Blasdell Development Group Inc. - Interim Decision, October 16, 1995
Interim Decision, October 16, 1995
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1010
In the Matter
- of the -
Application to construct and operate a solid waste management facility
pursuant to Environmental Conservation Law of the State of New York (ECL)
Article 27 and Title 6 of the Official Compilation of Codes, Rules and Regulations of
the State of New York (6 NYCRR) Part 360 in the Village of Blasdell, Erie County
- by -
BLASDELL DEVELOPMENT GROUP, INC.
DEC Application No. 9-1448-168/1-0
October 16, 1995
INTERIM DECISION OF THE COMMISSIONER
Blasdell Development Group, Inc. ("Applicant") has applied to the Department ("DEC") for a permit to construct and operate a 1,000 ton per day solid waste transfer station (the "Facility") in the Village of Blasdell. The Facility would receive and transfer municipal and commercial solid waste as well as construction and demolition debris to landfills or waste-to-energy facilities. ECL Article 27 and 6 NYCRR Part 360 impose regulatory requirements on solid waste facilities.
After Department Staff deemed this application complete, a notice of hearing was published, a legislative hearing was held, and an issues conference was convened. ALJ Daniel P. O'Connell, who presided over the hearing and issue conference, issued his Rulings on Issues and Requests for Party Status on August 17, 1995. The Town of Hamburg was granted party status.
The ALJ concluded that there are five issues for adjudication. He identified these issues as follows:
- Contingency plan (360-1.9(h)) and Training Plan (360-11.2(a)). [He found that revisions to these plans were needed.]
- Disposal of wastewater from cleaning operations (360-1.14(b)(2) and 360-11.4(f)).
- Noise (360-1.14(p)).
- Odor control and ventilation (360-1.14(m) and 360-11.3(a)(6)).
- Storage for incoming waste (360-11.4(g)).
Also, the ALJ proposed a permit condition dealing with inspection of incoming material for unauthorized wastes. That item is also addressed in this decision as Item 6.
Both the Applicant and Department Staff appealed the ALJ's issues determinations. The Town did not appeal. However, it submitted a reply brief (dated and received September 15, 1995) in opposition to the appeals.
This interim decision rules on the appeals. In so doing, deference is given to the ALJ's factual determinations. The Commissioner has greater discretion on matters of policy and law (See, Matter of Saratoga County Landfill, Second Interim Decision, October 3, 1995). Each of the issues on appeal is addressed below.
The rulings of the ALJ are affirmed, except that, based on my interpretation of 360-1.14(p), I find that noise is not an issue because the noise limit applies at the residential zone boundary, not the facility boundary. I also find that the Town has not met its burden of persuasion on the issue of storage for incoming wastes. The parties are encouraged to resolve their differences and to avoid or minimize the need for adjudication to the extent possible. The remaining outstanding issues are not complex, and most, if not all, appear to be capable of negotiated resolution.
I. CONTINGENCY PLAN
The ALJ's ruling identified various omissions in the Applicant's contingency plan (ALJ's August 17, 1995 Ruling at p. 8.). These omissions, pointed out by the Town, were found to be substantive and significant, and the ALJ noted that the Applicant has the burden of providing the information needed to complete the contingency plan.
Applicant submitted with its papers on this appeal revisions to the contingency plan. Applicant asserts that these submissions eliminate the issue from further consideration. Staff, however, states that there are still "ambiguities regarding the contingency plan" (Staff brief of September 1, 1995 at p. 6). Staff also states that further revision of the contingency and training plans are necessary (Staff's September 15, 1995 reply, p. 2). The Town asserts that it is entitled to review and comment on both the contingency and training plans (Town's September 15, 1995 reply, p. 10).
Presumably the Applicant will make needed revisions to these plans. Since contingency plan and training plan revisions were submitted with papers on this appeal, there has not yet been an opportunity for the Town to comment on the plans as revised. The Town needs to be given an opportunity to comment on the revised plans at the hearing.
The ALJ's ruling on this issue is affirmed.
II. DISPOSAL OF WASTEWATER FROM CLEANING OPERATIONS
The ALJ ruled that there is a substantive and significant issue for adjudication about how wastewater from cleaning operations at the facility will be disposed of. Section 360-1.14(b)(2) and 360-11.4(f) require, in essence, that wastewater from cleaning operations within the Facility be lawfully disposed of in order to assure protection of the State's surface and groundwaters. Applicant first proposed to connect the Facility to the Village's sewage treatment plant. Because of pre-treatment concerns expressed by the Village, Applicant then changed its plans and proposed to install a holding tank instead. Faced with objections by the Town to the holding tank, applicant changed its plans again and now proposes to use a self-contained mobile device known as an autoscrubber which would pick up the waste from floor cleaning and allow it to be disposed of via transfer trailers. The Town has expressed concerns about the autoscrubber proposal as well. Whether the autoscrubber would use water or be operated dry, and whether floor drains would be installed, are among the uncertainties pointed to by the ALJ to support his conclusion that further inquiry would be prudent and reasonable on this issue.
Applicant argues that the autoscrubber eliminates any need to adjudicate the issue. Staff supports the Applicant. The Town asserts that there are conflicting statements in the record on whether the autoscrubber would operate in the dry or in a wet mode, and that there are questions such as whether a dry mode can be employed at the Facility. The containment of water used to fight fires in the Facility is another potential problem which could cause contamination of ground or surface waters, according to the Town.
The ALJ's ruling that this issue is substantive and significant is affirmed. On the other hand, I agree with the statement in the Applicant's brief that this issue is, or at least should be, "relatively simple." Apparently, it has become sufficiently muddled to require further inquiry. Applicant and Staff need to explain the basis upon which they now conclude that a 14,000 square foot waste transfer facility can operate without floor drains and with an autoscrubber. Information on methods used by comparable facilities may be helpful. Common sense suggests that this is in fact a relatively simple issue, and the parties are urged to keep it simple, not complex. The ALJ is directed to inquire further, and to encourage the parties to resolve this issue. If that cannot be resolved, the matter will need to be addressed further at the hearing.
III. NOISE CONTROL
The Applicant appeals the ALJ's ruling that the Facility's ability to comply with DEC's regulation limiting noise levels is an issue for adjudication. Section 360-1.14(p) provides in part that:
- "Noise levels resulting from equipment or operations at the facility must be controlled to prevent transmission of sound levels beyond the property line at locations zoned or otherwise authorized for residential purposes to exceed... [specified suburban levels]."...
- "If the background residual sound level...exceeds these limits, the facility must not produce an LEQ exceeding that background."
The ALJ determined that this rule requires that the Facility's sound levels be controlled to meet the specified suburban levels at the Facility's property line. In this case, the Facility's property line is not adjacent to lands that are zoned residential. Rather, there are commercial and other non-residential zoned lands between the facility boundary and the line at which residentially zoned lands begin. The ALJ misinterpreted Section 360-1.14(p).
Section 360-1.14(p) requires that noise levels be controlled to prevent the transmission of sound levels "beyond the property line at locations zoned...for residential purposes" (emphasis added). By its own terms, the noise limit is to be applied at the nearest edge of the residential zone. Where the nearest edge of the residential zone does not abut, but is remote from, the facility's property line, the noise limit is to be applied at the edge of the remote residential zone (assuming of course that there is no other applicable noise limit affecting the intervening lands). The regulation is intended to protect residential lands from undue noise. The rule should be understood and read in light of that purpose.
The proposed Facility is located in the middle of an industrial area, surrounded by other industrial facilities including a truck terminal, mainline railroad tracks, a sewage treatment plant, and major roads. Other than truck traffic, most of the noise-generating activity at the Facility will be inside the building. The nearest residential zoned property is at least 1,000 feet distant.
Under Section 360-1.14(p), if background noise levels exceed the suburban LEQ level, the noise from the Facility is allowed to exceed the suburban LEQ, but may not exceed background. It is not disputed that existing background noise near the proposed Facility is produced by truck traffic, train traffic, a rod and gun club, and an industrial park. Staff accepted the application as complete, and in so doing, presumptively accepted the premise that there is a reasonable basis on which to conclude that Facility will be able to comply with 360-1.14(p), when properly interpreted to apply to the boundary of the nearest residential zone. The Town has not met its burden of persuasion to show that such a conclusion was erroneous, or that the noise issue requires further inquiry in this case. The proposed Facility is in the middle of an industrial zone, and its noise-producing activity will not be different from similar activity in the area.
Accordingly, I find that noise control is not an issue.
IV. ODOR CONTROL AND VENTILATION
The ALJ concluded there is need to inquire further as to how the Facility will be ventilated and how odors will be controlled in compliance with 360-1.14(m) and 360-11.3(a)(6). The issue appears to boil down to whether Applicant's proposal to ventilate and control odors in the Facility by reliance on vents in the roof is acceptable, or whether an active ventilation system, such as an exhaust fan, is needed. The ALJ's ruling on this issue is reasonable, and therefore is affirmed.
V. STORAGE FOR INCOMING WASTE
The ALJ concluded that there is a substantive and significant issue whether the proposed Facility has adequate storage space for incoming waste as required by 360-11.4(g). He said that the factual dispute centers on the number of parking spaces needed to provide adequate storage at the Facility.
The Town, which raised the issue, claims that the Applicant has failed to show that the proposed Facility will have space to store incoming waste, and that all waste can be removed from the tipping room floor each day for daily cleaning. The Town argues that the requirement for daily cleaning of the tipping room floor means that waste brought into the Facility after 2:00 P.M. will need to be stored overnight, to allow time for processing and removal from the tipping room of waste accumulated up to that time of day. Shipment of waste processed late in the day will need to be deferred until the next morning when the disposal sites receiving the waste will be open to receive it, says the Town.
The ALJ's ruling suggests that the factual issue is whether there is adequate parking for transfer vehicles which will carry waste away from the Facility for ultimate disposal. However, Staff says that the number of parking spaces for transfer vehicles is irrelevant to 360-11.4(g) because that rule deals only with incoming waste storage capacity. The Applicant interprets 360-11.4(g) as regulating only operation of the facility, and not design, arguing therefore that incoming storage capacity is not a proper adjudicatory issue for the permit hearing.
The Town's point appears to be whether the Facility's design is capable of allowing up to 1,000 tons per day of waste to be processed within the daily time constraints imposed. If it is not, the Town questions whether additional storage for incoming wastes should be provided. Given the confusion in the record, made evident by the arguments of the parties, the ALJ's decision to inquire further is understandable. However, I am not persuaded that a significant adjudicable issue has been raised. The Town's argument is simply that the Facility may not be able to process waste continuously at its maximum design capacity. Under such conditions, the Town asserts that incoming waste will pile up at the facility and need to be stored, and that the storage capacity is not sufficient. (See the Town's brief, pp. 5-7.)
The Town's argument is built on the premise that the operational requirement of 360-11.4(g) to have adequate storage space for incoming waste is subordinate to a facility operator's authority under a permit to operate at the facility's maximum design capacity on a continuous basis. That premise is incorrect, and so is the Town's argument. The permittee is responsible for operating the facility in accordance with the regulations. To the extent that compliance with an operational requirement of 360-11.4 might be infringed when the Facility approaches its maximum design capacity, the rate of input would need to be curtailed to satisfy the regulations. Under the Town's scenario, if it were to occur, the Facility would need to reduce the rate at which it allows waste to be received, in order to avoid overfilling of incoming waste storage capacity. The Applicant contends that the Town's scenario is not realistic, and Staff agrees with the Applicant. The issue is not substantive and significant, since compliance with the operational requirement is paramount to the facility's authority to operate at its maximum design capacity on a continuous basis.
I conclude that the Town has not met its burden of persuasion, and that no issue for adjudication has been presented.
VI. UNAUTHORIZED WASTES
The ALJ reported that the Town is concerned about how the Applicant will handle any unauthorized wastes received at the Facility. The Town urges that procedures need to be put in place for identifying and handling unauthorized wastes before any permit is issued. Section 360-1.14(e) specifies that the Facility owner must initiate a control program to assure that only authorized waste is received and to train the Facility staff on identification, removal, and reporting unauthorized wastes. It also specifies that unauthorized wastes, if received, are to be segregated and removed properly. Special Condition 1 of the revised draft permit incorporates the Facility's written Unauthorized Waste Procedure by reference. Special Condition 3 specifies that the Applicant shall contact the Department for advice on how to handle unauthorized waste, if received.
The ALJ found that the Applicant's "Unauthorized Waste Procedure" is adequate. However, he proposed that another condition be added to the permit to require that contracts that the Facility enters into with waste haulers state that the hauler should remain at the Facility while the load is inspected for unauthorized wastes. The ALJ said that so long as the Applicant accepts that permit condition, there would be no issue for adjudication on unauthorized wastes.
Applicant's brief (August 31, at pp. 19-20) objects to the condition as being "less commercially attractive than other facilities", without precedent, and unnecessary. Staff's brief (September 15, at p. 2) concurs with Applicant that there are commercial considerations that need to be dealt with, and proposes to insert a different condition to require haulers to remain on site pending preliminary inspection for unauthorized wastes.
The Unauthorized Waste Procedure requires the permittee to inspect for unauthorized waste both prior to and after discharge of each load, and states that hauling vehicles will be given permission to leave after inspection of the discharged load, assuming that no unauthorized wastes are found. The ALJ's proposed condition adds a requirement that the Facility's contracts with haulers should specify that hauling vehicles must remain at the Facility during inspection.
Given Applicant's objection and Staff's intention to insert a different condition, this issue remains open. I conclude, as does the ALJ, that the draft permit as proposed meets the requirements of 360-1.14(e). As a matter of Departmental discretion, the ALJ's proposal, or a Staff variant of it, which exceeds those requirements, could be added. However, I cannot conclude on the basis of the record to date that such a condition would, or would not, be appropriate in this case. The notion of the contractual provision is apparently based on the premise that it would deter haulers from leaving prior to completion of inspections. But more practical approaches may be preferable, such as the Facility operator denying access to a hauler who is uncooperative. The matter of hauler discipline is probably best left to the permittee.
The Staff, which drafted the permit and may propose further revisions, should advise the ALJ as to its judgment on this matter. Staff and Applicant should advise the ALJ whether any condition is necessary or appropriate to require contracts with haulers to include a provision that haulers must await inspection. The Town should be afforded an opportunity to respond. The ALJ should then deal with the matter accordingly.
This matter is remanded to ALJ O'Connell for further proceedings consistent with the above.
For the New York State Department
of Environmental Conservation
By: Michael D. Zagata, Commissioner
Dated: Albany, New York
October 16, 1995