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Hyland Facilities Associates - Decision, June 21, 1993

Decision, June 21, 1993

Decision of the Commissioner

This Decision is issued in relation to the application of Hyland Facility Associates (the "Applicant") for permits to construct and operate an incinerator ash monofill for the disposal of ash from municipal solid waste incinerators. The proposed facility would be located in the Town of Angelica in Allegany County, New York.

As pointed out in the hearing report (the "Report") of Administrative Law Judge ("ALJ") Susan J. DuBois, the application suffers from a number of defects. During the hearing process the Applicant modified the project, reworked several analyses and agreed to additional permit conditions. Although some evolution of a project is to be anticipated during a hearing, the changes to this application were excessive and made it difficult to understand what was being proposed and what the projected impacts were.

The record shows that other problems with this application were caused by the failure of the Applicant's hydrogeologic and engineering consultants to communicate effectively. The analysis of many of the issues that arose concerning this landfill required close coordination between these two disciplines. This coordination was missing in many areas.

Applicant's Appeals

As a preliminary matter, the Applicant has appealed several rulings of the ALJ. It objects to the admission of testimony of four expert witnesses for the intervenors on the grounds that they were not properly qualified as experts. It is acceptable to qualify witnesses based on experience and observation as well as by education (Richardson on Evidence 368 (10th Ed. 1973)). Since these witnesses had experience in related fields to the ones at issue, it would be overly restrictive to disallow their testimony, particularly considering the interdisciplinary nature of the hearing issues. Limitations on their experience is a valid ground for giving their testimony less weight where appropriate. This in fact was done by the ALJ and I note that she has indicated in the Report that her overall conclusion would be the same even without the testimony of those witnesses.

The Applicant has also argued that witness Santarsiero should be disqualified on the grounds that he is a biased witness. There is no basis to disqualify a witness based on bias although the witnesses testimony may be impeached on that basis (Richardson on Evidence, 493 and 503 (10th Ed. 1973)). The Applicant was permitted to cross-examine this witness concerning his interest and bias and it is entitled to no further relief.

I also find that the ALJ acted properly in revising her issues ruling to consider the question of depth to groundwater. There was obvious ambiguity at the hearing as to whether the Applicant was intending to satisfy the five foot criterion or whether it sought a waiver. As stated below, there was also a misinterpretation of the definition of groundwater under 6 NYCRR Part 360. When testimony given in the initial days of the hearing indicated that the project might not comply with the standards for depth to groundwater, it was proper for the ALJ to admit an additional issue to the hearing. Authority to do so is provided pursuant to 6 NYCRR 624.7(a)(4) or 624.17(b). My direction to the ALJ to expedite the hearing process was in no way intended to prevent the ALJ from addressing legitimate concerns that arose in the context of the hearing.

Finally, the Applicant has appealed the admission of Exhibit 203 into evidence. I find that Exhibit 203 is irrelevant to the outcome of this proceeding and that there would be no purpose served in revisiting the ALJ's ruling on its admissibility. The remainder of the Decision will address the key issues that were adjudicated.

Adjudicated Issues

As set forth in the Report, there are several areas in which the Applicant has failed to prove its case by a preponderance of the evidence. In many of these instances, the Applicant has failed to investigate the site adequately or has conducted analyses based on invalid or unsubstantiated assumptions.

The record does not support a finding that a minimum separation distance of five feet will be maintained between the base of the constructed liner system and the seasonal high groundwater table as required by 6 NYCRR 360-2.13(d). Although it is suggested by both the Applicant and Staff that the perched water underlying the site does not constitute a groundwater table because it is not extensive and continuous, the definitions of groundwater and groundwater table place no reliance on these criteria (see 6 NYCRR 360-1.2(b)(74) and (75)).

The Applicant has proposed to construct drainage trenches to depress the groundwater table and to remove unsuitable soils from beneath the facility. Since the Applicant has not supplied the calculations to prove that the trenches will achieve their goal, it cannot be concluded that these measures will result in the maintenance of the required separation distance. In addition, the Applicant has been unclear as to what constitutes unsuitable soils and to what depth they would be excavated. These issues need to be clarified as well before any reliable conclusions could be reached.

The Report identifies deficiencies in the environmental monitoring plan chiefly because the Applicant has not yet installed wells in many areas that require monitoring. Given the complexity of the glaciofluvial deposits and the lack of direct field evidence of the overburden stratigraphy and the depth to bedrock, the installation of monitoring wells which will be representative of the site conditions must be required as part of the application review process. It is the Applicant's obligation to ensure that the hydrogeology of the site is understood prior to permit issuance and to demonstrate that the monitoring wells will be in compliance with 6 NYCRR 360-2.11(c). In this case, the only method of accomplishing these purposes is to install a representative number of monitoring wells. The data obtained when the wells are installed will provide vital information for proper characterization of the site from both a geological and engineering perspective.

The Report also finds that the Cuba formation on the west side of the site does constitute a part of the critical stratigraphic section ("CSS"). It reaches this conclusion based upon the potential for contaminated runoff to reach the formation. Therefore, as discussed below, the question of whether the Cuba formation needs to be monitored as part of the CSS cannot be determined at this time but will depend upon whether the Applicant can successfully demonstrate that all of the runoff that might reach the Cuba formation would be free of contamination.

The Report points out numerous defects in the slope stability and foundation analyses that were performed. Of special concern with respect to slope stability are several assumptions upon which the analyses were based. The Applicant's analyses made assumptions concerning the effectiveness of the groundwater suppression system and the pore pressure development under the site that were not adequately supported. The analyses also assumed a homogeneous ash layer for the total mass of the landfill. However, the Applicant's plan to use daily cover material consisting of clay and topsoil, some of which will inevitably become incorporated into the ash, runs contrary to the assumption of homogeneity.

In addition to the concerns relating to the slope stability analyses identified in the Report, my review of the record indicates the analyses may have presumed the presence of the five foot thick groundwater suppression trench uniformly below the site. If so, the slope stability analysis would also need to be supplemented to provide calculations for areas that are not underlain by this trench.

Likewise the foundation analysis suffers from certain assumptions that undermine its reliability. The foundation analysis provides important information regarding the anticipated amount of settlement below the landfill so as to ensure the effective functioning of the leachate collection and removal system and other liner components. The engineers performing the foundation analysis relied heavily on the properties of the overburden and the thickness of the overburden.

In terms of the properties of the overburden, the analysis assumes the presence of a homogeneous material for the full thickness of the overburden soils. As stated in the Report, the glaciofluvial deposits underlying the central portion of the site were not factored in. The thickness of the overburden was derived from a resistivity survey across the site and monitoring wells that could have confirmed these results for the center of the site were not installed. Given the importance that the thickness of the overburden to the Applicant's foundation analysis, it was imprudent to rely solely on an indirect methodology.

There are also unresolved questions identified in the Report pertaining to buildup of leachate head on the liner and the proper management of runoff. While it appears that the imposition of Special Condition #44 would handle the concern about leachate head on the liner, as noted in the Report, there has been no analysis of whether the runoff that it would redirect away from the leachate collection system needs to be treated. In addition to the concerns relating to the leachate head analysis identified in the Report, my review of the record indicates that the Applicant may have incorrectly used a maximum drainage distance between the leachate pipes of 150 feet as input in the HELP model. The plans submitted with the application for this specific landfill design show the maximum drainage distance to be on the order of 300 feet. Such a difference could be critical when evaluating the head buildup within the leachate collection system during both construction and operation.

In summary, while the hearing record does not indicate that the site is an unacceptable one, the application as proposed does not satisfy the requirements of 6 NYCRR Part 360 or SEQRA. The FEIS as defined in the hearing report is accepted. Based on the FEIS and this record, I find that, taking into account social, economic and other social consideration, the application has not mitigated adverse impacts to the maximum extent practicable nor has the best alternative been chosen.

This application is denied. However, since the evidence does not demonstrate that an acceptable redesign is impossible, the Applicant may reapply for permits for the project. Any reapplication will be treated as a new application under the Uniform Procedures Act.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Decision 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 21st day of June, 1993.

Table of Contents

Summary Statement

Proceedings

Applicant's Pending Appeals

Summary Positions of the Parties Issues

Findings of Fact, Discussions and Conclusions

Appendices

Draft Environmental Impact Statement *

Comments on DEIS *

Responses to Comments on the DEIS *

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* The Final Environmental Impact Statement ("FEIS") for this Project consists of the following: the DEIS and application (Exhibits 5 through 23 of the hearing record), the comments on the DEIS, and the Applicant's responses to the comments on the DEIS (Exhibits 129 and 129B of the hearing record). The Part 360 application documents (engineering report, hydrogeology report, etc.) comprise Appendix N of the DEIS.

Due to their volume, the DEIS and other documents identified above are not included as attachments with the Hearing Report/FEIS, but are on file in the Department's Office of Hearings in Albany as of the date of the Department's Decision in this matter, along with the complete hearing file. The entire hearing file is available for inspection during normal business hours (Monday through Friday 8:30 A.M. to 4:45 P.M.) at the New York State Department of Environmental Conservation, Office of Hearings, Room 409, 50 Wolf Road, Albany, New York 12233-1550, Attention: Susan J. DuBois, Administrative Law Judge, telephone 518-457-3468.

Copies of portions of the hearing file are also available for inspection during normal business hours at the Region 9 Office of the Department at the following address: 270 Michigan Avenue, Buffalo, New York 14203-2999, Attention: Regulatory Affairs Unit, telephone 716-851-7165.

Summary Statement

Hyland Facility Associates (the "Applicant"), P.O. Box 68, Belmont, New York 14813, applied to the New York State Department of Environmental Conservation (the "Department") for permits in connection with a proposed landfill to be located on Herdman Road in the Town of Angelica, Allegany County. The Applicant proposes to construct and to operate a monofill for the disposal of incinerator ash from municipal solid waste incinerators. The Applicant would also mine clay on the site for use in construction of the monofill.

The Department, as lead agency for the review of the project under the State Environmental Quality Review Act ("SEQR"), required preparation of a Draft Environmental Impact Statement. The Department accepted the DEIS on March 19, 1991.

The project would require permits to construct and to operate a solid waste management facility, 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 Part 360"). The project would also require a mined land reclamation permit pursuant to ECL Article 23 Title 27 and 6 NYCRR Parts 420 through 423, and water quality certification pursuant to 6 NYCRR Section 608.7.

The proposed ash monofill would be constructed as two contiguous cells on an approximately 28 acre area, located on a 289 acre parcel of land. Approximately 62 acres of the site would be used as support facilities including buildings, roads, leachate containment structures, borrow areas and sediment ponds.

The Applicant proposes to accept only ash from municipal waste incinerators. The waste accepted at the facility would included treated fly ash, bottom ash and combined ash, and the maximum disposal rate would be 500 tons per day. The expected life of the monofill is 19 years.

The monofill would be constructed with a double composite liner, a groundwater suppression system, and a leachate collection and storage system. Leachate would be transported to an outside facility for treatment.

A public hearing was held on this project before an Administrative Law Judge with the Department's Office of Hearings, pursuant to 6 NYCRR Part 624. The parties to the hearing were the Applicant, the Department Staff, the Town of Angelica, the Village of Angelica, the Allegany County Soil and Water Conservation District, the Allegany County Board of Health, a consolidated party consisting of Concerned Citizens of Allegany County and the Angelica Inn, and Angelica Booster Citizens, Inc.

The hearing began on June 5, 1991, with a hearing session for presentation of unsworn comments on the application and DEIS. An issues conference took place on June 6, 1991. The adjudicatory hearing began on October 27, 1992 and continued for an additional 35 days, concluding on February 11, 1993. The hearing record closed on March 29, 1993, the date for receipt of reply briefs.

The following issues were considered in the adjudicatory hearing: (a) the hydrogeology of the Cuba formation, a bedrock formation found under part of the site; (b) compliance with 6 NYCRR Paragraph 360-2.12(d) which specifies that in siting landfills, bedrock subject to rapid or unpredictable groundwater flow without thick, low permeability cover must be avoided; (c) location of the monitoring well screens; (d) stability of the landfill slopes; (e) the foundation analysis conducted for the landfill; (f) soil tests and the acceptability of on-site soil materials for use in various components of the landfill; (g) pipe penetration of the liner system; (h) ash fugitivity; (i) blasting; (j) noise; (k) plant species conservation; and (l) the vertical separation between the base of the constructed liner system and the seasonal high groundwater table.

The site is in a shallow valley near the top of Peacock Hill. There is a row of springs east and uphill of the proposed cell area and a stream flows through the proposed cell area. The site is underlain by various types of glacial soils, with depths ranging from less than ten to over one hundred feet deep, above sedimentary bedrock. A bedrock formation known as the Cuba formation is part of the critical stratigraphic section (as defined in 6 NYCRR 360-1.2(b)(40)) on the west side of the site but not on the east side. The Applicant collected additional data about the Cuba formation following the issues conference, but has only partially incorporated that data into its description of the site-specific geology.

The groundwater flow in the bedrock was not shown to be either unpredictable or rapid, but there is still uncertainty about the groundwater flow rate at the two most permeable wells on the site. Part of the facility would be underlain by thick, low permeability cover but part would not. The project as proposed would be in violation of the requirement for five feet of vertical separation between the seasonal high groundwater table and the base of the liner, and the permit condition intended to bring the project into compliance with this requirement was not shown to be effective.

The record regarding the hydrogeology issues is also relevant to several other issues. The hearing record indicates that inaccurate assumptions about the site's soils and hydrogeology were used by the Applicant's consultants who designed the project and who evaluated the engineering aspects of the project. The sharp separations among the scope of work done by some of the consultants, and the limited communication to or among these persons, are contrary to the intent of Part 360.

Part 360 requires that monitoring wells at landfills have screens located so as to readily detect groundwater contamination within the saturated thickness of the first water bearing unit. Part 360 also requires that monitoring wells be installed at a representative number of points at each subsequent permeable unit throughout the critical stratigraphic section. The Applicant revised its monitoring well plan at the hearing, after the Department Staff stated that the plan in the application was defective. Neither the initial plan nor the revised plan comply with the requirements of Part 360. The revised plan also relies heavily on wells which have not yet been built.

The Applicant's review of the landfill stability and the foundation analysis of the landfill were both shown to be inadequate, partially because of inaccurate assumptions about the soils which would remain under the landfill.

The application states that cover, liner and subgrade materials would be obtained on site and that certain granular materials would be brought in from off-site. The Applicant's assessment of its soil needs was too vague to demonstrate that these would be met by the on-site soils. In addition, the amount of soil needed for cover was underestimated and some unknown additional amount would need to be obtained, either by expanding the on-site mine or by transporting soil to the site. The application does not identify the source of the additional cover material and the DEIS does not evaluate the effects of expanding the mine or transporting additional soil.

The liner system issue involved the questions of whether the landfill design would allow for access to welds between the leachate pipes and the liners and whether it would allow for measurement of leachate head above the liner system and an alternate means of removing leachate. The Applicant relied on its mathematical modeling of the landfill water balance as ensuring that the leachate head on the liner system would not exceed one foot except during storm events.

The gravity drain leachate removal system proposed by the applicant would allow for access for routine maintenance and repair, and the greater difficulty of accessing the pipe penetrations for repair was not shown to require use of a different type of system. The water balance modeling was shown to have omitted consideration of landfill runoff which would flow into the liner system, and the modeling has not taken into account several changes in the application which the Applicant made during the hearing.

The Applicant has not demonstrated that the project would control ash fugitivity to the maximum extent practicable. The deficiencies with regard to airborne ash could be partially corrected by certain additional measures. Ash fugitivity due to ash becoming mixed with the soil which would be reused as daily cover remains as a problem which is inherent in the proposed project. Alternatives to the reuse of the cover material were not proposed and have not been evaluated.

Ash could also become fugitive by means of overflows of runoff from the cell area in heavy storms. A permit condition which was proposed late in the hearing, which would require that runoff from intermediate cover be released with runoff from the site rather than being sent to the leachate collection and removal system as had been proposed in the application, would increase the potential for water-borne ash fugitivity.

The plant species conservation issue pertained to a species (Ohio goldenrod) which is listed as "rare" in 6 NYCRR Part 193 (Trees and plants). The hearing record indicates no impact of the project on this species, since the identification of the plant on the site was an erroneous identification of another goldenrod species.

The issue of impacts of blasting was resolved by a stipulation among the parties which would prohibit blasting and which would require adjudication of the blasting issue in the event that blasting became necessary.

The noise issue was resolved by the Applicant's purchase of easements from two neighboring landowners.

Some important aspects of the application and of the design of the project were shown to be based on inaccurate assumptions about the site. The engineering design did not take into account significant aspects of the hydrogeology of the site. During the hearing, both the project and the concepts which the Applicant used in describing the site underwent numerous changes. With two exceptions, these did not resolve the issues and in some cases aggravated other problems or made the record ambiguous. No purpose would be served by remanding the application and DEIS for further changes.

It is recommended that the application be denied.

Proceedings

Hyland Facility Associates (the "Applicant"), P.O. Box 68, Belmont, New York 14813, applied to the New York State Department of Environmental Conservation (the "Department") for permits in connection with a proposed landfill to be located on Herdman Road in the Town of Angelica, Allegany County. The Applicant proposes to construct and to operate a monofill for the disposal of incinerator ash from municipal solid waste incinerators. The Applicant would also mine clay on the site for use in construction of the monofill.

The permits for which the Applicant initially applied are permits to construct and to operate a landfill, 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 Part 360") and a mined land reclamation permit pursuant to ECL Article 23, Title 27 and 6 NYCRR Parts 420 through 423. Procedures governing hearings on applications for these permits are contained in ECL Article 70 and in 6 NYCRR Part 624. The application is designated as DEC Application No. 9-0232-3/1-0.

In September, 1991, after the initial two hearing sessions, the Applicant also applied for a Water Quality Certification pursuant to 6 NYCRR Section 608.7, in conjunction with its application to the U.S. Army Corps of Engineers for a permit to fill approximately 1.9 acres of wetland on the site which are under federal jurisdiction.

Pursuant to ECL Article 8 (State Environmental Quality Review Act, "SEQR") and 6 NYCRR Part 617, the Department, as lead agency, required the Applicant to prepare a Draft Environmental Impact Statement ("DEIS"). The Department accepted the DEIS on March 19, 1991.

The application was referred to the Department's Office of Hearings on March 28, 1991 to schedule a hearing. The Notice of Hearing was also the Notice of Complete Application and the Notice of Completion of the Draft Environmental Impact Statement. This notice was published in the Wellsville Daily Reporter, the Olean Times Herald and Department's Environmental Notice Bulletin, all on April 24, 1991. The notice was also mailed to the Mayor of the Village of Angelica, the Supervisor of the Town of Angelica and to others believed to be interested in the project.

The hearing commenced before Susan J. DuBois, Administrative Law Judge, on June 5, 1991 at 7:00 P.M. at the Angelica Central School, with a hearing session for presentation of unsworn statements concerning the project and the DEIS. Approximately 600 persons attended the hearing, 46 of whom made statements for the record.

An issues conference took place on June 6, 1991 at the Allegany County Courthouse in Belmont. The issues conference had originally be scheduled to take place at the Angelica Conservation Club but the location was changed at the request of the Town of Angelica. At the issues conference, there was a discussion of the issues which had been proposed for adjudication. A number of parties, including the Applicant, identified additional information which they intended to submit regarding whether or not certain subjects should be adjudicated in the hearing, as summarized in my memorandum of June 17, 1991. The deadline for comments on the DEIS was extended to August 17, 1991 due to the length of the document and difficulties which some of the parties stated they had in gaining access to the document for a long enough time to review it thoroughly. A notice regarding the extension of the comment period was published in the Olean Times Herald on June 26, 1991, in the Wellsville Daily Reporter on June 27, 1991, and in the Department's Environmental Notice Bulletin on June 26, 1991.

At the issues conference, the Town of Angelica (the "Town") made a request that the Department order the Applicant to make funding available to the Town or to other intervenors for defraying costs of retaining expert witnesses to participate in the hearing. On June 17, 1991, I denied this request. The Town appealed this ruling on June 20, 1991. Commissioner Thomas C. Jorling's July 11, 1991 Interim Decision regarding this appeal upheld the ruling.

At the issues conference, the Applicant was represented by John Clarke, Esq. of the law firm of Harris, Beach and Wilcox, of Rochester. After August 31 1992, the Applicant was also represented by Thomas S. West, Esq. of the law firm of LeBoeuf, Lamb, Leiby & MacRae, Albany. The Department Staff was represented by David Stever, Esq., Acting Regional Attorney, Region 9. The Town of Angelica was represented by Leslie J. Haggstrom, Esq., of the law firm of Mergler and Haggstrom, Bolivar, New York, and by Neal D. Madden, Esq. and Edward Premo, Esq. of the law firm of Harter, Secrest & Emery, Rochester. The Village of Angelica (the "Village") was represented by Wesley J. Serra, Esq. and Patricia K. Fogarty, Esq. of the law firm of Serra & Fogarty, Belmont. The Allegany County Soil and Water Conservation District (the "District") was represented by Frederick Sinclair, District Field Manager, and by John Wulforst, Soil Scientist. The Allegany County Board of Health was represented at the issues conference by Dr. William A. Coch and at the adjudicatory hearing by James Sturniolo. Concerned Citizens of Allegany County ("CCAC") was represented by David J. Seeger, Esq., of Buffalo. The Angelica Booster Citizens, Inc. ("ABC") was represented by Patricia A. Kaake, President of the organization and by Thomas A. Ulasewicz, Esq. of the law firm of Bartlett, Pontiff, Stewart & Rhodes, Lake Placid, New York.

During the issues conference and in the subsequent correspondence, there had been discussion of certain additional applications or approvals which might be required for the project. On December 18, 1991, I made a ruling regarding these questions. The Applicant appealed the ruling on December 23, 1991. The appeal requested that the Commissioner reverse the portion of the ruling which stated that the Applicant would need to apply for two variances from Part 360. Following submission of briefs regarding the appeal, Commissioner Jorling issued a Second Interim Decision dated March 6, 1992 which stated that the Applicant need not apply for either of the variances.

The parties then submitted briefs regarding which, if any, issues should be adjudicated. On June 23, 1992, I made a ruling which identified the parties to the adjudicatory portion of the hearing and which identified the issues for adjudication (see "Issues" section below).

The parties to the adjudicatory hearing were as follows: the Town of Angelica, the Village of Angelica, the Allegany County Soil and Water Conservation District, the Allegany County Board of Health, the Angelica Booster Citizens, and Concerned Citizens of Allegany county participating as a consolidated party with the Angelica Inn. The Applicant and the Department Staff were parties to the hearing pursuant to 6 NYCRR Part 624. The requests for party status by the Town of Amity and by Citizens for Responsible Progress were denied.

The Applicant, CCAC, ABC, and the Department Staff appealed various aspects of the June 23, 1992 ruling. On August 21, 1992, Commissioner Jorling issued an Interim Decision which limited the scope of two of the issues but otherwise upheld the rulings.

During September, 1992 there was correspondence regarding the schedule and procedures for the hearing. On September 22, 1992, I sent a memorandum to the parties which established a schedule for the hearing and for prefiling of testimony on two of the issues. On September 25, 1992, the Applicant appealed this ruling. On October 2, 1992, Robert H. Feller, Assistant Commissioner for Hearings, notified the Applicant that Commissioner Jorling had decided not to hear the Applicant's interlocutory appeal.

The adjudicatory hearing began on October 27, 1992 and continued on the following days: October 28 through 30, November 4, 5, 9, 10, 12, and 13, December 7 through 11 and 14 through 18, 1992, January 5 through 8, 12 through 15, 20, 21, and 25 through 27, and February 9 through 11, 1993. The hearing took place at the Allegany County Office Building and at the Allegany County Cooperative Extension Building, both of which are located in Belmont, New York.

The Applicant called the following witnesses: Kenneth L. Fishman, Ph.D., Assistant Professor of Civil Engineering at the State University of New York at Buffalo; Shahid Ahmad, Ph.D., Assistant Professor of Civil Engineering, State University of New York at Buffalo; R. Mark Kogler, an Engineer with the firm of Calocerinos & Spina; Donald W. Owens, Soil Scientist, Earth Dimensions, Inc.; William Goodman, Ph.D., Geologist and Vice President, Beak Consultants, Inc./AFI Environmental, Inc.; Dennis H. Siems, of Siems Landfill Consulting, Byron, Minnesota; Michael F. Leydecker, P.E., Associate/chief engineer with the firm of TVGA Engineers and formerly of Calocerinos & Spina; Terry J. Ried, Senior Project Engineer with the firm of Malcolm Pirnie, Inc.; Lee Drake, of Drake Environmental Consultants; Paul Rutledge, Ph.D., Ecologist and consultant; Donald R. McMahon, P.E., Associate Principal, GZA GeoEnvironmental of New York; O.L. Angevine, P.E., of Angevine Acoustical Consultants, Inc.; Daniel P. Prusnowski, Associate Consultant, Angevine Acoustical Consultants, Inc.,; Stanley Radon, Senior Engineering Geologist, NYS Department of Environmental Conservation, Region 9; and Donald Spies, P.E., of the firm of Calocerinos & Spina.

The Department Staff called two witnesses: Robert Bazarnick, Senior Engineering Geologist, Department of Environmental Conservation, Albany; and Kevin R. Hintz, P.E., Environmental Engineer II, Department of Environmental Conservation, Region 9.

CCAC called the following witnesses: Jeffrey C. Evans, Ph.D., Associate Professor of Civil Engineering, Bucknell University; Thomas M. Santarsiero, project manager/estimator with a consulting and construction firm but testifying as an individual; James R.M. Goodwin, Consulting Geologist, Cuba, New York; Paul E. Eismann, Deputy Permit Administrator, Department of Environmental Conservation, Region 9; and Mr. Hintz.

The Town called as its witness William A. Coch, M.D., Medical Consultant to the Allegany County Board of Health.

The District called as its witness John Wulforst, Soil Scientist.

On November 25, 1992, CCAC requested rulings regarding several additional or expanded issues which CCAC was proposing based on information which had been presented at the hearing. The Applicant opposed this request. On December 3, 1992, I made a ruling which partially granted CCAC's request. This ruling, among other things, identified as an issue for adjudication the question of whether the project as proposed would comply with 6 NYCRR Subdivision 360-2.13(d), regarding the vertical separation between the base of the liner system and the seasonal high groundwater table. The ruling also requested that the Department Staff identify whether their review of the project applied the five foot separation distance specified in the first part of the cited subdivision or a reduced or waived distance under the standards specified in the second part of the subdivision.

On December 4, 1992, the Applicant notified me that it disagreed with the ruling but that rather than taking an appeal during the adjudicatory hearing the applicant would present evidence on these issues and would reserve its rights to appeal the ruling in the briefs at the close of the hearing.

At the hearing on December 7, 1992 there was a discussion of the vertical separation requirement and its application to this project. The Department Staff stated that they believed the five foot separation requirement would be met and that no waiver was necessary. The Applicant stated that it believed that the vertical separation requirement had been waived since the project would include a groundwater suppression system. On December 10, 1992, the Applicant requested a waiver of this requirement. A notice of this request was published in the Environmental Notice Bulletin on January 6, 1993, and in the Olean Times Herald and the Wellsville Daily Reporter on January 11, 1993. This notice also included notice of the application for a water quality certification. On February 9, 1993, however, the Applicant withdrew its request for the waiver.

On January 15, 1993, the Applicant submitted a responsiveness summary responding to the comments on the draft environmental impact statement (Exhibits 129 and 129B of the hearing record). Pursuant to 6 NYCRR Paragraph 624.7(a)(3), comments contesting the responsiveness summary could be submitted until February 16, 1993. Comments were received from some of the parties and from two members of the public.

The hearing record closed on March 29, 1993, the date for receipt of reply briefs.

Applicant's Pending Appeals

The Applicant, in its post-hearing brief, appealed several rulings. These appeals are now before the Commissioner.

The Applicant appealed the December 3, 1992 ruling which added the issue of the vertical separation from groundwater. The Applicant also appealed my overruling of the Applicant's objections to allowing four witnesses, called by the intervenors, to testify. These witnesses were Mr. Wulforst, Mr. Goodwin, Mr. Santarsiero and Dr. Coch. The Applicant also appealed the receipt of Exhibit 203, a document concerning terms for describing soils.

The appeals which the Applicant included in its post-hearing brief are respectfully referred to the Commissioner. The Applicant's appeal of the December 3, 1992 ruling is an appeal of an issues ruling, and I recommend that the Commissioner make a decision on this portion of the Applicant's appeal under the provisions of 6 NYCRR Subdivision 624.6(d). The remaining portions of the appeal may or may not require a specific decision by the Commissioner.

The issue of vertical separation from groundwater is discussed in the Hydrogeology section of this hearing report.

Exhibit 203 was offered by CCAC to challenge an assumption being made in a calculation of the amount of root material in the soil, in relation to the soil materials issue. It was not necessary to reach the question of whether this calculation was valid since, as stated in the Soil Testing and Soil Materials section of this report, the outcome of the issue depends on questions which are more basic.

With regard to the four witnesses, their qualifications indicated that they had sufficient education and experience to testify as expert witnesses in the subject areas proposed. The Applicant's questions to these witnesses about their backgrounds have a bearing on the weight to be given to the witness's testimony on specific subjects, as is the case with expert witnesses generally.

Summary of the Positions of the Parties

The Applicant argued that there were no issues which required adjudication, that the project was in compliance with the applicable requirements, and that the requested permits should be issued. As noted above, the Applicant appealed the addition of an issue which was identified on December 3, 1992.

The Department Staff stated that the project had been extensively examined and had been shown to meet the regulatory criteria for issuance of the permits. The Department Staff revised its draft permit during the hearing and the current draft permit is the revision dated January 26, 1993.

The Town of Angelica opposed the project on a number of grounds, including its position that the project would be in violation of the Town's Local Law No. 1 of 1988 (the Solid Waste Disposal Law of the Town of Angelica). In a Decision dated November 14, 1990, Hon. Wayne A. Feeman, Jr., Acting Supreme Court Judge, New York State Supreme Court, Allegany County, determined that the Town's action for a declaratory judgement and injunctive relief against the Applicant was not ripe and would not be so until, at a minimum, the Department of Environmental Conservation had granted a permit and the Town had exhausted all available administrative remedies. The Court stayed the lawsuit until it was shown to be ripe.

At the DEC hearing, the Town presented testimony regarding the issue of ash fugitivity.

The Village of Angelica opposed the project for a number of reasons. The Village participated in cross-examining witnesses called by other parties but did not call any witnesses of its own.

The Allegany County Soil and Water Conservation District opposed the project for a number of reasons primarily related to the soils and hydrogeology of the site, and presented testimony on these issues. The District also argued that the project should be evaluated in terms of cumulative impacts with the low level radioactive waste disposal facility since sites for the latter facility were being evaluated in neighboring towns.

Concerned Citizens of Allegany County opposed the project and presented evidence on the foundation analysis, the slope stability analysis, the liner system, ash fugitivity, and some aspects of the geology. The Angelica Inn, which opposed the project based on impacts related to tourism, was granted party status to participate as a consolidated party with CCAC.

The Allegany County Board of Health opposed the project based on concerns about ash fugitivity.

Angelica Booster Citizens, Inc. opposed the project for a number of reasons related to impacts on the character of the community. This was not identified as an issue for adjudication, although the related issue of impacts due to blasting was identified for adjudication. The blasting issue was settled by a stipulation agreed to by all parties to the hearing.

Issues

The issues to be adjudicated were as follows: (a) hydrogeology of the Cuba formation, a bedrock formation found under part of the site; (b) compliance with 6 NYCRR Paragraph 360-2.12(d) which specifies that in siting landfills, bedrock subject to rapid or unpredictable groundwater flow without thick, low permeability cover must be avoided; (c) location of monitoring well screens; (d) stability of the landfill slopes; (e) the foundation analysis conducted for the landfill; (f) soil tests and the acceptability of on-site soil materials for use in various components of the landfill; (g) pipe penetration of the liner system; (h) ash fugitivity; (i) blasting; (j) noise; and (k) plant species conservation. These issues were described in more detail in the June 23, 1992 Issues Ruling.

The August 20, 1992 Interim Decision limited the liner system issue to exclude the question of whether the project would comply with 6 NYCRR 360-2.13(k)(3)(ii) since this is a construction certification requirement. The Interim Decision also limited the ash fugitivity issue to exclude adjudication of potential effects on human health and to limit the issue to whether the Applicant's proposal would be effective in controlling ash fugitivity to the maximum extent practicable.

On December 3, 1992, an additional issue was added, regarding compliance with the requirement for five feet of vertical separation between the base of the constructed liner system and the seasonal high groundwater table (6 NYCRR Subdivision 360-2.13(d)).

Part 360 Requirements

This section quotes those portions of 6 NYCRR Part 360 whose specific language was particularly important in evaluating the hearing record. At the time of the hearing, the Department had recently proposed a revision of Part 360. The sections quoted below are the regulations as they existed both at the time of the hearing and at the time when the application was determined to be complete. This section of the hearing report is not intended to represent an exclusive list of the Part 360 provisions which are relevant to the issues in the hearing.

Paragraph 360-1.2(b)(40) defines critical stratigraphic section as meaning "all stratigraphic units, both unconsolidated deposits and bedrock, into which contaminants that escape from the solid waste management facility might reasonably be expected to enter and cause contamination."

Paragraph 360-1.2(b)(74) defines groundwater as meaning "water below the land surface in the saturated zone of the soil or rock. This includes perched water separated from the main body of groundwater by an unsaturated zone."

Paragraph 360-1.2(b)(75) defines groundwater table as meaning "the naturally occurring seasonally high surface of ground water at which it is subjected to atmospheric pressure. Groundwater table does not include the potentiometric head level in a confined aquifer."

Paragraph 360-1.2(b)(136) defines saturated zone and zone of saturation as meaning "that part of the earth's crust in which the interconnected voids are filled with water at a pressure equal to or greater than atmospheric pressure. The interface between the saturated zone and the unsaturated zone is the ground water table."

Subdivision 360-2.13(d) states that: "A minimum separation of five feet must be maintained between the base of the constructed liner system and the seasonal high ground water table. At landfill sites where it has been adequately demonstrated that the underlying soils are homogeneous and have representative coefficients of permeability of less than 5x10-6 centimeters per second and exhibit a minimum thickness of 10 feet, this minimum five feet separation requirement may be reduced or waived. In such cases, the department will require additional groundwater drainage systems to ensure that the seasonal high ground water table does not come in contact with the lowermost portion of the landfill liner during construction and until the hydrostatic pressures are equalized by the weight of the liner system and waste."

Paragraph 360-2.12(d)(2) states that one of the criteria which must be considered in a landfill site selection study is that "bedrock subject to rapid or unpredictable groundwater flow without thick, low permeability cover must be avoided. Preferred sites should have the greatest possible thickness of low permeability materials."

Findings of Fact

The findings of this report are, for some subject areas, followed by discussion of the positions of the parties and of how the evidence was evaluated. In some cases, this discussion is included in the findings themselves where it is clearer to do so than to leave a short section of discussion out of context from the finding to which it pertains. The conclusions related to each subject area are stated immediately following the findings and discussion, for clarity of reading.

1. Hyland Facility Associates (the "Applicant"), P.O. Box 68, Belmont, New York 14813, submitted applications for permits in connection with the proposed construction and operation of a landfill for the disposal of ash from municipal solid waste incinerators (the "Project"). The Project would be an ash monofill for the disposal of bottom ash, combined ash and fly ash treated consistent with 6 NYCRR Paragraph 360-3.5(g)(2). The monofill would consist of two cells, each of which would have four subcells which would be filled in sequence, and would operate for 19 years, receiving up to 500 tons of ash per day. The Project would also include an on-site mine for excavation of soil materials to be used as liner materials, as cover and for other construction uses on site.
2. The Site of the proposed Project is located in the Town of Angelica, Allegany County, New York. The Site is on Herdman Road, south of the Village of Angelica. The Site is on a surface water drainage divide, with part of the Site draining towards the north and part towards the south. The proposed landfill cells would be on the portion of the site which slopes to the south (see maps, Appendix A and B of this hearing report). At the present time, the Site is primarily pasture and hayfields, with some forested areas.
3. The area of the Site is 289 acres, of which 28.27 acres would be occupied by the monofill cells and 17 acres by the soil mine. The facility would be a commercial facility and the municipal solid waste incinerators from which the facility would accept ash are not identified in the hearing record. The facility would operate on Monday through Friday, 52 weeks per year, from 7:00 A.M. to 9:00 P.M.
4. The monofill would have a double composite liner system consisting of drainage material, 60 mil synthetic liner material and low-permeability soil, with a leachate collection pipe system in each of the two liners (see Appendices C and D of this hearing report). The leachate would be pumped into leachate holding tanks and transported away for treatment. Ditches would be used to divert surface water runoff away from the disposal and operation areas. In addition, there would be a groundwater suppression system consisting of five underground drainage lines, oriented in a north-south direction and buried in trenches filled with coarse stone drainage material. Two of the groundwater drainage lines would be located underneath the outer slopes of the east and west berms, respectively, and the other three would be located under the cell area (see Appendices C and E). The groundwater suppression system and most of the surface water ditches south of the drainage divide would drain to a pair of sedimentation ponds located south of the cell areas. The ponds would discharge to a stream which flows off site through a ravine.
5. The subgrade, or the soil layer immediately under the liner, would be prepared as one construction process for all of cell 1, along with construction of the berms associated with cell 1. The entire groundwater suppression system would be installed in the initial construction. Cell 1 is the northern part of the landfill and cell 2 is the southern part. The four subcells or areas within cell 1 are designated as A through D, with Area A being the west-central subcell and Area D the east subcell. As described in the operation and maintenance manual, the double composite liner system for cell 1 would be installed in phases as ash disposal progresses. The liner for Area A would be built immediately, the liner for Area B in the following construction season, and the liners for Areas C and D would be built in later construction seasons. Intermediate cover would be placed on the slopes which would receive additional ash in later phases. As filling of each Area was completed, final cover would be placed on the slopes that would not receive additional ash as the adjacent subcells were filled. Intermediate cover would be placed on landfill surfaces where filling operations would be inactive for thirty days or more. Cell 2 would follow a similar sequence, with the subgrade being prepared all at once and the liner installation and filling occurring in four phases. The Cell 2 subgrade would be built while ash disposal is occurring in Area D of Cell 1.

   Hydrogeology of the Site

   This section pertains primarily, but not exclusively, to the issues of the hydrogeology of the Cuba formation, of the vertical separation between the liner system and the seasonal high groundwater table, and of compliance with 6 NYCRR Paragraph 360-2.12(d)(2) which states that bedrock subject to rapid or unpredictable groundwater flow without thick low-permeability cover must be avoided.

   The findings, discussion and conclusions below may be summarized as follows. The site is in a shallow valley near the top of a hill. There is a row of springs east and uphill of the proposed cell area and a stream flows through the proposed cell area. The site is underlain by various types of glacial soils, with depths ranging from less than ten to over one hundred feet deep, over sandstone, siltstone and shale bedrock. A bedrock formation known as the Cuba formation is part of the critical stratigraphic section on the west side of the site but not on the east side. The Applicant collected additional data about the Cuba formation following the issues conference, but has only partially incorporated that data into its description of the site-specific geology. The groundwater flow in the bedrock was not shown to be either unpredictable or rapid, but there is still uncertainty about the groundwater flow rate at the two most permeable wells on the site. Part of the facility would be underlain by thick, low permeability cover but part would not. The project as proposed would be in violation of the requirement for five feet of vertical separation between the seasonal high groundwater table and the base of the liner, and the permit condition intended to bring the project into compliance with this requirement was not shown to be effective.

   The record regarding the hydrogeology issues is also relevant to several of the other issues. The hearing record indicates that inaccurate assumptions about the site's soils and hydrogeology were used by the Applicant's consultants who designed the project and who evaluated the engineering aspects of the project. The sharp separations among the scope of work done by the various consultants, and the limited communication to or among these persons, are contrary to the intent of Part 360. They also detract from the credibility of the Applicant's case on issues related to the soils, hydrogeology or engineering.

6. The site is located on Peacock Hill, at elevations above sea level between approximately 1825 feet (in the ravine draining the southern part of the site) and 2000 feet (on the hill northwest of the cell area). The site is within the Allegheny Plateau physiographic province. The site is underlain by sedimentary bedrock with glacial sediments over the bedrock. The bedrock formations underlying the site are, in descending order, the Wellsville formation, the Cuba formation and the Machias formation.
7. The northern edge of the cell area is just south of a col or saddle between the 2000 foot hill and the higher top of Peacock Hill which is southeast of the cell area. The cell area is in a shallow valley through which a stream runs. The stream is shown on the U.S. Geological Survey quadrangle map as an intermittent stream but a witness for the Applicant, who had been on the site on numerous occasions including during summers, had never seen the stream go dry. South of the cell area and immediately south of the proposed sedimentation ponds, the stream flows down a relatively steep ravine. It ultimately flows into Angelica Creek a short distance above the creek's confluence with the Genesee River.
8. The stream is fed by rain runoff and by springs on the site. The main group of springs is located approximately 200 to 300 feet east of and uphill from the cell area, at test pits A-A', B-B', C-C' and J-J' (see map, Appendix G of this hearing report). There are at least four springs, each of which flows at a rate of about one gallon per minute. Water from these springs formerly flowed over the surface to the stream and also through the ground and into a perched water zone in the center of the shallow valley. In 1989 or 1990, during the course of the Applicant's site investigation work, a ditch was dug between the springs and the cell area, diverting the water to the south and around the cell area.
9. Although the ditch diverted the surface water, the stream has not dried out. It is not known to what extent the ditch cut off the flow of water through the soil to the perched groundwater zone but it is possible that the spring water is still recharging the perched water by moving through desiccation cracks in the altered till. The stream receives water which is discharged from the perched water zone back to the surface. The amount of this discharge varies with the seasons. Groundwater flow at the bedrock-overburden interface and in the bedrock are discussed in Findings 18 to 25 below.
10. The glacial sediments on the site vary in their origin, composition and depth. The glacial sediments are relatively thin (5 to 10 feet deep) west of the proposed cell 1 and east of both proposed cells. The sediments are thicker at the center of the cell area, particularly under the west-central part of cell 2, and are up to 129 feet deep at a monitoring well several hundred feet south of the cell area.
11. The sediments can be described in terms of both their origin and their degree of weathering. The terms which witnesses for the Applicant and the Department Staff used in describing the origin of the sediments changed over the course of the hearing. The change in terms caused ambiguity in the testimony regarding the hydrogeology and other issues. The glacial sediments were described in the application documents primarily in terms of lodgement till and glaciofluvial sediments, without reference to ablation till. During cross-examination of the Applicant's soils and hydrogeology witnesses, these witnesses revised their description of the soils to include ablation till. As used by these witnesses, the ablation till would include some materials which the application described as glaciofluvial and some which it described as till (presumably lodgement till).
12. Some key terms were used with the following meanings. Lodgement till (also known as basal till) is material which was deposited under an advancing glacier and which consists of clay, silt, sand, and larger rock particles. Glaciofluvial sediments are those which were deposited by meltwater streams flowing from wasting glacial ice, both within the glacier and away from the glacier. Ablation till consists of soil and rock materials which had been carried within the glacial ice and which were deposited as the glacier melted. Glaciolacustrine sediments Two of the witnesses differed regarding whether glaciolacustrine materials should be considered as a subset of glaciofluvial materials, but this question does not have an effect on the outcome of the hearing. In this report, the term glaciofluvial is generally used to mean both glaciofluvial and glaciolacustrine, unless glaciolacustrine is specified or mentioned separately. are defined as glacial sediments carried by water and deposited in a lake or still water. Ablation till and lodgement till can be similar in appearance but can be distinguished based on their location relative to glaciofluvial sediments. Some of the near-surface sediments were described as glacial drift, which a witness for the applicant stated was a term which encompassed glacial deposits generally and which was used to describe clayey soils found in the top few feet at some parts of the site. Use of this last term was relatively consistent.
13. A large proportion of the sediments on the site are basal till, including the relatively thick sediments underlying other sediment types. The site also has ablation till at locations nearer to the surface and at least in the center of the valley. The horizontal extent of this till is unclear in the record. The map (Exhibit 19A) which was characterized by the Applicant on January 27, 1993 as showing unaltered basal till was actually drawn, on December 10, 1992, to show the extent of unaltered till without reference to whether the till was basal or ablation till. The center of the valley also has glaciofluvial sediments and some glaciolacustrine sediments. The horizontal extent of the glaciofluvial sediments is larger than that shown on Exhibit 18A. Glaciolacustrine sediments were found a monitoring well located within the proposed cell 2 area (monitoring well ("MW")-I2) and in some wells south of the cell area.
14. At some time during the melting of the glaciers, a part of the site may have been the location of a pond or lake which was created by ice blocking the flow of melting water. The size and boundaries of the lake would have changed over the years. The site at least had areas of still water which were large enough that glaciolacustrine deposits up to six feet thick could be deposited within them. Some of the small areas of still water may have been located under the ice.
15. The center of the valley contains a mixture of glaciofluvial sediments, glaciolacustrine sediments, and till. The glaciofluvial and glaciolacustrine sediments occur as lenses whose size and degree of connection to each other are not known but their size is not negligible and there is at least some connection among them. These sediments are interlayered with the till (for example, at monitoring wells H, D2, and J). Glaciofluvial and glaciolacustrine sediments can be found below layers of unaltered till on the site (for example, at MW-D2). In the central part of the valley, having reached unaltered till is not a reliable indication that the only material further down is unaltered till extending to bedrock. The maximum depth at which the glaciofluvial and glaciolacustrine sediments occur in the central part of the valley is not known, both under the cell area and south of it.
16. The till on the site is also described in terms of its degree of weathering, which can be identified by the soil color and in some places by the presence of desiccation cracks. The terms altered till and unaltered till could be applied to either lodgement till or ablation till. The glacial drift and the upper portion of the till contain desiccation cracks, which are silt-lined cracks formed by drying of the soil and by freezing of water in the soil. These cracks form a network of connected cracks, which was described as the reverse of a honeycomb. The cracks are both wider and more frequent near the surface and they taper until they disappear at deeper depths in the soil. The desiccation cracks are an avenue of water movement through the soil and can be saturated even if the soil matrix which they surround are unsaturated. Till containing desiccation crack has a higher permeability than similar till without desiccation cracks. Weathered till also has a mottled color. The mottling can extend to greater depths than the depths at which one can readily detect desiccation cracks, particularly in core samples, and mottling is the main indicator of weathered till. The Applicant's witnesses used the terms "desiccated till" and "altered till" as having the same meaning.
17. A perched water table exists in the glaciofluvial and glaciolacustrine sediments in the center of the valley. In addition, some of the soil in which the perched groundwater existed as of the August 1990 water level data was altered till. The perched groundwater is depicted on a drawing of an west-east cross section of the site at a line of wells which would be at the berm between Cell 1 and Cell 2 (Exhibit 68, west-east profile B, also shown in Appendix F of this Report). The cross-section is based on water level readings taken during August, 1990. The perched water table would be at higher elevations in wetter times of the year and the water table as depicted on the profile is lower than the seasonal high groundwater table. A seasonally fluctuating water table also exists at Monitoring Well ("MW") I2, which is west of the western limit of the perched water as depicted on west-east profile B. The application documents do not contain a depiction of the seasonal high level of this perched water table. The groundwater contour map (Exhibit 38, sheet 11) does not show the perched water table but instead shows the groundwater level near and within the bedrock, based on December 1989 data. The lateral extent of the perched water has not been defined but it is larger than the area labeled as glaciofluvial on exhibit 18A.
18. In addition to the perched groundwater, there is a water-bearing zone at and below the bedrock/overburden interface. The bedrock/overburden interface has a higher average hydraulic conductivity than does the unaltered till and water is likelier to move along the interface than through the unaltered till. The average hydraulic conductivity calculated for the bedrock/overburden interface is higher than that calculated for the Machias formation bedrock, but the more permeable wells in these two strata have similar hydraulic conductivities. Water moves through both the interface and the bedrock itself. Groundwater moving along the bedrock/overburden interface goes generally towards the center of the valley and towards the south.
19. Due to the low permeability of the unaltered till and the recharge occurring east of the site, the groundwater in the bedrock/overburden interface is under artisan conditions on the east side of the site and under the eastern edge of the landfill. On the east side of the site, the Cuba formation discharges groundwater and is the source of the springs east of the cell area. In the northwest part of the site, the area underlain by the Cuba formation is a recharge area. Artisan conditions may exist along the west edge of the Cell 2 area.
20. In addition to moving through the bedrock/overburden interface, the groundwater also moves down through the bedrock. Under most of the site, the bedrock at the bedrock/overburden interface is bedrock of the Machias formation. The upper portion of this bedrock is highly fractured, to a depth of approximately 24 feet below the bedrock/overburden interface. The other two formations, which are above the Machias formation in parts of the site, have similar weathered zones of different depths. Although the relatively permeable bedrock/overburden interface is a preferred route for groundwater movement, the evidence indicates that groundwater also moves down into the bedrock and, particularly on the west part of the site and at greater depths, towards the west. The Cuba formation bedrock on the west side of the site is a water bearing zone.
21. Appendix C of Volume 2 of the Applicant's Hydrogeologic Report interpreted the common occurrence of iron-stained fractures in the lower Cuba formation and the upper Machias formation as evidence of substantial groundwater flow. Iron staining was not demonstrated to be useful in quantifying the speed of groundwater movement, although such staining can indicate that water does move through the stained materials to a significant extent.
22. The velocity of groundwater movement is directly related to the hydraulic conductivity of the bedrock times the hydraulic gradient in the bedrock, and is inversely related to the effective porosity of the bedrock. From this relationship, the velocity of groundwater movement can be calculated. The linear lateral groundwater velocities were estimated to be 123 feet/year in the Cuba formation and 66 feet/year in the Machias formation.
23. The calculation of groundwater velocity for the Machias formation did not take into account the permeability at monitoring well 12T, one of the two wells listed as "Too Permeable" in a December 5, 1989 table of permeability data for the site. This well has its screen in the Machias formation. The permeability at this well is unknown, and the idea that a leaky seal in the well led to this result was not proved and does not appear likely. The table of well data in Volume 1 of the hydrogeology report does contain a note about a leaky seal in MW-F but no such notation appears for MW-12T. The permeability may have been higher than that which could be measured with a well of the diameter of MW-12T, but its permeability is unknown at present.
24. Water movement in the bedrock at the site occurs largely along joints (fractures), bedding planes and zones of weathered fossils. Although the rate of water movement differs depending on the nature of the rock at particular points, the direction of groundwater movement on a site-wide basis could be characterized.
25. The hydrogeology report identified the critical stratigraphic section at the site as consisting of the unaltered till, the bedrock/overburden interface, and the bedrock (Hydrogeologic Report Vol. 2, page 3 and pages 3-60 to 3-62). The hydrogeology report assumed that the altered till would generally be removed during construction and that the glaciofluvial deposits would be removed, and that this excavation plus the ditches and groundwater suppression system would eliminate the water-bearing zone in the overburden. The hydrogeologic report's discussion of the critical stratigraphic section refers to bedrock generically rather than in terms of particular formations, and includes bedrock in the critical stratigraphic section.
26. The landfill subgrade would be excavated to elevations below the August 1990 elevation of the perched water table in part of cell 2 (see, for example, Appendix F of this report, a portion of west-east profile B). It is likelier than not that this would also be the case in part of cell 1 and the Applicant has not demonstrated that this would not occur. A portion of the perched water zone is located below the subgrade elevation.
27. In constructing the subgrade, the Applicant would remove the topsoil, which is approximately the top foot or less of the soil. The application documents are very ambiguous regarding any excavation of soil that is at and below the subgrade elevation. The Quality Assurance/Quality Control Manual refers to cutting out "soft areas of subgrade not capable of in situ compaction", "backfill[ing] with material having a permeability equal to or less than that of the remaining subgrade material and compact[ing] as specified in Section 02210" (QA/QC Manual page 02211-4, section 3.02). The depth to which "unsuitable" material would be excavated is not identified in the application documents. There is conflicting testimony by witnesses for the Applicant and the Department Staff regarding whether or not the glaciofluvial materials would be considered "suitable" as subgrade. Section 02210 is very ambiguous regarding the material with which the subgrade would be backfilled. The application does not include a description of procedures regarding removal or replacement of glaciofluvial material, altered till or glacial drift as such. There is only the conclusory assumption, in the engineering report and the hydrogeology report, that the glaciofluvial materials and most of the altered till will be removed. As discussed further below, these ambiguities and inconsistencies undercut the assumptions used in a number of aspects of the design and evaluation of the project.
28. The Quality Assurance/Quality Control Manual does not specifically mention the glacial drift, although at places in the landfill there would be glacial drift below the subgrade elevation. The in situ hydraulic conductivity or permeability of the glacial drift is not identified in the application. The reworking of the glacial drift which was described by a witness for the Applicant is inconsistent with the sections of the QA/QC Manual which this witness cited as describing the process.
29. As proposed in the Quality Assurance/ Quality Control Manual, the process of over-excavating and replacing subgrade would occur based on the results of subgrade compaction, and is not tied to the origin of the material nor to its permeability. QA/QC Manual page 02211-4 only requires that the backfill material have a permeability less than or equal to that of the remaining subgrade, but the remaining subgrade could be any material that can be satisfactorily compacted, regardless of its permeability. The Applicant argued that the QA/QC manual is intended to harmonize with Subdivision 360-2.13(i) (landfill subgrade) but this subdivision does not clarify the ambiguities of the QA/QC Manual, particularly with regard to the permeability of the subgrade material.
30. The Applicant proposed an exploratory program to detect and replace saturated soils or material determined to be "unsuitable" by the engineer of record or Department engineer (Exhibit 182, Special Condition 46). The exploratory program would extend to a depth of five feet below the subgrade elevation. Soils that were unsuitable or saturated would be replaced if found within this depth. The permit condition stated that the soils would be replaced with "suitable unsaturated" soils. The process would take place at the time of subgrade construction, which for Cell 2 would be several years after the landfill had begun operating. "Suitable" soils are not defined in the permit condition, and the definition of "suitable material", the most similar term in the QA/QC Manual, is very broad (see QA/QC Manual page 02210-2). Glaciofluvial and/or saturated soils existing more than five feet below the subgrade would remain, under this permit condition. There is uncertainty regarding whether the electromagnetic survey technique proposed in the permit condition would be effective in detecting saturated zones below the uppermost one, in an area where more than one saturated zone occurs.
31. Although the application documents describe the groundwater suppression system, they do not contain any projection of the depth to which the perched groundwater table would be lowered by the groundwater suppression system and the drainage ditches other than conclusory statements in the engineering report. Although a witness mentioned having done such a calculation, the calculation apparently no longer exists and no such analysis nor its result was put into the record. The speed with which the groundwater suppression system would lower the perched groundwater table is also unknown but it would be relatively slow.
32. The relationship between the depth of the drainage ditches and groundwater suppression system and the depth of the strata through which water moves into the perched groundwater zone is not well understood, and there are places, particularly north and east of the cells, at which groundwater may still be able to enter the cell area even after construction of the landfill. The Applicant's witnesses had not analyzed the degree to which the soil compaction processes would cut off water movement through the desiccation cracks in the soil but relied on this as preventing recharge of the perched groundwater. This concept relies on the idea that the cracks are simply voids on the order of one-thirty second of an inch across, but this idea is contradicted by the description of the cracks as being silt-lined and the resistance which the silt offers to collapsing the cracks, even apart from other evidence indicating that the cracks may be wider. There is evidence of a groundwater table at the bedrock-overburden interface near the western part of the cell's northern boundary and at elevations below the bottom of the proposed drainage ditch near the eastern end of this boundary. Along part of the northern boundary, the desiccation cracks extend to the bedrock and farther east along this boundary there may be a water table in the overburden. These observations suggest that groundwater would still be able to move into the cell area even after construction, and the Applicant has not demonstrated that this would not occur.

    Discussion

    6 NYCRR Subdivision 360-2.13(d) states the requirements regarding vertical separation between the liner and the seasonal high groundwater table. This subdivision requires a five foot separation distance or, in the alternative, states the conditions under which the Department may allow a reduced distance or waive the separation requirement. Compliance with this subdivision was not originally identified as an issue for adjudication. Following the initial days of the adjudicatory hearing, in which testimony was given which related both to the existing issues and to this standard, CCAC requested that compliance with 360-2.13(d) be added as an issue for adjudication. This issue was added in a ruling dated December 3, 1992. The Applicant, in its post-hearing brief, has appealed this ruling.

    The issue was identified based on evidence which was put into the record by witnesses for the Applicant and for the Department Staff, regarding the issues which had been identified in the initial issues ruling. The Applicant, the Department Staff and the intervenor parties were provided an opportunity to develop a record on the additional issue. The record demonstrates that it is a substantive and significant issue. As stated in the Conclusions of this report, the application is not in compliance with Subdivision 360-2.13(d), even with the additional permit condition which was proposed in response to this issue.

    On December 7, 1992, the next hearing date after the ruling, a discussion took place regarding how this standard was being applied in the application and in the Department Staff's review of the application. The Department Staff stated that the project as proposed would meet the five foot separation requirement and that no reduction or waiver was necessary. The Applicant stated that it was under the impression that it was applying under a waiver of the standard since the Department Staff had required a groundwater suppression system. I stated that the entire section (sic) 360-2.13(d) was relevant. The ruling had also identified compliance with this entire subdivision as the issue for adjudication. On December 10, 1992, the Applicant formally requested a waiver of the vertical separation requirement. On December 18, 1992, the Department Staff stated that they believed that the project as proposed would not meet the requirements for a waiver, if the site is interpreted as having a groundwater table near the surface, e the soils are not homogeneous.

    The Applicant presented testimony on a proposed soil investigation study for locating and replacing saturated or unsuitable soils below the subgrade elevation and the Department Staff incorporated the study as a condition in a revised draft permit. On February 9, 1993, the Applicant withdrew its request for the waiver.

    The Part 360 application form (Engineering Report Appendix 2.02.01) stated that the groundwater table underlying the site varies from 0.5 to 110 feet below ground surface. The application further stated that the project would include a groundwater collection/suppression system which would intercept the shallow groundwater and divert the groundwater around the monofill cells. The statement in the application form concluded that the system was intended to artificially lower the groundwater table to meet the required five foot separation between the bottom of the monofill subgrade (sic, probably the bottom of the liner or the top of the subgrade) and the top elevation of the groundwater table. The engineering report at page 99 states that the required separation will be maintained, although the required distance is not specified there as five feet nor as a reduced distance. At page 101-102, the report goes on to say that, "Therefore, while the proposed subgrade elevation does not meet the minimum five (5) foot criteria established in the Regulations, this groundwater collection/suppression system will intercept the shallow groundwater and divert the groundwater away from the Monofill Cell." The application form and the latter statement in the engineering report contradict the position taken by the Applicant on December 7, 1992.

    During the initial testimony on soils and hydrology by witnesses for the Applicant and for the Department Staff, the perched groundwater zone was discussed as such and the pre-construction water table was identified as being above the subgrade elevation in some places. A witness for the Department Staff testified that the groundwater suppression system was necessary in order to provide the required separation between the liner base and the groundwater table in some parts of the landfill. Following the identification of this issue, some of the same witnesses provided interpretations that identified the water table as being at other depths far below the surface or as possibly not existing at all under parts of the site. The Department's geologist claimed that he had never said that the water in the glaciofluvial material constituted a water table.

    The Applicant's hydrogeologist testified that he had revised his opinion based on new information presented in another witness's rebuttal testimony, regarding whether certain soil samples were saturated. The relevance of some of these samples is in question since they are samples which did not include desiccation cracks, and the witnesses on this subject did not assert that the material between the cracks in the desiccated till was necessarily saturated. The location where some of the samples (Pit 2 and Pit 3) were taken is unidentified, although it may be near the mining area rather than in the cell area. This revision of opinion also disregards the earlier evidence about wet or saturated conditions in soils at various locations and about the water levels in the wells in this part of the site.

    The initial testimony regarding the presence and location of the groundwater is more credible. It is also more consistent with the information in the application documents.

    No wells or borings were made into the cell 1 area and the test pits which were dug only reached limited depths, not extending to the unaltered till. The existence and location of a perched water table in cell 1 and in the 5 feet of soil below the cell 1 subgrade elevation can only be evaluated based on interpretation of the features surrounding cell one and on resistivity measurements which were made within the cell 1 area. The Applicant's hydrogeology witness stated that the presence of a perched water table at west-east profile B could not be used to infer that the perched water table also existed in some portion of cell 1, but did make inferences about the existence and location of features considerably farther from the nearest observed occurrence of those features. At west-east profile B, the perched groundwater is depicted as being from about three to twenty feet thick. This groundwater zone would need to taper abruptly to zero feet thick as one went about 50 feet north in order for it to not extend under at least a portion of cell 1.

    During the testimony about the perched water table, the Department Staff witness on this subject advanced the interpretation that water which is at greater than atmospheric pressure or is confined cannot be considered as constituting a groundwater table. According to this interpretation, there would be no groundwater table associated with the glaciofluvial deposits. The witness stated that this interpretation was based on the definition of groundwater table which is found at 6 NYCRR Paragraph 360-1.2(b)(75).

    This interpretation was only mentioned in passing in the Department Staff's briefs at the conclusion of the hearing, so it is not clear whether the Department Staff as a party is adopting this interpretation. This interpretation was discussed in a footnote in the Applicant's brief.

    Paragraph 360-1.2(b)(75) defines groundwater table as meaning "the naturally occurring seasonally high surface of groundwater at which it is subjected to atmospheric pressure. Groundwater table does not include the potentiometric head level in a confined aquifer."

    Part 360 also contains two related definitions, those of groundwater and saturated zone. Paragraph 360-1.2(b)(74) defines groundwater as meaning "water below the land surface in the saturated zone of the soil or rock. This includes perched water separated from the main body of groundwater by an unsaturated zone." Paragraph 360-1.2(b)(136) defines saturated zone and zone of saturation as meaning "that part of the earth's crust in which the interconnected voids are filled with water at a pressure equal to or greater than atmospheric pressure. The interface between the saturated zone and the unsaturated zone is the groundwater table."

    The witness's interpretation of the term "groundwater table" is inconsistent with the concepts in the definition of "saturated zone". The definitions, when read together, would indicate that the elevation of the groundwater table is at the top of the saturated zone, rather than being at the potentiometric surface. The definitions do not indicate that if the water is at greater than atmospheric pressure then no groundwater table exists.

    At least seasonally, the saturated conditions in the glaciofluvial materials at the center of the valley extend all the way to the land surface since water from the glaciofluvial materials is discharging into the stream.

    The testimony of a number of witnesses for the Applicant and the Department Staff was at least initially based on the assumption that during excavation of the subgrade, the glaciofluvial sediments and most of the altered till would be removed, leaving only unaltered till as the subgrade material, extending from the subgrade surface to the bedrock-overburden interface. This assumption underlay some of the testimony regarding the stability analysis, the foundation analysis, the depth to the water table, the question of the permeability of the material over the bedrock, the definition of the critical stratigraphic section and the adequacy of the monitoring wells. As the testimony proceeded, the assumption about removal of these materials was shown to be inaccurate. This seriously undermines the credibility of the Applicant's evidence on these subjects.

    The Applicant's soil and hydrogeology witnesses also modified the depiction of the depth of altered till in the profile immediately north of the cell area and stated that in the northwest quarter of cell 1 the altered till extends all the way to the bedrock-overburden interface. This revision, which was not challenged by other parties, increases the area in which the material under the cells would be altered till instead of unaltered till.

    The Quality Assurance/Quality Control manual did not specify that all of these soil materials (altered till and glaciofluvial) would be removed. The Department engineer who reviewed the project could not determine from the application the depth to which the "unsuitable materials" would be removed if they were encountered. The QA/QC manual is worded in an extremely ambiguous and confusing manner regarding this question, as shown by the difficulties in interpreting it which were encountered by a number of persons who could be expected to be able to interpret a portion of a Part 360 application. It is also not clear how the term "unsuitable materials" as used in the QA/QC Manual corresponds to the altered till, glaciofluvial or glaciolacustrine materials. The question of what material would be removed from below the subgrade elevation and what would be used to replace these materials was also important to the issue of the suitability of the on-site soil materials.

    On January 12, 1993, the Applicant proposed certain additional activities which were incorporated as a permit condition in the January 26, 1993 version of the draft permit, but these do not resolve the issues.

    The ambiguities regarding the subgrade are relevant to a number of issues. With regard to the issue of the separation between the base of the liner system and the seasonal high groundwater table, the Applicant has not demonstrated that even if excavation and backfilling occurs the materials would be of sufficiently low permeability to prevent the water table from being restored. With regard to the foundation analysis and the stability analysis, even with the additional permit condition the glaciofluvial materials deeper than five feet below the subgrade would remain and have not been included in these analyses.

    The Department Staff geologist testified that in order to suppress groundwater under a structure, the engineering design takes into account the type of soil in which the groundwater is found, an approach consistent with the use of hydrogeologic reports as contemplated in 6 NYCRR Section 360-2.11. But as discussed further below, the Applicant's former project engineer testified that he had not read the hydrogeology report and had not taken into account any permeability data other than the recompacted permeabilities of the liner material.

    The testimony by witnesses for the Applicant regarding an inconsistency between two tables of hydraulic conductivity values revealed a fundamental weakness of the project, in that the design of the landfill made limited, if any, use of the hydrogeology information for the site. The testimony regarding the conductivity values detracted from the credibility of the Applicant's case on the hydrogeology and engineering issues in general.

    The Issues Ruling, in the context of the issue of the soil testing and acceptability of on-site soil materials, noted that there were two tables of horizontal hydraulic conductivity values, one in the Engineering Report and one in Hydrogeologic Report Volume 2, which contained conflicting information. These are tables of in situ conductivity values which were cited in the engineering report and the hydrogeology report as indicating that the on-site materials were suitable for use as the subgrade. At the hearing, when the Applicant had not presented any testimony regarding this inconsistency, I inquired about it. The Applicant's attorney stated that the Applicant had done supplemental sampling, reflected in Exhibit 90, rather than relying on the information in the tables but indicated that the Applicant would call a witness on this question.

    The tables list the maximum, minimum and mean horizontal hydraulic conductivities of the altered till (or desiccation zone), of the glaciofluvial sediments and of the unaltered till, as determined from in situ testing of monitoring wells. The tables also list the number of measurements for each soil type. The numbers in one table are all different from the corresponding numbers in the other table, with the exception that both tables state that there were four measurements in the unaltered till.

    On December 17, 1992, the Applicant initially stated it did not plan to present testimony on this question and that the numbers in the engineering report were an error, possibly a typographical error, and should be replaced with the numbers in the hydrogeology report. Following further discussion, the Applicant presented testimony on this subject by Michael Leydecker, the engineer who had been the project manager at the time when most of the engineering report was prepared. He testified that he did not know how the mistake had occurred, but that the table in the hydrogeology report contained the correct values. He further stated that the numbers in the table in the engineering report had been submitted to him or his colleagues in the form of a table and in response to a request for hydraulic conductivity values for the site, and that he had not reviewed the hydrogeologic report. He stated a short time later that he had reviewed portions and excerpts of a report from the hydrogeology consultant. Mr. Leydecker stated that the hydrogeologic aspects of the site were outside of the scope of Calocerinos & Spina's services on the project and that the only permeability values that had been used in design of the project were recompacted permeability values used in design of the landfill liner system components, not the in situ horizontal hydraulic conductivities The terms permeability and hydraulic conductivity were used as synonymous terms by the witnesses in this hearing although the terms do not have precisely the same meaning.

    The Village of Angelica then requested discovery of certain documentation relating to the draft hydrogeology report and the hydraulic conductivity information which was provided to the Applicant's engineering consultant. Over the Applicant's objection, this discovery took place in late December 1992 while the hearing was in recess.

    On January 5, 1993, the Applicant's hydrogeology consultant Dr. Goodman testified regarding the March 1990 hydrogeology report draft from which the table in the engineering report had been taken. He testified that the differences between the hydraulic conductivity values in the draft and those in the final hydrogeology report came from two sources: reclassifying some of the overburden wells into a new category designated as bedrock-overburden interface, and an error in the equation which Dr. Goodman had given to Hyland's employees for use in calculating the conductivities. Dr. Goodman testified that immediately after the draft report was submitted to the Department, he discovered the error and notified Mr. Bazarnick that the numbers would be revised. On cross examination, Dr. Goodman also identified a number of additional differences between the two reports which had resulted from reclassifying some wells from one overburden material to another and from adding data from new wells and deleting other wells.

    The persons who prepared the engineering report apparently had the table which appears on page 3-24 of the March 1990 draft of the hydrogeology report and the portion of the report's text which accompanies this table, since the text in the engineering report at pages 36 and 37 closely tracks the text of the draft hydrogeology report, including a portion that does not appear in the later hydrogeology report which is part of the current application. While the hydraulic conductivity values in the draft hydrogeology report and on page 36 of the engineering report are not the correct values, substituting the values from the hydrogeology report does not correct the problems. In Exhibit 138, the pages of the engineering report with the new numbers substituted for the old, the text still relates to the old numbers.

    The March 1990 report was a draft and some of the changes appear to have been supported by a reasonable reevaluation of the data. Testimony about individual wells revealed, however, that some of the mean permeability values are now based on very few measurements that are clearly in the stratum being described and that the classifications of some of the wells are doubtful to varying degrees. In Hydrogeology Report Volume 2 (Exhibit 19), the hydraulic conductivity of the altered glacial till is based on four wells (4BT, I, I2 and C1). One of these is screened in material which was most reliably described as glaciolacustrine material (MW-I2) and another is in till which Dr. Goodman described as having retained some characteristics of unaltered till. The conductivity of these four wells range from 3.41 x 10-9 (MW-4BT) to 6.94 x 10-6 (MW-C1).

    The four wells used in Exhibit 19 for determining mean hydraulic conductivity for the glaciofluvial sediments are wells H, H1, J and K. All of these were also identified as glaciofluvial in the draft report. The table of well data in Hydrogeology Report Vol. 1 (Exhibit 18, pages 8-2 to 8-6), however, identifies H, H1 and J as hybrid wells, screened across both desiccated till and glaciofluvial. Both exhibit 18 and 19 are documents which are part of the application, so neither of them could be seen as superseding the other. Dr. Goodman testified that hybrid wells yield hydraulic conductivities which are some average of the values for the two screened deposits and that in most cases they could not be used to characterize the hydraulic conductivity of a particular deposit absent some good geologic reason to do so. Dr. Goodman also testified that wells H, H1 and J were treated as glaciofluvial in arriving at the mean conductivities in order to maximize the amount of data for the glaciofluvial category.

    Only two wells are identified by the Exhibit 18 well table as being screened solely in glaciofluvial material: MW-K and MW-6. MW-6 is, however, included in the bedrock/overburden interface category in arriving at the mean conductivities in Exhibit 19. During a short segment of Dr. Goodman's testimony on January 5, 1993, he described MW-6 as being in glaciofluvial sediment, then stated that it was at the bedrock/overburden interface, then revised his opinion to state again that it was in the glaciofluvial sediment (if the bottom of the well represents a boulder rather than bedrock), and finally described it as a hybrid glaciofluvial/desiccated till well.

    The testimony and documents which were elicited in attempting to establish how the difference between the tables arose severely undercut the weight which can be given to the engineers' evaluations of the aspects of the project which affect or are affected by the hydrogeology of the site. They also underline the sharply compartmentalized nature of the work which was done by the Applicant's employees and consultants in designing the project and preparing the application.

    For example, the Applicant's consultant who was responsible for evaluating the hydrology of the site testified that he could not recall if any of the Applicant's staff had told him about the two well tests which were recorded as "Too Permeable" on ex. 144. Both of these wells appear on the charts of conductivity values in Figures 14a and 14b of the draft report (Exhibit 143), although MW-12T is enclosed in a dashed line, the significance of which is not explained. These two wells are listed in Hydrogeologic Report Vol. 1 (Exhibit 18) as "Not tested". One of these wells, MW-12T, is located at a point which would be less than 100 feet east of cell 2 and in the ditch immediately outside the berm. The Applicant's engineering consultant apparently was not notified by anyone about the calculation error regarding the hydraulic conductivities, or did not take it into account.

    The Applicant's hydrogeologist testified that he did not have any involvement in the design of the groundwater suppression system. The person who served as project engineer during the time when the majority of the engineering report's text regarding the sequence of the landfill construction, the groundwater suppression system, and the subgrade and liner system were prepared testified that he had not reviewed the hydrogeologic report and that the in-situ hydraulic conductivities had no part in the engineering design of the landfill. This is contrary to the close relationship between the hydrogeologic report and the engineering design which is contemplated in 6 NYCRR Section 360-2.11 (beginning of the section).

    The critical stratigraphic section at a landfill site is defined at Paragraph 360-1.2(b)(40) as meaning "all stratigraphic units, both unconsolidated deposits and bedrock, into which contaminants that escape from the solid waste management facility might reasonably be expected to enter and cause contamination." Identification of the critical stratigraphic section ("CSS") is relevant to the issues of the monitoring wells and of whether the Cuba formation has been properly characterized. Mid-way through the proceeding, the Applicant changed its position regarding whether bedrock was included in the CSS and then sought to exclude from the hearing the question of whether bedrock was part of the CSS.

    The Hydrogeologic Report Volume 2 states at page 3 that "...the critical stratigraphic section is proposed to include the thick unaltered glacial till which will underlie the liner system, and the lower, bedrock and bedrock/overburden interface formations which contain the first permanent water bearing zone under the site." Hydrogeologic Report Volume 2 goes on to state at page 3-60 that "...the proposed critical stratigraphic section consists of the glacial till which lies immediately beneath the proposed landfill cell liner, and the underlying permanent water bearing zone in the bedrock, which extends into (and is hydraulically connected with) the weathered bedrock/overburden interface." (As noted above, the report erroneously assumed that the only unconsolidated materials remaining under the cells would be unaltered till.)

    At the June 6, 1991 issues conference, one of the persons who later testified on behalf of the Department Staff stated that the Cuba formation on the west side of the site was part of the CSS but that since there was no groundwater in it, it was impossible to obtain certain data. It was later shown that there was groundwater in this bedrock.

    At various times after the issues conference, the Applicant obtained additional data regarding the Cuba formation. At the time of its April 14, 1992 brief on the scope of the hearing, the Applicant quoted the description of the CSS which appears on page 3-60 of the Hydrogeologic Report Vol. 2 but stated that the Cuba formation was not part of the CSS since for several reasons it was unlikely that contaminants would enter it. One of the reasons stated for this was that leachate escaping from the northwest corner of the landfill would flow along the bedrock/overburden interface "into the much deeper critical stratigraphic permanent groundwater zone." In their July 10, 1992 appeal of the issues ruling, the Department Staff agreed with the interpretation that the Cuba formation was not part of the CSS since they were of the opinion that contaminants could not reasonably be expected to enter this formation.

    Up to the time of the adjudicatory portion of the hearing, no party had argued that the Machias formation was not a part of the CSS. The hearing testimony was the first time that anyone mentioned, on the record, the concept that the bedrock/overburden interface was so strongly the preferred zone of groundwater movement that contaminants could not enter any of the bedrock below it to any meaningful degree.

    At the hearing, the Applicant's hydrogeology consultant stated that there was an inconsistency between the Hydrogeology Report's two definitions of the critical stratigraphic section and that the "more thorough" definition did not include bedrock but instead was restricted to the bedrock/overburden interface. This mischaracterized the descriptions, which are quoted, in part, above.

    The application identified bedrock as being part of the critical stratigraphic section, and the evidence supports this interpretation.

    The additional data which the Applicant collected regarding the Cuba formation has only partially been incorporated into the evaluation of the site's geology.

    The Applicant's hydrogeology witness worked on the project until some time in 1990 but then did not have involvement with it again until shortly before the adjudicatory hearing began. He was not involved in the project during the time when the additional well (MW-14) was drilled and tested to obtain data on the Cuba formation although he did review some data from this well. Although this witness testified that he believed the Applicant's employees had periodically measured the water levels in this well, he had only been shown one such water measurement.

    The data from MW-14 could have been used to revise the stratigraphic profile on which this well would appear, but this was not done. The calculation of groundwater velocity for the Cuba formation did not use the permeability value obtained for this formation from MW-9AS, although this value was approximately five times greater than the value from MW-14 which was used.

    The briefs of both the District and CCAC included a diagram showing a profile of the landfill and two of the wells which penetrated the Cuba formation. This diagram was not presented at the hearing and it appears to contain errors in depicting the well locations. It has been given no weight.

    Conclusions - Hydrogeology

    1. The critical stratigraphic section at the site, as defined in the application, includes the permanent water bearing zone in the bedrock. The evidence in the record is consistent with including bedrock as part of the stratigraphic section. The bedrock formation known as the Cuba formation is part of the permanent water bearing zone, both on the east side and west side of the site.

    2. The question of whether the Cuba formation is part of the critical stratigraphic section as defined at 6 NYCRR Paragraph 360-1.2(b)(40) depends on whether it is a stratigraphic unit into which contaminants that escape from the facility might reasonable be expected to enter and cause contamination. Contaminants would not be expected to enter the Cuba formation where it is found on the east side of the site since at this location the groundwater discharges from the Cuba formation. Thus, the Cuba formation on the east side is not part of the critical stratigraphic section.

    3. On the west side, due to the limited area in which the Cuba formation underlies the landfill and the fact that the liners slope away from the Cuba formation in this area, it is unlikely that contamination would reach the Cuba formation by means of leachate escaping through liner leaks. Contaminants in contaminated runoff, however, might reasonably be expected to enter the Cuba formation on the west side whenever such contaminants were in the drainage ditch that goes around the northwest corner of the cell area. The Applicant has not demonstrated that it will be successful in preventing contaminated runoff from entering the ditch. Special Condition 44 of the January 26, 1993 draft permit increases the uncertainty regarding where potentially contaminated runoff from the interim cover would go (see later sections of this hearing report). The Cuba formation on the west side is part of the critical stratigraphic section.

    4. Despite collecting additional data about the Cuba formation, the application is still not in compliance with 6 NYCRR Paragraph 360-2.11(b)(2) since only a portion of the data has been included in the evaluation of this formation. The question of whether the Applicant's evaluation of the Cuba formation complied with this Paragraph was identified as part of the issue in the June 23, 1992 issues ruling. The additional data was only partially taken into account in developing an estimated groundwater velocity, and the analysis of the gradients and the groundwater flow direction was not updated to reflect the new data.

    5. 6 NYCRR Subdivision 360-2.13(d) requires that a minimum separation of five feet must be maintained between the base of the constructed liner system and the seasonal high groundwater table. This provision applies not only at the time of construction but indefinitely. The provision at the end of the subdivision, regarding what is allowed once the hydrostatic pressures are equalized by the weight of the liner system and the waste, pertains specifically to those cases in which the separation requirement has been reduced or waived. There has been no such reduction or waiver in the present case, and the site is not eligible for such a waiver for the present permit application.

    6. The project as described in the application would fail to comply with the five foot vertical separation requirement. The Applicant has not demonstrated that the additional conditions in the January 26, 1993 draft permit would bring the project into compliance with the five foot vertical separation requirement.

    7. 6 NYCRR Paragraph 360-2.12(d)(2) states that sites having "bedrock subject to rapid or unpredictable groundwater flow without thick, low permeability cover must be avoided. Preferred sites should have the greatest possible thickness of low permeability materials." The concept of "rapid" groundwater flow, as used in this provision, is not defined in Part 360 but was recently interpreted in a ruling by Commissioner Thomas C. Jorling (In the Matter of the Application of Monroe County, Ruling on Motion to Reopen the Hearing, April 14, 1993). That ruling interpreted the cited paragraph as pertaining to landfill sites over karst limestone bedrock formations. The Monroe County ruling did not address the interpretation of "rapid" groundwater flow as flow rapid enough to allow contaminants to move off site before they would be detected and contained, an interpretation suggested by the intervenors in the present hearing.

    8. The site of the proposed Hyland project is not over a karst limestone bedrock formation. If Paragraph 360-2.12(d)(2) pertains only to karst bedrock, the Hyland site is not an area of rapid groundwater flow.

    9. Even if "rapid" groundwater flow also includes the broader definition suggested by the intervenors, the evidence does not indicate that groundwater flow at the site is rapid enough that contaminants would escape from the site before they could be detected and contained (assuming an adequate environmental monitoring plan was in effect). The evidence does, however, indicate an omission in that the permeability at two of the wells is not known but is probably higher than the permeability at the other wells. If this broader definition were used, the Applicant would need to determine the permeability and the groundwater velocity at the two "Too Permeable" wells, and to demonstrate that these locations are not subject to excessively rapid groundwater flow.

    10. There are variations in the direction and rate of groundwater movement at different depths and horizontal locations at the site, and there are uncertainties regarding some aspects of the groundwater flow which would be relevant in evaluating other issues. On a site-wide basis, however, the groundwater flow would not be considered unpredictable.

    11. Paragraph 360-2.12(d)(2) also requires evaluation of the thickness and permeability of the soil material, if the bedrock is subject to unpredictable or rapid groundwater flow. At the present site, there is very thick cover under some parts of the site but barely 10 feet of cover at the northwest corner of the cell area. Some areas of the site which are outside the cell area but within the facility (where ditches, roads and the leachate collection tanks would be located) have thin cover or would be excavated into the bedrock. The permeability of the altered till is poorly characterized.

    Monitoring Wells

    6 NYCRR Paragraph 360-2.11(c)(1) pertains to groundwater sampling in the environmental monitoring plans for landfills. This paragraph provides, among other things, that monitoring well screens must be located to readily detect ground water contamination within the saturated thickness of the first water-bearing unit and must be installed at a representative number of points at each subsequent permeable unit throughout the critical stratigraphic section. The issue of the monitoring wells screens initially focused on the adequacy of the wells at the "H" and "D" monitoring well clusters. At the hearing, the Applicant presented a revised monitoring well plan, in response to statements by the Department Staff, which involved a number of changes in the monitoring well system. Neither the original plan nor the revised plan comply with the groundwater monitoring requirements of Paragraph 360-2.11(c)(1).

33. The Environmental Monitoring Plan in the application identifies groundwater monitoring locations for phase one operation, phase two operation and post closure monitoring, along with surface water monitoring. The Applicant revised this plan at the hearing, in response to a statement by the Department Staff that the plan was deficient, and the revisions are identified in Exhibit 167A. The original plan did not monitor the bedrock/overburden interface (also called the contact) downgradient from the landfill. There are also inconsistencies in the application documents regarding the strata in which the screens are located in some of the wells which were included in the original monitoring plan. The soil at the elevation of the screens at two of these wells would have been excavated away at the time that the wells were to have been used (wells D and D1).
34. The Applicant's revised monitoring well plan (Ex. 167A) has deficiencies with respect to some of the presently-existing wells that are included in the plan. It also relies heavily on wells which have not yet been built, thus deferring any information about these wells until some later date. All but one of the wells which would monitor the glaciofluvial soil during cell 2 operation would be included only if glaciofluvial soil were encountered at certain locations where wells would be built in the future to monitor other strata. The distribution of the glaciofluvial materials is complex, so some of these wells might not encounter it. In addition, the Applicant's identification of particular strata as glaciofluvial changed during the course of the hearing. Of the wells identified by either the Department Staff or the Applicant for monitoring glaciofluvial sediments during Cell 2 operation, the only well which would have been likely to be in a known glaciofluvial deposit was the well to be screened at 29 to 31 feet at the "D" cluster. Due to construction activities at that location it may not be feasible to have wells there. Neither of the wells at the "H" cluster has been show to be screened in the wettest layer of the glaciofluvial material. The classification of the screened material at MW-H is in question. MW-H1, which is intended to monitor "glaciofluvial/unaltered till," is screened at a layer below the wettest glaciofluvial layer in that well. It also misses a lower, wet glaciofluvial layer found in MW-H.
35. The Applicant also proposed to add MW-6 as a glaciofluvial well, for cell 2 monitoring only, although the Department Staff recommended adding it for post-closure monitoring as well. In addition, the stratum in which MW-6 is located is in doubt. Exhibit 167A also fails to add the additional glaciofluvial wells to the monitoring schedules (Tables 8-1, 8-2 and 9-1 of the plan).
36. The original monitoring plan relied on two upgradient lysimeters for its upgradient monitoring. Lysimeters are devices for extracting water samples from unsaturated soil. These lysimeters would be located northwest and north east of the northern corners of the cells, at about two feet below the surface. During the hearing, the Department Staff suggested adding MW-A as an upgradient well. This well is identified in both hydrogeologic report volumes as being at the bedrock/overburden interface (contact), a water-bearing unit of the critical stratigraphic section. Exhibit 167A, however, states that MW-A will be reconstructed in the desiccated till. Reconstructing MW-A in this manner would leave no upgradient monitoring wells in the bedrock/overburden interface. (Ex. 167A also fails to add MW-A to any monitoring schedules.)
37. As discussed in Finding No. 25 and in the discussion following the Hydrogeology findings, bedrock is included in the critical stratigraphic section. The Environmental Monitoring Plan includes no monitoring wells, upgradient or downgradient, in the bedrock under the landfill (neither in the Machias formation nor the Cuba formation).
38. Because of the low hydraulic conductivity of the unaltered till and the length of time projected for contaminants to reach the bedrock/overburden interface, the Hydrogeologic Report recommended monitoring by use of lysimeters located downgradient from, and below, the groundwater suppression system trenches. At the hearing, the Department Staff stated that samples taken directly from the groundwater suppression system would detect contamination more quickly than samples from the lysimeters. The Department Staff witness recommended adding standpipes to the groundwater suppression system for this purpose and also sampling from wells which would be screened at the bedrock/overburden interface. A combination of samples from the groundwater suppression system and from wells in the bedrock/overburden interface would be more effective in detecting contamination than would the downgradient lysimeters.
39. 6 NYCRR 360-2.11(c)(1)(i)(b) states, among other things, that water bearing units below the first one in the critical stratigraphic section must be monitored as required by the Department based upon the potential for contaminant migration in to the unit. As discussed below under "Ash Fugitivity", water carrying suspended ash could enter the drainage ditches outside the berms either if runoff flowed over the berms (which would be isolated events) or if contaminated runoff from interim cover were routed through the ditches. In the northwest corner of the landfill, the Cuba formation is the bedrock immediately under the overburden and the overburden is relatively shallow. The ditches outside the berm at this corner of the landfill would probably be into the bedrock or separated from the bedrock by a relatively thin depth of altered till. There is at least a potential for contamination of the bedrock in this way, and in view of the uncertainties in the revised management of runoff the possibility for contamination cannot be ruled out.

    Discussion

    In its July 10, 1992 appeal of the issues ruling, the Department Staff stated that the environmental monitoring plan proposed in the application was sufficient to monitor all elements of the critical stratigraphic section and to comply with the regulatory requirements. At the hearing, on December 7, 1992, the Department Staff distributed an internal memorandum which stated that the environmental monitoring plan in the application was deficient and which recommended changes intended to bring the plan into compliance with Part 360. Following the Department Staff testimony on this issue, the Applicant stated it would abide by the recommendations of the Department Staff. I stated that the Applicant would need to provide information of similar specificity to that for the wells originally proposed, to determine whether the additional wells would monitor the strata they were intended to monitor.

    On January 15, 1993, the Applicant submitted a map of revised monitoring point locations with notes regarding when the wells would be installed and the strata and time period which they were intended to monitor. In response to questions regarding this map, the Applicant submitted a subsequent version on January 20, 1993 (Exhibit 167A).

    Many of the wells included in the revision of the Environmental Monitoring Plan do not exist at present. There is no information regarding either the future wells or the soil in which they would be installed which is comparable to the information in the well logs in the application. The question of whether the well screens are properly located cannot be evaluated for the wells which have not been built, which are the majority of wells in the revised plan. In view of the inconsistencies in identifying the screened formations in some existing wells, the other problems with the original plan, and the complexity of the glaciofluvial sediments, the revised monitoring well system should not be approved sight unseen.

    The issue as identified in the issues ruling focused on the wells in the "D" and "H" clusters. Wells D and D1 were identified in the application's environmental monitoring plan as being used for Cell 2 and post closure monitoring, but they would have been destroyed by construction by that time and therefore would be useless for these phases of monitoring.

    The proposed use of the "D" wells underwent some changes during the hearing, but these changes do not remedy the problems. In Exhibit 113A, which was the revisions which were under discussion at the time of the Department Staff's testimony on this issue, the Department Staff recommended abandoning MW-D and MW-D2 but keeping MW-D1 for use in Cell 2 and post-closure monitoring. During the testimony, the Department Staff witness amended this statement by saying that the D cluster would need to be replaced by new wells nearby, due to the construction disturbance. In Exhibit 167A, submitted after the testimony, the Applicant proposed using MW-D and MW-D1 but using them during Cell 1 operations rather than Cell 2. During the testimony on the environmental monitoring plan, the utility of MW-D and MW-D1 for Cell 1 monitoring was not directly addressed. These two wells are about 400 feet downgradient from Cell 1, and there is nothing in the record regarding whether this is close enough to Cell 1 to be effective (see 360-2.11(c)(1)(i)(e)).

    With regard to the "H" cluster wells, the Department Staff suggested using MW-H to monitor the unaltered till, but the Applicant's hydrogeologic report identifies this well as being screened in "DT/GF" (desiccated till and glaciofluvial) or in glaciofluvial sediments. MW-H1 is identified as being at least partially in glaciofluvial sediments both in the Department Staff's comments on the environmental monitoring plan and in the hydrogeologic report.

    At MW-H and MW-H1, the screens are located in "extremely moist" glaciofluvial sediments but there is a "wet" glaciofluvial layer higher in the soil than the screened layer at each well. (The moisture descriptions reflect conditions when the well was logged). Neither the Applicant nor the Department Staff presented testimony on this question, which was one of the criticisms contained in the District's filing for party status. The testimony of the District's witness, that MW-H and H1 would miss the first water-bearing unit in the overburden, is unrefuted. There was no testimony regarding the relationship of the screens or the water bearing strata at these wells to the elevation of the liner system at the south edge of Cell 1. This relationship cannot be determined adequately from the exhibits alone, but the exhibits suggest that at least one of these wet strata is lower than the bottom of the liner and could receive contaminants.

    There are no upgradient monitoring wells identified for the glaciofluvial sediments. There is an unanswered question regarding whether glaciofluvial sediments exist in the area north of Cell 1. The possibility that they might is supported both by a plausible theory of how the glaciers acted in the area and by an indication of a water table that could be associated with glaciofluvial material near the northeast corner of the landfill. There are few direct observations of the soils north of the cell area or at more than shallow depths within cell 1. If no glaciofluvial deposits exist upgradient from Cell 1 they cannot be monitored there, but it is not known whether or not they are present.

    In their briefs at the end of the hearing, two of the intervenor parties argued that the App