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Brookhaven, Town of - Issues Ruling 2, August 1, 1996

Ruling 2, August 1, 1996

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter of

the Application for a permit to construct a solid waste management facility pursuant to
Environmental Conservation Law Article 27, Title 7
(Solid Waste Management and Resource Recovery Facilities), and Title 6 of
the Official Compilation of Codes, Rules and Regulations of
the State of New York Part 360 (Solid Waste Management Facilities),

- by -

TOWN OF BROOKHAVEN,

(Suffolk County)

August 1, 1996

Applicant.

ISSUES RULING

Introduction

Applicant has applied to the New York State Department of Environmental Conservation ("the Department" or "DEC") for a Solid Waste Management Facility ("SWMF") permit pursuant to Environmental Conservation Law ("ECL") Article 27, Title 7 and Part 360 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"). Applicant proposes to construct and operate a landfill expansion known as "Cell 5" at the western portion of the existing Town of Brookhaven Waste Management Facility. The landfill is located north of Sunrise Highway and south of Woodside Avenue and Horseblock Road in South Yaphank, Town of Brookhaven, Suffolk County. The 78 acre landfill expansion will include construction of a new 56 acre landfill cell (to be constructed in nine incremental phases), installation of a double composite liner system, a leachate collection and storage system and a landfill gas recovery system. The new cell will accept ash from the Town of Hempstead Resource Recovery Facility (the "Hempstead facility") pursuant to an intermunicipality agreement, and will also accept sewage sludge, sludge ash and unprocessible residues and downtime waste from other solid waste management facilities. The final proposed elevation of Cell 5 is 232 feet MSL (mean sea level).

Pursuant to the intermunicipality agreement, for a term of twenty years the Town of Brookhaven will send to the Town of Hempstead, for incineration at Hempstead's Resource Recovery Facility, all waste generated or originated within the Town of Brookhaven that remains after any waste reduction, recycling, composting or processing efforts, to a maximum of two hundred thousand tons per year. However, Brookhaven is not required to deliver any minimal tonnage or volume of waste to the Hempstead facility. In return, Brookhaven agrees to accept all incinerator ash generated by the Hempstead facility, subject to the Towns' agreement on pricing for receipt of ash; pricing is periodically renegotiated under the agreement.

The agreement is of mutual benefit to the Towns of Hempstead and Brookhaven, since Brookhaven is provided municipal waste disposal at the Hempstead Resource Recovery Facility, and in return, Hempstead is provided with a facility for its non-hazardous municipal solid waste ash disposal.

Regional Staff, after review of the application, made a tentative determination to grant a permit for the project as proposed. Staff prepared a draft permit which has been available for public review since November 17, 1994. Applicant has accepted all terms and conditions of the draft permit.

The Town was the lead agency for purposes of State Environmental Quality Review ("SEQR"). ECL Article 8; 6 NYCRR 617. A final environmental impact statement ("FEIS") was filed on August 10, 1993.

Procedural history

A legislative hearing was held in this matter on February 1, 1995. An issues conference was held on February 2, 1995 and February 3, 1995. On April 26, 1996, Administrative Law Judge ("ALJ") Kevin J. Casutto issued a ruling on proposed adjudicable issues and party status. That ruling, inter alia, required the Town of Brookhaven ("the Town" or "Applicant") to develop a protocol for an ambient air monitoring plan similar to the plan proposed by the Waste Management Institute ("WMI") in FEIS Appendix 11, ("the air study"). The ruling also required Applicant to conduct the study, immediately following Staff's approval of the study protocol.

At the February, 1995 issues conference, Applicant and Staff asserted that no fugitive dust would leave the site. The purpose of the air study was to determine whether incinerator ash dust will migrate off-site to the nearby residential Horizon Village Community, resulting in poor ambient air quality and adverse health-related impacts.

Appeals were taken from the issues ruling. In deciding the appeals, the Commissioner modified the ALJ's ruling in part, and at Applicant's request, revised the air study duration from one year to six months, stating:

The ALJ's Ruling of April 25, 1995, is upheld, as modified by this Interim Decision. There is an adjudicable issue regarding fugitive dust; party status is granted to Consolidated Petitioners and to Horizon Village.

The Applicant is directed to supplement its application to address the fugitive dust issue by performing a six-month ambient air monitoring study of Cell 4's operations. The supplementation shall be designed to determine whether fugitive dust from Cell 5 is likely to travel off-site. Applicant shall submit its supplementation to the ALJ and Staff, with copies to Consolidated Petitioners and Horizon. Staff shall evaluate the Applicant's data and submit its evaluation to the ALJ and Intervenors, copy to the Applicant, within 30 days of receipt of the supplementation; Staff's response will also address the daily cover variance, which Staff shall reevaluate and justify based upon the air monitoring data. The Intervenors shall then have 20 additional days to respond to the supplementation and Staff's evaluation. The ALJ will review the information and determine whether adjudication is necessary, subject to appeals; alternatively, I may intercede and, upon review of the filings, decide the matter directly in the first instance.

The permit to construct may be issued; the permit to operate is granted with respect to those elements of the waste stream, other than incinerator ash, for which the permit to operate is sought. The permit to operate shall remain contingent upon an adequate showing by the Applicant that fugitive dust will not leave the site.

Commissioner's Interim Decision (July 27, 1996)

The Interim Decision also required that Staff identify operational controls to assure fugitive dust does not leave the site, in the event the study predicts off-site fugitive dust emissions will occur.

The Air Study, Staff's Evaluation and Parties' Comments and Replies

Staff issued a permit to Applicant under cover of letter dated August 4, 1995. Applicant's environmental consultant, RTP Environmental Associates, Inc., developed and implemented an air study to evaluate fugitive dust impacts. RTP's one-volume study, "Phase 1: Ashfill Emissions and Impacts," was filed with this Office on March 26, 1996. The study's primary authors were Kenneth J. Skipka, M.S., Certified Consulting Meteorologist, Kevin Goohs, M.S., Environmental Engineer and R. Scott Mills, Project Engineer.

Phase I of the study addressed dust emissions from the landfilling of non-hazardous municipal incinerator ash at Brookhaven landfill Cell 4. RTP conducted a total of sixteen tests to determine fugitive ash dust release rates at the site. The data collected were used to determine actual Cell 4 emission rates. These emission rates were then used to predict worst-case emission rates for proposed Cell 5 operations. RTP used the EPA-approved atmospheric dispersion computer model ISCST3, a conservative area source computer model, to develop predictions of off-site and boundary line emissions. The modeling analysis included separate runs for the three averaging times of concern; 1-hour, 24-hour and annual exposure rates, and projected Cell 5 emissions for four separate periods of operation during years 1 through 15. Based upon the study results, Applicant concluded that landfilling of incinerator ash at Cell 5 will not pose a significant threat to public health and welfare.

Upon Staff's receipt of the study, Staff requested that Applicant provide extensive supplemental information for Staff's review. Applicant filed a second volume entitled "Responses to DEC Request for Additional Information" on April 26, 1996.

Pursuant to a schedule set by the ALJ, Staff filed its evaluation of the two-volume study on April 24, 1996. Subsequently, Staff received and filed with this Office, a letter from N.Y.S. Department of Health ("NYSDOH"), commenting upon the two-volume study. (Wilson to Riley, May 20, 1996). Upon its review of the data, NYSDOH concluded that "off-site exposure to dust will be minimal and will not be a health concern. On June 6, 1996, Horizon and Consolidated Petitioners jointly filed their comments and proposed issues, including the comments of their proposed expert witness, Robert L. Selvey, M.S., C.I.H.

The Intervenors' proposed issues are summarized as follows:

  1. The Commissioner ordered a six-month study, but the study conducted by Applicant comprised little more than a month and a half of sampling.
  2. Sampling to predict the effect of wind erosion was not adequate, because Applicant obtained only one sample at "high wind speed" during non-active filling sampling events.
  3. In data results reported in Applicant's study Table 4.1-A, Applicant has arbitrarily subtracted 50 mcg/m3 from some upwind data measurements.
  4. Issues related to the location of sample collection points: a) Applicant erred in location of upwind and downwind samplers; b) upwind sample data should be lower than downwind sample data; c) Cell 4 boundary samples and off-site samples should have been obtained. Such sampling was contemplated by the proposed WMI study described in the FEIS, and is required by the Commissioner's July 27, 1995 Interim Decision.

By letter of June 19, 1996, responding to a motion by Applicant, Assistant Commissioner Bergen advised the parties that Commissioner Zagata would not intercede in the hearing process and the case would remain with ALJ Casutto.

At Applicant's request, absent objection from Horizon or Consolidated Petitioners, ALJ Casutto authorized Applicant and Staff replies to the Intervenors' joint filing of June 6, 1996. Those filings were received by July 10, 1996. The reconvened issues conference session was held on July 16, 1996 at the NYSDEC Region 1 Offices, Stony Brook, New York.

The Reconvened Issues Conference

The Town of Brookhaven appeared at the July 16, 1996 reconvened issues conference by Dexter Ewel, Esq., Special Counsel to the Town of Brookhaven, 9717 Brimfield Court, Potomic, Maryland, 20854. Appearing with counsel was Kenneth Skipka, Certified Consulting Meteorologist and principal of RTP Environmental Associates, Inc. ("RTP").

Department Staff ("Staff") appeared by Regional Attorney Lori Riley, New York State Department of Environmental Conservation ("NYSDEC" or "Department") Region 1, S.U.N.Y. Campus, Loop Road, Building 40, Stony Brook, New York 11790-2356. Appearing with counsel were Leon Sedefian, Chief of Impact Analysis Secition, Division of Air Resources, Anthony Cava, Regional Solid and Hazardous Materials Engineer, Division of Solid and Hazardous Materials, and Dharmendra Patel, Environmental Engineer I, Division of Solid and Hazardous Materials.

Arthur Governali and James Vaz, individually and on behalf of the homeowners of the Horizon Village Community ("Horizon Village" or "Horizon") appeared by James Vaz, President of Horizon Village Community, 38 South Village Drive, Bellport, New York. The Consolidated Petitioners, on behalf of 15 community groups and individuals including the South Country and Longwood School Districts, five Parent-Teacher Associations, the Bellport Teacher's Association and several environmental groups and other civic citizen groups ("Consolidated Petitioners"; "Consolidated Petition") appeared by Nanette Essel, 9 Long Island Avenue, Yaphank, New York 11980. Appearing with Horizon and the Consolidated Petitioners was Robert L. Selvey, M.S., Certified Industrial Hygienist ("CIH").

Also present at the issues conference were Lloyd Wilson, Research Scientist III, Section Chief, Research and Technical Section, N.Y.S. Department of Health and Jana Whalen, Research Scientist I, N.Y.S. Department of Health.

Standard of Review

The Commissioner's Interim Decision granted party status to Horizon and the Consolidated Petitioners. 6 NYCRR .624.4(c) outlines standards for identifying an adjudicable issue. If Staff has determined that a project, as conditioned by the draft permit (in this instance, the August 3, 1995 permit), will conform to all applicable statutory and regulatory requirements, the burden of persuasion is on the petitioner for party status to show that the proposed issue is both substantive and significant. 6 NYCRR .624.4(c)(4).

As applied in this case, Applicant supplemented its permit application by conducting an air study approved by Department Staff. Department Staff, by letter dated April 24, 1996, has evaluated the study data in detail, and has approved the study result. Staff's conclusion is that dust emanating from the facility is unlikely to constitute a nuisance or hazard to health, safety or property. Staff recommends that Applicant be authorized to accept nonhazardous ash having a minimum 20% moisture content from waste-to-energy facilities, consistent with the solid waste management facility permit issued to Applicant, effective August 3, 1995. Staff further recommends granting a daily cover variance from 6 NYCRR .360- 2.17(c). Therefore, Intervenors bear the burden of persuasion to show that a proposed issue regarding the air study is both substantive and significant.

An issue is substantive if there is sufficient doubt about an applicant's ability to meet statutory or regulatory criteria such that a reasonable person would inquire further. 6 NYCRR .624.4(c)(2). To determine whether an issue is substantive, the ALJ must consider the proposed issue in light of the permit application and related documents. In this instance, related documents include the air study, Staff's evaluation of the study, comments and replies of the parties and the record of the reconvened issues conference. 6 NYCRR .624.4(c)(2). In proposing an issue for adjudication, an offer of proof must go beyond an expression of concern, and provide a basis upon which those concerns can be judged. In the Matter of the Applications of Ogden Martin Systems of Onondaga, Inc., et al., Interim Decision of the Commissioner, May 4, 1992; Halfmoon Water Improvement Area No. 1, Interim Decision of the Commissioner, April 2, 1982. A substantive issue cannot merely be based upon speculation, but must be based upon on facts that can be subjected to adjudication. In the Matter of Concerned Citizens Against Crossgates v. Flacke, 89 AD2d 759 (3rd Dept., 1982), aff'd., 58 NY2d 919 (1983).

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 beyond those contained in the August 3, 1995 permit. 6 NYCRR .624.4(c)(3).

The Joint Filing of Horizon Village Community and Consolidated Petitioners

Horizon and Consolidated Petitioners ("Intervenors") jointly filed comments and proposed issues related to the air study, by four-page letter dated June 6, 1996. Enclosed with the letter is a five-page evaluation and recommendation on the air study (plus attachments), prepared by Robert L. Selvey, M.S., C.I.H., the Intervenors' proposed expert witness. Selvey's resume indicates he has 16 years experience in laboratory analysis and comprehensive practice of environmental health hygiene.

My analysis of the information presented at the issues conference follows below. In cases such as this, highly technical and complex information is presented via offers of proof regarding health impacts. In evaluating such scientific information generated by an applicant, I must give great deference to expert opinions and justifications from authoritative sources such as USEPA, NYSDOH and Department Staff, particularly where not overcome by a persuasive contrary offer of proof.

In the instant case, the record demonstrates that Applicant's air study was based upon sound scientific principles and incorporated very conservative protocols, computer modeling and procedures designed to account for worst-case conditions as an additional assurance in protecting public health. Furthermore, Department Staff independently conducted additional conservative computer modeling of Applicant's data to verify Applicant's results. Staff reports this independent analysis showed that at Horizon Village, even assuming worst-case maximum impacts, PM-10, TSP and toxic metals were at least an order of magnitude below the corresponding standards and guideline levels. Moreover, NYSDOH reviewed the study and compared upwind and downwind results at the working face under conditions that maximize fugitive dust emissions. NYSDOH concluded that such predicted emissions were below all applicable guidelines and standards, and that off-site exposure to dust is not a health concern.

Overall, Intervenors have failed to effectively rebut those results or the methods used to obtain those results on the record before me. As discussed at greater length below, I find that Intervenors failed to present any issue requiring adjudication.

  1. The Length of the Study and Related Issues

    Intervenors assert that the Commissioner's Interim Decision required a six-month study, but the study conducted by Applicant comprised little more than a month and a half of sampling events. The Interim Decision required a six-month program consisting of the same number and type of samples as described in the proposed WMI one-year study. The WMI proposal included particulate sample collection every two weeks over a one year period.

    Intervenors also cite the August 3, 1995 permit, which requires that the air study

    ". . . consist of a six month study of ambient air quality at and adjacent to the Town Waste Management Facility designed to determine whether fugitive dust from the existing Cell 4 is traveling off-site, and whether fugitive dust from Cell 5 is likely to leave the site."

    Permit, effective August 3, 1995, Special Condition II(1)(A).

    However, Intervenors assert that Applicant, with Staff's approval, conducted all sample collection from August 10, 1995 through September 28, 1995, a period of just over one and one half months. Intervenors conclude that Applicant and Staff have not complied with the Commissioner' six-month directive, set forth in the Interim Decision. Applicant and Staff concede that the sampling occurred during August 10, 1995 through September 28, 1995, but assert that the study exceeded the number and type of samples as described in the WMI-proposed one-year study. Intervenors do not disagree. In fact, Selvey states in his June 6, 1996 filing that the sampling and analysis plan for the study are sound.

    Applicant and Staff state that the study is a three phase study. The Phase I sampling addresses the fugitive dust portion of the study, at issue in this proceeding. Applicant rearranged the order of sampling so that the Phase I sampling would occur in the first one and one half months of the study. (Staff is reviewing Phase II and Phase III data.) Applicant and Staff assert that only Phase I is at issue with respect to satisfying the Commissioner's Interim Decision. They state that as the study protocol was developed, the study protocol changed substantially from the WMI proposal described in FEIS, Appendix 11.

    Nonetheless, Applicant and Staff assert that the study Applicant conducted is scientifically superior to that proposed by WMI, and therefore provides a more accurate prediction of fugitive dust emissions. For example, The WMI proposal contemplated standard fixed location downwind samplers. Applicant and Staff state that sampling events were conducted with the downwind samplers being relocated on a daily basis to account for changing wind conditions. They assert this resulted in more effective measurement of dust emissions from the site. Consequently, Applicant and Staff assert they have complied with the spirit of the Commissioner's Interim Decision, if not with the letter of that Decision.

    In support of Staff's position, Sedefian noted that the observed data occurred over only a portion of a day, whereas the health standards are based upon daily or annual averages. Sedefian stated that if the observed data were modified to account for this, the data indicates that even immediately adjacent to the ashfilling and road activities, particulate concentrations are well within any health standards; in the direction of Horizon Village, Staff has erred on the conservative side by orders of magnitude.

    Further, Applicant and Staff assert that the Commissioner did not require six months of particulate sampling events, but a study that from conceptualization to implementation and evaluation, was of six months duration. The WMI proposal required one year of particulate sample collection. The Commissioner shortened the length of the study from one year to six months, at Applicant's request but based upon the WMI proposal of one year of sampling. I reject the explanation offered by Applicant and Staff regarding their interpretation of the Commissioner's Interim Decision. Nonetheless, I am persuaded that the sampling events and computer modeling conducted by Applicant do comply with the intent of the Interim Decision, in that the Applicant's air study is scientifically reliable to determine whether fugitive dust from the existing Cell 4 is traveling off-site. I note that Intervenors concede that the sampling and analysis plan designed by Applicant and reviewed and approved by Staff were sound. Therefore, this proposed issue is not significant because the sampling and analysis plan are scientifically reliable to predict Cell 5 fugitive dust emissions. 6 NYCRR 624.4(c)(3).

    The Daily Cover Variance

    Intervenors assert that eliminating the requirement of daily cover material at the Cell's working face will have health-based implications. But Staff concluded that even if daily cover material is not applied, the non-hazardous ash will not pose a threat to human health or the environment by failing to control vectors, fires, odors, blowing litter or scavenging. In addition, Staff concluded that dust emanating from the facility is unlikely to constitute a nuisance or hazard to health, safety or property. Staff based these conclusions upon the physical, chemical and biological properties of non-hazardous incinerator ash, as well as its evaluation of the study data.

    In its evaluation of Applicant's data, Staff found that Applicant used conservative assumptions and an EPA-approved conservative area source computer model for the modeling of ambient air impacts. Moreover, Staff projected worst-case levels of off-site fugitive dust emissions using one year of representative Islip meteorological data and one-half year of on-site collected data. For example, the simultaneous operations of all ashfill activities were maximized, as was the wind erosion potential.

    Based upon these computer modeling projections, Staff concluded that the worst-case levels of off-site fugitive dust emissions are below all applicable health based National Ambient Air Quality Standards and below all Departmental and NYSDOH ambient guideline concentrations. Staff noted that the same conclusion is supported by ambient air data monitored in very close proximity of the landfill Cell 4 operations. Therefore, Department Staff recommends that the Commissioner authorize Applicant to accept non-hazardous incinerator ash as specified in the permit. Staff also recommends the Commissioner grant Applicant's request for variance from the daily cover requirement of 6 NYCRR 360-2.17(c).

    Operational Controls

    Staff has determined that fugitive emissions will occur, but has not provided any operational controls to assure that off-site emissions do not occur, as required by the Commissioner's Interim Decision. Instead, Staff asserts that because the study shows that worst-case levels of off-site fugitive dust emissions are below all applicable health based federal and state standards, Applicant meets all statutory and regulatory criteria.

    For example, 6 NYCRR .360-1.14(k) requires that,

    "[d]ust must be effectively controlled so that it does not constitute a nuisance or hazard to health, safety, or property. The facility owner or operator must undertake any and all measures as required by the department to maintain and control dust at and emanating from the facility."

    Staff asserts that Applicant has shown through its air study that it will operate the facility well within all applicable health based federal and state standards. Accordingly, Staff concludes that Applicant has demonstrated compliance with the requirements of 6 NYCRR .360-1.14(k).

    RULING: I find no adjudicable issue regarding the length of the study. The daily cover variance should be granted to Applicant. Applicant has demonstrated compliance with the requirements of 6 NYCRR .360-1.14(k).

  2. Wind Erosion

    Intervenors assert that sampling to predict the effect of wind erosion was not adequate, because Applicant obtained only one sample at high wind speed (10+ MPH) during non-active ashfilling sampling events. However, Skipka explained that sampling during active ashfilling included instances at high wind speed and that the effects of wind erosion are accounted for in those samples, as well. Selvey conceded this point at the issues conference.

    Sedefian stated that the wind erosion data is particularly conservative and scientifically sound. Further, he stated that RTP applied assumptions that worked against the Town's interest in terms of the estimated emission rates regarding the wind erosion factor, and were thus more conservative. RTP could have used an EPA- proposed wind speed cutoff that was considerably higher than RTP used. The higher wind speed would have resulted in lower frequency of that wind speed occurring and, consequently, less frequency of wind erosion occurring. Therefore, Sedefian concludes that the estimated impact of wind erosion in the air study is very overstated. He concludes that even when employing such levels of scientific conservatism in the air study, predicted fugitive dust emissions are well below all applicable standards and guidelines. At the issues conference, Intervenors did not dispute this characterization of the wind erosion component of the study.

    Ruling: No adjudicable issue is presented regarding wind erosion.

  3. Table 4.1-A

    Intervenors assert that Applicant has arbitrarily subtracted 50 æ/m3 (micrograms/cubic meter) from some upwind data points compiled in Table 4.1-A of Applicant's air study. Table 4.1-A reports data observed in the field in the "Observed Concentrations" column. Table 4.1-A reports adjusted data in the field in the "Adjusted Concentrations" column. Applicant used the adjusted concentration data in its air modeling program to predict impacts of the proposed Cell 5.

    Intervenors assert that if Applicant's adjustments to the data are scientifically sound, the study stands on its merits; but if Applicant's data adjustments are arbitrary, then the study model is not reliable. Skipka explained that the data was adjusted to remove upwind particulate concentrations from the modeling calculations, in order to more accurately predict the existence of fugitive dust emissions from proposed Cell 5. This adjustment to data was part of the computer modeling of data and was done to remove the effect of local sources that at times had very significant effects on the upwind sampler data. RTP computed the value of 50 æ/m3 to account for this loading of the upwind sampler. Skipka further stated that in the field, one cannot control the upwind particulate sources. Therefore, RTP made adjustments for those upwind concentrations as field conditions were encountered for each sampling event.

    Intervenors are understandably interested in knowing the source(s) of background particulates and also, the cumulative particulate concentrations at the Cell 4 boundary and at Horizon Village. Yet, at the issues conference session, Selvey conceded that the Commissioner's Interim Decision did not require determining the source of background particulate concentrations; and that the Commissioner required Applicant to determine impacts of Cell 4 as a predictor of Cell 5 impacts.

    Ruling: No adjudicable issue exists regarding adjustments to field data, as compiled in Table 4.1-A.

  4. Location of Sample Collection Points and Related Issues

    Intervenors assert several issues related to the location of sample collection points.

    Location of Upwind and Downwind Samplers

    At the July 16, 1996 issues conference, Selvey withdrew his June 6, 1996 written comment that implementation of the sampling plan in the field was flawed. Selvey Evaluation, p.2. Applicant's July 9, 1996 filing in response to Selvey's evaluation notes that concentrations decrease exponentially as distance from the source increases, not linearly as Selvey asserted. Selvey conceded this error. Selvey also stated at the issues conference that with respect to the location of downwind samplers, he misapprehended the spatial relationship of the downward sampler locations. At the issues conference, Intervenors withdrew this proposed issue.

    Boundary Samples and Off-site Samples

    Intervenors assert that Cell 4 boundary samples and off-site samples should have been obtained, because such sampling was contemplated by the WMI-proposed study described in the FEIS. Intervenors also state such sampling is required by the Commissioner's Interim Decision:

    While I affirm the ALJ's Ruling in requiring the air monitoring program as a condition of the permit to operate as further discussed herein, I find that a six-month program commencing immediately and consisting of the same number and type of samples as the proposed one-year study would be adequate to determine whether ash particulates (fugitive dust) are likely to leave the site and what operational controls are required to assure fugitive dust does not leave the site.

    Interim Decision, page 4. Intervenors assert boundary samples and off-site samples should have been collected, to confirm computer modeling results. Selvey recommends as an alternative to the modeling method applied by Applicant, the direct measurement of airborne particulate concentrations at boundary and off-site areas of concern.

    Skipka responded that the best background samples would be obtained by placing the background sampler as close as possible to the source under study. This is what Applicant did, with Staff approval. Skipka stated that obtaining a "regional background" for this type of study would be very difficult because there are many other sources of dust in the area of the Cell 4 ashfill. He stated that this is compounded by changing wind directions that would make establishing a regional background particulate concentration extremely difficult. For these reasons, RTP selected the background point as the point immediately upwind of the source selected for study. RTP did so to better identify what particulate concentrations are present in the area immediately upwind of the site under study. RTP then used this background data in the modeling calculations to remove the background concentrations from the impact of the source sought to be studied. Staff approved this protocol, and concurs with Applicant's explanation.

    Relationship of Upwind and Downwind Sample Data

    Intervenors, through Selvey, asserted in their June 6, 1996 filing that upwind sample data should be lower than downwind sample data. Skipka agreed that this would be correct, but only if just one potential source of dust existed. Further, Skipka asserted that since there are many other sources of dust in the area of the site, Intervenors' contention is not correct. At the issues conference, Selvey acknowledged this point and Intervenors did not dispute Skipka's explanation.

    Ruling: Intervenors have withdrawn the proposed issue regarding the location of upwind and downwind samplers. No adjudicable issue is raised regarding boundary samples and off-site samples. Nor is any adjudicable issue presented regarding the relationship of upwind and downwind sample data.

Appeals

Pursuant to 6 NYCRR .624.8(d), these Rulings on party status and issues may be appealed in writing to the Commissioner by August 14, 1996. Reply briefs to any such appeals must be filed by August 23, 1996. All appeals and replies must be addressed to the Office of the Commissioner, NYSDEC, Room 604, 50 Wolf Road, Albany, New York 12233-1010, must include an original and two copies, and must be received by that Office by the dates indicated herein. Additionally, a copy of all such appeals, replies, briefs, and other related filings must also be sent to the ALJ's attention at the Department's Office of Hearings and Mediation Services, and to all .persons indicated on the current Service List. Transmittal of documents must be made at substantially the same time and in the same manner to all persons.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
Kevin J. Casutto
Administrative Law Judge

Dated: August 1, 1996
Albany, New York

TO: Service List

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