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Hyland Facility Associates - Ruling on Motion, May 11, 1994

Ruling on Motion, May 11, 1994

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

In the Matter

- of -

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

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

RULING ON MOTION FOR RECONSIDERATION

May 11, 1994

Ruling on Motion for Reconsideration

This Ruling is in relation to motion filed by the Town of Angelica and the Concerned Citizens of Allegany County (collectively referred to as the "Intervenors") in the captioned matter. The motion requests (1) clarification of the transition provisions in 6 NYCRR Part 360 ("Part 360") ; (2) clarification of the November 18, 1993 Ruling on Motion for Reconsideration (the "November Ruling"); (3) reconsideration of the November Ruling; and (4) recognition of additional issues for adjudication. These requests will be addressed sequentially below.

Transition Provisions in Part 360

The Intervenors contend that the transition provision applicable to this application is 6 NYCRR 360-1.7(a)(3)(vii) which relates to applications that were not complete on the effective date of the new rules (October 9, 1993).

The term "complete" as used in the transition provision relates solely to its meaning in the context of 6 NYCRR Part 621 ("Part 621"). Although as a result of the adjudicatory hearing it was concluded that the Hyland Facility Associates (the "Applicant") would need to submit additional information, that conclusion does not affect the determination that the application that was the subject of the adjudicatory hearings was complete for purposes of Part 621. In fact, once the agency has determined that application is complete under Part 621, it cannot revoke that determination merely because additional information is needed (In the Matter of LeFever Excavating, Inc., Interim Decision of the Commissioner, October 28, 1991).

Furthermore, since the November Ruling which effected a remand of the application was made effective retroactively to the date of the Decision and superseded the Decision, the application now pending is the same one that was the subject of the adjudicatory hearings. Therefore, the transition provision which is applicable to this application is the one which relates to situations where a complete application is pending on the effective date of the new rules, i.e. 6 NYCRR 360-1.7(a)(3)(vi).

Under this transition provision, applications are judged by the standards contained in prior rules. However, since the issuance date for any permit that may be approved for this facility will occur after the effective date of the new rules, the operational requirements in the new rules must be satisfied.

Clarification of the Status of Hearing Report

The Intervenors seek clarification of the status of the findings of fact and conclusions contained in the Hearing Report (the "Report") of Administrative Law Judge ("ALJ") Susan J. DuBois in the remanded proceeding. If any findings of fact upon which the November Ruling is based conflict with the findings in the Report or if the conclusions of law in the two documents differ, the Intervenors question whether the requirements of the Governor's Executive Order No. 131 were met. Finally, they also request clarification of whether the November Ruling is premised on the assumption that the application is approvable except with respect to the matters that were remanded.

The November Ruling is not based on nor does it include any findings of fact that conflict with the findings of fact in the Report. Therefore, the findings of fact in the Report remain valid. Obviously, additional information submitted by the parties or changes made to the project may require that these findings be revised or may make some of them irrelevant to the ultimate permit decision.

The November Ruling does, however, reach different conclusions based on the facts found in the Report. In each instance where a conclusion in the Ruling differs from a conclusion or recommendation contained in the Report, an explanation is provided in satisfaction of the Governor's Executive Order No. 131 (9 NYCRR 4.131).

The November Ruling found that there were five issues that needed to be remanded for adjudication. The Applicant has satisfactorily met its burden of proof on the remaining issues. However, it is recognized that there may be other issues that will also require adjudication and the November Ruling set out the three categories in which such issues may arise. Nothing in the pending motion warrants a change to this conclusion.

Adequacy of the Environmental Monitoring Plan ("EMP")

The Intervenors argue that, in several respects, the EMP fails to meet the standards for approvable plans and that therefore its approval in the November Ruling was incorrect.

The November Ruling held that, at this stage of the permit review process, definitive information is only required with respect to the identification of the water-bearing zones that require monitoring. Prior to construction, it is not necessary to identify the precise location of all the wells and well screens that will constitute the monitoring network. It is reasonable to require this definitive delineation of the network during landfill construction when in-situ conditions can be taken into account.

Following this approach, it is only necessary to point out that, though not at issue, the earlier proceeding established the need to monitor the Machias formation as part of the critical stratigraphic section (see Findings of Fact #25 and 37). Hence, the Applicant will need to ensure that wells are established to monitor this zone consistent with the requirements of Part 360.

The other two objections concern the adequacy of the location of wells already installed and the omission of wells that will need to be installed. As stated above, these objections need not be addressed as part of the adjudicatory hearing. The EMP can be accepted at this stage of the review process without definition of the monitoring network. However, any problems will need to be dealt with by the Applicant in its submission to the Department before the EMP is approved.

To avoid any misunderstanding, a condition should be added to the draft permit which requires that a final version of the EMP be submitted to the Department after construction. The condition should require that the monitoring network be field tested and certified to verify that the monitoring wells meet the placement requirements of the MP and the well construction requirements of Part 360 before it is approved by the Department. The Department will only give approval to the EMP upon a showing that it fully complies with 6 NYCRR 360-2.11(c). No operation will be permitted prior to this approval.

All submittals to the Department concerning the final configuration of the monitoring network and the monitoring well data itself will be public documents and hence available to the Intervenors. Under the law, the Intervenors or any member of the public may review these documents and express their opinion about them to the Department.

Additional Issues for Adjudication

The Intervenors ask that two additional issues be included in the remand. The first relates to the need to depict seasonal high groundwater and the second relates to requiring additional data on the hydraulic conductivity of the soils.

These matters are already subsumed in the issues that were remanded. Both are relevant, for instance, to the question of whether a variance can be granted to the five foot separation to groundwater requirement. The findings of fact demonstrate problems with respect to both matters which will have to be addressed in the context of the remanded proceeding.

Conclusion

The draft permit should be modified as discussed above. This matter is remanded to ALJ DuBois for further proceedings consistent with this Ruling.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Ruling to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York this 11th day of May, 1994.

DEPARTMENT OF ENVIRONMENTAL CONSERVATION
_____________/s/_____________
LANGDON MARSH, ACTING COMMISSIONER

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