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Hyland Facility Associates - Ruling, December 18, 1997

Ruling, December 18, 1997

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

- of -

the Application of
Hyland Facility Associates
for modification of its Solid Waste Management Facilities Permit pursuant to
Environmental Conservation Law (ECL) Article 27 Title 7 and Title 6 of the Official
Compilation of Codes Rules and Regulations of the State of New York (6 NYCRR) Part 360

SUMMARY HEARING REPORT,
RULINGS,
and
ORDER of DISPOSITION

File No.

9-0232-00003/00002

The Proposed Project and Permit Sought

Hyland Facility Associates, P.O. Box 68, Belmont, NY 14813 (the "Applicant") seeks a modification of its Solid Waste Management Facilities Permit, previously issued by the Department of Environmental Conservation (the "Department" or "DEC") on May 3, 1995. Statutory and regulatory provisions applicable to processing this type of application are: Environmental Conservation Law ("ECL") Article 3, Title 3 (General Functions), Article 70 (Uniform Procedures), Article 27, Title 7 (Solid Waste Management and Resource Recovery Facilities), and Article 8 (State Environmental Quality Review Act, "SEQRA"). Also, Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 621 (Uniform Procedures); Part 624 (Permit Hearing Procedures); Part 360 (Solid Wastes) ; and Part 617 (SEQR).

Citing changes in the market for ash disposal, the Applicant seeks authorization to dispose of municipal solid waste and non-hazardous industrial waste at Applicant's existing facility, in addition to the previously authorized municipal solid waste incinerator ash. The Applicant's facility is located at the end of Herdman Road, which is west of Peacock Hill Road and approximately 1.5 miles south of the Village of Angelica, in the Town of Angelica, Allegany County, N.Y. The requested modification seeks neither an expansion of the filled area's "footprint" nor an increase the authorized daily tonnage of waste.

Proceedings

The application was initially filed June 18, 1997. Following the submission of other documents, the DEC Region 9 Staff ("Staff") issued a Notice of Complete Application ("NOCA") which was published on July 21, 1997, in the Olean Times Herald and the Wellsville Daily Reporter, and on July 23, 1997, in the Environmental Notice Bulletin ("ENB"). The NOCA advised that the project was "Type I" under SEQR, that it would not have a significant effect on the environment, and that a "negative declaration" was on file. These determinations were challenged during the course of this proceeding, as explained within. Members of the public responded to the NOCA by filing approximately 160 comments with the Department Staff.

On September 2, 1997, the DEC Office of Hearings and Mediation Services (OHMS) received Staff's request to schedule a public hearing. On September 3, 1997, Administrative Law Judge Frank Montecalvo ("the ALJ") was assigned to hear the matter.

The Notice of Public Hearing (the "Notice") was issued on September 10, 1997, and was published on September 17, 1997, in the ENB (in the "Region 8" section), the Olean Times Herald, and the Wellsville Daily Reporter. The Notice was republished October 1, 1997, in the "Region 9" section of the ENB. The Notice was also directly mailed on September 10, 1997, to the Town of Angelica supervisor, the Allegany County clerk, and to other persons deemed interested in the proceeding. The Notice indicated Staff's tentative determination that all requirements and concerns would be met through measures proposed by the Applicant and the implementation of those measures as required by the Draft Permit; that no Part 360 variance requests were applicable; and that a Draft Permit would be placed on file and made available for public review within a few days of the Notice's publication. Petitions to intervene in the hearing were scheduled be filed by October 15, 1997, and written comments on the proposed modification were scheduled to be received by October 21, 1997. The Notice further indicated that comments previously filed in response to the NOCA were already part of the hearing file and did not have to be resubmitted.

The ALJ received Staff's Draft Permit, including General and Special Conditions, on September 26, 1997. Petitions to intervene were filed by (1) Elizabeth S. and Richard J. Klein, (2) the Concerned Citizens of Allegany County, and (3) Craig Schlau and Sheila Grastorf. In a conference call conducted October 20, 1997, between the representatives of the Staff, the Applicant, the petitioners, and ALJs Montecalvo and Helene G. Goldberger, Esq., it was agreed that the Issues Conference, previously scheduled for October 22, 1997, would be adjourned to 10:30 AM, October 30, 1997. It was also indicated that ALJ Goldberger would preside at the legislative session of the hearing. These changes were made to accommodate a change in ALJ Montecalvo's schedule.

ALJ Goldberger convened the public hearing at 7:00 PM on October 21, 1997, at the Genesee Valley High School, Village of Angelica Campus, 21 E. Main Street, Angelica, New York. Thirty-five persons commented on the application at the public statement session. These statements, along with 55 written comments filed pursuant to the Notice and the written comments filed with Staff pursuant to the NOCA (which appear in the record as Exhibits 4C, 4B, and 4A respectively), are summarized in, "Summary of Public Concerns," below. Also at this session, a motion was filed on behalf of the Village of Angelica, requesting that it be added to the petition of Mr. Schlau and Ms. Grastorf.

On October 27, 1997, Applicant, via facsimile, requested that the ALJ view the project site before the issues conference. This request was subsequently objected to and/or was supplemented by requests to visit other landfills by other issues conference participants. No site visit was made and the request is now moot.

ALJ Montecalvo convened the issues conference at 10:30 AM, October 22, 1997, in the Museum building of the Allegany County Office Building complex, Court Street, Belmont, New York. DEC Staff was represented by David Stever, Esq., Assistant Regional Attorney. The Applicant was represented by LeBoeuf, Lamb, Greene & MacRae, LLP; Thomas S. West, Esq., of counsel. Elizabeth S. and Richard J. Klein appeared through Richard J. Klein. The Concerned Citizens of Allegany County appeared through David J. Seeger, Esq. Craig Schlau, Sheila Grastorf and the Village of Angelica were represented by Hodgson, Russ, Andrews, Woods & Goodyear, LLP; Daniel A. Spitzer, Esq., of counsel.

Prior to the issues conference, the ALJ reviewed the contents of the OHMS file, marked certain documents within as exhibits for identification, and prepared a list describing the exhibits. This list was distributed at the issues conference to the conference participants. Upon convening the conference, the exhibits were displayed and the list was reviewed. The ALJ requested that the list be made part of the proceedings' official transcript. The complete list of exhibits, including the additions made at the issues conference, is attached as Appendix A, below.

Once the documents comprising the application and Staff's response were identified, the petitions for party status were reviewed, and each petitioner's environmental interest and proposed issues for adjudication were discussed. The participants indicated that they had no objection to the motion filed on behalf of the Village of Angelica to be added to the petition of Mr. Schlau and Ms. Grastorf, thus, they are treated as being jointly on the petition considered herein. The Issues Conference concluded at approximately 3 P.M.

The transcripts of the Legislative Hearing and the Issues Conference were received November 10, 1997. The matters of whether further proceedings are necessary, what issues should be resolved, and who should participate are now ready to be determined. On November 14, 1997, Applicant submitted a copy of Commissioner Zagata's 10/6/95 affidavit clarifying what constituted the FEIS in the prior proceeding, plus 2 boxes purportedly containing documents referenced in the affidavit. On November 19, 1997, the Kleins submitted a copy of Appendix C to the DEIS, "Market Study and Feasibility Analysis for Hylands Ash Monofill," 7/90, plus material from the NYS Solid Waste Management Plan 1995-6 update. Neither of these submissions were expressly authorized, so they have not been marked as exhibits or been referenced by the rulings herein. To the extent that reference is needed to materials from the prior proceeding, the record here already contains sufficient information from that proceeding to understand the issues presently under discussion. The submissions will be maintained in the file as correspondence.

Summary of Public Concerns

Almost all of the people who spoke at the legislative hearing and the vast majority of those who filed written comments responding to both the NOCA and the Notice were against the proposed modification. The matters discussed in the issues conference were also discussed in the public comments and are detailed below under "Interests and Proposed Issues."

Several persons expressed frustration that in the prior proceedings the ALJ's recommendations against issuing Applicant its original permit were overruled by the Commissioner. The hearing process was called a "placebo." Concerns were voiced over the adequacy of review of what is perceived to be a substantial change in the facility from handling only ash to including municipal solid waste. Commenters were upset that a "dump" is being "rammed down their throats" when there already is a landfill nearby. People do not see why they have to take New York City's waste. They do not want another landfill.

Some believe that the modification will shorten the life of the landfill and thereby significantly reduce the financial benefit that the local community was promised in its Host Community Agreement with the Applicant.

There is concern that the facility will attract seagulls and produce odors and water pollution, with some expressing fear that the site will ultimately become a Superfund cleanup site. It is feared that wells will become contaminated putting farmers out of business. It is thought that because the quality of leachate will be different with municipal solid waste, the design of the leachate collection system should also be different. The proximity of both this facility and the county landfill to a school raised concern over air quality at the school. Based on previous situations, concern was voiced that the facility operators may not have sufficient experience to react appropriately to situations that could arise, threatening safety. There is fear of a greater risk of fire at the facility and the burden it would place on the local fire department.

Commenters believe that the change will adversely affect the local tax base, property values, and community character, and increase noise. There is also fear of increased traffic in the Village of Angelica with a consequential greater risk of accidents, and spills.

Noting Applicant's ownership of neighboring land and a department letter regarding another facility approving of an expansion, one person voiced concern that this facility may expand into a "mega-dump." The person requested review of that possibility now.

It is generally thought that adequate landfill space already exists, and to allow the creation of more would only undercut the efforts of municipalities and unfairly compete with the county landfill. Simply put, the need for another landfill is not seen. There is special concern that this added landfill would adversely affect the Town's recycling rate.

Interests and Proposed Issues

Department Staff and the Applicant

The permit application appears in Exhibits 2A through 2R. Staff's response to the application is detailed in Exhibits 3A through 3L. As stated in the Notice (Exhibit 1), Staff contends that all requirements or concerns will be met through measures proposed by the Applicant and the implementation of those measures as required by the Draft Permit (Exhibits 3H and 3I). The Applicant has accepted the Draft Permit. There are no issues proposed by the Staff or the Applicant.

Elizabeth S. and Richard J. Klein (the Kleins)

The Kleins' position is detailed in Exhibit 5. They have been active supporters of the Allegany County Solid Waste Management Plan (ACSWMP) and were involved with the Cattaragus County Waste Management Plan's phaseout of the Cuba incinerator. They are interested in the "proper implementation of Part 360." The Kleins seek a Supplemental Environmental Impact Statement (SEIS).

The Kleins note that the Draft Permit Special Condition #10 requires the permittee to refuse waste generated within a municipality that either has not completed a Comprehensive Recycling Analysis (CRA) or is not included in another's CRA which satisfies [All regulations cited with the "§" symbol refer to 6 NYCRR.] §360-1.9(f). They seek either adjudication or an SEIS to investigate how these requirements will be met, particularly when waste will be coming in from out-of-state. The Kleins also object to the 12 month delay in implementing this special condition. [I] The roman numerals in brackets indicate where in the ALJ's "Discussion" the paragraph's assertions are addressed.

Noting that the ACSWMP recognizes a continued need for land burial facilities and that the need would be fulfilled by Allegany County Sanitary Landfill, the Kleins contend that the Applicant's acceptance of municipal solid waste would be an economic threat to the county facility. The Kleins further contend that town, county and state officials are concerned over a "negative impact" across New York's entire southern tier. The Kleins offer cost data to demonstrate the economic threat. [II]

The Concerned Citizens of Allegany County (Concerned Citizens)

The Concerned Citizens' position is detailed in Exhibit 6. They were previously accorded Party Status and participated in the adjudicatory proceedings related to the Applicant's original permit.

The Concerned Citizens allege that the Applicant's proposal does not comply with §360-2.12(a)(1)(v) and (vi) which require that landfills be sited where at least 20 feet of unconsolidated deposits with particular permeability characteristics would underlie the landfill liner. Based upon three of Applicant's documents from the prior proceeding, The specific documents referenced are:

"Top of bedrock and Groundwater Contours" dated 12/1/89 revised 10/11/90; "Top of subgrade contours" dated 12/1/89; and "Hyland Ash Monofill Subgrade Plan - Record Drawing" dated 12/13/96.

They allege that the existing monofill has only 15-19 feet of such deposits. They further argue that the proposal will not qualify for a variance of this requirement under §360-2.12(b) because the proposed landfill is not identified as such in the Department-approved Solid Waste Management Plan for the area. The Concerned Citizens offer the testimony of Thomas Santarsiero (who testified in the prior proceeding) that Applicant's own data would establish that less than 20 feet of unconsolidated deposits underlie the base of liner system. They request consideration of this prior data, and also the documents submitted in their August 8, 1997, comment. [III]

Craig Schlau, Sheila Grastorf and the Village of Angelica ("Village and Town Officials")

The petition of the Village and Town Officials is detailed in Exhibits 7 and 7A. Mr. Schlau is the Angelica Town Supervisor and Ms. Grastorf is a member of the Town Board. They seek either an SEIS or an adjudicatory hearing to address certain impacts, proposed conditions, and an alleged non-compliance with SEQR.

Regarding traffic, the petitioners argue that Staff's Negative Declaration, which estimates that an average of 25 truckloads of waste will be delivered per day to the facility, is premised on compaction of the waste stream. Petitioners point out that certain waste streams such as construction and demolition debris, and asbestos, cannot be compacted, and that compaction of certain industrial wastes and sewage sludge was not specifically addressed in the Negative Declaration. Petitioners would like to present testimony and other evidence to show that the level of compaction claimed by the Applicant is not technically feasible. Petitioners also want a hearing on compaction requirements to elicit information from the Applicant on how and where compacting will occur, and an SEIS to consider ancillary environmental impacts. Noting that a similarly sized facility, in terms of daily tonnage throughput, is estimated to receive approximately 115 truckloads per day, the petitioners argue that a more than fourfold increase in truck traffic is potentially significant, and that its impact needs to be examined. Alternatively, petitioners contend that a 25 trucks per day limit should be placed on the facility. Petitioners also express concern that traffic would increase if soil to cover the disposed waste was not available on site and needed to be trucked in. They also question what the impact of the expected larger trucks would be. Petitioners argue that these traffic related concerns together make the need for an SEIS clear. [IV]

Citing the Applicant's reliance on economic conditions for requesting a modification and §617.9(a)(7), the petitioners argue that economic issues, specifically, the modification's impact to the economic viability of the County Landfill, must be examined in an SEIS. Petitioners would like to put on evidence to establish that significant financial harm will accrue to taxpayers if the modification is granted.[II]

Noting the new variety of materials that would be disposed of at Applicant's facility (e.g., waste/wastewater treatment and non-hazardous industrial sludges, construction and demolition debris, asbestos, compost, yard waste and contaminated soil), the petitioners argue that the record is "blank" on the effects of introducing these wastes and, therefore, that an SEIS is needed. The petitioners would like to demonstrate the existence of significant adverse impacts by submitting the EISs for other landfills which will receive similar waste streams. [V]

The petitioners contend that while the Negative Declaration acknowledges that gas will be generated by the waste disposed of on site, it did not quantify the level of emissions or judge if they may represent a potentially significant impact. Petitioners would like to present evidence that gas emissions could represent a significant adverse impact on the environment. [V]

Relying on a statement in the Negative Declaration that disposal operations will cease when wind speeds reach 60 MPH, and noting that ash will continue to be 50% of the waste stream, the petitioners contend that the "Wind Speed limitation" is being increased from 27 to 60 miles per hour and that the Negative Declaration presumes no fugitive ash problems at the higher speed. Petitioners argue that an SEIS is required to consider this change. Petitioners would like to present evidence that the wind speed "restriction" should not be removed. [VI]

Petitioners would like permit conditions limiting the number of trucks, requiring compaction of waste on incoming trucks, and requiring the daily removal of litter. [VI]

Noting that the Department's "Negative Declaration" discusses environmental impacts with reference to Draft Permit conditions (e.g., special conditions 55-56, 63-64, and those related to gas generation), the petitioners allege that the Negative Declaration is actually an illegal "Conditioned Negative Declaration" which is not available for this "Type 1" action under the State Environmental Quality Review Act. [VII]

Discussion

Even though Department Staff and the Applicant are comfortable with the environmental review that was performed to the point where no issues exist between them, the general public and the petitioners still have many concerns. Foremost among these is an overriding concern that the Department may not have taken a "hard look" at the environmental consequences of converting a facility that dealt solely with incinerator ash to, essentially, a conventional landfill that would take in municipal solid waste. Examination of this concern must be with reference to the applicable rules and regulations, and the historical context of this application.

The Applicant proposes to change a facility that already has a permit -- one which presumably minimizes adverse environmental impacts to the maximum extent practicable. Inquiry into the need for a supplemental environmental impact statement would therefore be limited to the specific significant adverse environmental impacts not addressed or inadequately addressed in the Final Environmental Impact Statement that arise from the proposed change (see §617.9(a)(7)(1)(a)). The methodology for determining which specific impacts may be significant and warrant further study is set forth in §617.7.

For all Type I and Unlisted actions, the lead agency making a determination of significance must (1) consider the action; (2) review the Environmental Assessment Form (EAF), the criteria contained in §617.7 (c), and any other supporting information to identify the relevant areas of environmental concern; (3) analyze the identified relevant areas of environmental concern to determine if the action may have a significant adverse impact on the environment; and (4) set forth its determination of significance in a written form containing a reasoned elaboration and providing reference to any supporting documentation (see §617.7(b)).

Here, Staff's review, analysis, determinations and reasoned elaboration are found in Exhibits 3A (the version of the EAF which contains Staff's review notes and comments) and 3B (Staff's determination of non-significance or "Negative Declaration"). Because these essential pieces are present with no obvious gaps (i.e., no sections of the EAF pertaining to specific areas of environmental concern were left totally unaddressed), there appears, on the surface at least, to have been compliance by Staff with its SEQRA responsibilities.

Because the Department is lead agency under SEQRA, as part of this issues ruling, the ALJ may review the Staff's determination not to require the preparation of an environmental impact statement. Where the ALJ finds that the determination was irrational or otherwise affected by an error of law, the determination must be remanded to Staff with instructions for a redetermination. In all other cases, the ALJ will not disturb the Staff's determination. (§624.4(c) (6)(i)(a)). The particular concerns voiced by the petitioners as reason for requiring an SEIS are examined below with reference to this standard.

Apart from requests for an SEIS, the petitioners also seek an adjudicatory hearing to address their environmental concerns. Section 624.4(c) outlines the standards for determining if adjudicable issues exist. When the Department Staff has determined that the proposed 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 proposing the issue to show that the proposed issue is both substantive and significant (In the Matter of the Town of Huntington, Interim Decision of the Commissioner, December 22, 1988 and In the Matter of Bonded Concrete, Inc., Interim Decision of the Commissioner, June 4, 1990. §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 Party Status, the record of the Issues Conference and any subsequent written arguments authorized by the ALJ (§624.4(c)(2); see also In the Matter of the International Business Machines Corporation, Interim Decision of the Commissioner, July 3, 1990.). 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 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 in addition to those proposed in the draft permit (§624.4(c)(3); see also In the Matter of St. Lawrence County, Third Interim Decision of the Commissioner, April 30, 1990; In the Matter of NYC Dept. of Environmental Protection, Chelsea Pump Station, Third Interim Decision of the Commissioner, October 6, 1988 ).

Those seeking to make a matter a hearing issue bear the burden of persuading the ALJ that the matter meets these requirements. To meet the burden, a person should offer assertions that arise from the opinions of qualified prospective witnesses. (Matter of Halfmoon Improvement Area No. 1, Decision, April 2, 1982 ; see also Oneida County's Energy

Recovery Facility, Interim Decision, July 27, 1982).

The particular concerns voiced by the petitioners as reason for requesting an adjudicatory hearing are examined below with reference to these requirements.

[I] Draft Permit Special Condition #10

Draft Permit Special Condition #10 requires the permittee to refuse waste generated within a municipality that either has not completed a Comprehensive Recycling Analysis (CRA, defined in §360-1.9(f)) or is not included in another's CRA. The Kleins question how this condition would be enforced, especially when waste comes in from out-of-state.

At the outset it should be noted that the Kleins do not challenge the Applicant's ability to meet a particular statutory or regulatory criteria applicable to the project. Thus, this is not a substantive and significant issue for a hearing. Rather, they want to know how Staff will interpret and enforce its requirement.

At the issues conference, Staff explained that to enforce this provision, Staff will compare the permittee's list of municipalities that the facility serves (from the report filed annually with the regional solid materials engineer) with Staff's list of municipalities having acceptable recycling plans. The comparison will reveal which municipalities not covered by an acceptable CRA were being served. With regard to out-of-state municipalities, Staff explained that the Department does not have the authority to impose such an "in-state" requirement (i.e., §360-1.9(f)) on waste coming from outside the state and, essentially, would not try to apply it that way. Other issues conference participants disagreed with Staff's assessment of the Department's authority, and voiced concern about DEC's consistency among the regions.

Since no one has alleged that the permit condition itself is illegal, whether or not Staff interprets it in a manner consistent with what may be DEC's full legal authority or with the Department's practice elsewhere does not need to be examined further here. The permit condition is valid.

With regard to the 12 month delay in implementing the requirements of Special Condition #10, Staff indicated at the issues conference that such was no longer the case and that the language would be withdrawn. Applicant did not object to this and Staff's statement effectively ended the discussion about the delay. Any concern over the legality of such a delay is a non-issue as long as Staff follows through by removing the language.

[II] Economic threat to the Allegany County Sanitary Landfill

The petitioners' concerns and offers of proof regarding a threat to the County Landfill and a general "negative impact" across the southern tier neither dispute anything in the application nor question the Applicant's ability to meet particular statutory or regulatory criteria applicable to the project. Thus, these concerns do not raise an issue for adjudication.

Regarding the need to consider the economic impact of Applicant's proposal to the County Landfill, Staff indicated at the issues conference its belief that it did not have the authority to engage in such (Issues Conference transcript, p. 54), and that its role regarding economics was in reference to municipal facilities -- but only to ensure that the municipality had taken economics into account in its decision making (id., pp. 55-6). The cost data offered by the Kleins was in the nature of the dollar value flowing to the County Landfill from particular waste streams ($300,000 per year for non-hazardous industrial waste was specifically mentioned; id., p. 65), and the argument that these waste streams (and revenue streams) could be diverted to the Applicant's facility. Reference was made to a Pennsylvania facility that already attracted a particular waste stream away from the landfill. Applicant argued that it was not in a position to compete with the County Landfill for municipal waste originating within the county because the County does not charge a tipping fee for it. Regarding waste from out-of-county, Applicant argued that such is beyond the Department's authority to regulate. The Village and Town Officials offered to put data from taxpayer groups and taxpaying citizen's records, etc. into evidence on the impact of the change to them. They argue that SEQRA requires a look at economic impact.

SEQRA requires analysis of significant adverse environmental impacts. Consideration of adverse economic impacts that are unrelated to environmental impacts are not within SEQRA's purview (In the Matter of Hyland Facilities Associates, Interim Decision of the Commissioner, August 20, 1992; In the Matter of William E. Dailey, Inc., Interim Decision of the Commissioner, May 14, 1992). SEQR takes economics into account when determining what mitigation of an adverse environmental impact may be required (see §617.11(d)(5)). Here, however, the alleged economic and unspecified "negative" impacts have not been shown to be within the SEQRA definition of " environment" (ECL §8-0105(6)), so the need for further study has not been established.

As discussed above, the methodology for determining significance is spelled out in §617.7. Among the non-exhaustive criteria for determining significance under §617.7(c)(1) is (iv) "the creation of a material conflict with a community's current plans or goals as officially approved or adopted." The argument that the Applicant's proposal is an economic threat to the county landfill may suggest a conflict with the Allegany County Solid Waste Management Plan. Showing that a material conflict exists could provide the needed grounds to remand this matter back to Staff for further study under SEQRA.

In spite of the suggestion, the existence of a conflict with the local solid waste management plan is not apparent. The precise nature of the conflict with the plan was never pointed out. The information discussed at the issues conference indicates that there is already competition for some local waste streams from out-of-state landfills. Thus, competition for these wastes is already a "fact of life" that should not be viewed as a material conflict. There apparently is no competition for the local municipal waste because the county charges no tipping fees. Most telling, however, is that the county itself has not filed for party status to claim that there is a conflict with its plan. If there was a conflict, the county would be in the best position to establish it.

Because Staff's position on this issue appears rational and legal, even in light of the information offered by the petitioners, no SEIS may be ordered.

[III] Compliance with §360-2.12(a)(1)(v) and (vi)

The Concerned Citizens offer the testimony of Mr. Santarsiero to show that the specifications of §360-2.12(a)(1)(v) and (vi), which specify the thickness and permeability of deposits required to underlie landfills, will not be met. Noting that the Concerned Citizens would rely upon certain Applicant documents from the prior proceeding, the Applicant argued that later documents (based on borings) were in that record which superseded the earlier ones (based on an electromagnetic survey), and thus the Concerned Citizens made an insufficient showing to raise an issue (Issues Conference transcript, pp. 73-5). Nevertheless, the Applicant, when asked, was unwilling to state on the record that there were at least 20 feet of sediments present (id., p. 76) and, apparently, did not even try to establish this as fact in its application. When Staff was asked how it could approve such an application, Staff responded that the requirement did not apply because no new or vertical or lateral expansion of an existing landfill was being proposed (id., p. 77). The Applicant agreed with the Staff. The Concerned Citizens responded that the post-October 1993 regulations specify only 10 feet of sediment is required to underlie ash monofills (§360-2.12(a)(3)), thus the lack of 20 feet would not have been an issue earlier (id., p. 79). Pointing to "transition rules," they contended that any landfill cell constructed after such date would have to comply with the new requirements (id., p. 81). Staff countered that the Commissioner's May 1994 ruling established that this facility was subject to the 1988 Part 360 requirements for pre-operation requirements (which did not distinguish between ash monofills and conventional landfills on the thickness of underlying sediments), and the 1993 requirements for operations (id., p. 83). Staff also pointed to §360-1.8(e)(1) [which indicates that proposed permit modifications to authorize disposal operation beyond the limits of the solid waste authorized by the existing permit are to be treated as new applications] to support its contention that this proposal is not for a new landfill.

No factual dispute is apparent, so an evidentiary hearing would be out of order. The Concerned Citizens claim the sediments are less than 20 feet thick, and the Applicant is unwilling to claim otherwise (because both Applicant and Staff do not think it is obliged to). Thus, for the purpose of these rulings, the lack of such thickness of sediments has been established. The issue then becomes a purely legal one. Do §360-2.12(a)(1)(v) and (vi) apply to this application, or not?

Section 360-2.12(a)(1)(v) and (vi), clearly apply only to "New landfills and lateral or vertical expansions of existing active landfills..." In spite of the argument regarding new "cells" and the debate over whether or not this application is subject to the "transition rules"§360-1.7(a)(3)(1)(b), one of the "transition rules," states in pertinent part that "[i]n the case of landfills, a permittee holding a permit to construct that was issued before the effective date of this Part that authorizes the construction of an area must satisfy the appropriate requirements of this Part for those areas not yet constructed but approved for subsequent development." The applicability of the "transition rules," however, is not relevant to the question of whether or not the "20 feet" requirement applies to the Hyland facility under the terms of §360-2.12(a) itself. no one has pointed to anything in the application that indicates that waste will be disposed of over a larger area (either laterally or vertically) than authorized by the original permit, so there is no expansion being proposed. Thus the legal question narrows to whether or not this is a "new" landfill.

There seems to be a suggestion that the currently permitted "monofill" (which is only for incinerator ash) is not a "landfill" to support the argument that Applicant is proposing a new "landfill" that is subject to the new (1993) "20 feet" requirement. The regulations, however, do not draw this distinction. As defined in §360-1.2 (95) and (104), the existing "monofill" is also a "landfill," so a "landfill" already exists under current regulations. Since Applicant's proposal is neither a "new" landfill nor an expansion, under §360-2.12(a)(1)'s own terms, the thickness and permeability requirements in subparagraphs (v) and (vi) would not apply.

As Staff pointed out, there is a distinction in the regulations between "siting" and "operation" requirements. The new "operation" requirements will apply to this facility; the new "siting requirements" apply only outside the confines of what has already been permitted. The old siting requirements apply within the confines. The old siting requirements did not draw a distinction between "monofills" and conventional "landfills" regarding thickness and permeability of underlying sediments.

All this, of course, is little comfort to those who perceive that this will be a vastly different facility that should be subject to the new "20 feet" requirement. Even so, nothing has been offered to indicate that the facility liner and leachate collection system would not adequately protect the environment.

[IV] Traffic

The Village and Town Officials seek an SEIS to analyze the proposed project's impact on traffic and related matters. Although they stated they would also like an adjudicatory hearing on this, their primary thrust is for an SEIS. Since they have not identified a specific statutory or regulatory criterion that the application fails to meet, no hearing issue is raised. Thus, the discussion below focuses on the alleged need for an SEIS.

To understand the "traffic issue" being proposed for further study, it is important to first understand Staff's determination and the documents it relies upon.

Staff's determination is woven of a number of threads. Staff's EAF and Negative Declaration (Exhibits 3A, 3B) specifically addressed "impact on transportation" (EAF) and "landfill traffic" (Negative Declaration). Staff's Negative Declaration indicated that the level of service on nearby roads would be unaffected by the proposed project. Staff relied on the Applicant's statement that transportation of waste is typically in 20-22 ton loads (Exhibit 2F, p. 39) when it estimated the likely number of trucks involved to be at the same level considered in the previous proceeding (i.e., Staff apparently divided the facility's authorized 500 tons of waste per day by 20 tons/load to calculate 25 truckloads -- which would be within the 30 truckloads estimated in the DEIS for the existing facility). Staff indicated in its Negative Declaration (Exhibit 3B, p. 12) that the Applicant stated that the 25 trucks on average could be achieved using larger trucks with compacted loads. The Application (Exhibit 2F, p. 39) relies on a letter (Exhibit 2N) from Earthwatch Systems, Inc. (a waste hauler active in New York State and, thus, subject to Departmental regulation) to establish this tonnage. It should be noted that neither this letter nor the application mentions compaction. That letter states that Earthwatch "routinely" gets 20-22 tons per truck, but that some of its haulers get as much as 28-30 tons. Staff also indicated that it considered recent road improvements and the Host Community Benefit Agreement (by which the Applicant is restricted from routing trucks through the Village) to make its ultimate judgment on the project's potential significance to traffic.

Applicant substantiated its truck traffic estimate with the Earthwatch letter, and the Staff relied upon it to accept the Applicant's estimate. Opinions probably differ upon whether or not Staff should have relied on the letter. However, that is not a question that needs to be answered here. The question that must be answered is have the intervenors shown enough to make it appearirrational for Staff to have done so. Staff routinely exercises judgment on the quality of information it receives when it makes its SEQR determinations. I conclude that Staff acted rationally and no SEIS should be ordered (§624.4(c)(6)(i)(a)).

The Village and Town Officials attack the estimated 25 trucks per day on two fronts. (1) They claim that the level of compaction claimed by the Applicant is not technically achievable, pointing out that certain types of wastes are not compactable. (2) They note that traffic in another similarly sized solid waste landfill application is estimated to be over 115 trucks per day. They do not, however, actually challenge (or even mention) the document which underlies the 25 truck estimate: the letter from Earthwatch, stating its routine experience of hauling 20-22 tons per truck. The Applicant did not discuss compaction so it is unknown what level of compaction intervenors are challenging. At best, the intervenors' information suggests that some others do not routinely achieve the degree of loading that Earthwatch experiences. This information does not make Staff's reliance on the Earthwatch letter appear irrational.

Assuming, arguendo, that the Earthwatch letter is an unreliable indicator of the average tonnage per truckload The Staff would be in the best position to judge the reliability of the letter since the reporting entity is regulated by DEC., the petitioners' information places the potential traffic in the vicinity of 115 trucks per day. While, yes, a four or five-fold increase would be a significant increase in trucks, the next level of inquiry must be is it significant under SEQRA? If we are discussing "traffic," per se, then no showing of significance has been made. Staff indicated that even with such an increase, the neighboring roadways' "level of service" is capable of handling the increase. Staff looked to the "level of service" as the standard for determining the significance to traffic (see Issues Conference Transcript, pp.108-9, 116-7). Staff also looked at truck routing and the Host Community Agreement. Thus Staff has a rational basis for its conclusion regarding traffic, even assuming the intervenors' hypothetical increase would occur. In contrast, the intervenors provide no environmental frame of reference for judging significance. If the roadways are capable of handling such traffic safely, how can the increase be claimed to be significant? On the contention that there may be other environmental impacts such as noise from the increase in the number of trucks (Issues Conference transcript, p. 137-8), suffice it to say that the intervenors did not raise this in their petition, and made even less of a showing on it.

Regarding petitioners' desire to examine ancillary impacts of "compaction," "compaction" is only what Staff expects will be the condition of incoming loads -- it is nothing that the Applicant proposes to do. Thus, it is not something that may be examined in an SEIS here. Petitioners' other concerns regarding the size of the trucks and the idea that cover material may have to be trucked in from off-site have either not been related to specific consequences or are too speculative to warrant further consideration.

Again, the ALJ should not substitute his judgment for Staff's on this point, and because Staff's position on traffic appears rational, even in light of the information offered by the Village and Town Officials, no SEIS may be ordered.

[V] Changes in waste streams and gas generation

Again the Village and Town Officials' assertions regarding methane gas generation from the landfill, and changes in waste streams from strictly ash to include municipal solid waste, are more directed toward establishing the need for an SEIS than the need for an adjudicatory hearing, although a hearing is desired. Regarding the latter, since they do not allege any non-compliance of the application with permit issuance criteria, no hearing issue is raised. Our focus thus turns again to the rationality/legality of Staff's determination not to require an SEIS.

While the proposed change in the facility to handle new waste streams could provide a basis for Staff to require an SEIS under §617.9(a)(7)(i)(a), Staff did not find this to be necessary. On the existing record, Staff's decision was not irrational or illegal.

Contrary to petitioners' assertions, the record is "blank" on neither the effects of introducing the new wastes, nor on gas generation, as an examination of Staff's EAF review notes and the Negative Declaration (Exhibits 3A and 3B) will plainly reveal. Staff's EAF review specifically addressed impacts to land, water, air, plants and animals, transportation, noise and odor, and several other areas of concern. Staff's Negative Declaration addressed the liner system, slope stability, leachate generation and composition, landfill gas generation, gas migration monitoring, fire control, odor control, vector control, litter control, waste recognition and monitoring the waste stream, surface water monitoring, landfill traffic, landfill closure and post closure plan, and Clean Air Act Requirements. Staff gave its reasoned elaboration on why it concluded that this project would produce no significant impact. The fact that Staff may not have focused on a particular question (such as the effect of introducing yard waste) in a particular manner (such as calculating the quantity of gas that could be generated) as the petitioners would like does not mean that Staff failed to take a "hard look" at all the relevant areas of environmental concern. I am satisfied that Staff, in fact, took a hard look and made a reasoned evaluation, as further explained below.

An example of an area that petitioners claim needs further study is methane gas generation. Staff's Negative Declaration addresses methane gas in items 4, "Landfill Gas Generation," and 5, "Gas Migration Monitoring." Staff noted how the Applicant will modify its present facility and/or procedures to address gas generation and to monitor gas migration. Staff noted that gas in landfills with MSW is "a normal occurrence and is routinely managed in accordance with required safety standards for facilities within NY State," and concluded that dealing with the gas that would be produced here "would not result in any unanticipated or significant environmental effects." Staff also noted that the gas monitoring program complies with Part 360 requirements. Given this information, Staff's conclusion of "no significant impact" appears on its face to be rational. Although the petitioners are concerned about methane gas generation, they do not explain why a potential significant environmental impact may exist given all that Part 360 requires and the measures that the Applicant proposes to take. There is simply no indication that Staff's conclusion is erroneous.

Looking at Staff's analysis, Staff appears to have covered all the relevant areas of environmental concern, including the gamut of the public's concerns and these petitioners' concerns that are within Staff's authority to address. Petitioners have only shown that they would have had things analyzed differently. They have not shown that what Staff did was irrational or illegal. Petitioners have therefore not shown enough to warrant returning this matter back to Staff for further study (by, for example, showing that something less than a hard look in fact took place).

[VI] Wind speed, proposed permit conditions

The Village and Town Officials claim that a "hearing is necessary to determine why the DEC staff has removed this issue [wind speed limitations] from the table and abandoned the previous operating limitations." As indicated at the issues conference, the 60 MPH provision, which will pertain to disposal of MSW, is the same requirement that Staff applies to other facilities in the region. Staff and Applicant both indicated that there has been no change regarding any wind speed limitation pertaining to ash disposal. In other words, when ash is being disposed of, the more stringent requirement will apply. While there was some debate about this at the issues conference, the debate was over how provisions of the draft permit and/or the Applicant's operations manual (part of the application) should be interpreted rather than a dispute over the application meeting a specific permit issuance criterion. The confusion appears to warrant clarification of the language in the draft permit, but not adjudication.

There was similar debate over the need for various other permit conditions (i.e., limitation on truck traffic, requirement for compaction, requirement for daily pick up of litter) with no showing that a permit issuance criterion would go unmet absent the requested permit condition. Thus, no hearing issue is raised.

As indicated during discussion, an Applicant is bound to do what it says it will do in an application, and bound to do what the regulations require it to do. The degree to which these promises or requirements should also be repeated or clarified in permit conditions is within the legal practice of the Staff attorneys involved who must ensure that the law is enforced. At most, the ALJ should point out where clarification seems needed. These are not subjects to be adjudicated.

[VII] Alleged illegality of Staff's Negative Declaration

The Village and Town Officials are correct when they say that the Department cannot issue a Conditioned Negative Declaration (CND) for this Type I application. It should be noted that Applicant claims that Staff erred in classifying the project as Type I, saying that it really should have been classified as "unlisted." The regulations authorize the CND only for " unlisted" actions (§617.7(d)(1)). Nevertheless, the petitioners are incorrect in their assertion that Staff's Negative Declaration was really an illegal CND.

Petitioners argue that a CND "is a determination of significance which recognizes potential significant adverse impacts but incorporates mitigation measures included in the project." (See Exhibit 7, item "E"). They cite Staff's conclusion that odors will not be a significant environmental impact, and Staff's reliance on both Part 360 and Special Condition No. 26 (which describes how waste must be covered), as an example of Staff's illegality. Another example cited is Staff's reliance on Applicant's new operating procedures and gas probe and Special Conditions 55-56 (pertaining to probes and closure plan) and 63-64 (requiring a gas collection system and certain emissions calculations and reporting) as another example. Essentially, petitioners argue that Staff is not permitted to rely on anything that may have a mitigative effect (be it a regulation, permit condition or something in an application) to reach a "no significant impact" conclusion. This is not the way the regulations have been written.

Section 617.2(h)defines "conditioned negative declaration" to mean "a negative

declaration issued by a lead agency for an Unlisted action, involving an applicant, in which the action as initially proposed may result in one or more significant adverse environmental impacts; however, mitigation measures identified and required by the lead agency, pursuant to the procedures in subdivision §617.7(d) of this Part, will modify the proposed action so that no significant adverse environmental impacts will result." (Italics supplied.) There is nothing in this definition that would forbid the agency from relying on anything in the application that may mitigate environmental impacts. Modifications made to a project in response to environmental concerns raised during an agency's review have been found to be a legitimate product of the process and did not implicitly convert an ultimate determination of nonsignificance into an improperly conditioned negative declaration (Matter of Merson v McNally, __ NY __, decided October 30, 1997). There is nothing in this definition that would forbid the agency from relying on the requirements of its own regulations that may mitigate environmental impacts. Lastly, there is nothing in this definition that would forbid the agency from relying on permit conditions imposed under authority that is independent of SEQR. To be a CND, Staff would have to impose "SEQR conditions pursuant to subdivision §617. 3(b)" (see §617. 7(d)(1)(iii), italics supplied). Subdivision §617.3(b)'s statement that agency jurisdictions are not changed by SEQR makes clear that the authority for imposing SEQR conditions is independent of the authority an agency otherwise has.

Here, the alleged improper conditions are ostensibly imposed under the authority of Part 360 and other statutes and regulations administered by the Department, rather than SEQR. Since it is not apparent that Staff has illegally issued a CND, the matter will not be remanded back to Staff for correction.

[VII] Party Status and Miscellaneous

Because no substantive and significant issues requiring adjudication have been raised, the matter of party status is moot. All other matters raised at the issues conference and in the filings but not specifically disposed of here are denied.

Rulings

Based on the exhibits, the record of the issues conference and the forgoing discussion, the following rulings are made:

  1. No cause has been shown to direct Staff to reconsider its SEQR determination.
  2. No cause has been shown to direct the preparation of a Supplemental Environmental Impact Statement.
  3. No substantive and significant issues have been raised that require adjudication.
  4. No petitions for Party Status are granted.

Appeals

Pursuant to §624.8(d)(2)(i, ii and iii), parties and potential parties have a right to appeal to the Commissioner, on an expedited basis, any ruling of the ALJ which includes or excludes an issue for adjudication, any ruling on the merits of a legal issue made as part of an issues ruling, and any ruling which affects party status. Pursuant to §624.6(e), such appeals must be filed to the Commissioner in writing within five days of the disputed ruling. Notice of the appeal and a copy of all briefs must be filed with the ALJ and served on all parties and potential parties. Thereupon replies in support of or in opposition to the appealed issues may be filed within five days.

Pursuant to authority in §624.6g), to avoid prejudice to the parties due to the length of these rulings and the fact that they are being sent by mail, additional time is provided for filing appeals herein. All appeals must be received no later than close of business on Monday, January 12, 1998, with replies to be received no later than close of business on Monday, January 26, 1998.

Appeals to the Commissioner are to be sent in duplicate to the following address: Commissioner John P. Cahill, Esq. c/o G. S. Peter Bergen, Esq., Assistant Commissioner; NYS Department of Environmental Conservation; 50 Wolf Road; Albany, NY 12233-1550. (See Service List attached for service on other conference participants).

Order of Disposition

Subject to the Commissioner's determination of any appeals which might be filed herein, and/or a remand from the Commissioner for additional proceedings, absent the existence of issues requiring adjudication, the record is closed, the adjudicatory hearing is canceled pursuant to §624.4(c)(5), and the application is hereby remanded to Department Staff for continued processing as may be required, leading to issuance of the permit as drafted in Exhibits 3H and 3I, modified as stated at the Issues Conference (Transcript, Issues Conference, page 42) to remove the 12 month delay in Special Condition #10. It is also recommended that the permit clarify any wind speed limitations which apply to disposal of ash and which apply to other waste streams.

____________/s/____________
Frank Montecalvo,
Administrative Law Judge

December 18, 1997
Albany, New York

Attachments:

Appendix A - Exhibits List

Appendix B - Official Service List

To: Commissioner Cahill

Official Service List - VIA OVERNIGHT MAIL

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