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Hyland Facility Associates - Ruling 3, December 3, 1992

Ruling 3, December 3, 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

December 3, 1992

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

On November 25, 1992, David J. Seeger, Esq. wrote to me on behalf of Concerned Citizens of Allegany County ("CCAC") regarding several matters which might require rulings. These matters had to do with the runoff of water from the landfill cells into either surface water or the leachate collection system, the slope requirements for two landfill components in view of the Applicant's predictions regarding maximum settlement, and the vertical separation between the base of the liner and the seasonal high groundwater table. Thomas S. West, Esq. submitted a response on behalf of the Applicant on December 1, 1992. Frederick Sinclair wrote to me on December 1, 1992 in support of CCAC's requests.

With regard to the question of runoff, the question of whether a State Pollutant Discharge Elimination System ("SPDES") permit might be required for the project is already part of this hearing and is related to the issue of ash fugitivity. My December 18, 1991 ruling discussed, among other things, the question of whether or not a SPDES permit was required for the project under the SPDES program as it existed at that time. As of December 18, 1991, the issue of ash fugitivity, including ash contamination of surface water, had been proposed by CCAC and other parties but I had not yet made a ruling regarding whether or not that would need to be adjudicated. The December 18, 1991 ruling stated that, "The question of whether or not a SPDES permit is required under 6 NYCRR Paragraph 751.3(a)(7) would depend on this question of fact (regarding contamination) which may or may not be adjudicated. The Applicant need not submit a SPDES permit application unless this potential issue is adjudicated and the evidence indicates that the discharges would cause a significant contribution of water pollution." The Second Interim Decision, issued by Commissioner Jorling in March 6, 1992 in response to the Applicant's appeal of the December 18, 1991 rulings, did not modify the section of the rulings which discussed the need for a SPDES permit.

Subsequently, ash fugitivity was identified as an issue for adjudication. Commissioner Jorling's August 20, 1992 Interim Decision limited the ash fugitivity issue to the question of whether the measures proposed by the Applicant would be effective in controlling fugitive ash to the maximum extent practicable but excluded from the issue the potential health effects of fugitive ash. The question of whether ash would contaminate surface waters to an extent which would require regulation under SPDES relates to the efficacy of the ash control measures.

The question of whether ash would escape into the water (including the settling ponds) is part of the ash fugitivity issue. The outcome of adjudicating this issue will have a bearing on whether a SPDES permit would be required. The SPDES program, however, has changed in some respects since December 18, 1991. The Department Staff is to notify me and the parties if any changes have occurred in the SPDES program which would require that the Applicant obtain a SPDES permit for this project, or if any such changes occur prior to the close of the hearing record.

CCAC also requested that the Applicant's compliance with 6 NYCRR 360-2.13(l)(1) and 360-2.14(b)(iii) [sic, actually 360-2.14(b)(1)(iii)] be identified for adjudication. As acknowledged by the Applicant, the latter of these provisions is already part of the liner system issue. The other provision has to do with the materials required for the soil drainage layers. This has not previously been identified as an issue and there has been no allegation that the soil materials for this layer would not meet the requirements.

Ruling: Compliance with 6 NYCRR Subparagraph 360-2.14(b)(1)(iii) is already part of the liner system issue. The question of whether or not a SPDES permit would be required is partly dependent on the outcome of the ash fugitivity issue. No substantive question has been raised regarding compliance with 6 NYCRR Paragraph 360-2.13)(l)(1) and this is not being added to the issues.

The second subject on which CCAC requested a determination was whether the 2% minimum slope requirements for the soil component of the liner and for the soil drainage layer (360-2.13(j)(2)(i) and 360-2.13(l)(2)(iii), respectively) are to be gauged relative to the time of construction or some later time after settlement has occurred. CCAC also requested that this requirement be deemed subject to adjudication. The Applicant's response stated that slope requirements are construction requirements, that the minimum slope required by 360-2.12(m)(2) for the leachate collection pipes is 1%, and that the slope of the liner itself in the east-to-west profile would actually increase due to differential settlement.

The Applicant's predictions of maximum settlement and of the changes in slope in various portions of the landfill were not available until during the hearing, long after the issues conference and despite the requirement that testimony on the foundation analysis issue be prefiled. The Applicant's original foundation analysis and the project's compliance with 360-2.13(i) had been identified as an issue for adjudication. Subdivision 360-2.13(i) states, in part, that, "A foundation analysis must be performed to determine the structural integrity of the subgrade to support the loads and stresses imposed by the weight of the landfill and to support overlying facility components." Specific inclusion of the two slope requirements cited by CCAC is actually a more detailed statement of the existing issue. The soil component of the liner and the soil drainage layer are components of the facility which could be affected by settlement. The effects of settlement on a number of the components and functions of the landfill were discussed in the 1991 correspondence on the foundation analysis issue.

6 NYCRR Subparagraph 360-2.13(j)(2)(i) states that: "The soil component of the liner system must be placed on a slope of no less than two percent to promote positive drainage across the liner surface and at a maximum slope not greater than 33 percent to minimize erosion and facilitate construction." This subparagraph is part of a paragraph entitled "Construction requirements." Although this is the title of the paragraph, the purpose of the requirement, as stated in the regulation itself, has to do with the function of the landfill liner beyond just the time of construction. Similarly, Subparagraph 360-2.13(l)(2)(iii) appears in a paragraph entitled "Construction requirements" but states that: "The soil drainage layer must be designed and placed on a minimum slope of two percent to promote efficient positive drainage to the nearest leachate collection pipe and prevent ponding above the liner." This also relates to the function of the landfill over the long term. Neither paragraph contains provisions allowing for lower slopes for these components at a time after construction.

Ruling: The minimum slope requirements for the soil component of the liner system and for the soil drainage layer are not limited to the time of construction. Compliance with 6 NYCRR 360-2.13(j)(2)(i) and 360-2.13(l)(2)(iii) are included within the foundation analysis issue.

The last subject in Mr. Seeger's letter had to do with 6 NYCRR Subdivision 360-2.13(d), the vertical separation between the base of the liner and the seasonal high groundwater. CCAC stated that the Applicant and the Department Staff had affirmatively placed this in issue by virtue of their direct cases, that the facts related to this proposed issue are also relevant to a number of the other issues identified in the issues ruling, and that public comment was inhibited by the lack of a clear indication of whether Staff proposed to reduce or waive the vertical separation requirement.

The Applicant responded that CCAC has attempted to confuse the perched groundwater table with the actual groundwater table, that the project would meet the requirements for reduction or waiver of the 5 foot separation requirement, and that the issue should not be added now since the identity and location of the perched groundwater table were included in the application documents. The Applicant also stated that it is questionable whether the perched water table will even exist following construction. The Applicant stated that it does not object to dealing with the existence of the perched groundwater table and its impact upon slope stability but opposes identifying new issues.

6 NYCRR Subdivision 360-2.13(d) reads as follows:

"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 5 x 106 [sic, probably 10-6] 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 ground water drainage systems to ensure that the seasonal high ground water table does not come into 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."

Some evidence which would be relevant to this standard has already come into the record since this evidence is also relevant to the issues of slope stability, foundation analysis, soil testing, compliance with Paragraph 360-2.12(d)(2), and possibly other issues. The vertical separation standard itself was not identified as an issue for adjudication.

The Applicant's December 1, 1992 response suggests that the Department Staff has waived or reduced the 5 foot distance. The Department Staff has not commented on the recent correspondence and I do not recall any statement by the Department Staff regarding waiver or reduction of this distance. There is nothing in the Notice of Hearing/Notice of Complete Application, nor in the draft permit, regarding a reduction or waiver of the distance.

The Engineering Report states a conclusion that because of the proposed groundwater collection/suppression system, the "required separation" will be maintained (Exhibit 16, pages 98 and 99). The report does not, however, identify whether this is the five foot separation or some reduced distance. Absent some mention of a reduced distance, pages 98 and 99 could be interpreted as referring to the five foot separation. At the hearing, Robert Bazarnick, a witness for the Department Staff, stated that to the best of his knowledge there was nothing in the application documents which would explain exactly what the anticipated groundwater level would be under the landfill after the groundwater suppression system is constructed (transcript, p. 764). This suggests that the Department Staff may be relying on the waiver standards.

The Department Staff is to notify me and the parties of how the Department Staff is applying the vertical separation requirement with respect to this application (five feet, some reduced distance, or waived) and of the Department Staff's current position regarding whether the project as proposed would be in compliance with 360-2.13(d). This information is to be provided at the start of the hearing on December 7, 1992 or earlier.

Even if the five foot separation were reduced or waived, as suggested by Mr. West's letter, the project's compliance with the criteria for such a reduction or waiver are by no means settled. These criteria are stated in the second and third sentences of Subdivision 360-2.13(d). Many of the facts relevant to these criteria are already in dispute as parts of other issues. One relevant aspect of the application is apparently still unclear. The Applicant's letter of July 2, 1991 (at page 5) and the report which was attached with that letter (at page 9 of the report) stated that the Applicant proposes to remove the glacial fluvial soil during subgrade construction. At the hearing, however, a witness for the Department Staff testified that he could not find any specific reference in the application about removal of a specific type of soil material, and that the depth to which "unsuitable materials" would be removed was not identified in the application (transcript, p. 1796-1797).

Adjudicating the project's compliance with 6 NYCRR Subdivision 360-2.13(d) will probably not require much additional testimony due to the overlap between the factual questions relevant to this standard and to the issues which are already being adjudicated. In addition, if the facts found in adjudicating the other issues also proved that the project would not comply with Subdivision 360-2.13(d), the project could not be approved unless it was modified or a variance was granted.

Ruling: The question of whether the project as proposed would comply with 6 NYCRR Subdivision 360-2.13(d) is an issue for adjudication in this hearing. The Applicant, the Department Staff and the Intervenors will be given an opportunity to present evidence on this issue.

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

Dated: Albany, New York
December 3, 1992

To: All Persons on 11/18/92 Service List
(by fax where available and by mail)

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