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Hyland Facility Associates - Commissioner Ruling, November 18, 1993

Commissioner Ruling, November 18, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1550

In the Matter

- of -

the Application of HYLAND FACILITY ASSOCIATES for Permits to Construct and
to Operate a Solid Waste Management Facility pursuant to Environmental Conservation Law
("ECL") Article 27, Title 7 and a Mined Land Reclamation Permit pursuant to ECL
Article 23, Title 27, for an incinerator ash monofill for disposal of ash from municipal solid
waste incinerators, in the Town of Angelica, Allegany County, New York.

DEC Project No. 9-0232-3/1-0

RULING ON MOTION FOR RECONSIDERATION

November 18, 1993

Ruling on Motion for Reconsideration

On June 21, 1993, I issued a decision (the "Decision") in the captioned matter which denied all permits for the proposed facility. In the Decision, I indicated that the Hyland Facility Associates (the "Applicant") could reapply for permits to construct and operate the incinerator ash monofill but that any such reapplication would be treated as a new application under the Uniform Procedures Act (ECL Article 70). Subsequently, on August 18, 1993, the Applicant filed a motion for reconsideration.

In its motion for reconsideration, the Applicant asks that either the permits be issued for the project or that the proceeding be remanded for further consideration, limited to those issues that cannot be resolved on the existing record. The Applicant also requests that the presiding Administrative Law Judge ("ALJ") be recused in the event that the proceeding is remanded. All parties to the proceeding were afforded an opportunity to respond to the motion and it is now ready for resolution.

A careful review of the submittals and the record indicates that reconsideration is appropriate only with respect to a few of the issues that were adjudicated in the hearing. The submittals also have focused attention on the previously unargued question of whether a remand of the application on a discrete set of issues is preferable to requiring the submittal of a new application. Given that extensive hearings have already been held and the ability to define a discrete set of issues that remain unresolved, I find that it is both more efficient and more equitable to remand the outstanding issues for furthering hearings.

With respect to the issues that were adjudicated in the hearing, based on the existing record I find that the proposed environmental monitoring plan ("EMP") can be accepted for purposes of issuing a construction permit and that the controversy over whether the Cuba formation is part of the critical stratigraphic section ("CSS") and the associated issue concerning the impacts of water-borne fugitive ash is appropriately resolved by permit condition. All other issues that were adjudicated but not addressed in the Decision are also addressed below.

Decision Modifications

Environmental Monitoring Plan

The determination to disapprove the EMP and to require the installation of all of the proposed monitoring wells was based on two factors - the complexity of the glaciofluvial deposits and the lack of direct field evidence of the overburden stratigraphy and the depth to bedrock. The complexity of the deposits made it difficult to be certain that the proposed well screen locations were adequate to monitor the CSS. Properly locating well screens is a requirement for all EMPs [see former 6 NYCRR 360-2.11(c)(1)].

The other consideration related to the need for better information to verify the parameters used in the foundation analysis. The gathering of this information is not, however, a part of the approval requirements for an EMP. In effect, the requirement to install all proposed wells was intended to address outstanding questions related to both the EMP and the foundation analysis.

Upon closer analysis, I find that the latter consideration can also be addressed adequately through other appropriate geophysical methods. Although the Applicant will have to obtain the information needed to verify the parameters in the foundation analysis, how it chooses to do so should not be tied to the acceptance of the EMP. Therefore, the only outstanding question concerning the acceptability of the EMP is whether a greater degree of certainty concerning the ultimate location of the well screens is required at this stage in the review process.

The rules do not explicitly require that the exact location of the well screens be located prior to permit approval. They only require that there be an approved plan prior to operations. At the application stage, a rule of reason must be employed.

The deposits are sufficiently defined in the record to identify the permeable layers that need to be monitored. This level of definition is sufficient at the application stage. Further refinements of the well screen locations will be made based on in-situ conditions encountered during monitoring well construction. This provides the assurance that the actual monitoring network will identify any groundwater contamination from the facility, which is the objective of the regulation. Therefore, I conclude that the EMP is adequate to issue the construction permit. As stated above, additional refinements will be needed to be made based on field conditions encountered during construction before an operating permit could be issued.

Cuba Formation and Water-Borne Fugitive Ash

The record was unclear as to whether there was a significant potential for contamination of the runoff in the ditches and the ponds around the site (such water being capable of reaching the Cuba formation) and therefore the Decision held that no final determination could be reached on whether the Cuba formation needed to be monitored as part of the CSS. However, since the Applicant has already installed monitoring wells in the Cuba formation, it is more efficient to resolve this issue by requiring, through permit condition, that the Applicant test any waters that can reach the formation. If the waters are contaminated, the Applicant will be required to take whatever measures are necessary to eliminate the source of contamination of the waters and to monitor in the Cuba formation until such time as it can be established that there is no substantial possibility that the contaminated runoff waters have impacted or will impact the formation.

The composition of the runoff from the intermediate cover also relates to the issue concerning the impacts of water-borne fugitive ash. This issue can be resolved by a permit condition which requires the collection and off-site treatment of the waters in the ditches and ponds in the event that the testing discussed above reveals contamination. This condition, together with the permit condition which requires the washing of all ash-bearing vehicles entering the site, resolves this issue.

Site Monitorability - Rapid and Unpredictable Flows

The regulations restrict landfill siting in areas that are subject to rapid or unpredictable groundwater flow [former 6 NYCRR 360-2.12(d)]. In the Hearing Report, ALJ DuBois observed that there is no authority which interprets the term "rapid." However, she cited my earlier decision In the Matter of the Application of Monroe County, Ruling on Motion to Reopen the Hearing, April 14, 1993, which addressed the interpretation of the same regulation.

That ruling stated that the rulemaking documents for the regulation in question demonstrate that the regulation was intended to restrict siting over karst limestone bedrock formations (Ruling at pg. 6). Her conclusion that the proposed landfill is not over such a formation resolves the matter.

Soil Testing and Materials

ALJ DuBois found that the Applicant had not demonstrated that it would have sufficient amounts of on-site soils for purposes of constructing and covering the landfill. Given that the material standards are specified wherever applicable, the record adequately identifies potential sources of complying material to satisfy both former 6 NYCRR 360-2.4(c) and 2.11. However, since the record does not show that the on-site mine area is sufficient to supply all of these materials, in order to satisfy the requirements of the State Environmental Quality Review Act ("SEQRA"), the Applicant must address the potential environmental impacts from increasing the size of the on-site mine area or from importing off-site materials.

Remanded Issues

Accordingly, I conclude that instead of denying the application, it should be remanded for additional hearings on the following issues.

  1. Compliance with former 6 NYCRR 360-2.13(d) - Separation to Groundwater. The Applicant will have to demonstrate that its groundwater suppression is adequate to meet the minimum separation distance to groundwater or it may choose to apply for a variance to this provision. If the Applicant elects to apply for a variance, it must demonstrate compliance with the provisions of former 6 NYCRR 360-1.7(c)(2).
  2. Compliance with former 6 NYCRR 360-2.12(c)(4) - Slope Stability. The Applicant will need to perform static and dynamic slope stability analyses, excluding the stability analyses for just the final cover, which reflects the current design of the monofill and the soil types anticipated to be underneath the facility down to the bedrock interface. Additional slope stability analyses must be performed which reflect the conditions at the site upon completion of the excavation for Cell 2. A clear explanation of the origin of all input parameters must be included.
  3. Compliance with former 6 NYCRR 360-2.13(i) - Foundation Analysis. The Applicant will need to identify the material specifications for judging the competency of the subgrade surface; the extent of any additional excavation below subgrade surface which will be performed for removal of unacceptable soils; and any actions to be taken for preparing the subgrade surface for construction of the liner system. Of importance are the geotechnical characteristics of the subgrade surface after preparation for laying of the liner system is completed.

    As stated in my June 21, 1993 decision, the Applicant will need to better characterize the subsurface immediately below the footprint and to better verify the depth to bedrock. Additional information may be gathered by the placement of borings or completion of monitoring wells at locations identified in the Environmental Monitoring Plan or by other geophysical means. Based upon the clarification of the subgrade surface preparation, a new settlement analysis must be performed for the life of the monofill.

  4. Compliance with former 6 NYCRR 360-2.14(b)(1)(iii) - Liner System. The Applicant will need to demonstrate compliance with the above provision which relates to ensuring integrity of the liner system from the pressure that is exerted by the water entering the leachate collection system. The Applicant will need to redo the computerized water balance calculations (the "HELP" analysis). The input parameters for that analysis will need to be clearly stated. If the Applicant is going to include less than the total amount of all runoff (as was suggested in proposed special permit condition no. 44), it must demonstrate the feasibility of separating the flows that will not require treatment.
  5. Soil testing and soil materials. The Applicant was unable to demonstrate that the site contained sufficient materials to meet all cover, berm and liner system requirements. Therefore, to satisfy the requirements of the SEQRA, it will need to provide an analysis of the impacts of expanding the mined area or, in the alternative, of the traffic impacts of importing off-site materials.

Other Requirements

Before the hearing can be resumed, the Applicant will need to provide a clear statement of its proposal, highlighting any changes being made in response to the Decision and this Ruling. Submittals on the five areas detailed above will be needed to supplement the supporting documentation for the proposal. The Applicant will also need to include in its submittals the additional information regarding compliance with the operating requirements for the newly promulgated solid waste regulations [see 6 NYCRR 360-1.7(a)(3)(vi)].

All of the above information shall be provided to the Department Staff with copies to the other parties. When the Staff finds that the submittals are adequate to be reviewed in the public hearing, it shall prepare an amended draft permit which will be circulated to the parties prior to the reconvened adjudicatory hearing.

The reconvened adjudicatory hearing will address the five issues discussed above. In addition, the ALJ shall provide the parties with an opportunity to raise additional issues. Any such issues shall be limited to (1) compliance with any new operational requirements contained in the revised 6 NYCRR Part 360, namely 6 NYCRR 360-1.14 and 2.17; (2) any changes to the Applicant's proposal; and (3) any changes in the draft permit, except those changes directed in this Ruling as a result of the prior adjudication.

Since the hearing will be remanded, it is necessary to rescind my determination accepting the final environmental impact statement and the findings that were made pursuant to the SEQRA. Staff is directed to provide public notice of these rescissions.

Recusal

I find that there is no basis to recuse ALJ DuBois from this proceeding. ALJ DuBois has acted in a completely professional manner and has not demonstrated any bias against the Applicant. Her rulings and recommendations are based solely on a careful review of the record and her analysis. The fact that some of these rulings and recommendations are unfavorable to the Applicant does not constitute bias. Moreover, I find no justification to conclude that she would not be completely objective in a remanded hearing.

Conclusion

The Decision issued in this matter is superseded by this Ruling. The Ruling shall be retroactive to the time of the Decision. This proceeding is remanded to ALJ DuBois for further hearings consistent with this Ruling.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Ruling to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York this 18th day of November, 1993.

DEPARTMENT OF ENVIRONMENTAL CONSERVATION
_____________/s/_____________
THOMAS C. JORLING, COMMISSIONER

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