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Blasdell Development Group Inc. - Ruling, August 17, 1995

Ruling, August 17, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

an 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.

APPLICANT

RULINGS ON ISSUES AND REQUESTS FOR PARTY STATUS

DEC No. 9-1448-168/1-0

SUMMARY

The Department Staff makes judgments about the quantum of information needed to determine when a permit application is complete. Deeming the application complete under ECL Article 70 (Uniform Procedures) establishes a legal milepost. Although the Staff deemed this application complete, the Applicant has not provided sufficient information to conclude that the proposed Facility would comply with all the applicable criteria in the solid waste regulations (6 NYCRR Part 360). Although completing the application in the hearing is not efficient, the regulations prohibit a remand to the Department Staff. Furthermore, dismissing or otherwise abandoning the application now would undo whatever progress was made to this point. Accordingly, these rulings precisely identify the information that the Applicant must provide to complete the application before any permit can be issued.

Intervening parties generally raise adjudicable issues by making contradictory offers of proof. However, it is possible, as in this the case, to raise substantive and significant issues by identifying omissions or defects in the application materials. These rulings find a number of substantive and significant issues about the Applicant's request to construct a solid waste transfer facility in Blasdell, NY. The issues relate directly to fulfilling the regulatory requirements with respect to the contingency plan, wastewater management, noise, odors, ventilation, and the Facility's storage capacity.

PROJECT DESCRIPTION

The Applicant, Blasdell Development Corporation, Inc., Blasdell, NY, filed an application with the Region 9 Office of the Department of Environmental Conservation (the Department) for a permit to construct a 14,000 sq. ft. building and to operate a 1,000 ton per day solid waste transfer station (the Facility). The Facility would transfer municipal and commercial solid waste, and construction and demolition (C&D) debris from within Erie County to trailers at the Facility for transport to landfills or waste-to-energy facilities. The Facility would be located on the east side of Jeffrey Boulevard south of NYS Route 179 in the Village of Blasdell, Erie County.

STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA)

The Applicant's proposal is an unlisted action pursuant to ECL Article 8 (State Environmental Quality Review Act) and its implementing regulations, 6 NYCRR Part 617. After conducting a coordinated review, the Village of Blasdell, as lead agency, issued a negative declaration on September 22, 1994. In a Memorandum Decision dated February 7, 1995, Justice Gorski upheld the Village's negative declaration. Young, et al v. Board of Trustees of the Village of Blasdell, et al (Sup. Ct. Erie Co. Index No. 1195/237). As of the date of this ruling, an appeal to the Appellate Division (4th Dept.) is pending.

LEGISLATIVE HEARING

The Notice of Public Hearing dated March 8, 1995 (the Notice) appeared in the Department's Environmental Notice Bulletin on March 15, 1995. The Applicant published the Notice in the Hamburg Sun on March 16, 1995. Administrative Law Judges Helene G. Goldberger and Daniel P. O'Connell presided over two legislative hearing sessions concerning the application on April 13, 1995 at 2:00 p.m. and 7:00 p.m. at the Newton Abbott Fire Hall, 3426 Abbott Road, Blasdell.

Over 200 people attended the two legislative hearing sessions. The 31 speakers included the Applicant's representative, the Department Staff, local officials, and residents from the Village of Blasdell and the Town of Hamburg. Numerous individuals submitted written statements. Although there is some local support for the project, the majority of residents who submitted comments oppose the application. In general, the comments made at the public hearing focused on vectors, odors, noise, waste water treatment, potential impacts on a nearby stream from storm water runoff, changes in property values, traffic, and the hours of operation.

ISSUES CONFERENCE

According to the Notice, petitions for full party status were due at the Office of Hearings on April 10, 1995. By that date, the Town of Hamburg and the United Council of Hamburg Taxpayers Associations, Inc., with other individuals who are residents of the Village of Blasdell and the Town of Hamburg (collectively herein, United) had filed requests for full party status.

On April 10, 1995, the Region 9 Department Staff circulated a draft permit.

The Issues Conference began on April 14, 1995 at 10:00 A.M. at the Newton Abbott Fire Hall, Blasdell, NY. Tracy Harrienger, Esq. from Corey J. Hogan and Associates, Amherst, NY, represented the Applicant. David F. Stever, Esq., Assistant Regional Attorney appeared for the Region 9 Department Staff. Alice J. Kryzan, Esq. and Alicia C. Rood, Esq., from Whiteman, Osterman & Hanna, Buffalo, NY represented the Town. Arthur J. Giacalone, Esq., Buffalo, NY appeared for United.

Since the draft permit was not available before petitions for full party status were due, the Town and United sought and received additional time to review the draft permit. According to the schedule established at the April 14, 1995 Issues Conference, the Town filed comments about the draft permit with a cover letter dated April 28, 1995. The Town contended that the draft permit is generally defective. With its comments, the Town argued that many draft permit conditions should be revised, and recommended many new permit conditions. United did not file any comments about the draft permit.

With a cover letter dated May 17, 1995, the Department circulated a revised draft permit. The revised draft permit is not significantly different from the original. It is identified in the record as Exhibit 3 and is attached to these rulings as Appendix A.

The Issues Conference continued at the Thomas E. Teham Post, 2075 Electric Avenue, Blasdell, NY on May 18, 1995. At the conference, United withdrew its request for full party status. Since the Town and United proposed many of the same issues, United stated that it would rely on the Town to pursue these issues in the administrative hearing. United explained that it would focus its limited resources on its appeal of the Supreme Court's decision concerning the Village's SEQRA determination for the proposed Facility (Young, et al v. Board of Trustees of the Village of Blasdell, et al, Erie Co. Index No. 1995/237). United sought to reserve the right to re-apply for full party status if the Appellate Division overturns the negative SEQRA determination.

The Applicant objected to United's conditional withdrawal from the administrative hearing, and moved to preclude United from re-applying for full party status later.

ALJ O'Connell denied the Applicant's request. The ALJ explained he would not rule on any future requests for full party status without first giving the other Issues Conference participants an opportunity to comment. Any future petition for full party status that United may file depends on the outcome of United's appeal before the Appellate Division.

The Office of Hearings received the stenographic record from the April 13, 1994 legislative hearings sessions on May 18, 1995. On May 22, 1995, the stenographic record for the Issues Conference held on April 14, 1995 was received. The transcript for the Issues Conference held on May 18, 1995 was received on July 17, 1995. The record of the Issues Conference closed on August 1, 1995, upon the timely receipt of comments and briefs from the Issues Conference participants.

RULINGS ON ISSUES FOR ADJUDICATION

The Staff asserted that the Project, as conditioned by the revised draft permit (Appendix A), would conform to all applicable statutory and regulatory requirements. Accordingly, the Staff concluded there were no issues for adjudication if the Applicant accepted the revised draft permit conditions.

The Applicant accepted the revised draft permit conditions. The Applicant explained, however, that it would need clarification from the Department Staff about how to comply with Special Condition No. 10. This condition prohibits the Applicant from accepting solid waste from any municipality that has not completed a comprehensive recycling analysis (CRA) or been included in another municipality's CRA.

Standards for Determining Issues

Section 624.4(c) outlines the standards for adjudicable issues. When, as here, the Department Staff has determined that the project, as conditioned by the draft permit, will conform to all applicable statutory and regulatory requirements, the burden of persuasion is on the potential party advancing the issue, in this case the Town of Hamburg, to show that the proposed issue is both substantive and significant [ 624.4(c)(4)].

An issue is substantive if there is sufficient doubt about the Applicant's ability to meet the applicable statutory or regulatory criteria such that a reasonable person would inquire further. To determine whether an issue is substantive, the ALJ must consider the proposed issue in light of the application and related documents, the draft permit, the content of any petitions filed for full party status, the record of the Issues Conference, and any subsequent written arguments authorized by the ALJ [ 624.4(c)(2)].

To be substantive, the issue cannot be based merely on speculation but on facts that can be subjected to adjudication [In the Matter of Concerned Citizens Against Crossgates v. Flacke, 89 AD2d 759 (3rd Dep't, 1982), aff'd, 58 NY2d 919 (1983)]. In addition, an issue can be demonstrated by identifying a substantive defect or omission in the application materials [In the Matter of Oneida County Energy Recovery Facility, Interim Decision, July 27, 1982; In the Matter of Halfmoon Water Improvement Area, Interim Decision, April 2, 1982; In the Matter of Broome County Department of Public Works, Commissioner's Decision, June 11, 1984].

An issue is significant if the adjudicated outcome can result in permit denial, a major modification to the proposed project, or the imposition of significant conditions in addition to those proposed in the draft permit [ 624.4(c)(3)].

The Applicant has not provided sufficient information in the application materials to determine whether the Project would meet the applicable regulatory criteria in 6 NYCRR Part 360. Although the completeness of an application, as defined in 621.1(d), cannot be an issue for adjudication, 621.15(b) authorizes me to require additional information from the Applicant [ 624.4(7)]. Consequently, some of the substantive and significant issues identified below arise from a lack of adequate information in the application materials.

A complete discussion of all the issues proposed by the Town of Hamburg follows.

Due Process

The Town argued that the conditions in the draft permit For the purposes of discussion here, it is presumed that the Town's arguments also apply to the revised draft permit (Appendix A) because the revised draft permit, like the original, defers the development of the certain plans until after permit issuance. which defer the development of certain plans by the Applicant until after permit issuance violate due process by denying the Town notice of the subject matter of these proceedings and an opportunity to be heard.

Discussion and ruling: The Town raises a constitutional issue that is beyond the scope of this administrative proceeding. Although a court of competent jurisdiction must determine whether Town's argument is meritorious [Dimaggio v. Brown 19 NY2d 283, 291-292 (1967)], the deferment of plans for drainage, ventilation, etc. further highlights the significant omissions in the application materials.

Plans and Programs

Part 360 requires the Applicant to develop and implement various plans and programs as part of the proposed design and operation of the Facility. The Town argued that certain plans and programs required by Part 360, as identified below, are either missing or inadequate.

There must be a contingency plan to handle emergencies at the proposed Facility [ 360-1.9(h), 360-1.14(g) and 360-11.2(a)(3)(vi)]. Section 360-1.14(e) requires the Applicant to develop a control program for unauthorized waste. In addition, the Applicant's engineering report must include a plan for hiring and training equipment operators as well as other personnel who will work at the Facility [ 360-11.2(a)(3)(v)].

1. Contingency Plan

The Town contended that the Applicant's contingency plan is not adequate because the Applicant did not provide all the information required by the regulations. To support its contentions, the Town offered the expert testimony of Timothy Woodbury, P.E. from Wendel Engineering, Buffalo, NY. Mr. Woodbury is the Town's proposed witness on all issues submitted for litigation.

The Applicant and the Department Staff, however, asserted the contingency plan is adequate.

Discussion and Ruling: Sections 360-1.9(h), 360-1.14(g), and 360-11.2(a)(3)(vi) outline various requirements for the contingency plan. The purpose of the plan is to set up procedures for handling emergencies at the Facility such as fires, accidents, or equipment breakdowns.

Special Condition No. 1 of the revised draft permit addresses the Town's concern about incorporating the terms of the contingency plan into the permit. This condition references Concord Engineering's September 12, 1994 and October 25, 1994 letters. According to the Applicant, these letters with attachments constitute the contingency plan.

Section 360-1.9(h)(1)(i) requires a written description of the arrangements made between the Applicant and local emergency organizations. The Applicant's contingency plan does not identify who the Village's Disaster Coordinator is and what information the Coordinator has about the Facility. The plan does not explain what the Town's Disaster Preparedness Plan is, and how it was amended to include the proposed Facility. The contingency plan does not identify who the contact persons are at the Southtowns Haz-Mat Team, the local fire departments, or the hospital. Finally, the Applicant's plan does not explain what, if any, arrangements exist between the Applicant and the local emergency response organizations.

Regardless of whether the Applicant conducts a tour of the Facility, as outlined in the September 12, 1994 cover letter and as required by Special Condition No. 8 of the revised draft permit, the Applicant must provide a written description of the Facility's layout, and the general operations of the Facility [ 360-1.9(h)(1)(i)].

As required by 360-1.9(h)(ii), Special Condition No. 8 of the revised draft permit requires the Applicant to submit the names, addresses and telephone numbers of the personnel who would implement the contingency plan to the Department before operations at the Facility begin.

Since the Applicant has not hired anyone to work at the Facility yet, the Applicant cannot provide all this information now. However, the Applicant can explain who would be the primary and alternate emergency coordinators based on job titles and descriptions. Therefore, the Applicant must provide an organizational chart that identifies which personnel at the Facility would be the primary and alternate emergency coordinators. (See, Training Plan, infra at pp. 10-12.) Providing this information now, does not relieve the Applicant of its obligation to comply with Special Condition No. 8 of the revised draft permit or 360-1.9(h)(ii) when the personnel for the Facility are hired.

Consistent with 360-1.9(h)(1)(iii), the Applicant's contingency plan does provide a list and description of all emergency equipment at the facility, and its location. The fire fighting equipment at the Facility would include: (a) three 75 ft. lengths of 1" fire hose on the east wall in bays 2, 4, and 6; (b) four 10 lb. ABC dry powder extinguishers ABC dry powder fires extinguishers are suitable for (A) ordinary combustibles, (B) flammable liquids, and (C) electrical equipment. on the east wall in bays 1, 2, 5, and 7; and (c) two spill kits. To fulfill the requirements of 360-1.9(h)(1)(iii) completely, however, the Applicant must describe the expected fire fighting capacity of the equipment.

The Applicant's contingency plan does not adequately identify any alternate routes for vacating the site as required by 360-1.9(h)(1)(iv). According to the September 12, 1994 letter, there would be a public address system in the Facility to inform personnel about all emergencies. If an evacuation of the Facility becomes necessary, the September 12, 1994 letter from the Applicant's engineer explains that personnel would report to the scale house for instructions. The letter explains further that the alternate evacuation assembly point would be the main gate of the Facility. The regulations, however, require alternate evacuation routes, not alternate evacuation assembly points. Therefore, the contingency plan must provide for the identification of the primary and alternate routes for vacating the site after personnel report to the scale house for instructions.

In accordance with 360-1.14(g), the contingency plan enclosed with the October 25, 1994 cover letter explains, in sufficient detail, what personnel should do if there is a fire, spill, or accident at the Facility.

As required by 360-11.2(a)(3)(vi), the Applicant's September 12, 1994 letter adequately addresses alternate systems for handling solid waste. For example, if the Facility could not operate due to an emergency, the Applicant would tell the solid waste haulers, who are scheduled for that particular day and time, either to divert their loads to another facility, or to adjust their delivery time. At the May 18, 1995 Issues Conference, the Applicant explained that it could control when waste haulers would come to the Facility through the terms of the contracts with the waste haulers. Consequently, the Applicant would know who to contact, and by when, if the Facility needed to use alternate systems for handling solid waste.

The Applicant's contingency plan is not complete. The Applicant has not provided a written description of the arrangements made with the local emergency organizations [ 360-1.9(h)(1)(i)]. The Applicant has not described the capacity of the fire fighting equipment that would be installed at the Facility [ 360-1.9(h)(1)(iii)]. The Applicant has not developed alternate evacuation routes [ 360-1.9(h)(1)(vi)]. Although the Applicant has not provided the personnel information concerning who would implement the contingency plan [ 360-1.9(h)(1)(ii)], the Applicant will not be able to comply with this requirement until after the Applicant hires personnel. Nevertheless, clarification at this time in the form of a organizational chart is necessary.

Given the omissions in the contingency plan, the Town has raised a substantive and significant issue for adjudication. This issue is substantive because additional inquiry is necessary to complete the contingency plan as required by the applicable regulatory criteria. This issue is significant because the adjudicated outcome could result in permit denial, a major modification to the proposed project, or the imposition of significant conditions in addition to those already proposed in the revised draft permit. At the hearing, the Applicant will have the burden of providing the information needed to complete the contingency plan.

Adjudication of this issue could be avoided if the Applicant provides the information necessary to meet the requirements identified above. Furthermore, I recommend that the Applicant assemble the information for the contingency plan into a single document. By having the information for the contingency plan in one document, the Applicant can revise and update the plan as needed, as well as distribute it to the local and State emergency organizations. If the Applicant puts the information for the contingency plan into one document, then the Department Staff should change Special Condition No. 1 of the revised draft permit to incorporate the contingency plan document into the revised draft permit by reference.

2. Unauthorized Wastes

The Town is very concerned about how the Applicant will handle unauthorized wastes at the Facility. Rather than having the Applicant contact the Department for advice after unauthorized waste has been discovered at the Facility (Special Condition No. 3 of the revised draft permit), the Town contended there should be procedures in place for identifying and handling unauthorized waste as outlined in 360-1.14(e), before the Department issues any permit. The Town offered the expert testimony of Mr. Woodbury to support its contentions.

According to the Applicant, the plan enclosed with the October 25, 1994 cover letter from its engineer meets the regulatory requirements.

The Department Staff argued that the Applicant's plan for handling unauthorized waste is adequate and fulfills all regulatory requirements. The Staff explained that Special Condition No. 3 of the revised draft permit is not a substitute for the Applicant's plan.

Discussion and ruling: Section 360-1.14(e) requires a program to control unauthorized waste. With the October 25, 1994 cover letter, the Applicant's engineer enclosed an Unauthorized Waste Procedure for handling unauthorized waste at the Facility. According to the procedure, hauling vehicles could not leave the Facility until after the Facility's personnel inspect the load on the tipping floor for unauthorized wastes. If personnel find unauthorized wastes, the procedure calls for the waste to be separated and stored in the first bay next to the scale house. The procedure requires that leaking containers to be put in over-pack containers or roll-off boxes. The procedure identifies what constitutes unauthorized wastes and how personnel should handle unauthorized wastes.

Also included with the October 25, 1994 cover letter was an Unauthorized Waste Report Form that personnel at the Facility would complete when any unauthorized waste comes to the Facility. The letter from the Applicant's consultant also explains how the sign described in Appendix E of the engineering report has been modified to include tires as an acceptable waste, and medical waste and asbestos as unacceptable wastes.

The Town recommended that the draft permit should require solid waste transporters to wait at the Facility after they have dumped their loads on the tipping floor while the Applicant's personnel inspect the load for any unauthorized wastes. The Town's recommendation, however, is inappropriate. Such a condition improperly attempts to regulate the activities of solid waste transporters who are not the subject of the instant permit application.

Rather, the draft permit should require the Applicant to include a provision in its contracts with waste haulers that requires the waste haulers to stay at the Facility while personnel inspect the material for unauthorized waste. This permit condition is necessary given the terms of Applicant's control program which states that haulers would stay on site while Facility personnel inspect each load for unauthorized wastes. The new draft permit condition should read as follows:

The Permittee shall include the following provision in any contract that it enters into with any waste hauler: "Waste haulers who deliver solid waste to the Facility must remain at the Facility while personnel inspect the material for unauthorized waste."

The Town argued that the permit should require the Applicant to use ion detectors, geiger counters and other equipment to detect any unauthorized wastes that a visual inspection would not reveal. In addition, the Town argued there should be a separate structure on the site where the Applicant would store unauthorized wastes until these unauthorized wastes are removed.

Section 360-1.14(e) does not require separate buildings or the use of ion detectors and geiger counters for handling unauthorized wastes. The Town did not cite any authority, or make a sufficient offer of proof to show, that the Applicant should use ion detectors and geiger counters to detect any unauthorized wastes. In addition, the Town did not cite any authority, or make a sufficient offer of proof to show, that a separate building would be necessary to store unauthorized solid waste until it is removed from the Facility.

I find that the content of the Applicant's Unauthorized Waste Procedure adequately meets the requirements in 360-1.14(e). As a result, there are no issues for adjudication concerning its content, or whether it complies with 360-1.14(e). However, the new permit condition concerning the contractual agreements between the Applicant and waste haulers, as stated above, would be an issue for adjudication, if the Applicant does not accept it [ 624.4(c)(1)(i)].

3. Training Plan

According to the Town, the Applicant's staffing and training plan required by 360-11.2(a)(3)(v) is inadequate for the following reasons. First, the plan does not include any job descriptions or qualifications for the personnel who will work at the Facility. Second, the Applicant's employee training program does not include detailed descriptions about the topics covered during the ten day training period.

At the Issues Conference, the Applicant tried to clarify the various job titles and descriptions of the personnel who would work at the Facility. The Applicant argued that its training plan was adequate, and referred to the employee training program outline enclosed with the October 25, 1994 cover letter from its engineer.

The Staff contended that the Applicant's proposed training program meets the regulatory requirements, and is typical of the training programs implemented at other transfer stations.

Discussion and ruling: Pursuant to 360-11.2(a)(3)(v), the Applicant's engineering report must include a plan for hiring and training equipment operators and other personnel who will work at the Facility.

The references to job titles and descriptions in the application materials are confusing even with the explanation offered by the Applicant at the Issues Conference. Clarification about the expected number of employees and their duties is necessary. Accordingly, the Applicant must provide an organizational chart for the proposed Facility that includes job titles and a brief description of the job duties associated with each position.

Operational and Design Requirements

The regulations require the Applicant to control drainage [360-1.14(b), 360-11.4(f)], vectors [ 360-1.14(l), 360-11.4(e)], noise [ 360-1.14(p)], and odors [ 360-1.14(m)]. As part of the design requirements for the Facility, 360-11.3(a)(6) requires exhaust removal systems in enclosed areas.

1. Drainage

The Town is concerned about how the Applicant will treat the leachate generated inside the Facility, and how the Applicant will manage storm water runoff.

Discussion and ruling: Section 360-1.14(b)(2) requires the Applicant to control leachate and its migration into the State's surface and ground waters. If necessary, the Applicant must obtain a SPDES permit for discharges to surface waters. Section 360-11.4(f) requires the Applicant to discharge all drainage from cleaning areas to sanitary sewers, authorized sanitary waste treatment facilities, or a corrosion-resistant holding tank. If a holding tank is used, 360-11.4(f) requires the tank to meet all applicable regulations.

During these proceedings, the Applicant has proposed three ways to treat the leachate generated from washing areas inside the Facility. At the Issues Conference, the Applicant said that it would seek the necessary approvals for a sewer connection to the Village of Blasdell's sewage treatment plant (STP). According to the Applicant, the total expected discharge from the Facility would be 500 gallons per day (gal/day). Of that amount, about 300 gal/day would be leachate generated from washing the tipping floor with the balance being the sanitary discharge.

With a cover letter dated June 16, 1995, the Applicant provided a copy of the revised site plan which showed a holding tank for collecting the waste water generated at the Facility. Then, by letter dated July 14, 1995, the Applicant withdrew its plans for a holding tank at the Facility, and substituted a proposal to use a Ride-On Battery Auto-Scrubber (autoscrubber) to clean the inside of the Facility. The Applicant asserted that no leachate would be created because it would be sucked up by the autoscrubber. According to the Applicant, when the scrubber becomes filled with debris, it would be emptied into a transfer trailer for disposal.

The Town expressed concerns about each of the Applicant's three proposals. Although Village of Blasdell owns and operates the STP, the Town asserted that the Facility is within the Town's sewer district, and argued that the Applicant would have to get the Town's approval for any sewer connection. The Town provided a memorandum from the Erie County Department of Environment and Planning about the use of holding tanks, and argued that the County's memorandum prohibited their use.

By letters dated July 21, 1995 and August 1, 1995, the Town commented about the autoscrubber. According to the Town, a July 7, 1995 letter from the Applicant's engineer to the Department's Staff implies that the scrubber will be operated dry. At a Village Board meeting on July 18, 1995, however, the Applicant's representative stated that the scrubber would use water in its operation. The Town is concerned about the volume of wastewater that would be generated by the scrubber, the method of storage of this wastewater in solid waste transfer trailers, as well as the potential leakage of this waste into Rusk Creek from parking areas and along public roads. In addition, the Town argued that the Applicant still has not put forward a plan for disposal of wastewater that would be generated from fire fighting activities. Finally, the Town noted that the Applicant still has a drainage trench located along the tipping room floor in the Facility's site plan.

Concerning the autoscrubber, in a memorandum dated July 18, 1995 transmitted to this office by cover letter dated July 21, 1995, the Staff concluded that this method for facility cleaning was acceptable and that the absence of floor drains within the Facility would not cause a problem. In this memorandum, DEC engineer Cheryl Webster also stated that water would not be normally used in the floor cleaning process, and that the Applicant's plan for using absorbent materials to pick up wash water or residual liquids when necessary was appropriate.

While slight modifications during the review process are expected, it can be reasonably inferred from Applicant's haphazard approach to wastewater collection and treatment that the Applicant has not adequately considered this aspect of the project, or how it would comply with the regulations. In addition, different conclusions have been drawn by the Town and DEC Staff as to exactly how the autoscrubber will operate, e.g., use of water or no water, use of floor drains or no drains. Consequently, there is a need to inquire further.

There is a substantive and significant issue for adjudication about how the Applicant will treat the leachate generated inside the Facility. This issue is substantive because the Applicant has not shown that it would be able to comply with 360-1.14(b)(2) and 360-11.4(f). This issue is significant because the adjudicated outcome could result in permit denial, a major modification to the proposed project, or the imposition of significant conditions in addition to those already proposed in the draft permit. At the adjudicatory hearing, the Applicant will have the burden to show how it will comply with 360-1.14(b)(2) and 360-11.4(f).

The Town's second concern about drainage focuses on how the Applicant will manage storm water runoff on the site. Originally, these concerns also included questions about whether the Facility is in the 100-year flood plain, and how the Applicant would prevent debris from collecting in the detention pond and Rush Creek. Subsequent to the Issues Conference, the Applicant revised the site plan and eliminated the detention pond. Therefore, the Town's concern about the detention pond being in the flood plain is no longer relevant.

The Town identified a number of differences between the original on-site storm water management plan which included the detention pond, and the current proposal which would include a swale. According to the Town, these differences raise additional issues about how the Applicant would control storm water runoff on the site.

According to the Staff, the Applicant does not need a SPDES permit to discharge the storm water runoff to Rush Creek either from the detention pond, as originally proposed, or from the swale. At the Issues Conference, the Staff asserted that the Village of Blasdell, not the DEC, has jurisdiction over how the Applicant manages storm water runoff. This being the case, I conclude that this issue is beyond the scope of these proceedings.

The organizational chart must explain when certain personnel would have supervisory responsibilities, and who would be the primary and alternate emergency coordinators. As explained above, the primary and alternate emergency coordinators would implement the contingency plan, or the unauthorized waste procedure, when needed. This organizational chart should be attached to the contingency plan and the employee training outline.

The Town recommended that the Training Plan should include job descriptions and qualifications for personnel, a description of the material presented during the training sessions, and the qualifications of the instructors who would present the training materials.

The Town, however, did not provide, nor could I find, any regulatory requirement that the employee training program must include the qualifications of the instructors who would present the training materials. With respect to the content of the training plan, many of the topics in the training outline focus on executing the contingency plans and the unauthorized waste procedure. Accordingly, the Applicant must attach these documents and any other reference materials such as the engineering report to the outline which will clarify the content of the Applicant's training program.

There is no issue for adjudication about the training program provided the Applicant supplies the clarification requested above, and attaches the contingency plan, the unauthorized waste procedure, and other reference materials to the training outline.

2. Vector Control

The Town claimed that the Applicant's vector control plan which is required by 360-1.14(l) and 360-11.4(e) is inadequate, and contended there would be problems with birds, rodents, and insects. The Town offered the expert testimony of Mr. Woodbury to support its claim about the inadequacy of the Applicant's vector control plan.

The Applicant explained that it has hired Empire State Exterminating, Inc. to control rodents and birds on the site, and referred to two reports dated September 8, 1994 and October 12, 1994 which are attachments to the cover letters from the Applicant's engineer dated September 12, 1994 and October 25, 1994.

The Staff reviewed the reports prepared by Empire State Exterminating, Inc., and argued that the Applicant meets the regulatory requirements for controlling vectors at the Facility. Based on experiences at other transfer facilities, the Department Staff contended that insects are generally not a problem.

Discussion and Ruling: Sections 360-1.14(l) and 360-11.4(e) require the operator of a solid waste management facility to control on-site vector populations to protect human health and the environment. Special Condition No. 13 of the revised draft permit directs the Applicant to implement the approved vector control plan.

The Applicant's vector control plan consists of the two reports prepared by Empire State Exterminating, Inc. dated September 8, 1994 and October 12, 1994. According to the September 8, 1994 report the exterminator recommended a two phase rodent control plan. The first phase would take place before construction begins. It would include using rodenticides to reduce the large rodent population presently on the site, and herbicides to eliminate the overgrowth which harbors the rodents. After the Facility is built, the second phase would consist of continued monthly applications of these products as maintenance. The October 12, 1994 plan outlines bird control. The plan calls for a pre-baiting phase with follow-up baiting sessions. The first two baiting sessions would be done at two week intervals. Later baiting sessions would be repeated as necessary to prevent re-infestation.

The Applicant will implement adequate plans for controlling rodents and birds. Although there is no plan for controlling insects, the Department Staff's argument is persuasive particularly since the Town's offer of proof is not substantive. Consequently, there is no issue for adjudication concerning vector control at the Facility.

3. Noise Control

The Town contended that the Applicant has not shown that noise levels from the Facility would comply with the suburban noise level standards provided in 360-1.14(p) as required by Special Condition No. 14 of the revised draft permit. The Applicant asserted, however, that the Facility would not exceed the background residual sound level because the ambient noise level at the site now already exceeds the suburban noise level standards [360-1.14(p)(1)]. The Department Staff argued that the noise associated with this Project is not unusual or significant.

The Issues Conference participants do not dispute that the existing noise sources near the site include truck traffic on the roads and highways near the site, train traffic, a local rod and gun club, and noise from an industrial park located across the street from the proposed Facility which includes a 38-bay truck terminal. Undeveloped property, the train tracks and a playground lie between the site's eastern boundary and the nearest residential properties located between 1,000 to 2,000 feet away.

Discussion and ruling: This issue has separate legal and factual components. First, there is a legal question about where noise levels must be controlled. In pertinent part, 360-1.14(p) state that noise levels

must be controlled to prevent transmission of sound levels beyond the property line at locations zoned or otherwise authorized for residential purposes...

At issue is whether the property line referred to in the regulations is a facility's property line, or residential property lines. This question is relevant here because the site's eastern property line is not adjacent to residential properties. Rather, non-residential properties are located between the site's eastern property line and the closest residential properties.

The Town argued that 360-1.14(p) requires the Applicant to control noise levels at the Facility's boundary. According to the Town, it would be impractical for the Applicant to measure and control noise levels at properties that are distant from the site and owned by third parties because the Applicant may not have access to these properties. If noise levels from the Facility could be measured from off-site locations, the Town further contended that it would be difficult for the Applicant to differentiate noise levels simultaneously emanating from the Facility and other sources.

According to the Applicant, sound levels should be measured beyond the Facility's property line at the locations zoned or otherwise authorized for residential purposes. The Applicant concluded that the site's eastern boundary line is irrelevant with respect to controlling sound levels from the Facility because the site is not adjacent to any residential property. According to the Applicant, 360-1.14(p) would allow the Applicant to use the non-residential properties located between the site and the residential properties as a buffer either to block or to attenuate noise levels from the Facility.

The Department Staff concurred with the Applicant's interpretation.

To protect residential properties, potential noise impacts should be limited to the Applicant's site See page 12 of In the Matter of the Application of Saratoga County (DEC No. 5-4146-00018/00002-1), Rulings of the ALJ on Party Status and Issues, August 1, 1995.. Hence, when non-residential properties are located between a site and residential properties, the noise levels from the Facility must be controlled at that the Facility's property line. Contrary to the Applicant's and the Staff's view, the Facility cannot use the intervening non-residential properties as a buffer either to block or to attenuate noise further.

The factual component of this issue is whether the Applicant can meet the applicable noise level standards. Special Condition No. 14 of the revised draft permit limits noise levels at the site to the suburban levels identified in 360-1.14(p). According to the regulations, the Leq sound levels cannot exceed 62 dBA from 7 A.M. to 10 P.M., and the Leq sound levels cannot exceed 52 dBA from 10 P.M. to 7 A.M. Also, the revised draft permit condition puts the Applicant on notice that the Department may require the Applicant to monitor noise levels at the Facility.

Section 360-1.14(p)(1) prohibits noise levels from the Facility from exceeding either the background sound levels if these levels are greater than the suburban noise levels, or the suburban noise levels if the background levels are less than the suburban standards. To date, the Applicant has not shown what the background sound level is, and whether the background exceeds the suburban sound level standards in 360-1.14(p). This omission raises factual issues for adjudication about noise levels. At the hearing, the Applicant will have the burden to prove that the Facility would not exceed either the background sound levels if these levels are greater than the suburban noise levels, or the suburban noise levels if the background levels are less than the suburban standards.

In addition, 360-1.14(p)(4) prohibits the noise levels from equipment used at the Facility from exceeding 80 dBA at a distance of 50 feet. With the September 12, 1994 cover letter, the Applicant's engineer submitted specifications for a Komatsu Dozer Shovel (D75S-5) and a Komatsu Wheel Loader (WA450-2). The Applicant stated it would use this equipment, or something similar, at the Facility. These specifications, however, do not show whether the sound levels produced by this equipment would comply with 360-1.14(p)(4). Therefore, the Applicant will have the burden to show that the proposed equipment meets this regulatory standard.

The issues related to noise levels are substantive because the Applicant has not shown that it would meet the applicable regulatory criteria. The noise issues are significant because the outcome could result in permit denial, a major modification to the proposed Project, or the imposition of significant conditions in addition to those already proposed in the revised draft permit.

4. Odor Control

The Town wants the Applicant to design an odor control program that uses deodorizers in the tipping area and in areas where waste would be stored overnight so that odors are not a nuisance or hazard to health, safety or property [ 360-1.14(m)].

The Applicant expects to control odors at the Facility by keeping the doors closed except to let garbage and transfer trucks in and out of the Facility. In addition, the Applicant stated at the Issues Conference that it has investigated the use of deodorizers and would use them if needed.

The Department Staff argued that odors would not be a nuisance or hazard. Special Condition No. 15 of the revised draft permit directs the Applicant to control odors in a manner consistent with the regulations. In addition, this revised draft permit condition puts the Applicant on notice that the Department may require the Applicant to include additional odor control techniques if nuisance odors develop. The Staff pointed out that several other draft permit conditions would also help to control odors. These include requiring all vehicles to have tarps or other covers, transferring solid waste inside the Facility, and cleaning the tipping floor daily.

Discussion and ruling: Pursuant to 360-1.14(m), the Applicant must control odors effectively so they are not a nuisance or hazard to health, safety or property. For the reasons provided below (see, Exhaust and Ventilation Systems), the Applicant's ability to control odors is a substantive and significant issue for adjudication.

5. Exhaust and Ventilation Systems

The Town argued that the Applicant's proposed passive exhaust system does not comply with the regulations which require exhaust removal systems in enclosed areas [ 360-11.3(a)(6)]. The Town recommended that the Applicant develop an active ventilation system for the Facility, and offered the expert testimony of Mr. Woodbury to explain why an active ventilation system is necessary.

The Applicant explained, however, that air would circulate through the Facility six times per hour via the ridge vent along the peak of the roof when the overhead bay doors are opened between 1 to 2 feet.

The Department Staff argued that the Applicant's proposal for ventilating the Facility meets the regulatory standard. Special Condition No. 7 of the revised draft permit, however, puts the Applicant on notice that the Applicant may be required to install an active ventilation system.

Discussion and ruling: Section 360-11.3(a)(6) requires exhaust removal systems in enclosed areas. For the proposed ventilation system to work properly, the bay doors must be opened. However, the Applicant proposes to control odors, in part, by keeping the bay doors closed except to let trucks in and out of the Facility.

With respect to controlling odors and ventilating the Facility, the Town has pointed out an inconsistency in the Applicant's proposal: the Facility would be closed to control odors, but opened to promote proper ventilation. This inconsistency raises a substantive issue for adjudication because it leads me to inquire further about how the Applicant can control odors, and at the same time, ventilate the Facility. This issue is significant because the Applicant may need to modify the methods proposed for controlling odors or ventilating the Facility based on the record of the adjudicatory hearing.

The Town's assertion that the Applicant has not shown how the proposed exhaust system would meet Occupational Safety and Health Administration (OSHA) regulations for carbon monoxide exposure [29 CFR 19190 Subpart Z] is beyond the scope of this hearing. The Department does not implement or enforce these regulations. Therefore, this question is not an issue for adjudication. This determination, however, does not relieve the Applicant of its obligation to meet these regulatory standards, if they do apply to the Facility.

On-Site Traffic and Public Access

Despite the site plan revisions made subsequent to the Issues Conference, the Town maintained that the traffic pattern would not be safe and efficient as required by 360-11.3(b)(1). In addition, the Town asserted that the Applicant does not provide a separate access to the Facility, as required by 360-11.3(b)(2), for passenger vehicles coming to the public drop-off area.

By cover letter dated June 16, 1995, the Applicant provided a revised site plan for the Facility with a proposed on-site traffic pattern. The revised site plan included, among other things, separate entrance and exit roadways with traffic signs for garbage and transfer vehicles, 10 parking spaces for visitors and employees, and 15 parking spaces for transfer vehicles.

In a memorandum dated July 12, 1995 from DEC engineer Cheryl Webster, the Department Staff accepted the Applicant's modified traffic flow pattern.

Discussion and ruling: Pursuant to 360-11.3(b)(1), the expected on-site traffic flow at the Facility must be safe and efficient.

Because of their expense, the Applicant explained that the location of the scale facility dictates the on-site traffic pattern for the Facility. Initially all trucks would be weighed when they enter and leave the Facility. The difference between the two weight measurements is the weight of the solid waste material either being brought to the Facility by garbage trucks, or leaving the Facility in transfer vehicles. When the same vehicles start returning to the Facility, however, the vehicles would only have to be weighed when they were loaded because the vehicles' empty weight would be on record in the scale house. The drivers coming to the Facility would know where the scale was, and when they would have to get their vehicles weighed.

I find that the Applicant's explanation about the on-site traffic flow and its relationship to the location of the scale to be reasonable. Given the revised site plan, I, therefore, conclude that the on-site traffic flow would be safe and efficient as required by 360-11.3(b)(1).

However, the Applicant must provide separate access to the site as required by 360-11.3(b)(2). Section 360-11.3(b)(2) requires separate access for passenger vehicles where there will be public dumping. The language is unambiguous. Consequently, I reject the interpretation by Staff and the Applicant that this regulation is intended to provide separate parking for passenger vehicles. Rather, I interpret this regulation to mean that the Applicant must provide a driveway for passenger vehicles to get to the drop-off area at the Facility which is separate from the way commercial vehicles get to their drop-off area at the Facility. Accordingly, the Applicant will need to revise the site plan and build a separate driveway to the drop-off area for passenger vehicles.

Furthermore, the Applicant must provide additional information about the kind of solid waste that would be accepted at the residential drop-off area, and how the Applicant would comply with any applicable recycling regulations such as 360-11.4(h) [Recoverable solid waste].

Self-Inspection

The Town asserted that the Applicant's self-inspection plan required by 360-1.14(f)(3) is inadequate. In pertinent part, 360-1.14(f)(3) requires the Applicant to monitor and inspect the Facility frequently for malfunctions, deterioration, operator errors, and discharges that may cause a release to the environment or threaten human health.

At the Issues Conference, the Department Staff expressed a concern about controlling litter, and suggested that the Applicant install a fence between the edge of the parking area and the drainage swale on the eastern side of the site as mitigation.

The Applicant asserted that the Daily Inspection Report proposed in its engineering report addresses all the concerns raised by the Town and the Department Staff. Subsequent to the Issues Conference, however, the Applicant changed the site plan to include a fence as suggested by the Department Staff.

Upon review, the Town argued that the fence should be designed to prevent litter from blowing into Rush Creek, and recommended inspections on both sides of the fence at the end of each day to collect litter.

Discussion and ruling: There are no substantive and significant issues for adjudication about whether the Applicant would comply with 360-1.14(f)(3). The Applicant's plan already includes a daily survey of the site for vectors as recommended by the Town. The fence included in the Applicant's modified site plan addresses the concern of the Staff and the Town regarding litter by containing the area on the site that needs to be monitored. According to the Applicant's plan, inspections for litter would occur daily.

Pursuant to 360-1.14(k), dust must be effectively controlled. Based on this requirement, Special Condition No. 16 of the revised draft permit requires the Applicant to submit an acceptable dust control plan to the Regional Solid Waste Engineer within 45 days of permit issuance. Nevertheless, the Applicant must submit this plan for the Department Staff's review before any permit is issued so that all Parties have an opportunity to review the Applicant's dust control plan. If the dust control plan is acceptable, then Special Condition No. 16 of the revised draft permit should be changed to direct the Applicant to implement the approved dust control plan.

The Processing and Storing Capability of the Facility

The Town asserted that the Applicant would not be able to prevent processing operations at the Facility from being curtailed due to equipment failures as required by 360-1.14(f)(2) because there would be only one piece of equipment at the Facility. The Town also contended that the Applicant has not provided an alternate waste handling system for emergencies [ 360-11.2(a)(3)(vi)]. Furthermore, the Town argued that the Facility would not have adequate storage space as required by 360-11.4(g). According to the Town, the lack of adequate storage space would prevent the Applicant from cleaning the processing area every day pursuant to 360-11.4(n).

The Applicant stated that two pieces of processing equipment (a bulldozer and a high loader) would be on the site, and argued that replacement parts and equipment from a near-by repair/rental company could be on the site within an hour. Also, the Applicant argued there would be enough storage capacity on the site, as required by 360-11.4(g), for two reasons. First, the revised site plan provides additional parking space for trailers as recommended by the Town. Second, the Applicant contended that all the material transferred at the Facility would be disposed at these landfills within 24 hours.

The Department Staff asserted that the Applicant has enough processing equipment either at the Facility, or easily accessible to it, to meet the requirements of 360-1.14(f)(2). In addition, the Department Staff reviewed the list of final disposal sites and determined that they are all "appropriately permitted and are acceptable disposal locations for municipal solid waste." (See, Webster memorandum dated July 12, 1995.) Accordingly, the Staff has determined that the Applicant has complied with 360-11.2(a)(3)(i).

Discussion and ruling: Section 360-1.14(f)(2) requires the Applicant to maintain an adequate number and the proper type of equipment at the Facility to prevent processing operations from being interrupted or curtailed due to equipment failures. Section 360-11.2(a)(3)(vi) requires the Applicant to have an alternate waste handling system for emergencies.

There are no issues for adjudication about the Applicant's ability to comply with 360-1.14(f)(2) and 360-11.2(a)(3)(vi). The Applicant has explained there would be two pieces of equipment at the site and that temporary replacements are readily available. Given the accessibility of replacements, the Applicant would be able to comply with 360-1.14(f)(2). In addition, the Applicant said that, through its contracts, it could inform its customers when there was an emergency or an equipment breakdown that would prevent the Facility from accepting solid waste in conformance with 360-11.2(a)(3)(vi).

As required by 360-11.2(a)(3)(i), the Applicant has identified final disposal sites for all the solid waste that would come to the Facility. The Department has reviewed this list and has found the facilities to be acceptable disposal sites. Consequently, there is no issue for adjudication about whether the Applicant has complied with 360-11.2(a)(3)(i).

Section 360-11.4(g) requires the Facility to have adequate storage space for incoming solid waste. There is a factual dispute about the number of parking spaces needed to provide adequate storage at the Facility.

The Facility would transfer 1,000 tons of solid waste per day. According to the revised site plan there would be 15 parking spaces for transfer vehicles. Since some of the final disposal sites are a three hours drive or longer from the Facility, the Town asserted that the Applicant would not have enough time to transfer the solid waste brought to the Facility, and then transport it to distant sites for final disposal before those sites closed for the day. Although the Applicant contended that 15 parking spaces would provide adequate storage space, the Town argued that this number of parking spaces is not sufficient.

Whether there is adequate storage at the Facility as required by 360-11.4(g) is a substantive and significant issue for adjudication. The issue is substantive because the factual dispute demands further inquiry to determine whether the Applicant would meet this regulatory requirement. The issue is significant because the Applicant may have to redesign the Facility to provide additional storage capacity.

Requirements for Processing Construction and Demolition (C&D) Debris

In its petition for full party status, the Town had initially argued that the Applicant had not complied with the provisions outlined in 360-16 with respect to the processing requirements for C&D debris. In response, the Applicant stated that these regulations did not apply to this Facility because the it will be transferring rather than processing C&D debris. The Department Staff concurred with the Applicant's interpretation of this section of Part 360. Based upon the discussion at the Issues Conference, the Town requested an opportunity to review the regulations and provide further analysis, if necessary. In its submission dated July 13, 1995, the Town withdrew this issue, and thus, it is no longer a matter to be considered for adjudication.

Other Issues

I have considered all other proposed issues not explicitly discussed above and conclude they are not substantive and significant issues for adjudication.

Summary of Issues for Adjudication

  1. The Applicant's contingency plan is not complete. The Applicant has not provided a written description of the arrangements made with the local emergency organizations [ 360-1.9(h)(1)(i)]. The Applicant has not described the capacity of the fire fighting equipment that would be installed at the Facility [ 360-1.9(h)(1)(iii)]. The Applicant has not developed alternate evacuation routes [ 360-1.9(h)(1)(vi)]. Although the Applicant has not provided the personnel information concerning who would implement the contingency plan [ 360-1.9(h)(1)(ii)], the Applicant will not be able to comply with this requirement until after the Applicant hires personnel. Nevertheless, clarification at this time in the form of a organizational chart is necessary. At the hearing, the Applicant, therefore, must provide the information needed to complete the contingency plan.

    Adjudication of this issue can be avoided if the Applicant provides the information necessary to meet the requirements identified above before the hearing, and if the Parties agree that the information meets the regulatory requirements identified above.

  2. The Applicant has not provided a consistent explanation of how it will dispose of wastewater resulting from cleaning operations inside the Facility. At the adjudicatory hearing, the Applicant will have the burden to show how it will comply with 360-1.14(b)(2) and 360-11.4(f).
  3. There are factual issues about noise levels. They include determining what the background sound level is, and whether the background exceeds the suburban sound level standards in 360-1.14(p). At the hearing, the Applicant will have the burden to show that the Facility would not exceed either the background sound levels if these levels are greater than the suburban noise levels, or the suburban noise levels if the background levels are less than the suburban standards [ 360-1.14(p)(1)]. In addition, the Applicant will have the burden to demonstrate that the equipment used at the Facility will not exceed 80 dBA at a distance of 50 feet as required by 360-1.14(p)(4).
  4. There are substantive and significant issues about how the Applicant will control odors and ventilate the Facility.
  5. There is a substantive and significant issue for adjudication about whether the proposed Facility has adequate storage space for incoming solid waste as required by 360-11.4(g).

RULINGS ON REQUESTS FOR PARTY STATUS

As provided in 6 NYCRR 624.5, the parties to any adjudicatory hearing are the Applicant, the Department Staff and those who have been granted full party status. As explained above, the Town and United timely filed petitions for full party status. At the Issues Conference on May 18, 1995, however, United withdrew its petition for full party status for the reasons explained above. Therefore, only the Town's petition is considered here.

The criteria for determining whether the Administrative Law Judge should grant petitions for full party status are provided in 624.5(d)(1). Upon review of these criteria and the Town's petition, I find that the Town filed an acceptable petition as required by 624.5(b)(1) and (2). As discussed above, the Town has raised substantive and significant issues for adjudication. Finally, the Town has demonstrated an adequate environmental interest. Therefore, I grant the Town of Hamburg's request for full party status.

APPEALS

Pursuant to 6 NYCRR 624.8(d), the Issues Conference participants may appeal these rulings on issues and requests for full party status. The Commissioner must receive any appeals by September 1, 1995. Replies are authorized, and the Commissioner must receive them by September 15, 1995. Address all appeals and replies to the Commissioner, NYS Department of Environmental Conservation, Room 604, 50 Wolf Road, Albany, New York 12233-5500. Also send copies of all appeals and replies to everyone named on the attached Service List including the Administrative Law Judge. Appeals and replies must be distributed to everyone at the same time and in the same manner.

FURTHER PROCEEDINGS

After the deadline for filing appeals has passed or after the date the Commissioner issues an Interim Decision, which ever is later, I will initiate a conference call with the Parties to schedule the adjudicatory hearing.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: Daniel P. O'Connell
Administrative Law Judge

Dated: Albany, New York
August 17, 1995

To: Attached Service List
Attachments: Appendix A - Revised Draft Permit (Exhibit 3)

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