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Hyland Facility Associates - Decision, March 6, 1998

Decision, March 6, 1998

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1010

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

DEC File No. 9-0232-00003/00002

DECISION

March 6, 1998

Decision of the Commissioner

Three intervening parties have appealed to the Commissioner pursuant to 6 NYCRR 624.8(d)(2) from the Rulings of Administrative Law Judge ("ALJ") Frank Montecalvo dated December 18, 1997 in this permit modification proceeding. This decision confirms the ALJ's rulings and denies the appeals.

Background

Hyland Facility Associates ("Hyland") is in the final stages of construction of a landfill facility in the Town of Angelica in Allegany County. The landfill is being built pursuant to authorization granted by a solid waste facility permit issued by the Department in May 1995 pursuant to 6 NYCRR Part 360. See Decision of the Commissioner in the Matter of the Application of Hyland Facility Associates, April 13, 1995, aff'd In the Matter of Concerned Citizens of Allegany County, et al v. Zagata, 231 AD2d 851, 647 N.Y.S.2d 614 (1996). The 1995 permit specifies that the landfill facility is to be built with a double composite liner and a pore pressure relief system and leachate collection system;See p. 8 of ALJ DuBois' Report attached to the Commissioner's Decision of April 13, 1995, supra Fn. 1, and See Permittee's Application for a permit modification in this proceeding, Issues Conference Ex. 2F at pp. 1-2. as such it is designed and built to protect ambient groundwaters from contamination potentially attributable to municipal solid waste ("MSW") as well as ash. While the facility meets or exceeds requirements for MSW landfills, the 1995 permit authorizes disposal of MSW incinerator ash only.

In June 1997, Hyland petitioned the Department for a modification to its permit so that the landfill facility would be allowed to receive not only MSW incinerator ash, but also unincinerated MSW and non-hazardous industrial waste. Hyland's permit modification request was made because the previously anticipated demand for MSW incinerator ash disposal capacity has not materialized. In significant measure this is attributable to regulatory changes since the facility was initially planned. Such changes have greatly increased available options for disposal of ash from MSW incinerators. It appears that authorization of the requested change in the waste stream allowed to be disposed of at Hyland would make the facility more competitive within the waste disposal market as it currently exists (See Application for Modification, Issues Conference Ex. 2F at pp. 2-3).

The requested permit modification relates only to allowing disposal of MSW and non-hazardous industrial waste at the landfill. There is no request to increase the lateral or vertical size of the existing landfill facility (Id. at pp. 3-5).

As explained in the ALJ's hearing report and rulings (pp. 2-3), Department Staff reviewed the application to modify the permit and on July 14, 1997 determined that the granting the requested permit modification would not have a significant effect on the environment. Accordingly, Staff determined that there was no need for the Permittee to prepare a draft environmental impact statement ("EIS") under the State Environmental Quality Review Act ("SEQRA") with respect to the requested modification. This determination, a negative declaration under SEQRA, included a written Staff analysis of environmental concerns (See Staff's Negative Declaration, Issues Conference Ex. 3B).

Thereupon, a draft modified permit was developed and the matter was noticed for public hearing and an issues conference before ALJ Montecalvo. Following the issues conference the ALJ concluded that there are no issues requiring adjudication and that the matter should be remanded to Staff for issuance of the requested permit modification. The ALJ's report and rulings were issued on December 18, 1997. This appeal followed. The issues on appeal arise under the rubrics of (1) groundwater separation under 360-2.12(a)(1)(v) and (vi), (2) SEQRA, and (3) other issues. These are discussed below.

1. Groundwater Separation

The appeal of the Concerned Citizens of Allegany County ("CCAC") asserts that the ALJ should have applied the 20 foot groundwater separation requirement of the Department's current solid waste facility siting rule, 6 NYCRR 360-2.12(a)(1)(v) and (vi), and come to the conclusion that a substantive and significant issue for adjudication exists. I cannot agree with CCAC. The provisions of 360-2.12 became effective on October 9, 1993, and relate to "landfill siting," specifically to the siting of "new" landfills and to "lateral or vertical expansions of existing active landfills." The permit modification request under consideration relates to a change in the waste stream allowed to be received at an existing landfill where no lateral or vertical expansion is involved. The modification under consideration here does not cause Hyland to be reclassified as "new" under the Department's Part 360 rules. The Hyland landfill was sited under siting regulations in effect prior to October 9, 1993. While the operational requirements of the 1993 modifications to the regulations will apply to the Hyland facility, the design and siting requirements do not. See Part 360-1.7(3)(vi) (effective October 9, 1993), relating to transition from the 1988 rules to the 1993 rules with respect to complete applications pending as of October 9, 1993. Where an application was complete on or before October 1993, the Department applies the rules in effect as of the date of completeness [1991 in this case], except that operational, closure, and post-closure requirements set forth in the 1993 revisions will apply.

The transition rules take into account and recognize the reality that design and siting processes generally consume extensive periods of time, and that subsequent processes should not necessarily be truncated by the introduction of new requirements. Moreover, the record here supports a conclusion that there is reasonable assurance here that the Hyland liner system is consistent with requirements set forth in Part 360 for MSW and co-mingled MSW and ash landfills in the State (See Application, Issues Conference Ex. 2F, and See Negative Declaration, Issues Conference Ex. 3B at p. 2).

CCAC's additional contention that the facility is "new" within the meaning of 40 CFR Part 258.2 fails because that definition applies only to Part 258 itself, and Part 258 does not contain a provision comparable to the groundwater separation specification of Part 360-2.12(a)(1)(v) and (vi).

In conclusion, the 20 feet separation siting requirement is inapplicable. The facility as designed and built is acceptable for receipt of MSW. Accordingly, as to this issue, I concur with the ALJ that no substantive or significant issue is raised with respect to compliance with 360-2.12(a)(1)(v) and (vi).

2. SEQRA Issues

The three appeals each raise objections to the ALJ's rulings on the ground that either he should have ordered preparation of a supplemental environmental impact statement ("SEIS"), remanded to Staff to correct what they perceive to have been issuance of an unlawful conditional negative declaration, or ordered hearings to receive more evidence on various SEQRA issues. The ALJ concluded that the Negative Declaration was not irrational (See 624.4(6)(c)(I)(a)); that the Negative Declaration was not "conditional;" and that no substantive and significant SEQRA issue had been raised. I concur for the reasons given in the ALJ's Report.

I add that Staff's Negative Declaration (Issues Conference Ex. 3B) gives a reasoned written elaboration of the basis for concluding that a supplemental EIS should not be required. Environmental impacts specific to the change to MSW were squarely addressed. These include gas, odor, litter, and vector control. Mitigation is required with respect to these impacts, and enforceable permit conditions were included with respect to them. No substantive or significant issue was raised as to the Permittee's ability to meet these permit conditions. The objections raised did not propose specific concrete issues for adjudication, but instead raised generalized objections that offered no substance which would affect the outcome of this matter. Therefore adjudication is not necessary or appropriate. Accord: In the Matter of AKZO Nobel Salt, Inc., et al Decision of the Commissioner, January 31, 1996. The same holds true as to appellant's traffic arguments under SEQRA.

Staff's addition of permit conditions addressing control of odor, gas, vectors, and litter, each of which impose normal mitigative requirements with respect to MSW landfills, do not convert the Staff's Negative Declaration to an improper conditional negative declaration. In fact, none of the appellant intervenors suggest that these conditions should not have been added. They are plainly appropriate conditions for a facility that receives MSW. None of the conditions added to the modified permit were extracted in exchange for a Negative Declaration. They were added to the modified permit as a routine part of the permit process applicable to facilities that receive MSW. Moreover, the process was open and public. The appellant-intervenors' arguments as to issuance of an improper conditional negative declaration merely seek to raise a legal catch; however, their arguments lack any substantive merit and fail to add value insofar as protection of the environment is concerned (See Merson v. McNally NY2d (October 30, 1997).

3. Other Issues

The Kleins' appeal asserts that the requirements of 360-1.9(e)(4)(vi), concerning a Staff assessment of the facility's impact on local solid waste management plans, have not been properly implemented. I disagree. The Staff in fact notified the applicant of the need for such an assessment by letter dated April 30, 1997. Section 5 of the Application, filed in June 1997, addresses the impact on local facilities of allowing Hyland to receive MSW. Specifically, Hyland does not presently propose to receive waste from Allegany County. Hyland proposes to receive MSW from in-state and from out-of-state sources by contract; such contracts will need to require appropriate revision to the solid waste management plans of municipalities within the State (See Issues Conference Ex. 2F at p. 35).

Similarly, Mr. Klein seeks a hearing on compliance with the Department's recycling regulation, 360-1.11(h). This rule requires a permit condition that MSW cannot be accepted from municipalities which have not complied with the Department's comprehensive recycling analysis requirements. Mr. Klein objects because this provision does not apply to waste originating from out-of-state. While his objection is noted, I concur with the position of Staff and the ALJ on this point. Draft Permit Condition #10 complies with this rule. No adjudicable issue is raised.

Any other points raised by Mr. Klein or other parties and not specifically addressed above have been considered and are rejected on the basis of the ALJ's report. All papers and other correspondence received within and beyond the briefing schedule established by the ALJ have been considered, and all outstanding motions are denied in light of this decision.

Conclusion

The appeals are denied and the Staff is directed to issue the requested permit modification consistent with this decision.

For the New York State Department
of Environmental Conservation
_____________/s/_____________
John P. Cahill, Commissioner

Dated: Albany, New York
March 6, 1998

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