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Hyland Facility Associates - Ruling, June 23, 1992

Ruling, June 23, 1992

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Application of HYLAND FACILITY ASSOCIATES for Permits to Construct and Operate
an Incinerator Ash Monofill pursuant to Parts 360 and 420 through 423 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York

RULING ON ISSUES AND PARTY STATUS

June 23, 1992

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

The hearing in the above matter began with a hearing session for public comments on June 5, 1991 and an issues conference on June 6, 1991. In a memorandum dated June 17, 1991, I summarized the additional information which persons at the issues conference stated that they would submit. This memorandum also requested a number of clarifications of subjects which had been raised at the issues conference. The last of the submittals discussed in the June 17 memorandum was received by me on October 28, 1991.

On December 18, 1991, I made a ruling on the need for certain variances and additional permits. On December 23, 1991, the Applicant appealed the portion of the ruling which required the Applicant to apply for two variances from Part 360. Following additional correspondence, Commissioner Thomas C. Jorling issued a Second Interim Decision dated March 6, 1992 which stated that the Applicant need not apply for either of the variances.

On March 16, 1992, the Applicant submitted additional information which I had requested on December 18, 1991 regarding the availability of processed ash. Upon receipt of this information, the schedule for briefs on the proposed issues began and he briefing concluded on May 11, 1992.

Throughout this process of identifying the issues, the Applicant has argued that there are no substantive and significant issues and that no adjudicatory hearing is necessary. In keeping with the Department's practice in determining the scope of hearings, I have attempted to have as many things as possible clarified prior to the issues ruling and to allow for the Applicant to rebut proposed issues by reference to the application materials. Even following this rebuttal, and the Applicant's submittal of certain new information, questions remain which will need to be decided on the basis of appropriate testimony and evidence.

Party Status

Ten persons, agencies and organizations requested party status to participate in the adjudicatory portion of this hearing. At the issues conference, there was some discussion of which of the potential parties might be willing to participate as consolidated parties. The present ruling on party status takes into account that discussion and also the similarity of interests among some of the parties.

The Parties to the hearing are as follows:

  1. Hyland Facility Associates (the "Applicant");
  2. the Department of Environmental Conservation Staff;
  3. the Allegany County Soil and Water Conservation District (the "District");
  4. the Town of Angelica (the "Town");
  5. the Village of Angelica (the "Village");
  6. Concerned Citizens of Allegany County ("CCAC") participating as a consolidated party with the Angelica Inn;
  7. the Angelica Booster Citizens ("ABC"); and
  8. the Allegany County Board of Health.

Both the Town of Amity and Citizens for Responsible Progress also requested party status. The Town of Amity expressed concern about two proposed issues which have not been identified as issues for adjudication and did not propose to participate in adjudication of any other issues. The Town of Amity also did not demonstrate how its interests would be affected by the outcome of the hearing.

Citizens for Responsible Progress ("CRP") did not participate in the issues conference but was allowed to request party status after the issues conference. CRP wished to participate in support of the project. On June 19, 1991, I requested certain information which would be necessary to supplement CRP's filing. I received no response to this request and CRP has not shown what interests of its members would be affected by the project.

Neither the Town of Amity nor Citizens for Responsible Progress will be a party to the adjudicatory hearing.

James Goodwin submitted a letter requesting party status, but at the issues conference CCAC stated that Mr. Goodwin would be participating in some manner (as a witness or as a consolidated party) with CCAC. The subsequent correspondence indicates that Mr. Goodwin would be participating as a witness for CCAC. Mr. Goodwin is not being identified as a party (individually or in a consolidated manner) but may be called as a witness for CCAC.

Issues for Adjudication

Summary

As discussed below, the following issues have been identified for adjudication in this hearing: (a) hydrogeology of the Cuba formation; (b) compliance with 6 NYCRR Paragraph 360-2.12(d)(2); (c) location of monitoring well screens; (d) stability of the landfill slopes; (e) foundation analysis; (f) soil tests and acceptability of on-site soil materials; (g) pipe penetration of the liner system; (h) ash fugitivity; (i) blasting; (j) noise; and (k) plant species conservation (one species).

Hydrogeology of the Cuba formation

As discussed in the Applicant's Hydrogeology Report Vol. 2, the rock units which have been found beneath the glacial deposits on the Site are, in ascending order, the Machias formation, the Cuba formation, and the Rawson member of the Wellsville formation (p. 2-2). Springs are found on the site at the contact between the Machias formation and the Cuba formation and small streams of high flow were also noted emanating from joints in the Cuba formation (p. 3-50). The springs are primarily along the eastern portion of the site.

Despite the role of the Cuba formation in the groundwater movement on the site, at the time of the issues conference the application did not provide hydrogeologic data for this formation. Tables 3 and 4 of Volume 2 of the Hydrogeologic Study contain hydraulic conductivities and estimated groundwater velocities for the glacial layers, the Wellsville formation and the Machias formation but omit this data with regard to the Cuba formation. The reasons stated for this by the Hydrogeologic Study are that no wells were screened in the Cuba formation due to the relative thinness of the Cuba formation and the collective treatment of bedrock units early in the study (p.3-33). At the issues conference, a Department geologist also stated that no water was found in the Cuba formation on the west side of the site, near where the landfill cell will be located over the Cuba formation, and that if the Cuba formation on the east side were tested it "may or may not be indicative of the condition of the Cuba formation on the west side." The statement regarding absence of water was challenged by a soil scientist from the District, who cited the log for monitoring well 9 as showing water in the Cuba formation at this location. The Department stated that the Cuba formation on the west side of the site is within the critical stratigraphic section (issues conference discussion at pp. 163-170 of transcript). The District also stated that the Cuba formation is 35 feet thick and that much thinner strata were tested on the site. As depicted in Figure 6 of the Hydrogeologic Report Vol. 2, the Machias formation underlies the majority of the proposed landfill cell area as the subcropping bedrock formation beneath the glacial overburden but the Cuba formation underlies the northwest portion of the proposed cell area as well as the east-central part of the site.

The District and CCAC proposed the hydrogeology of the Cuba formation as an issue for adjudication, citing a number of reasons. 6 NYCRR Clause 360-2.11(a)(8)(i)(d), regarding monitoring wells used in site investigations for landfills, requires that, "Soil borings, soil samples and rock cores must characterize each stratigraphic unit within the critical stratigraphic section to justify the interpretations and conclusions of the hydrogeologic report." CCAC argued that due to the missing information regarding the Cuba formation, the application does not satisfy the requirements of 6 NYCRR 360-2.11(b)(2) regarding evaluation of the site-specific geology. Both of these parties also argued that Paragraph 360-2.12(d)(2) requires that if the site is underlain by bedrock subject to rapid or unpredictable groundwater flow without thick, low permeability cover it must be avoided as a landfill site.

On April 14, 1992, the Applicant submitted its brief regarding the proposed issues. This brief included a discussion of this proposed issue and of an additional monitoring well (MW-14) which had been installed in the Cuba formation on the west side of the site on September 11, 1991. The brief also had an Appendix J which presented information regarding the Cuba formation and MW-14.

The Cuba formation is part of the critical stratigraphic section and has also been observed to be an important avenue of groundwater movement on the site. The relative lack of information about this formation may be due to how the study evolved and how the wells were constructed, but it causes the application to be deficient. The arguments presented in the Applicant's brief do not resolve this deficiency. The brief discussed a revised boundary for the edge of the Cuba formation under the landfill (revised from Hydrogeologic Report Vol. 2, Figure 6) and a comparison of permeability of two locations in the Cuba formation based on visual comparison of photographs of the rock cores from these locations. These statements would appear to be expert opinions and interpretations but they were not attributed to any expert and the brief was prepared by counsel for the Applicant. These discussions do not provide a basis for concluding that all the necessary information has been provided nor that a substantive issue does not exist. In addition, Appendix J of the brief only provided the results of one permeability test for the Cuba formation and does not provide information comparable to that which the Hydrogeologic Report Vol. 2 section 3 provides for the Wellsville and Machias formations.

The brief also argued that CCAC's proposed witness James Goodwin lacked sufficient expertise in geology to challenge the application. The Applicant's own consultant, however, had used a study by Mr. Goodwin as a source of information for the hydrogeology report, and a review of Mr. Goodwin's resume and his description of his background do not indicate that he should be ruled out as a witness.

The characterization of the Cuba formation is substantive in that it could lead to additional permit conditions regarding groundwater monitoring or even to a conclusion that the site is inappropriate for use as a landfill site. The application is still deficient as regards this issue and testimony is needed.

Compliance with 6 NYCRR 360-2.12(d)(2)

6 NYCRR Paragraph 360-2.12(d)(2), with regard to landfill siting, provides that: "bedrock subject to rapid or unpredictable ground water flow without thick, low permeability cover must be avoided. Preferred sites should have the greatest possible thickness of low permeability materials." The issue of the Cuba formation relates to this provision, among others. The Cuba formation issue plus a number of the other criticisms identified in the filings for party status by CCAC and the District, when taken together, require adjudication of whether or not the project would comply with Paragraph 360-2.12(d)(2).

The Site had been considered in the 1980's as a site for a new Allegany County landfill, but another site was chosen in part due to the then-existing evaluation of soils at the Site. The Applicant stated that the evaluation which had been done at the time of the Allegany County Landfill EIS was a limited study and that the Applicant's additional hydrogeology studies have shown that the Site is actually an excellent site.

The intervenors in the present hearing have contested several aspects of the Applicant's Hydrogeology report, including the reported depth and uniformity of the till at two locations, the assumptions made in using a resistivity study as a measure of the depth to bedrock, the extent of fracturing in the bedrock, and the significance of water losses during coring at the site.

The District questioned whether the resistivity study of depth to bedrock was accurate, in view of the variety of strata at the site and also questioned the depth of uniform sediment at locations MW-1 and MW-4. The Applicant in turn questioned the expertise of John Wulforst, a soil scientist who is a proposed witness for the District. The Applicant's brief also stated that the fact that Mr. Wulforst had never encountered a uniform deposit that thick in New York State means that "[t]he only conclusion to be drawn from these logs is that the soil characteristics at this site prove that it is the best site available in New York State for landfilling activity." (p.67). The Applicant did not provide any confirmation from its consultants that these depths were indeed accurate nor any expert support for its statement about the exceptional quality of the Site. The Applicant has also not shown that Mr. Wulforst, as a soil scientist, in unqualified to comment on the issues raised by the District.

In their responses to the Applicant's brief, CCAC and the District included all or part of a February 21, 1992 report prepared by Dale M. Gramza and reviewed by Donald W. Owens, two of the persons who also worked on the Applicant's Hydrogeology Report. The February 21, 1992 study is a review of available data regarding another proposed landfill which would be located near the Village of Franklinville, Cattaraugus County, New York. While this is obviously a different site, there are similarities to the Site of the present ash monofill application. The interpretations in the February 21, 1992 report, particularly with regard to the significance of springs and poorly drained soils and of drilling fluid return losses raise questions about the interpretations of similar observations on the present Site. The Applicant has submitted little response by the consultants themselves, as opposed to responses by counsel for the Applicant. An exception to this is the August 27, 1991 letter from Mr. Gramza which criticized Mr. Goodwin's calculations which were contained in CCAC's August 19, 1991 letter.

Serious questions have been raised about compliance with Paragraph 360-2.12(d)(2) and the outcome of these questions depends on the credibility of the consultants, of the proposed witnesses for the intervenors and possibly of Department Staff witnesses if they are called. This should not be pursued further through correspondence but rather through testimony where there is an opportunity to question the experts themselves.

Location of monitoring well screens

This issue was proposed by the District, whose June 5, 1991 comments listed a number of monitoring wells which the District alleged had screens located at the wrong depth for sampling ground water. The wells identified in this regard by the District were monitoring wells 6, H, H1, J, K, D2-90, and 9. The District, in its June 5 and August 17, 1991 comments, provided a table comparing the depth of the screen locations with the depth of the saturated zone and stated that the Applicant had not met the requirements of 6 NYCRR Subparagraphs 360-2.11(c)(1)(i) and (ii).

The Applicant responded to this proposed issue in its April 14, 1992 brief by reference to the Environmental Monitoring Plan which appears at the end of the Hydrogeologic Report Vol. 2. The Applicant stated that although all wells on the Site are referred to in the application as "monitoring wells" only some were installed to actually monitor groundwater while others were installed as piezometers for other hydrogeologic purposes. The Applicant stated that wells J, K, 6 and 9 are not monitoring wells at all and that well J will actually be removed prior to constructing a sediment pond. The Applicant's brief suggested, by reference to the wells being "in multiple well installations positioned properly to be below the liner system", that wells H and D2-90 are monitoring wells but that well H1 is not since it is located "within the higher glaciofluvial material" (both emphases in original; brief, p. 70). The brief also stated that monitoring wells are constructed of stainless steel (p.69). The Applicant did not provide any comments by its hydrogeology consultants on this proposed issue.

The District's reply stated that the District had evaluated things labeled as monitoring wells and had not commented on the monitoring plan as such, and that the details of the June 5, 1991 comments still applied.

The Environmental Monitoring Plan contains a description of water monitoring facilities (wells and other sampling stations) and schedules of the existing, operational and post-closure water sampling. The Plan also contains a map of the monitoring point locations (Fig. 3-1). Hydrogeologic Report Vol. 1 Section 8 contains a description of the monitoring well and piezometer installations and a table of information for the various wells (following page 8-1).

A review of these portions of the DEIS, in connection with the correspondence on this issue, indicates that wells 6, 9, J and K are not part of the groundwater sampling plan. Thus, the requirements of 360-2.11(c)(1)(environmental monitoring/groundwater sampling) would not apply to them. These wells may, however, be relevant to other issues, particularly that of the soil testing.

An issue exists with respect to wells H, H1 and D2-90, which the Applicant's brief did not rebut. Both wells H and H1 are listed in the Environmental Monitoring Plan as environmental monitoring points for the existing water quality monitoring and the Cell 1 operational water quality monitoring. The Applicant's brief actually raised an additional question since it appears that well H1 is a monitoring well. Further ambiguity is introduced by the table at page 8-6 of Hydrogeologic Report Vol. 1, which states that well H is PVC rather than stainless steel.

Well D2-90 is not identified by that name on the table of well information. "MW D2" on the table at page 8-5 of Hydrogeologic Report Vol.1 is apparently the well whose well log is labeled "D2-90". Neither MW D2 nor Well D2-90 appear on any of the lists of monitoring wells in the Environmental Monitoring Plan. Instead, the Plan lists MW-D and MW-D1 as being part of the existing monitoring, Cell 2 operational monitoring, and post-closure monitoring.

The three wells designated as "D's" are described in the well table as stainless steel wells, and they are of different depths. These are apparently the wells MW-D, MW-D1 and MW-D2 which are all shown very close together on the large plans of the site. MW D2 is the deepest of the three.

The statements about well D2-90 in the Applicant's brief conflict with the information in the Environmental Monitoring Plan. Together with the brief's statements about the depth of the wells with respect to the liner system, the arguments on the "D" wells call into question which of these wells will actually be used, whether the well or wells is sufficiently deep, and (if indeed well D2-90 will be used) whether it will intercept the groundwater.

In summary, an issue exists regarding the adequacy of the monitoring wells in the "H" and "D" well installations.

Stability of the landfill; foundation analysis

Both of these issues were proposed by CCAC, which enclosed with its filing for party status letters from Jeffrey C. Evans, Ph.D. criticizing the analysis of these subjects in the application. CCAC stated that the Applicant had failed to demonstrate compliance with 6 NYCRR 360-2.12(c)(4) and 360-2.13(i). Some procedural aspects of this proposed issue are summarized in my memo of July 23, 1991.

Other than stating that they believe that the draft permit could be issued as the permit for the project, the Department Staff has not taken an active part in commenting on the issues of slope stability and the foundation analysis.

The Applicant's arguments against including these issues are contained in a letter of July 2, 1991 and in its April 14, 1992 brief. With regard to these issues generally, the Applicant argued that under Part 360, the exact methods for slope stability and foundation analyses are left to the discretion of a New York State licensed engineer and that consequently neither Dr. Evans nor Dr. Benson (CCAC's proposed witnesses) were qualified to comment or offer opinions in this case since neither of them is licensed as an engineer in New York State. On May 11, 1992, ABC stated that its proposed witness Donald Shaw, P.E., who had originally commented on blasting and traffic, would be made available to testify about the inadequacy of the Applicant's slope stability analysis. ABC stated that Mr. Shaw is a registered professional engineer in the State of Pennsylvania.

While 6 NYCRR Subdivision 360-1.9(e) requires that engineering plans and reports submitted as part of a Part 360 application must be prepared by an individual licensed to practice engineering in the State of New York, there is no similar requirement imposed by Part 624 or Environmental Conservation Law ("ECL") Article 70 upon persons commenting on an application or testifying in a hearing, which are different roles from designing a landfill. In the hearing, the test of whether a proposed witness is competent to testify on a particular issue would be whether the person had the requisite education or experience to be able to give reliable opinions on the subject (see 58 NY Jur. 2d Evidence and Witnesses 643, 644, 646 (1986)). Based on their resumes, both Dr. Evans and Dr. Benson would be likely to be qualified to testify as witnesses on this subject. The fact that they are not New York State licensed engineers does not eliminate the proposed issues raised by their comments.

With regard to the issues themselves, there was extensive correspondence which will not be summarized in detail here. The issues described in Dr. Evans' letters of June 1 and July 10, 1991 are substantive and significant issues, specifically with regard to whether the project would comply with 6 NYCRR Paragraph 360-2.12(c)(4) and Subdivision 360-2.13(i). The regulatory standards which CCAC argues have not been met are narrative standards which are applied using the information, methods and judgement existing in the relevant fields of expertise. CCAC's offer of proof is counter to the Applicant's statements regarding the application of these standards and if CCAC's position were to prevail once the testimony is heard, the project would not be in compliance with the regulatory requirements.

The July 2, 1991 comments of C & S Engineers, and the arguments and citations in the Applicant's briefs, do not adequately rebut the comments of Dr. Evans and the arguments submitted by CCAC. Indeed, some of the documents included in the attachment to C & S Engineers' response actually appeared to support Dr. Evans's statements regarding the reliability and applicability of certain soil tests. Although no opportunity was scheduled for the Applicant to reply to Dr. Benson's April 28, 1992 comments and Mr. Shaw's May 8, 1992 comments, the statements by these persons and the offer of their testimony further underscore the extent of the dispute. The Applicant did submit a letter dated May 22, 1992 which stated that Mr. Shaw had misquoted a statement from the application and had used an out-of-date map, but questions discussed in this letter would be more effectively dealt with through testimony by Mr. Shaw and Dr. Ahmad.

The proposed issue of instability due to the Clarendon-Linden fault will only be included to the extent that information on this fault affects the assumptions about ground acceleration due to earthquakes, which in turn affect the factors of safety calculated in the slope stability analyses. The state of knowledge about the fault may be relevant to this question.

Soil tests and acceptability of on-site soil materials

Both the District and CCAC questioned the validity of certain soil tests and also questioned whether the soils on site were appropriate for use as liner material for the landfill. During June and July 1991, there was some correspondence regarding the multiple code numbers used for some of the soil test sites. This clarified the location from which some of the soil samples were taken, but it did not rebut the District's criticism that most of the soil profile, even at the locations where samples were subjected to a range of tests, was other than the favorable soil types described by the Applicant. In July 1991, the Applicant also provided some additional information about test pits N-N' and O-O'.

The Applicant's brief argued that the hydraulic conductivity of the liner base soils is the critical criterion, rather than other properties such as the plasticity index, and also stated that the Applicant had met the requirements of 360-2.11(a)(9)(ii) by collecting representative soil samples and identifying their characteristics. The Applicant also stated that CCAC and the District had not offered their own data or analysis to refute the Applicant's position.

In the present case, the intervenors did offer an analysis of certain information presented in the application materials and identified where they saw it as being improbable, contradictory, or indicative that the project would be defective. The argument that in order to raise an issue for adjudication the intervenors might also need to submit their own data, regarding the soils on land owned by the Applicant, would turn the application process and the hearing process on its head. An applicant is required to submit the test data and documentation required in the regulations under which it is applying for a permit. In order to show that an issue exists which requires adjudication, an intervenor could present contradictory data but could also demonstrate a substantive defect or omission in the application by analyzing the applicant's own information.

With regard to the issue of the soils tests, an applicant for a Part 360 permit for a landfill is required to identify the location and identification of sources of cover material (Subdivision 360-2.4(c)). In the present case, the daily cover material would be obtained from the on-site soil mine (Operation and Maintenance manual, p. 75). The final cover would include a clay layer (O & M Manual, p. 74), but the source of this clay has not been clearly identified. Although the Applicant is not required to identify the sources of subgrade material or of the soil component of the liner system, there are requirements about the soils which can be used for these (Subdivision 360-2.13(i) and (j)).

In the present case, the characteristics of the subgrade have been called into question with regard to the foundation analysis and stability analysis. In addition, the District has alleged that the Applicant has not accurately characterized the soils and their suitability and thus has not complied with 6 NYCRR Section 360-2.11. Although the Applicant is not required to obtain liner material from on site, the Applicant presently plans to use on-site material and contends that it is acceptable. In addition, if the Applicant needed to bring in liner material from off site, the nature of the project and its impacts would change.

In order to determine whether the Applicant had adequately rebutted the criticisms presented by the CCAC and the District, I considered the information on the soils tests which is contained in the application, the application's descriptions of how the landfill would be constructed, and the correspondence and arguments on this proposed issue. Rather than being satisfied that the issue is resolved, my reading of these documents indicated that the proposed issue is significant and that there are serious questions which will need to be answered through testimony.

The information on this subject is located in various volumes of the application, including the Engineering Report and its appendices, both volumes of the Hydrogeology Report and their appendices, the Operation and Maintenance Manual, the Quality Assurance/Quality Control Manual, the site drawings, the Mined Land Use Plan and some additional documents submitted by the Applicant in the correspondence about this issue. Engineering Report Sections 3.03 and 5.06 and Operation and Maintenance Manual Section 5 are particularly relevant. These documents, and their statements about the soil characteristics and the ways in which soil from various locations would be used, are too lengthy to discuss in detail in these rulings, but some examples will illustrate the uncertainties.

With regard to the arguments about whether the soil tests indicate that the on-site soil is clay which would be acceptable as liner material, the Engineering Report at pages 103-104 states that soil cut from the monofill cell area will be used for the clay liner and that it will meet the requirements for such use. The Engineering Report refers to certain tests in support of this conclusion. The tests were done, however, for locations both within and outside of the cell area. There also appear to be two tables for such tests, which contain conflicting information (tables at page 36 of Engineering Report and at page 3-30 of Hydrogeologic Report Vol. 2). Some of the other testing of the potential liner materials were the tests for which the District contended that the soil layer tested in the laboratory was not representative of most of the soil depth at that location, and that the untested layers of soil contained large proportions of rocks. The question of the amount of clay, as opposed to its presence, remains unanswered.

In July 1991, after the issues conference, the Applicant submitted some test information for test pits N-N' and O-O' which the Applicant stated were from within the mining area and would be sources of liner. These pits are near the mine area but appear to be outside it, unless the mining will be more extensive than is shown on the maps. The test results for N-N' and O-O' also do not include tests of recompacted permeability, which the Applicant has characterized as the critical test with regard to liner material.

With regard to the subgrade area material, the Engineering Report states at page 102 that this material will be obtained from the access road grading along the eastern perimeter of the site, and that material from that source will be suitable for the monofill subgrade. The Engineering Report (p. 103) states that the requirements for subgrade area material are provided in the Quality Assurance/ Quality Control Manual, Section 02210, subsection 2.02 and that this material consists of any soil material having no particles greater than three inches in maximum dimension. But the cited section of the QA/QC Manual describes the subgrade area material as any suitable material having no particles greater than twelve inches in maximum dimension. Both the criteria for this material and the nature of the material to be taken from the east perimeter of the site are uncertain.

There are enough unanswered questions and inconsistencies that the issue of the soil testing will need to be adjudicated. While it is possible that the testimony will support the Applicant's position, the application and the Applicant's arguments to date have not shown that this issue would not preclude granting a permit.

Liner system

CCAC proposed a number of related sub-issues regarding the liner system and the leachate pipes, some of which will be adjudicated. The question of whether the pipe arrangement proposed by the Applicant would require a variance from 6 NYCRR Paragraph 360-2.14(b)(1) was decided by Commissioner Jorling on March 6, 1992 in the Second Interim Decision in this matter, which stated that no such variance was necessary.

An issue remains, however, with regard to whether the pipe penetration of the liners would be in compliance with 360-2.13(k)(3)(ii) and 360-2.14(b)(1)(iii) and (iv). CCAC has proposed testimony in support of its argument that the design proposed by the Applicant would not allow for testing of the welds between the pipes and the liners in order to prevent leaks, would not allow access to these welds for repair, and would not allow for measurement of the leachate depth above the liner or for an alternate means of removing leachate if it accumulates there. CCAC argued that "ensuring" that leachate not accumulate to a depth of more than a foot except in storms requires the ability to measure this depth, rather than relying on calculations of the water balance in the landfill. CCAC has also proposed testimony about an alternative design which it states is feasible and would not have these alleged problems. Although the Department Staff is of the opinion that the Applicant's design is acceptable, a substantive issue has been raised. CCAC's proposed witness on this subject disagreed pointedly with the Applicant's assertion that the alternative design would require landfill employees to climb 120 feet down a manhole. The Applicant has not provided any indication that this assertion was based on the opinions of its engineers or on any basis in the application or the correspondence.

A number of other sub-issues regarding the liner, the leachate pipes and the containment around the leachate tanks will not be adjudicated for various reasons. The questions of who certifies acceptability of the surface on which the synthetic liner would be placed and who can authorize compactive earthwork during November 1 to March 1 can be resolved by minor changes in the Quality Assurance/Quality Control Manual to make it unambiguously consistent with Part 360, which clarifications should be made if a permit is issued. The proposed issue of testing the liner material would be resolved by a permit condition expressly requiring the Applicant to carry out the "90/90" test and not to use any liner material which fails this test, as discussed at page 36 of the Applicant's brief.

The use of soil for the secondary containment around the leachate holding tanks will not be adjudicated. 6 NYCRR Subparagraph 360-6.3(b)(2)(i) allows soil to be used for this purpose. Here again there may be a need for a minor change in the Quality Assurance/Quality Control Manual to unambiguously specify compliance with the Part 360 requirement but this is not an issue for adjudication. 6 NYCRR Subdivision 360-2.13(h), regarding double walled leachate conveyance pipes and leak detection, is not applicable to this project (see 360-2.14(b)(1)(i)) and no issue has been raised regarding compliance with this subdivision.

Ash fugitivity

This issue involves a large number of interacting aspects, which have been developed in the hearing record to varying degrees at this point. Upon considering the entire issue, sufficient questions have been raised to require adjudication. The Applicant will need to show that the impacts of fugitive ash have been adequately assessed and mitigated. Rather than trying to isolate sub-issues and identify in the issues ruling how each of them would be decided, I am identifying a relatively broad issue. At the hearing, however, I will preclude testimony which is marginally relevant, is speculative, or has to do with subjects which have been adequately covered in the record at that time.

The issue involves what types of toxic materials can be expected to be in the ash and in what concentrations, the mechanisms by which ash could be dispersed into the air and/or the water (including the settling ponds), effects of the ash contents on humans, and means for detecting and controlling the escape of excessive amounts of ash. The issue as proposed by the intervenors has focused on the question of human health effects.

Some aspects of this issue have been dealt with in the application and the draft permit conditions, particularly the condition for air monitoring (special condition number 7). Part 360 also contains requirements related to containment of ash, particularly the requirements imposed on ash transportation (Paragraph 360-3.5(f)(7)). The intervenors have proposed testimony on other aspects of this issue, particularly the mechanisms for ash dispersal, the health effects of particular concentrations of lead in humans, and the existing lead levels in the population. The proposed testimony either calls into question the Applicant's position that the ash will be adequately contained or offers to provide a basis for evaluating the potential severity of lead exposure at particular levels. The intervenors have also contended that the DEIS does not assess the range of contaminants which might be present in the ash (particularly organic compounds).

Blasting

The Angelica Booster Citizens ("ABC") stated that blasting to construct the access road could damage historic buildings in the Village of Angelica and could have an adverse effect on preservation efforts and tourism. Following the issues conference, the Applicant submitted two letters on the question of whether or not blasting would be necessary. These letters did not provide a definite statement that blasting would not be necessary. The second letter, dated July 12, 1991, stated that, "While we are not in a position to make an unqualified statement that there will be no blasting required for the purpose of constructing the access road or for rock removal on the site itself, we can say that at this stage the Applicant does not anticipate that blasting will be necessary." The letter also stated that if blasting became necessary, the Applicant would obtain all necessary permits and would, with the ABC, study any effect that blasting might have on the historic structures.

In its July 19, 1991 comments, ABC proposed permit conditions to be imposed if the Applicant would need to blast or to use other rock removal technologies which could cause structural damage. ABC submitted an engineer's evaluation of possible effects of blasting as part of its August 19, 1991 comments, and supplemental comments with its May 11, 1992 reply brief. The report stated that the DEIS had not assessed the potential for damage to the Historic District and that there was the potential for damage. The report stated that a specific assessment of potential damage would require more information on the blast design, but that the Applicant's Quality Assurance/ Quality Control criteria contained no limits on airblast values and would not protect the historic district from ground vibrations due to blasting (report, pp. 7, 10, 21).

The Applicant's lack of a definite statement as to whether or not blasting would occur is out of keeping with the level of detail with which it has discussed other construction-related questions. The Applicant's statements about blasting are also called into question by the inclusion of criteria for blasting in its quality assurance and quality control document (section 02202) and by the inclusion of a substantial figure for "rock excavation" in its estimates of the cost of constructing both the access road and the alternative access road. Appendix G of the DEIS, which discusses the original proposed access route, contains an estimate of $872,600 for rock excavation based on an assumption that rock excavation would be required beyond a depth of five feet below the existing grade. For the alternative road, which appears to be the one which the Applicant would need to use, DEIS Appendix G.1 includes a revised estimate of approximately $1,585,500 for rock excavation work. The Applicant apparently never responded to CCAC's July 16, 1991 comments about the rock excavation for the road.

If blasting would be necessary or may be necessary, its impacts should be considered as part of the present review rather than as a segmented review at a later date. The need for blasting and the impacts of blasting on historic structures will be an issue for adjudication pursuant to 6 NYCRR Part 617 and Subdivision 624.6(b).

Noise

CCAC, in its filing for party status, stated that noise produced by the facility would produce sound levels on a neighboring property in excess of the limits stated in 6 NYCRR 360-1.14(p). CCAC did not offer any testimony by an expert witness in support of this statement but instead based it on the noise study done for the Applicant (DEIS Appendix F) and the distance between the noise sources at the facility and the adjacent Hutchinson property. CCAC also stated that noise due to mining on the site and noise associated with the two possible access routes had not been evaluated in the Applicant's noise analysis.

ABC and the Village criticized the potential levels of truck noise due to ash truck traffic within the Village and ABC submitted a consultant's report which discussed this topic briefly.

At the issues conference, counsel for the Applicant stated that noise due to the mining was not directly assessed in the noise study but that since the mining would take place at the center of the Site it would not add significantly to the noise. The mining equipment, as described at p. 14 of the Mined Land Use Plan, would include a track-mounted backhoe, a portable screen, a loader, trucks and a bulldozer.

In its brief, the Applicant did not contest the sound levels which CCAC had stated would occur at the boundary of the Hutchinson property but stated that the Hutchinson property is large and that the portion of it near the monofill site is not used for residential purposes at present and is unlikely to have residential use in the foreseeable future. The Applicant also stated that, "The DEIS prohibits trucks from entering the main part of the Village of Angelica." (brief, p. 105). The brief stated that the noise study had found that background noise from Route 17 was so much more significant than any projected noise from the transportation route that further study of this route was completely unnecessary. No page citation was provided for this last statement and I have been unable to locate it.

On April 29, 1992, the Department Staff proposed an additional draft permit condition which would require the Applicant to undertake noise monitoring and to adhere to a 57 dB limit at the Hutchinson property line, commemorating commitments which the Applicant had made in its brief. The Applicant has neither contested nor agreed to inclusion of this condition.

The Applicant's brief has not successfully rebutted the noise issue with regard to sound levels at the Hutchinson property nor the omission of the mining activities from the noise study. The noise study also appears to have analyzed truck noise on the initial access road rather than on the alternative access road to the north.

Noise levels generated on the Site, including on the access road which would be a driveway on the Applicant's property, and their compliance with 360-1.14(p) will be an issue in the hearing.

Regulating noise due to landfill traffic on existing public highways off the Site is beyond the scope of this proceeding, either in terms of prohibiting the trucks from going north of Route 17 in the Village or establishing noise requirements for individual vehicles. SEQR does not provide for a statement in the DEIS to be used to prohibit other parties (truckers) from using public roads north of Route 17. It also does not appear likely that the Applicant could abide by its statement at the issues conference about controlling the route to be followed by its customers (transcript p. 187-192). Truck noise levels could be considered as part of a "community character" issue, if that were to be adjudicated in this proceeding, but as noted below impacts on community character are under the jurisdiction of the Town and will not be adjudicated in this hearing.

Plant species conservation (Solidago ohioensis)

Two plant species were identified on the site which are also listed in 6 NYCRR Part 193 as "rare" (i.e. having from 20 to 35 extant sites or 3,000 to 5,000 individuals statewide (Subdivision 193.3(e)). These species are Solidago ohioensis (Ohio goldenrod) and Pinus banksiana (jack pine) (DEIS Appendix D, Ecological Evaluation).

The Applicant argued that Part 360 and Part 617 only require consideration of endangered or threatened species, not rare species, and only if the project affects critical habitat. The Applicant did not provide any further comments on the significance of having observed the two species above or the effect of the project on them.

While the siting provision in Part 360 is limited to endangered and threatened species, the consideration of environmental impacts under Part 617 (SEQR) is not as strictly limited. Evaluation of effects on rare species, under Part 617, also would not be a matter of prohibited siting but rather a matter of identifying impacts and evaluating mitigation measures or alternatives (Subdivision 617.14(e)). The presence of two "rare" species on the site is not speculative, since they were actually observed there, but the Applicant has provided no substantive evaluation of the effect, if any, of the project on these two plants which have been recognized as being rare in the state.

DEIS Appendix D indicates that Solidago ohioensis was observed in an area which will be the actual construction site but Pinus banksiana was in a plantation area which will probably remain undisturbed. Unless this is an inaccurate reading of Appendix D, there apparently will not be disturbance of the pine species and impacts on it need not be considered further. Effects on the species Solidago ohioensis are an issue, however.

CCAC also noted that a plant (Prenanthes trifoliata) with the common name of gall-of-the-earth was found on the site and that a plant with the same common name but a different Latin name is listed as "exploitably vulnerable." More that one species has this common name and the Latin name is likely to be the more reliable identification.

CCAC also stated that DEIS Appendix D identifies some of the plants on site only to the genus level and that some of these genera contain endangered or threatened species. CCAC did not argue that any of the endangered or threatened species which it listed could be expected to occur in habitats such as those found on the site. At the same time, the Applicant did not provide any indication that these species were all unlikely to be in such habitat, nor that the person who did the field work had established that the plants were not members of endangered species, notwithstanding being unable to identify them fully during the field work. (Appendix D notes that some of plants cannot be absolutely identified at certain times of the year.) The Applicant will need to submit a response regarding the criticisms stated in CCAC's filing for party status, but this will be treated as a response to comments on the DEIS rather than an issue for adjudication unless the response is inadequate.

Proposed Issues which will not be Adjudicated

The issues discussed below will not be included as issues for adjudication in the hearing on this application. The Applicant will, however, need to prepare a written response to the comments on the DEIS and file it as an exhibit to the hearing record as required by 6 NYCRR Paragraph 624.7(a)(3). This written response need not include a response to the comments on subjects identified as issues for adjudication, since the Applicant's response and the other parties ability to contest the response would be afforded by the adjudicatory hearing.

Impacts on public water supplies

The Village of Angelica stated in its filing for party status that the Applicant had not shown that the ash monofill would not affect the Village's water supply which is located on the opposite side of the Village from the proposed monofill. The Village also stated that the owners of the old County Home property were concerned about springs and wells on their property and that Nicholas Bucci, a co-owner of the property, would testify at the hearing.

The Town of Amity also expressed concerns about movement of groundwater from the site contaminating wells in the Town of Amity and the municipal wells of the Village of Belmont, which is within the Town of Amity. The Town of Amity provided a map showing the location of the municipal wells of the Villages of Belmont, Angelica, Belfast and Houghton. The base map for this map also shows the County Home location.

The Applicant stated that the Hydrogeologic Report Vol. 2 demonstrates that the groundwater flows away from the water supply area of both the Village and the county home property and that the Village had not proposed any expert witness testimony to controvert this report. The Applicant also stated that the Village of Belmont wells are near the Genesee River nearly four miles upstream (south) from the Site and that groundwater flow at the Allegany County landfill, located between the Site and the Belmont wells, is known to be directly towards the west (brief, pp. 95-96, 119).

The DEIS, at pages 3-7 and 3-8, summarizes the direction of flow of the surface water and groundwater. On the southern portion of the Site where the monofill would be located, the groundwater flow goes toward the center of the valley and then toward the south-southwest. This is away from both the county home property and the Village of Angelica's wells. The Village's wells are also on the opposite side of Angelica Creek from the Site. Both the county home property and the Village of Angelica wells, as shown on the map submitted by the Town of Amity, are also upstream from the surface drainage from the northern part of the Site. Of the wells shown by the Town of Amity on its map, only those of Belfast and Houghton are downgradient from the Site. Those wells are also a considerable distance downstream from where groundwater from the Site could reach the Genesee River and there was no allegation that pollutants escaping the Site could reach the groundwater at these wells in such a manner or concentration as to pollute them. Neither the local governments nor any water utilities served by the Belfast or Houghton wells commented on this proposed issue. As noted above, there are issues regarding groundwater and groundwater monitoring at the Site. The potential for effects on the Belfast and Houghton wells, however, has not been shown to be a specific part of that issue nor an issue on its own.

At the issues conference, the District stated that the DEIS should consider the possibility that airborne contaminants from the Site could be carried to the recharge areas for the municipal water supplies and contaminate the wells by this mechanism (transcript pp. 38-40). Even if airborne contaminants on the Site are an issue, no basis has been shown to suspect that airborne contamination from the Site could spread as far as to the area around these wells, let alone at concentrations large enough to move through the ground and contaminate the wells.

Ash screening

At the issues conference, the District noted that the DEIS states that the Applicant may need to apply for an air emission permit for screening ash at the Site. The District later provided a citation to DEIS pages 2-27 and 2-28, which states that on-site ash screening would be performed in the event that the Applicant cannot obtain ash, processed to remove large objects, in sufficient quantities to fill the bottom ten feet of the cell area.

In my rulings of December 18, 1991, regarding additional permits and variances, I required the Applicant to provide additional information on the availability of processed ash. The Applicant provided this information on March 16, 1992, and stated that the Applicant would only use ash that is pre-processed off site. The Applicant stated that nearly every incinerator built since 1986 incorporates some method of metal removal or pre-combustion process that the make the ash available for this use.

On April 7, 1992, CCAC stated that the Applicant's March 16, 1992 letter did not account for large objects that would not be removed by a magnet and that the size limit on large objects should not exceed the depth of the soils or drainage material over the landfill liner (24 inches in this case). CCAC stated that a quality control program would need to be implemented and that the Applicant had not provided an opinion from a qualified expert regarding the claim that 96% of the ash produced in the State would be free of large objects.

The Applicant's brief stated that the Operation and Maintenance Manual included in the application states, at Section 4.08, that the first layer of ash would be spread in layers no thicker than two feet prior to being compacted, and that this would make it easy to remove any oversized objects.

The Department Staff has proposed an additional draft permit condition which would incorporate the intention of the Applicant to refrain from on-site processing or screening of ash.

Although the Applicant's list of incinerators may overstate the number of incinerators which would be producing processed ash, the amount of ash produced by existing incinerators on the list is more than the daily capacity of the proposed ashfill. There does not appear to be any shortage of processed ash.

Although the Applicant has also described how large objects could be detected and removed, Section 4.08 of the Operation and Maintenance Manual does not discuss detecting and removing large objects. Instead, it assumes that the largest dimension of the ash is less than three inches. The draft permit requires compliance with the Operation and Maintenance Manual, among other documents. The Manual will need to be amended, prior to issuance of any permit, to state that when placing the first layer of ash the landfill employees will visually inspect the spread layers of ash for protruding objects and will remove such objects.

On a related note, the Manual and the DEIS appear to conflict regarding the depth of the first layer of ash. The Manual at page 68 describes the first layer as having a minimum compacted thickness of five feet; the DEIS at page 2-28 describes it as ten feet. The Applicant stated that although Paragraph 360-2.17(b)(3) requires the first layer of refuse to be a minimum of five feet thick and free of large rigid objects, the Applicant has decided to use ten feet of "select material". Although a first layer either five or ten feet in compacted thickness would satisfy this requirement of Part 360, the actual intended thickness should be clarified.

If the Applicant agrees to a draft permit condition prohibiting ash screening on the site, and if the Operation and Maintenance Manual is amended to require visual inspection of the ash and removal of large objects, no air permit would be necessary and no issue would be raised regarding ash processing at the Site.

Full-time environmental monitor

The draft permit would require the Applicant to fund an environmental monitor at the monofill, in an amount which is currently based on a part-time monitor. The Town of Angelica proposed that the applicant be required to fund a full-time environmental monitor. At the issues conference, the Department Staff pointed out that the draft permit condition on the environmental monitor fund (special condition 5) would allow the Department to revise the required payment if there is a need for additional on-site monitors (transcript p. 223). In the correspondence addressed to me about the proposed issues, there has been little mention of this proposed issue. No testimony has been proposed on this subject.

6 NYCRR Part 360 does not require a full-time monitor. The Department's current policy on requiring permittees to fund environmental monitors as a condition of their permits is contained in Commissioner Jorling's February 20, 1992 Organization and Delegation Memo #92-10, Policy: On-Site Environmental Monitors. This memo, at page 10 and 11, discusses types of monitors including full-time and part-time. Using a part-time monitor at the Applicant's proposed facility would not be inconsistent with this policy.

The memo also provides for temporary monitors during certain high activity periods at facilities which usually have a part-time monitor. No specific information has been provided at this stage regarding any portion of the landfill construction or operation which is sufficiently demanding that full-time monitoring would be needed, but if the need for additional monitoring should arise the Department could require it under the terms of the draft permit condition.

Compliance history of the Applicant

Under the Department's Record of Compliance Enforcement Guidance Memorandum, and the legal authorities cited in that memorandum, the Department can take into account the environmental compliance history of an applicant and the applicant's record with regard to offenses related to its credibility. The Town argued that the Applicant had not provided information regarding the identity of the Applicant and its officers which would be necessary for review under the Record of Compliance policy. On August 21, 1991 the Applicant wrote to the Town and stated that the Applicant had provided all the required information about its organization and management.

No party has alleged that the Applicant (which is a partnership) nor the corporations which are the partners have any history of violations which would be appropriate to consider under the Record of Compliance policy.

Federally-regulated freshwater wetland; water quality certification

On September 19, 1991, the Applicant made a joint application for U.S. Army Corps of Engineers approval for construction in a federally-regulated wetland and for water quality certification by the Department in connection with the federal permit. Although this application was made after the issues conference, there was an opportunity for the parties to comment on it. No parties proposed any additional issues as a result of the application for water quality certification.

The wetland on site, while subject to federal requirements, is not identified as a wetland subject to the state Freshwater Wetlands Act (ECL Article 24).

Distance to springs

The question of whether or not the Applicant would need to apply for a variance from 6 NYCRR Paragraph 360-2.13(a)(2), regarding distance from surface water bodies, was decided by Commissioner Thomas C. Jorling in the Second Interim Decision dated March 6, 1992. Commissioner Jorling determined that no such variance was required for this project. The Applicant has stated that following construction, the water bearing formation which feeds the springs would be intercepted by a ditch 400 feet from the monofill cells (brief, p. 64). No party has alleged that the ditch would fail to maintain the requisite distance between surface water and the waste during the time when waste disposal would occur.

25-year storm

The District stated that the DEIS identifies the 25 year frequency storm as the basis for sizing the surface drainage system for the project. The District argued that the Soil Conservation Service standards require protection for a 25 year frequency storm when designing protection above barnyard and manure handling facilities, and that the project should be afforded a greater level of protection by utilizing a 100 year frequency storm. The District did not cite any standard in Part 360 regarding this.

I inquired of the Department Staff regarding the applicable standard in Part 360. On October 24, 1991, counsel for the Department Staff stated that the basis for using the 25 year frequency storm was 6 NYCRR Paragraph 360-2.15(i)(2), and that although this provision was contained in the section governing post-closure operation, the ponds would be used both during operation and post-closure and the provision could be applied to the entire life of the ponds. No party has provided a citation to other Part 360 provisions on this subject, nor any additional offers of proof regarding effects of basing the drainage on a storm of this frequency. No issue has been raised on this subject.

Community character

The effect of the landfill on the existing character of the Village of Angelica was proposed as an issue pursuant to the State Environmental Quality Review Act (SEQR). 6 NYCRR 617.(2)(l) identifies "environment" as including resources of historic or aesthetic significance and existing community or neighborhood character. Impacts of projects on these aspects of the environment are relevant concerns in environmental impact reviews. In the present case, several parties have proposed this issue for adjudication. The parties identified truck traffic, physical impacts on historic buildings, and the possibility of the village's name becoming associated with a major landfill as factors which could adversely effect the economy of the village (tourism and a local manufacturer whose business is related to the historic nature of the village) and the character of the historic district.

The offers of proof would support identifying this as an issue for adjudication if it were subject to the Department's authority under SEQR. In past Decisions and Interim Decisions of the Commissioner, issues arising from SEQR which were within the authority of a local government have been excluded as issues in the Department's hearings on the projects (Matter of Red Wing Properties, Inc., Interim Decision of the Commissioner, January 20, 1989; Matter of Empire Bricks, Inc., Interim Decision of the Commissioner, August 1, 1990). While SEQR expands the range of concerns which governmental entities must take into account and supplements their existing authority, its does not change the jurisdictions of governmental entities (Town of Henrietta v. Department of Environmental Conservation, 76 A.D.2d 215, 430 N.Y.S. 2d 440 (4th Dept., 1980)). An issue of community character would be taken into account by a local government in granting or denying local approvals such as zoning approvals. In the absence of such local jurisdiction, the review of this issue could become the responsibility of the Department, but that is not the situation here. The Town of Angelica has already taken this concern into account, generically, in adopting its Local Law No. 1 of 1988, the Solid Waste Disposal Law of the Town of Angelica (see DEIS Appendix K). This law would prohibit the construction or operation of the proposed monofill.

The issue of blasting has been identified for adjudication, despite the fact that its impacts would be on historical and aesthetic resources, and thus on community character, since the actual construction of the facility is within the jurisdiction of the Department under Part 360 and is not within the jurisdiction of the Town or Village. Other than the blasting issue, the questions regarding community character will not be adjudicated in this hearing.

Traffic

As with the proposed issue of community character, the traffic impacts of the project are under the jurisdiction of agencies other than the Department. As discussed in an August 14, 1991 letter from Leslie J. Haggstrom, Esq., the Town has already denied the Applicant's request for road improvement to Peacock Hill Road and Herdman Road, primarily since the landfill to be benefitted by the improvements could not operate except by violating the Town law.

Approvals for the alternate access route would be under the jurisdiction of the New York State Department of Transportation or the Village of Angelica. The division of authority between these agencies is discussed in Duane T. Heineman's letters of June 14 and July 2, 1991 to Wesley J. Serra, Esq.

Archaeology and on-site historic preservation

The Town of Amity, in its filing for party status, stated that the area was known to have frequent Indian artifact findings. This question was discussed at the issues conference. Both the Town of Amity and the Village of Angelica discussed submitting additional information on this subject following the issues conference but did not submit such information. CCAC stated that the alternative access road would approximately follow an old road built in the 1860's and that historical artifacts along this road had not been evaluated. The Applicant stated that DEIS Appendix E does contain an April 25, 1990 letter which states that no important historic sites exist in the area of the alternate access route (issues conference transcript, pp. 41-49, 235).

The archaeology of site itself was investigated by Dr. Neil H. Johnson by means of both a field investigation and a literature search, which are reported in DEIS Appendix E. The field investigation found no prehistoric artifacts other than a single projectile point which was judged to be a random lost point. The field investigation identified no sites which would require additional study (App. E, p. 9-10). No party has contested the methods used in the field investigation. With regard to the 1869 road, Appendix E contains an addendum which includes the April 25, 1990 letter. This letter states that there are no important historic sites and no known prehistoric sites between the project and the Route 17 interchange. The two groups of 19th century buildings located along the old road were not regarded as historically important by Dr. Johnson, and he also stated that the Angelica Village Historian did not regard them as important.

No issue has been raised regarding the archaeological investigation nor the historical significance of buildings on the Site itself, including the alternative access route. As noted above, however, impacts on the historic district are included in the issue of blasting.

Plant species other than Solidago ohioensis

As noted above under Plant Species Conservation, other than effects on one identified rare species, this is not an issue for adjudication and it will be responded to by the Applicant as a response to comments on the DEIS.

Hours of operation

The Town of Angelica, in its filing for party status, proposed that the operating hours of the ashfill be limited to 8:00 A.M. to 4:00 P.M., rather than 7:00 A.M. to 9:00 P.M. as would be authorized by the draft permit. The Town stated that the longer hours would impose an undue burden on the Town and its residents and would render monitoring by a DEC on-site monitor ineffective.

As noted above, the draft permit allows for the Department to require additional monitoring if necessary, and the question of having a full-time monitor is not an issue for adjudication. There are no factual disputes to adjudicate regarding the effects of the longer operating hours as opposed to those of the hours proposed by the Town.

Operating permit duration

This was proposed as an issue by CCAC, but in its reply brief CCAC stated that they no longer regarded this as an issue.

Capacity

The Town of Angelica proposed that the facility be allowed to receive only a specific and enforceable maximum volume of ash per day and per year, and that no variation be allowed from these upper limits. At the issues conference, the Town stated that the DEIS refers to Department regulations which would allow a permittee to landfill waste at a rate fifty percent over the tons per day figure specified in its permit and still be in compliance with the permit. The Town stated that the maximum limit specified in the permit should be a real limit. The Applicant stated that it the burden was on the Town to show why the Part 360 regulations as written should not apply (transcript, pp. 221-223). In its brief, the Applicant cited 6 NYCRR 360-1.8(e)(2) as permitting certain flexibility in the quantity of solid waste received. The Applicant stated that this flexibility was necessary since the landfill would be operating fewer hours than the incinerators which generate the ash, and that the draft permit was in compliance with this regulation.

The draft operating permit describes the authorized activity as:

"Operate (insert cell and area number) of a 28.27 acre, 2.5 million cubic yard landfill facility for receipt of up to 500 tons per day of municipal waste incinerator ash." (draft operating permit, page 1).

Neither the Town nor the Applicant cited the DEIS's provision which they were discussing at the issues conference and I have not been able to locate a provision identical to the concept being discussed. The DEIS does, however, contain a prologue following the title page, which includes the following statement:

"Under current State law, such changes as a lateral expansion of the solid waste disposal area and a fifty percent exceedence of the design daily waste receipts must be subject to public notice/comment and may require a new Environmental Impact Statement. Other changes which are not determined to have a significant impact may be applied for by the project sponsor without necessitating NYS Department of Environmental Conservation public notice and Environmental Impact Statement procedures."

The Part 360 provision cited by the Applicant does not allow a permittee to have the flexibility to accept up to 50% over the permitted capacity of the landfill. 6 NYCRR 360-1.8(e)(2) pertains to permit modifications, and provides that:

"For the purposes of Part 621 of this Title [procedures for processing applications], an application to modify a permit to construct or to operate a solid waste management facility must be treated as a new application if any of the following thresholds are met or exceeded: ...In the event an approved design capacity is set forth in the permit, any increase that results in the exceedence of the approved design capacity by 50 percent." (emphasis added)

The draft permit already contains a specific maximum tonnage per day. The cited provision pertains to permit modifications. This provision sets a threshold for the size of capacity increases which must be treated as new applications (see 621.13(e)) but does not preclude the Department from treating smaller increases as new applications if a condition listed in Subdivision 621.13(e) exists. The Part 360 provision does not allow an Applicant to exceed the permitted capacity by up to 50% in the absence of a permit modification.

The concern about an unknown or unpredictable increase in the amount of ash accepted could be accommodated relatively simply by including a permit condition that would require the permittee to notify the Town (or the parties to the current hearing) in the event that the Applicant applies for a modification to increase the permitted tons per day or the total size of the landfill.

Clarendon-Linden fault

As discussed above, information about this fault may be relevant to the assumptions made in analyzing the stability of the slopes of the landfill. Other than that, the existence of the fault and the possibility that its southern extension may be at some location near the site have not been shown to be factors which would lead to denial of the permit or imposition of permit conditions.

Supplemental EIS

6 NYCRR Subdivision 617.8(g) identifies the circumstances under which an agency may require a supplemental EIS. None of those circumstances exist at present with regard to the EIS for this project.

Other proposed issues

The issues for adjudication are those identified as such in these rulings. Any remaining issues which were proposed in the correspondence but were not specifically discussed in these rulings will not be adjudicated.

Appeals

Pursuant to 6 NYCRR Subdivision 624.6(d), these rulings on party status and issues may be appealed to the Commissioner within three days of the ruling. The length of time for appeals has been extended in some situations where the rulings are lengthy or complex. After consulting with the Assistant Commissioner for Hearings, I am scheduling July 13, 1992 as the deadline for receipt by the Commissioner of any appeals of these rulings. The appeals must be served upon the other persons on the service list so as to be received on or before July 13, 1992 as well.

Replies to the appeals, if any, may then be served. These must be received by the Commissioner and the persons on the service list by July 20, 1992. No other submittals are authorized, and it is unlikely that any extensions of the deadlines would be authorized.

Any appeals must be filed in triplicate, addressed to: Commissioner Thomas C. Jorling, New York State Department of Environmental Conservation, 50 Wolf Road, Albany, New York 12233-1010. A copy of any appeals and replies must be transmitted to me and to all persons on the service list.

_____________/s/_____________
Susan J. DuBois
Administrative Law Judge

Dated: Albany, New York
June 23, 1992

To: John Clarke, Esq.
David Stever, Esq.
Frederick Sinclair
Lawrence H. Weintraub, Esq.
Michael F. Presutti
Patricia A. Kaake
Lee A. Frair
Neal D. Madden, Esq.
Wesley J. Serra, Esq.
David J. Seeger, Esq.
Fleurette M. Pelletier
Don Neddo
Leslie J. Haggstrom, Esq.

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