, education, and assistance programs with the goal of directly benefitting the community and reducing community concerns about SCRF 6." [Hearing Report, p. 135.]
ALJ Pearlstein rightly put his emphasis in the CECOS report upon consideration of actual environmental impacts of the project, rather than the feelings generated by the project among certain elements of the community. In CECOS, the ALJ wrote, those feelings were already well known prior to the adjudication, based on the record of a legislative hearing the judge had conducted. Likewise, the legislative hearing in this matter, summarized earlier in these rulings, documents the stress and anxiety some neighbors of the Al Turi landfill have about its expansion. This is also documented in some of the public comment letters.
If the Commissioner wants to consider and address these comments in his deliberations, there is already a record of statements attributed to named people who took the initiative to speak out publicly on the application. This obviates the need to take statements from people whose identities would not be known to the Applicant.
Even if one wanted to take anonymous testimony, it would seem difficult, if not impossible, to do so without some detail of it suggesting or revealing who the speaker was or where he or she lived. Also, providing anonymity would make it impossible to verify alleged psychological impacts; one would basically have to take the person's word. Any testimony would, by its nature, be subjective. Also, concealing the identity of witnesses might encourage false testimony. Finally, there is the question of whether those who testified on behalf of Orange Environment would be representative of the community as a whole, a concern of Judge Pearlstein's in the CECOS matter. Overall, Orange Environment's proposal, if implemented, would be unfair and prejudicial to the Applicant.
Orange Environment indicates it is willing to present and update previous psycho-social impact studies it performed by interviewing landfill neighbors. But those previous studies, including the first in 1980, did not name the people interviewed, and the 1980 survey was faulted by the Department ALJ in a hearing on a previous expansion of the facility, as noted above. Orange Environment says any future study would also be based on interviews conducted upon the promise of confidentiality. Receipt of such a study would create the same hearsay problems that Judge O'Connor noted in the earlier Al Turi hearing.
Orange Environment proposes various permit conditions to mitigate psycho-social impacts [p. 38 of their filing]. However, some are clearly beyond the Department's authority (for instance, requiring Al Turi to purchase health insurance for landfill neighbors which would cover psychological counseling), and others are redundant of DEC's general oversight responsibilities, including its environmental monitor program.
Orange Environment is concerned that a wetland in the Route 17-M/Hartley Road corner of the site is not sufficiently protected under the landfill expansion plan. If the expansion is permitted, Orange Environment wants additional buffering of the wetland from debris, drainage, siltation and other effects. Orange Environment admitted having no evidence to offer, but said it would like to pursue this issue by questioning representatives of the Applicant and Department Staff.
According to the DEIS, no DEC-regulated wetlands are located on the landfill site. The wetland in question is described as 1.18 acres in size, located about 100 feet from the proposed expansion area limits. The DEIS says that the drainage to this and two other federally-protected wetlands on the project site will be maintained throughout the life of the expansion area project, and the wetlands will not be disrupted. Department Staff says there is no indication that the wetland of concern will be disrupted by the expansion.
Ruling: Impacts to the wetland near the Route 17-M/Hartley Road intersection will not be considered as an issue for adjudication. Department Staff agrees with the Applicant that the wetland will not be affected by the expansion, and Orange Environment has provided no basis to pursue the subject further.
Public Health Impacts
Orange Environment says that "significant health problems" in the community adjacent to the landfill demand that a full public health study be completed as part of a supplemental EIS. The request is based on two separate considerations: (1) a community health study performed in relation to the Orange County Landfill, and (2) an investigation into the possibility of a cancer cluster in the Cheechunk Road area, close to the Al Turi landfill.
According to Orange Environment, DEC required Orange County to perform a health study of people living near the County's landfill as part of a permit for the landfill's expansion in 1988. The County's consultant, Dr. Shira Kramer, collected data from people living within a half-mile of the County's landfill and compared the information to that collected from another Orange County community not known to be near any potential source of chemical hazard.
In a report dated July 10, 1997 (attached as Appendix No. 13 to Orange Environment's petition), Dr. Kramer concluded that the community living in the vicinity of the Orange County Landfill had experienced elevated rates of respiratory, dermatological, urinary, emotional, and developmental disorders, conditions which she said were consistent with those noted in the available literature discussing the potential adverse health effects associated with living near similar landfills. Dr. Kramer concluded that the study's weaknesses (outlined on pages 27-29 of her report) made it impossible for the study to prove that exposure to the Orange County Landfill caused any of these conditions, but added that the biological plausibility and consistency of the results made them worthy of consideration. She then recommended that continued efforts be directed toward surveillance of adverse health effects in the community which may be a consequence of exposure to the Orange County Landfill and other landfills in the area.
Orange Environment says that Dr. Kramer's study corroborates its concern about effects of the Al Turi landfill, given its proximity to the Orange County Landfill, and suggests that health concerns need to be examined carefully in this proceeding. However, the Applicant argues that due to its admitted weaknesses- - including participant bias, the self-reporting of health outcomes, and the lack of environmental data suggesting pathways of exposure - - the Kramer study provides no basis to link any health impacts to the Orange County Landfill, much less the Al Turi Landfill.
The Applicant has presented a copy of a June 25, 1997, letter to Ms. Kramer from M.J. Schleifer, assistant commissioner of the Orange County Department of Health. In the letter (Exhibit No. 84), the Assistant Commissioner agrees with Dr. Kramer that the small number of responders (especially in the unexposed area) and the small sample size make the obtaining of meaningful comparative statistics virtually impossible, and that the small sample size makes it impossible to establish a causal link between the county landfill and the health conditions identified as "elevated" in the surrounding neighborhood. The assistant commissioner indicates having "difficulty" accepting Dr. Kramer's recommendation for continued surveillance, asking, for instance, how it would separate out the effect, if any, of Orange County's non-operating landfill from the effect of other area landfills.
In addition to the Orange County Health Study, Orange Environment cites the investigation of a potential cancer cluster along Cheechunk Road, about one mile from the Al Turi landfill, as a basis for concern about public health. It is alleged that seven cases of cancer have been diagnosed among the residents of 13 homes on Cheechunk Road over the past five years. Because of public concerns, the New York State Department of Health is conducting a cancer case review. When a possible cancer cluster is investigated due to concerns about a common environmental factor, investigators search for several patterns, including several cases of the same type of cancer, two or more cases of a particularly rare form of cancer, several cases diagnosed in young people, clustering of the cases by year of diagnosis, and adequate latency, meaning the length of time between exposure to a cancer-causing agent and the diagnosis of cancer, which in humans is usually at least 20 years.
No government agency has yet determined that a cancer cluster exists in the vicinity of the Al Turi landfill, although the New York State Department of Health is gathering existing data for the federal Agency for Toxic Substances and Disease Registry. The Applicant argues that the investigation of a possible cancer cluster is not meaningful in and of itself, since the government is mandated by law to examine allegations of potential adverse health impacts.
Department Staff argues that it has no expertise in public health matters and must defer to other agencies on these subjects.
Ruling: No adjudication of public health impacts of the landfill expansion is warranted at this time, and the environmental impact statement does not need to be supplemented on this issue.
While "human health" is an aspect of "environment" as that term is defined in SEQRA, the available information does not indicate that the existing Al Turi landfill has had an adverse health impact upon people in the surrounding community. By its author's admission, the Orange County Health Study cannot link health impacts in the community to the Orange County Landfill, much less the Al Turi landfill. Also, the investigation of a possible cancer cluster in the Cheechunk Road neighborhood does not demonstrate that such a cluster exists, let alone what is causing it.
Orange Environment also cites research done in relation to a municipal solid waste landfill in Montreal, Quebec, whose neighbors were found to have a higher than expected incidence of some cancers, as well as many low birth weight babies. The studies were done to look at impacts of landfill gas, but based on the summaries provided by Orange Environment (in Appendix No. 14 to its filing), no definitive associations were drawn.
While the research produced by Orange Environment suggests some possible avenues for research, it is not adequate to justify the full-blown public health study proposed by the group. As the Applicant argues, Orange Environment's offer is very speculative, and the fact remains that there are no data linking the Al Turi landfill to any adverse health effects experienced by area residents. Should such a linkage be established in the future, the Department is empowered to address it even after any expansion is approved. This could include modifying or revoking the landfill permit or issuing a summary abatement order.
Issues Under Part 360 Landfill Regulations
Thickness of Unconsolidated Deposits
Orange Environment contends that the permit should be denied because the application fails to meet the requirement of 6 NYCRR 360-2.12(a)(1)(v) that unconsolidated deposits underlying the proposed landfill either exist or will be constructed to be 20 feet or greater in thickness as measured from the base of the constructed liner system. According to the engineering design report for the landfill expansion [Exhibit No. 21, Section 3.2.2.], a minimum of 10 feet vertical separation would be maintained between the base of the constructed liner and bedrock.
In the case of an existing landfill active on or after November 4, 1992, operating under and in compliance with a current Part 360 permit or order on consent, the Department may allow lateral or vertical expansions if the site has less than 20 feet of unconsolidated deposits, provided that it has at least 10 feet of such deposits and three other conditions are met. [6 NYCRR 360-2.12(a)(2)(i)-(iv)]. One of these conditions is that the proposed landfill expansion must be identified in the local solid waste management plan approved by the Department under Subpart 360-15 "as a component of the integrated solid waste management system for the planning unit in which the facility is located and the proposed landfill expansion must be consistent with the goals and objectives of such plan." [6 NYCRR 360-2.12(a)(2)(1)]
The Applicant and Department Staff contend that the proposed expansion of the Al Turi landfill is adequately identified in Orange County's solid waste management plan to meet this requirement. Orange Environment contends that it is not. This issue does not require factual adjudication; it requires a reading and interpretation of the plan's own language.
Orange County's current solid waste management plan (or SWMP) is the Final 1995/1996 update dated June, 1996. (Exhibit No. 68-A, submitted as part of the petition of Orange County.) Encompassing a planning period that extends to the year 2010, the SWMP updates a plan that was approved by the Department in December, 1991. As part of the original SWMP, the County was to complete construction of an expansion of its own landfill. However, according to the current SWMP, the expansion project was canceled due to regulatory difficulties and economic uncertainties associated with completing and operating the new landfill cells. (SWMP, p.2-10.)
In a discussion of landfilling as a component of its plan for solid waste management, the current SWMP then states:
"Currently, residual waste generated in Orange County is either disposed of at the Al Turi Landfill, or is accepted at the transfer stations in the County for ultimate hauling, by private contractors, to out-of-state processing or disposal facilities. Contractually privatized, out-of-state disposal of residual waste received at the County's transfer stations will remain the preferred method for the County, thus mooting the need for an in-County landfill, which the County has no present intentions of pursuing.
"It should be noted that the United States Congress is continuing to address the issue of interstate transportation of solid waste. Bills in the Senate and House of Representatives have been either passed or approved by committee that would, if signed into law, provide states that import solid wastes with a measure of control over the amount they will accept. Several states that currently import solid wastes are attempting to limit the transportation of solid wastes into their facilities. Due to this uncertainty, NYSDEC has historically opposed out-of-state waste exportation as a long-term solution to solid waste management. However, this practice is currently acceptable and the County will continue to utilize out-of-state disposal services, provided that such services are provided by properly State-licensed/certified facilities.
"Over the long-term, and depending on prevailing economic, legal, regulatory, political, environmental, and technical conditions, the County will work toward regional solutions or will continue to use private sector services to haul, process, and/or dispose of residual wastes in permitted facilities within New York State. Such arrangements would mitigate the effect of any future restrictions or bans on the interstate transportation of solid wastes." (SWMP, p. 2-11 and 2-12.)
In a subsequent summary of current solid waste management practices, the SWMP notes that the Al Turi Landfill receives solid waste from inside and outside the county. The SWMP then states that though it is uncertain how much of the waste disposed of at the Al Turi Landfill originates within Orange County, estimates generally range between 50 and 75 percent. (SWMP, p. 3-3.)
Orange County was represented at the issues conference by, among others, William Gunther, deputy commissioner of the county's Department of Environmental Facilities and Services. Asked directly on the point, Mr. Gunther said the proposed expansion of the Al Turi landfill expansion is not identified in the SWMP as a component of the county's integrated solid waste management system. I concur, since the proposed expansion is not mentioned in the plan at all.
Even though not specifically referenced, the Applicant argues that the landfill expansion is a component of Orange County's solid waste management system because the facility is already noted in the SWMP and because it will be accepting solid waste throughout the planning period, either in its existing state or as expanded under the pending application. The Applicant also says the SWMP has to be read in relation to the provisions controlling it, which require that a SWMP be modified after "a significant change in the method of managing all or any significant portion of the solid waste generated in the planning unit." [6 NYCRR 360-15.11(b)(1).] In other words, the Applicant says it is expected that the expansion would be accounted for after it is approved, not when it is proposed. Otherwise, the Applicant argues, you would never have a SWMP that was not in need of modification whenever anyone in the planning unit proposed any change to any waste management unit or method of generation, transportation, or disposal.
Department Staff generally agrees with the Applicant's analysis, arguing also that the 18-acre lateral expansion has to be considered, in light of the 103-acre existing landfill, as a small part of a large facility that is already referenced in the plan.
In summary, the Applicant and Department Staff argue that the landfill expansion meets the siting criteria in Section 360-2.12(a)(2), and therefore that 20 feet of unconsolidated deposits are not required. In addition, the Applicant argues that it meets the exception to the landfill siting standard of Section360-2.12(a) which is located in Section 360-2.12(b). But to qualify for this exception, the Applicant must make essentially the same showing as outlined above about its proposal's identification in the local solid waste management plan, and must also perform a site selection study and submit a site selection study report as part of its application. The Applicant has not conducted a site selection study and is seeking a variance from that requirement.
Ruling: Consistent with 6 NYCRR 360-1.7(c), the Applicant needs to submit a request for a variance from the requirement in Section 360-2.12(a)(1)(v) that unconsolidated deposits underlying the proposed landfill expansion either exist or will be constructed to be 20 feet or greater in thickness as measured from the base of the constructed liner system. The application assures a 10-foot thickness, as acknowledged by all parties, but not the 20 feet required by this regulation.
The Applicant does not qualify for Section 360-2.12(a)(2)'s allowance for less than 20 feet of unconsolidated deposits because its proposed landfill expansion is not identified in Orange County's current SWMP as a component of the County's integrated solid waste management system. In fact, the landfill expansion is not identified at all in the SWMP, though it certainly could have been, since the application has been pending since 1989 and the SWMP was updated in 1996.
While one could argue that the expansion would be consistent with the goals and objectives of the SWMP, since over the long term Orange County looks to landfilling at private facilities within New York State, this is an additional requirement of Section 360-2.12(a)(2)(i), and therefore cannot be read as substituting for the explicit identification in the SWMP that the regulation also requires. Though the Applicant and Department Staff argue that the regulation must be considered in the context of a procedure that planning units would be expected to follow, the regulation is clear on its face and should be given a literal interpretation.
Also, the Applicant does not qualify for the exception provided in Section 360-2.12(b) since neither of the requirements of subparagraphs (1) and (2) is met. Again, the landfill expansion proposal is not referenced in the County's SWMP. Also, no site selection study has been performed and no site selection report has been submitted as part of the application. It is of no consequence that Al Turi has requested a variance from the requirement of the site selection study and report; the variance it needs is from 6 NYCRR 360-2.12(a)(1)(v).
To secure this variance, it will have to be able to demonstrate that requiring 20 feet of unconsolidated deposits below the expansion would impose an unreasonable economic, technological or safety burden on Al Turi, and that the proposal for less than 20 feet will have no significant adverse impact on the public health, safety or welfare, the environment or natural resources and will be consistent with the provisions of the ECL and the performance expected from application of Part 360. [6 NYCRR 360-1.7(c).]
Based on its presentation at the issues conference, DEC Staff already appear satisfied that going without a 20-foot thickness of unconsolidated deposits should not have significant adverse impacts, given safeguards built into the expansion design.
Groundwater Separation Reduction/Waiver
Orange Environment contends that the application for a variance from the groundwater separation requirement of 6 NYCRR 360-2.13(d) should be denied because the application fails to meet the requirements of 6 NYCRR 360-2.12(a) for a reduction or waiver of the minimum five feet separation.
Ruling: Section 360-2.13(d) provides that the minimum separation of five feet between the base of the constructed liner system and the seasonal high groundwater elevation may be reduced or waived if certain showings are made, including a demonstration of selection of a suitable landfill site, as defined under Section 360-2.12(a). However, the Applicant is not seeking a reduction or waiver; it is seeking a variance. Therefore, Section 360-2.12(a) does not apply.
As noted by Department Staff, a variance would relieve the Applicant of having to put a pore pressure relief system under the entire 18-acre lateral expansion, which would have been required under Section 360-2.13(d) for a waiver or reduction of the five-foot separation requirement. Staff supports granting the variance, provided that if the Applicant encounters a problem with groundwater, it will have to put in additional drainage systems. According to Staff, the Applicant requested a variance rather than a waiver or reduction of the five-foot separation requirement, because it concluded that a pore pressure relief system was not required below the entire baseliner system in the lateral expansion area. Staff concurred with this conclusion.
Groundwater Separation Variance for Lateral Expansion
With regard to the lateral expansion, Orange Environment also contends that the application for a variance from the groundwater separation requirement of 6 NYCRR 360-2.13(d) should be denied because the application fails to comply with 6 NYCRR 360-1.7(c)(2)(iii), which requires a demonstration that the proposed activity will have no significant adverse impact on the public health, safety or welfare, the environment or natural resources, and will be consistent with the provisions of the ECL and the performance expected from application of Part 360.
Orange Environment's offer of proof is a memorandum of Ronald J. Scrudato, a Ph.D. geologist who is the director of the Environmental Research Center at SUNY-Oswego. Dr. Scrudato's comments on the groundwater separation variance are contained on pages 2 and 3 of his memorandum (attached as Appendix No. 16 of Orange Environment's petition).
According to Dr. Scrudato, the Applicant has not provided evidence to support its claim that groundwater flows vertically in the lateral expansion area and has not mentioned how it would deal with rather permeable sand and gravel deposits which Dr. Scrudato appears to suggest lie beneath the lateral expansion area, but the Applicant's reports indicate lie beneath the vertical expansion area. Furthermore, Dr. Scrudato says there is no discussion or information on how these sand and gravel deposits relate to the tills and on how the lateral and vertical extent of the more permeable surficial deposits relate to the underlying bedrock and groundwater system. Based on well monitoring data included in the application, Dr. Scrudato says it is evident that leachate is moving laterally from the landfill's old refuse mass toward the Wallkill River in permeable glaciolacustrine deposits near the surface of the northern and northwestern portions of the landfill.
The Applicant's request for a variance from the groundwater separation requirement is located at Appendix "A" of its engineering design report [Exhibit No. 21]. According to the variance application, the water table in the area of the lateral expansion exists at or near the surface of the glacial till strata in that portion of the site. The permeability of the glacial till ranges from 5.1x10-7 to 4.2x10-8 cm/sec, and the hydraulic gradient is nearly vertical. According to the Applicant, the water table exists near the glacial till surface due to the low permeability of the till and is supported only by recharge within the expansion.
The Applicant acknowledges that excavating the glacial till during landfill construction will lower the water table to the subgrade elevation of the landfill baseliner. However, it says that groundwater is not expected to flow from the glacial till during construction and will not interfere with construction of the secondary clay liner. The Applicant says that rain water will be controlled by pumping from sumps as necessary to maintain a stable construction work area. Based on its stability calculations and the low permeability of the glacial till, the Applicant says a pore water drain layer is not required for landfill construction and operation.
Finally, the Applicant argues that the construction of a dual-composite landfill baseliner on top of the in situ deposits of low permeability glacial till, will effectively contain disposed waste and leachate, thereby preventing groundwater contamination. The Applicant argues that the lateral expansion incorporates a baseliner geomembrane thickness (of 80 mil) greater than the 60 mil thickness required by Section 360-2.13(k)(2)(i), a leachate collection system permeability (of 10 cm/sec) greater than the 0.01 cm/sec required by Section 360-2.13(l)(2)(i), and a maximum leachate head over the primary composite liner at the expected flow capacity (of 0.08 inches) that is much less than the one foot allowed by Section 360-2.13(g)(1).
Department Staff concurs with the Applicant that this is a very conservative design. Staff says that Dr. Scrudato's memorandum offers some concerns about groundwater flow and soil permeability, but nothing specific with respect to adverse environmental impacts. Staff attributes existing groundwater contamination to older, unlined portions of the landfill.
Ruling: No issue exists concerning the application for a variance from the requirement of a minimum five-foot separation between the base of the constructed liner system and the seasonal high groundwater elevation. Orange Environment's offer of proof is inadequate to demonstrate that granting the variance would have a significant adverse impact on the environment, in that it does not address the sufficiency of the landfill design to prevent a leachate escape, the very low permeability of the glacial till unit over which the lateral expansion would be constructed, and the Applicant's plan for the detection and monitoring of any leachate escaping the landfill's containment system.
As the Applicant argues and the Department Staff acknowledge, this particular variance is commonly necessary because of the desirability of placing landfills over clays with low permeability. These clays tend to trap groundwater, thus leading to the need for a variance. But they also protect against contaminant migration should the liner system fail.
As to the specific claims in Dr. Scrudato's memorandum, the Applicant's final hydrogeologic investigation report (Exhibit No. 39-B, at Section 15.4.2) indicates that groundwater flows predominantly downward through the glacial till in the lateral expansion area, then in a more horizontal direction, generally northwesterly toward the Wallkill River, when it enters the bedrock. As the Applicant notes, the report includes data on the vertical versus horizontal gradients in the till to support the conclusion that flow is mostly vertical in the till. The report also confirms (at Section 15.4.7) that sand and gravel overlie the glacial till, but only in the westernmost portion of the vertical expansion area, where contamination would be detected through shallow monitoring wells.
Dr. Scrudato also writes that glacial overburden is known for its heterogeneity, and that sand and gravel stringers and lenses which are common in glacial deposits provide the greatest potential for the lateral migration of contaminants. However, as the Applicant points out, the test boring logs indicate that while stringers do occasionally occur, they do not occur at a high frequency. Also, the Applicant's investigation indicated that the stringers are usually isolated and therefore would not provide a laterally extensive pathway for contaminant flow. The Applicant notes that when it installed new wells for the lateral expansion, any stringers that were encountered in the till were screened, as requested by DEC, and the test boring logs were included in Appendix "A" of the final hydrogeologic investigation report. This report is not included in the list of documents that Dr. Scrudato said he reviewed before writing his memorandum.
Differential Settling of Waste Beneath Vertical Expansion
Orange Environment contends that the permit should be denied because the application fails to adequately address the stability of the existing waste mass underlying the proposed vertical expansion baseliner. Again, Orange Environment's offer of proof is from Dr. Scrudato (see pages 1 and 2 of Dr. Scrudato's memorandum, attached as Appendix 16 to Orange Environment's petition).
Orange Environment claims that because the problem of differential settling of the existing waste mass during its decomposition is not addressed sufficiently, the Applicant has not demonstrated that its proposed overliner will remain stable enough to ensure that the maximum one foot leachate head values will be maintained in the proposed vertical expansion. According to Dr. Scrudato, differential settling will create an uneven liner surface which will invariably affect the drainage of any liquids collected on the liner, leading ultimately to uncontrolled leachate migration, in violation of 6 NYCRR 360-2.10.
Apart from the pooling of leachate, Dr. Scrudato says there is also the potential for the liner to be perforated as sharp objects, subjected to the forces of differential settling, protrude through the liner, which would result in liner failure and leachate migration to the underlying refuse. Orange Environment attempts to raise impacts of waste settlement under 6 NYCRR 360-2.7(b)(9) and 360-2.13(m), which require that primary leachate collection and removal systems be designed so that the leachate head on the primary liner does not exceed one foot.
Department Staff says that settlement of the waste mass beneath the vertical expansion will be monitored by an inclinometer system, data from which will periodically be furnished to the Department. According to Staff, this data will show whether there has been any differential settlement that would cause unreasonable strain on the liner system. If at any time the inclinometer readings suggest that the liner system has been strained to the point of compromise, special condition No. 24 of Staff's draft permit would require that waste placement operations in the affected area be stopped immediately, remedial measures carried out in accordance with the approved contingency plan, and/or final grades for the affected area adjusted to ensure liner system integrity. Staff says it has required inclinometers at other facilities where it has allowed vertical expansions to optimize disposal capacity, and has not encountered strains that would jeopardize the containment systems.
Also, for this project Department Staff contends that the leachate collection and removal system is over-designed to the point it would be very difficult for the head on the liner system to exceed one foot.
Ruling: Differential settling of the existing waste mass beneath the vertical expansion, and its consequences for the liner system, shall not be adjudicated. While Dr. Scrudato claims in his memorandum that "there has been no discussion or consideration on the effect of differential settling of the existing 17 acres of refuse on the integrity of the overliner," such discussion is in fact contained in Section 3.9.2 of the Applicant's engineering design report (Exhibit No. 21).
This section acknowledges that settlement of waste below the overliner system will occur as a result of both the waste's degradation over time and in response to the placement of additional waste above the proposed overliner, and that this settlement may have an impact on the integrity of the overliner system. The report notes that the portion of the landfill to be overlined was operated using modern landfill procedures and was heavily compacted; therefore, the waste near the surface is expected to be quite homogenous and should respond in a relatively uniform fashion.
According to the engineering report, while overliner system materials can sustain considerable elongative strains prior to rupture, it has generally been considered appropriate to limit such strains to 5 percent or less. The report then notes how differential settlements needed to cause such elongations are quite severe and far exceed what is anticipated.
The engineering report confirms Staff's intent through its draft permit to monitor actual settlements in the overliner system during the placement of waste at the site. As explained in the report, the horizontal inclinometer will be passed down special casings that are placed in the overliner system drainage layer. The report confirms that readings will be taken semi-annually and reported to the Department with an analysis that determines the approximate liner strain and drainage slope within the overliner system.
Dr. Scrudato's offer on behalf of Orange Environment fails to address the Applicant's discussion of differential settling in the engineering report and the proposal for inclinometer installation that is part of the report and the draft permit. Contrary to the assertion in his memorandum, there has been consideration of differential settling. Not only that, there is a proposal to monitor it, and remedies if unsafe levels of strain are detected. While Orange Environment raises the potential for liner perforation by sharp objects beneath it, this seems unreasonable given the representation in the engineering report that the underlying waste is heavily compacted.
Orange Environment says that the permit should be denied because the application fails to meet the requirement of 6 NYCRR 360-2.12(c)(5) that new landfills not be located in areas where environmental monitoring and site remediation cannot be conducted.
According to Dr. Scrudato, effective monitoring of the proposed expansion would be compromised by existing leachate contamination of glaciolacustrine deposits beneath the old landfill, which it says is already impacting the near-surface groundwater as well as the Walkill River. (See page 3 of Scrudato memorandum, attached as Appendix No. 16 to Orange Environment's petition). However, according to the Applicant, the lateral and vertical expansions can be monitored independently from the existing landfill, and from each other as well.
The Applicant would ensure that the lateral expansion is separately monitorable by placing 25 monitoring wells around the perimeter of the expansion. In the vertical expansion, Al Turi has incorporated a tracer system that calls for the injection of a sodium fluoride solution into the secondary leachate collection zone of the overliner. [See Exhibit No. 31, the Applicant's report on the tracer distribution system.] Because fluoride is not normally present at significant concentrations in either groundwater or leachate, the tracer would allow monitorability between the vertical expansion and all other landfill areas, including the lateral expansion.
The Applicant minimizes the degree of contamination from the old landfill site, acknowledging only that there are "isolated instances of elevated levels of certain parameters along the Wallkill River." However, Staff says that groundwater monitoring data already demonstrate a very well-established pattern of contamination that raised concerns about monitorability early in the review of this application.
According to Staff, its concern was that all the indicators of leachate contamination it would use to detect a release from the vertical expansion were already elevated above trigger values in the shallow overburden aquifer along the Walkill River; therefore, Staff could not use these indicators as it would normally to detect a release. Staff says that when its concern was pointed out to the Applicant, the tracer distribution system was developed. By distributing the tracer throughout the secondary leachate collection zone, Staff says the Applicant would ensure that any leachate escaping from the vertical expansion picks up the tracer as it leaves.
Staff says it has required several revisions of the landfill design to assure that the tracer is spread out over the entire liner area, which it acknowledges requires considerable engineering. According to Staff, the tracer will be distributed using a pressurized small diameter pipe network sufficient to ensure monitorability of the vertical expansion.
As for the lateral expansion, Staff says the Applicant will assure monitorability by placing monitoring wells downgradient of the expansion, beneath the vertical expansion. To afford access to the wells in order to withdraw samples or service the pumps, the well heads will extend out laterally. Staff says that while there is some contamination in the glacial till or shallow bedrock units in the vicinity of the lateral expansion, it is very minor compared to that in the aquifer along the Wallkill River, because the normal flow of groundwater is westerly or northwesterly toward the river and not in the direction of the lateral expansion.
According to Department Staff, any impact to groundwater in the area of the lateral expansion, which is technically upgradient of the existing landfill, would be due to such mechanisms as diffusion and groundwater mounding. Staff acknowledges that some of the wells in the shallow bedrock and overburden are showing some increases in some leachate indicators, but not to the point where monitoring could not be performed.
Ruling: No issue exists with regard to the monitorability of the landfill expansion. Apart from describing the tracer system proposed for the vertical expansion as "dubious," Orange Environment's petition makes no offer of proof that it will not work as designed. In fact, the tracer system is not even mentioned in Mr. Scrudato's memorandum. While the memorandum states that effective monitoring of the lateral expansion will be compromised by existing leachate contamination, it does not account for the monitoring well network which is part of the application.
Leachate Discharges to Wallkill River
Orange Environment claims the Al Turi landfill is causing continuing violations of the Environmental Conservation Law and the Clean Water Act through "leachate bank discharges" to the Wallkill River. Orange Environment says these discharges are clearly evident whenever the river's water level drops sufficiently. According to Orange Environment, the discharges have not been prevented in the past and are not acknowledged in the Applicant's studies. Orange Environment expresses concern that the landfill's expansion will perpetuate the discharges, causing ecological damage to the river and threatening downstream wells, in particular the Town of Wallkill wellfield.
The Applicant responds that there is no basis for Orange Environment's claim of bank discharges. It acknowledges two seeps from the side of the old Al Turi landfill in the last seven years, but says both were corrected promptly upon discovery, and that there was no discharge to the river. According to the Applicant, a new, upgraded cap planned for the old landfill will eliminate the possibility of future seeps. (The design specifications for that cap are now being reviewed by DEC in a separate proceeding.)
Orange Environment said in its petition that it would offer proof of the bank discharges through affidavits of experts who witnessed them. While no such affidavits were offered at the issues conference, Orange Environment did produce a letter (Exhibit No. 85) from a Goshen resident, Joseph Gott, who claims to have observed from the Route 17 bridge "an apparent leachate break-out" in the vicinity of the landfill late in August or early September, 1996, during a period of prolonged drought. This is not one of the two examples confirmed by the Applicant. Mr. Gott's letter says no sampling was done to confirm his observation, and DEC Staff does not recall being informed about it.
Department Staff says it is concerned about the possibility of bank discharges, and that it observed a leachate breakout from the old landfill as recently as early April, in the week before the reconvening of the issues conference. Staff says this recent seep from the landfill's side slope reinfiltrated the ground prior to reaching the Wallkill, and was corrected when brought to the attention of the landfill operator. Staff is not aware of any bank discharges to the Wallkill, but its inspectors have noted various on-site "leachate leaks" over the past several years. To better inspect for the possibility of bank discharges, Staff has prepared a special permit condition (No. 71) which would require, prior to the expansion's completion, that the understory vegetation on the Wallkill River bank adjacent to and downgradient of any portion of the landfill be cleaned and maintained to allow unobstructed access for purposes of inspection.
With regard to threats to downstream wells, Staff says the Town of Wallkill does not take any portion of its drinking water from the Wallkill River, but instead from shallow gravel aquifer wells that are adjacent to the river. The Applicant says that the Town's wells are almost three miles down the river, on the side opposite its landfill. The Applicant claims that neither the existing landfill nor its expansion would adversely affect local water supplies because groundwater flows from the landfill to the river with nothing in between. According to the Applicant, tests of river water upstream and downstream from the landfill for many years have indicated that the landfill is not affecting water quality.
Ruling: There is no evidence that the Al Turi Landfill is causing continuing violations of the Clean Water Act and the ECL through leachate bank discharges to the Wallkill River. The only evidence suggesting any bank discharge is Mr. Gott's observation of one event two years ago. Because there was no follow-up sampling, it is impossible to know whether leachate actually did reach the river or what impact it might have had there. At any rate, the leachate seeps or break-outs described above appear to all relate to the old Al Turi landfill, which apparently will be re-capped.
Incidentally, Staff's draft permit contains a special condition (No. 45) requiring the Applicant to submit a work plan for investigation of landfill-derived impacts on the Wallkill River. While Staff agrees that past monitoring has not shown any significant difference in the water quality upstream and downstream of the landfill, it wants to better assure that surface water sampling coincides with periods of baseflow recession so that water quality data will not be influenced by dilution resulting from storm events in the watershed. Staff says this is important regardless of whether the expansion is approved.
RULINGS ON PARTY STATUS
As noted above, two petitions for full party status were received, one from Orange Environment and one from Orange County. According to the Department's permit hearing regulations, the ALJ's ruling on entitlement to full party status will be based upon:
- a finding that the petitioner has filed an acceptable petition pursuant to 6 NYCRR 624.5(b)(1) and (2);
- a finding that the petitioner has raised a substantive and significant issue or that the petitioner can make a meaningful contribution to the record regarding a substantive and significant issue raised by another party; and
- a demonstration of adequate environmental interest. [6 NYCRR 624.5(d)(1).]
As noted in its letter to me dated January 27, 1998 (Exhibit No. 7), Orange Environment is a non-profit, tax-exempt, all-volunteer organization formed in 1982 for the purposes of promoting the environmental health of Orange County and surrounding areas. It claims a membership of about 2,000 people, many of whom it says live in the neighborhoods around Al Turi Landfill.
Over the years Orange Environment has been an active litigant in matters concerning the Al Turi and Orange County landfills. Based on this history and the stated purpose of the organization, there is no question that Orange Environment has demonstrated an environmental interest adequate to participate in this hearing. Its petition also meets the requirements of 6 NYCRR 624.5(b)(1) and (2), although I disagree about the need to adjudicate most of its issues.
Finally, it is apparent that Orange Environment can contribute meaningfully to the record on the fitness issue. Its petition highlighted this issue and brought out components of it, like the landfill's inspection history, before they were raised by Department Staff. Staff's taking the lead on this issue and my rulings narrowing the issue's scope should limit Orange Environment's involvement in the development of a factual record. However, the group may have a productive role in the examination of witnesses, even if it does not present any itself. Also, its input on the Applicant's trusteeship proposal, and whether it should be accepted by DEC, would be worth hearing and considering.
Therefore, Orange Environment's petition for full party status is granted.
Orange County seeks full party status because of the Al Turi Landfill's location in the county, the County's statutory role as the waste management planning entity for the disposal of solid waste, the County's interests in protecting the Wallkill River, and the County's responsibility to protect the health, safety and welfare of its residents. The County has not proposed any issues for adjudication and has not taken a position on the project, either in support or opposition. However, it contends that it must be allowed to be heard on any issues affecting its interests as identified above.
If not able to secure full party status, the County at least seeks amicus status and leave to remain on the service list for the duration of the proceeding. According to the permit hearing regulations, the ALJ's ruling on entitlement to amicus status must be based upon:
- a finding that the petitioner has filed an acceptable petition pursuant to 6 NYCRR 624.5(b)(1) and (3);
- a finding that the petitioner has identified a legal or policy issue which needs to be resolved by the hearing; and
- a finding that the petitioner has a sufficient interest in the resolution of such issue and through expertise, special knowledge or unique perspective may contribute materially to the record on such issue. [6 NYCRR 624.5(d)(2).]
The County's filing does not meet therequirementss for full party or amicus status since it does not identify precise grounds for opposition or support. [6 NYCRR 624.5(b)(1)(v)]. In fact, the first page of its petition (Exhibit No. 68) notes that the County wants to make clear that at this stage of the proceedings "it is neither opposing or supporting the application." The County then says its entitlement to full party status "is not dependent on its taking a position on the application, as a whole, at this time."
The County contends that it can defer taking a position until after the hearing issues are identified, at which time its involvement in the hearing would depend on the nature of the issues and how they affect the County's interests. However, that is not consistent with the regulations, which intend that an intervenor's involvement in the adjudication of issues is determined by its petition and its stance at the issues conference.
To support its argument for party status, the County cites two interim decisions of the Commissioner, In the Matter of the Application of William E. Dailey, Inc. (June 20, 1995) and In the Matter of the Application of Sour Mountain Realty, Inc. (July 18, 1996).
In Dailey, the County argues, full party status was granted to intervenors Rensselaer County and the Town of Hoosick not on the basis of their having supported or opposed the project, but on their having raised "substantive" and "significant" issues. But Orange County has not raised or even proposed any such issues here, and the effort to raise such issues in a DEC hearing implies opposition to some aspect of the permit application.
In Sour Mountain, the County argues, full party status was granted to the Town of Fishkill on all issues to be adjudicated, "because the project is located within the Town" and because of its interest in the project. However, in Sour Mountain Fishkill also had taken a position on the project (in that case, support of a mining application), unlike here, where Orange County wants to assert party status while maintaining a stance of neutrality.
While I acknowledge the County's environmental interest in a project within its borders, the County does not meet the regulatory requirements for full party status because it does not seek to raise any factual issue for adjudication, and because it takes no position on the one issue - - fitness - - that will definitely require adjudication, thereby suggesting that it would not meaningfully contribute to a hearing on that issue. The County also has failed to propose, let alone identify, a legal or policy issue which needs to be resolved by the hearing. Therefore, it does not qualify for amicus status either.
The County notes that the Al Turi Landfill accepts half of its waste from within county borders, and that any significant change in the method of managing all or any significant portion of the County's waste stream, due to the outcome of this hearing, will trigger a requirement to update or modify the County's SWMP. [6 NYCRR 360-15.11(b)(1).] But this relates only to the County's interest in this matter, which by itself is not sufficient to support party status.
In summary, the County's petition for party status is denied, but the County will remain on the service list pending the resolution of any appeal of this ruling.
A ruling of the ALJ to include or exclude any issue for adjudication, a ruling on the merits of any legal issue made as part of an issues ruling, or a ruling affecting party status may be appealed to the Commissioner on an expedited basis [6 NYCRR 624.8(d)(2)]. Ordinarily, expedited appeals must be filed to the Commissioner in writing within five days of the disputed ruling [6 NYCRR 624.6(e)(1)].
Allowing extra time due to the number and length of these rulings, any appeals must be sent to the attention of Commissioner John Cahill and received at the Office of the Commissioner (NYSDEC, 50 Wolf Road, Albany, New York, 12233-1010) before 2 p.m. on July 20, 1998. Any responses to any appeals must be received before 2 p.m. on August 5, 1998. The parties shall ensure that transmittal of all papers is made to the ALJ and all others on the service list at the same time and in the same manner as transmittal is made to the Commissioner. No submittals by telecopier will be allowed or accepted. Appeals should address the ALJ's rulings directly, rather than merely restate a party's contentions. To the extent practicable, appeals should also include citations to transcript pages and exhibit numbers.
Administrative Law Judge
Dated: Albany, New York
June 19, 1998
TO: Attached Service List