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Hyland Facility Associates - Ruling 5, June 24, 1994

Ruling 5, June 24, 1994

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

June 24, 1994

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

On November 18, 1993, former Commissioner Thomas C. Jorling issued a ruling which superseded his June 21, 1993 Decision in this matter and remanded the application for further hearing on certain issues. The Applicant submitted additional information during the past winter (the application Addendum), and on March 31, 1994, the Department Staff determined that the additional submittals were ready for further adjudication. A notice of the application addendum and reconvened adjudicatory hearing was published in April, 1994.

The Town of Angelica and Concerned Citizens of Allegany County (referred to together in this ruling as "the Town and CCAC") and the Allegany County Soil and Water Conservation District submitted statements regarding issues for the reconvened hearing. On May 25, 1994, the Department Staff and the Applicant submitted their responses.

The present ruling addresses the parties' arguments regarding the five remanded issues identified in the November 18, 1993 Ruling on Motion for Reconsideration and the proposed new issues which were discussed in the intervenors' statements. No additional persons, agencies or organizations requested party status, so the parties to the hearing are those listed in the June 23, 1992 issues ruling.

Summary of Rulings

Five issues were remanded by the Commissioner on November 18, 1993. The Applicant's request to preclude parties from active participation on certain of these issues is denied. Portions of certain proposed new issues are actually parts of issues which were remanded. The Applicant will need to provide a depiction of the seasonal high groundwater table. The question of possible changes in the nature of the ash, due to exclusion of ash which tests as hazardous, is part of the slope stability issue. The proposed new issue of effectiveness of certain runoff management practices (the diversion berms) is part of the remanded issue about the liner system.

The Applicant responded to the issue of soil testing and soil materials by proposing an expansion of the on-site soil mine. Under the November 18, 1994 ruling, this is still an issue for adjudication and it is not excluded on the basis that it relates to requirements of the State Environmental Quality Review Act.

Two of the proposed "new issues", those regarding construction of the monitoring wells and airborne ash fugitivity, are precluded by the rulings on the motions for reconsideration and will not be adjudicated in the reconvened hearing. The Applicant will be required to revise certain depictions of the hydrogeology of the site, prior to the hearing, to incorporate the new information from monitoring wells which were installed in the fall of 1993. The intervenors' arguments regarding Special Condition No. 49 of the draft permit do not raise any issue requiring adjudication.

Other than the possibility of an effect on the physical properties of the ash, no fact issue requiring adjudication has arisen as a result of the recent U.S. Supreme Court decision concerning whether incinerator ash can be subject to regulation as hazardous waste. An opportunity will be provided for argument about whether the draft permit would need to be revised to reflect any changes in testing requirements, but this does not require adjudication.

No issue has been raised concerning the 55 acre area proposed as mitigation for habitat reduction, although the location of the parcel will need to be identified. The proposed issue of the financial assurance for closure and post-closure maintenance will need to be adjudicated.

The Applicant will not be required, prior to the hearing, to submit an application for an individual permit for discharge of stormwater. These rulings also do not require that there be adjudication of the alleged non-compliance with the general permits and with an appendix of one of the general permits. The question of how disputes about general permits for stormwater discharges are to be handled in DEC permit hearings is referred to the Commissioner. The outcome of a portion of the remanded issue about the liner system may affect whether the Applicant is eligible for the general permits.

Prefiled testimony will not be required, although calculations and other technical materials will need to be distributed prior to their use in the hearing.

Remanded Issues

The November 18, 1993 ruling identified five issues for which the application should be remanded for additional hearing: (1) compliance with former 6 NYCRR 360-2.13(d) - separation to groundwater; (2) compliance with former 6 NYCRR 360-2.12(c)(4) - slope stability; (3) compliance with former 6 NYCRR 360-2.13(i) - foundation analysis; (4) compliance with former 6 NYCRR 360-2.14(b)(1)(iii) - liner system; and (5) soil testing and soil materials.

These issues were remanded by the Commissioner and are already issues for adjudication. The sections of the present rulings which deal with the remanded issues address the arguments about the participation of the parties in adjudicating these issues, the requests for revision of certain application documents, the proposed "new issues" which are actually parts of the existing remanded issues, and related matters.

Participation of parties, on remanded issues

The Applicant did not contest that the first four issues listed above are adjudicable. The Applicant did, however, state that the Town and CCAC did not file any specific comments regarding slope stability and foundation analysis, and that none of the other parties commented upon the remand submissions. The Applicant requested a ruling that the Town and CCAC be precluded from further participation regarding slope stability and foundation analysis, and that the other parties be precluded from active participation on all four of the issues.

The assertion that none of the other parties commented on the remand submissions (page 12 of the Applicant's brief) appears to be an error, since on page 10 of the brief the Applicant noted that the District had commented on all five remanded issues. A review of the May 16, 1994 correspondence from the Town and CCAC also demonstrates that the letter from Dr. Evans does include comments relevant to the slope stability and foundation analysis issues. The four issues were initially raised by CCAC. It would not be necessary to preclude participation by the other intervenors in order to conduct the hearing efficiently, since as described in Mr. Seeger's letter of May 3, 1994, the intervenors have already consolidated or coordinated their participation.

The Department Staff commented on only one of these four issues, in Mr. Stever's May 25, 1994 letter. They commented on March 31, 1994 by stating generally that the Applicant had satisfactorily addressed the five issues in the November 18, 1993 ruling and that Staff deemed the application to be approvable. The Department Staff is, however, a party in all hearings held under 6 NYCRR Part 624, regardless of whether or not they participate actively on any of the issues. I am not aware of any hearings in which they have been precluded from participating on particular issues, and I do not see a need to do so in this hearing.

Thus, the request on page 12 of the Applicant's brief, for precluding parties from active participation on certain of these four issues, is denied.

Separation from groundwater

In its application addendum, the Applicant has requested a variance from the provisions of former subdivision 6 NYCRR 360-2.13(d), the provisions regarding vertical distance between the liner and the seasonal high groundwater table. The Applicant now proposes to install a pore pressure relief system below the liner system.

The Town and CCAC submitted a letter from Dr. Evans which stated his reasons for believing that the capacity of the pore pressure relief system to accommodate flow is overestimated and that the expected flow is underestimated. The District stated that the groundwater and soil conditions under the landfill location have not been evaluated adequately nor accurately. The groundwater aspect of this issue also relates to subjects proposed as issues by the Town and CCAC in their March 2, 1994 motion for reconsideration, and to the District's proposed issue regarding depiction of the hydrogeology of the site (360-2.11(b)(2)(i) and (ii)).

The Commissioner's May 11, 1994 ruling on the Town's and CCAC's motion for reconsideration stated that the questions of depicting seasonal high groundwater and requiring additional data on the hydraulic conductivity of the soils were already subsumed in the issues that were remanded, and that both were relevant to the issue of separation from groundwater.

With regard to the seasonal high groundwater depiction, the application addendum assumes "the lack of a groundwater table [in the soils] with its associated hydraulic gradient" (Addendum, page 1.4). This is contrary to the evidence presented in the initial part of the hearing in 1992-93, which demonstrated the existence of perched groundwater and a groundwater table in the soils (see Findings No. 8, 9, 17, 31 and 32 of the hearing report). The findings of the hearing report were upheld by the Commissioner's May 11, 1994 ruling. The June 21, 1993 Decision of the Commissioner (at page 2) rejected the argument that the perched water underlying the site does not constitute a groundwater table, and the two subsequent rulings on motions for reconsideration have not changed this.

The Addendum includes the March 7, 1994 revision of Sheet 11 (Bedrock Contours and Piezometric Surface Contours), but the piezometric contours shown on this drawing are based only on wells which were screened in the bedrock (see Addendum page 2.3, revised 4-20-94). There are no contours showing the groundwater table in the soil. There are some numbers on the 3-7-94 revision of Sheet 11's piezometric surface plan which may indicate the elevation of some feature but which are not associated with any contour lines (for example, the "1880" and "1890" near the bottom left corner). There is no explanation of what these numbers indicate, nor that elevations from November would represent the seasonal high value.

The hearing record as of March 1993 did not include a depiction of the seasonal high level of the perched water table (hearing report, Finding No. 17) and one has not been provided in the application Addendum. The Applicant will need to provide a depiction of the seasonal high perched groundwater table, prior to the hearing and in sufficient time for the other parties to review it before the hearing reconvenes. The question of the other revised hydrogeologic depictions requested by the District is discussed below under "Proposed additional issues."

The Commissioner's May 1994 ruling also stated that the proposed additional issue regarding hydraulic conductivity data was part of the remanded issues. A value for hydraulic conductivity and values for hydraulic gradient in the subgrade were used in the Applicant's assessment of flow into the pore pressure relief system (Addendum, p. 1.4 to 1.6). This assessment was challenged in Dr. Evans' letter of May 16, 1994. In addition, the testimony from the hearing in 1992-93 demonstrated that some of the hydraulic conductivity values in the application were based on very few measurements that were clearly in the stratum being described (hearing report, p. 26-27). The Applicant's consultants have stated their reasons for choosing the hydraulic conductivity value which was used in designing the pore pressure relief system (Addendum, p. 1-4).

I will not be requiring the Applicant to submit additional hydraulic conductivity data prior to the reconvened hearing, but the Applicant is on notice of my evaluation of the record on this subject as it stood at the time when I wrote the hearing report. The Applicant may present evidence regarding why the hydraulic conductivity which its consultants used is appropriate for evaluating the project as it now stands, and the intervenors may contest the value which was chosen and the data on which it was based. Evidence already in the record from 1992-93 will not be repeated.

Slope stability

Dr. Evans' criticism of the Applicant's assessment of water flow to the pore pressure relief system also stated that the effect of the hydrostatic pressures would need to be taken in to account in the stability analysis. This does not appear to have been done by the Applicant. In addition, the District stated that the properties of the soils, including soils which the well logs describe as being loose or tending to liquify when disturbed, have not been taken into account.

The District also questioned the properties of the waste, in the context of the District's proposed new issue of changes due to the recent U.S. Supreme Court decision (City of Chicago v. Environmental Defense Fund) on disposal of ash. The Applicant does not propose to accept ash which tests as hazardous waste, and there is reason to question whether the exclusion of a portion of the ash would change the properties of the ash which is likely to be disposed of at the proposed Hyland monofill. Certain properties of the ash were used as input to the slope stability analyses. The November 18, 1993 ruling, in remanding the slope stability issue, required a clear explanation of the origin of all input parameters of the analyses. The Applicant will need to show that its input is still valid, in view of the potential changes in ash disposal resulting from the Supreme Court decision.

The discussion of the slope stability issue in the application addendum also does not appear to have resolved some of the other defects in the application which were noted in the hearing report, including the discussion of the shear strength as it relates to the moisture content of the liner material (see Finding 51 and Addendum page 2.10, revised 3-7-94), and the possible effect of cover material being incorporated in the ash (Finding 50).

Foundation analysis

The application was also remanded for further adjudication of this issue. There is not much which needs to be said in the present rulings regarding this issue, except to note that the proposed issue of revising the hydrogeology drawings (discussed below) relates to this as well as to the first two issues. In the context of the foundation analysis issue, the District argued that the analysis used the depth to groundwater from revised sheet 11, which depicts contours based on wells drilled into bedrock and does not depict the groundwater in the soil.

Liner system

This issue was also remanded by the November 18, 1993 ruling. The Applicant has submitted the results of additional modeling, and CCAC has challenged some of the assumptions used in the modeling.

As the project stood at the start of the hearing, runoff from intermediate cover was to flow into the exposed edge of the drainage layer and into the leachate collection system. This was modified by draft permit condition No. 44 (quoted at page 57 of the hearing report) so that precipitation contacting only the final or intermediate cover would be managed separately from precipitation contacting the daily cover or waste.

In remanding the liner system issue, the November 18, 1994 ruling stated that if the Applicant is going to include less than the total amount of all runoff, as in condition No. 44, the Applicant must demonstrate the feasibility of separating the flows that will not require treatment. Special Condition No. 44 itself has been deleted from the draft permit, but the application addendum proposes to minimize leachate generation by separating stormwater flows so that water from the active area and from areas of daily cover will go to the leachate collection system and other runoff will go to the stormwater ditches and sediment ponds. The proposed new issue regarding the effectiveness of the "minicells" is actually part of the existing issue.

Soil testing and soil materials

This is the last of the remanded issues, and the only one of the remanded issues which the Applicant has stated need not be adjudicated. The November 18, 1993 Ruling stated that, "The Applicant was unable to demonstrate that the site contained sufficient materials to meet all cover, berm and liner system requirements. Therefore, to satisfy the requirements of the SEQRA [State Environmental Quality Review Act], it will need to provide an analysis of the impacts of expanding the mined area or, in the alternative, of the traffic impacts of importing off-site materials."

The Applicant elected to expand the mine, and presented supplemental information on this in the Addendum. The mine would be expanded to produce a total of 489,000 cubic yards as opposed to 286,000 cubic yards from the earlier plan.

The Applicant argued that no further adjudication of this issue is necessary since it was identified in the November Ruling as a "SEQRA impacts issue, not as an issue requiring further adjudication." The Applicant also stated that the comments submitted by the District do not raise a substantive and significant issue requiring adjudication, and that the Applicant proposes to provide a response as it did to the other comments on the impact statement.

The November ruling remanded this issue with the other four issues, and stated that the reconvened adjudicatory hearing will address the five issues. The fact that the remaining portion of the original soil testing and materials issue is a question of compliance with SEQRA does not exclude it from being adjudicated (see former 6 NYCRR 624.6(b)). The extent of any evidence which is presented on this issue, however, will depend on the evidence being relevant to environmental impacts of the proposed expansion or to any environmental impacts of additional expansion (if there is a sufficient offer of proof that additional expansion would be necessary.)

The District proposed a new issue concerning the 55 acre area which the Applicant is proposing to include as a mitigation measure for the temporary reduction in habitat caused by mining activities. This is not a new or additional issue, but is a request for additional information related to the impacts of mining. The Applicant is to provide the specific location of the parcel, as a clarification of its mitigation measures.

Proposed additional Issues

The November 1993 Ruling stated that there would be an opportunity to raise additional issues for the reconvened hearing, limited to the following categories of new issues: compliance with any new operational requirements of the revised 6 NYCRR Part 360; any changes to the Applicant's proposal; and any changes in the draft permit, except those changes directed by the ruling as a result of the prior adjudication.

New issues would need to be within these categories, and in addition would need to be substantive and significant issues (former 6 NYCRR 624.6(c)).

Construction of monitoring wells

The District has proposed as a new issue the allegation that certain monitoring wells on the site do not comply with the requirements of former 6 NYCRR 360-2.11(a)(8)(ii)(c) and (d), regarding well construction. The District also stated that MW-H and MW-H1 miss the first water bearing unit in the overburden, and argued that as a result of these deficiencies the revised Environmental Monitoring Plan (EMP) cannot be approved.

The Applicant and the Department Staff stated that this proposed issue was precluded both by the November 18, 1993 ruling and the May 11, 1994 ruling.

The issue of the monitoring wells was the subject of findings and conclusions in the hearing report and was discussed in the June 21, 1993 Decision. The November 18, 1993 Ruling modified the Decision regarding this issue. In addition, the May 11, 1994 Ruling states that prior to construction, it is not necessary to identify the precise location of all the wells and wells screens of the monitoring network, and that the adequacy of the existing wells need not be addressed as part of the adjudicatory hearing.

The issue which the District is now proposing regarding monitoring well construction has to do with subjects which are precluded by the November 18, 1993 and May 11, 1994 rulings. This proposed issue will not be adjudicated in the reconvened hearing.

Airborne ash fugitivity

This is a portion of one of the issues which was adjudicated in 1992 and 1993 (ash fugitivity). As discussed below, this proposed issue is also precluded by the two Rulings on the motions for reconsideration. It does not fall within the categories of new issues which would be allowed under the November Ruling (new operational requirements, changes in the proposal, changes is the draft permit other than those directed by the Ruling).

CCAC has proposed to present additional testimony by one of the witnesses who testified on this subject, to amplify and corroborate his prior testimony. CCAC argued that new 6 NYCRR 360-1.14(k) contains provisions which were not in the operating requirements of the former version of Part 360, and that the application has been changed by revising a section of the Operations and Maintenance Manual and incorporating the October 1992 "Best Management Practices" (BMP).

Both the Department Staff and the Applicant stated that the question of ash fugitivity has already been adjudicated, that the amendment of 360-1.14(k) does not create any different standards or requirements, and that the application has not been changed.

The addition of the October 1992 BMP and the corresponding changes in the O&M Manual do not represent a change from the project as it stood when this issue was adjudicated in 1992-93. They were a change from the application as it existed when the hearing began, but (unlike the condition changing the management of runoff from the intermediate cover) the BMP was presented early enough in the hearing that it could be the subject of testimony by witnesses for the Applicant, the Department Staff and the intervenors to a meaningful extent.

Subdivision 360-1.14(k), as amended, reads as follows: "Dust control. Dust must be effectively controlled so that it does not constitute a nuisance or hazard to health, safety or property. The facility owner or operator must undertake any and all measures as required by the department to maintain and control dust at and emanating from the facility." (new language underlined). This amendment does not change the standards for dust control.

The significance and effect of the prior adjudication of this issue, and the decision and reconsideration rulings, are less clear. The hearing report contained findings and conclusions regarding control of airborne fugitive ash, which were not specifically addressed in the June 21, 1993 Decision. These include findings which supported inclusion of additional or different ash fugitivity control measures beyond those in the BMP (Findings 85, 86 and 88), problems with re-use of cover material, and the conclusion that the Applicant had not demonstrated that the project will control ash fugitivity to the maximum extent practicable (Conclusion 19). The permit conditions which would be consistent with Findings 85, 86, and 88 do not appear to have been included in either the application addendum or the current draft permit.

Although the Decision and the two Rulings on reconsideration do not specifically discuss airborne ash fugitivity, the May 11, 1994 Ruling does state,

"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."

The proposed issue of airborne ash does not fit into any of the three categories of possible new issues, and the November ruling limited new issues to those in the three specified categories. The May 11, 1994 Ruling would mean that the Commissioner has determined that the Applicant has met its burden of proof regarding airborne ash fugitivity. Although the consequences of the hearing report's statements on airborne ash fugitivity may still be in question, pursuant to the November and May rulings the proposed issue of airborne ash fugitivity will not be adjudicated when the hearing reconvenes.

Revision of hydrogeologic depictions

The District has argued that the new borings and investigations have revealed a different depth to bedrock and different subsurface materials than are depicted in the original application drawings, and that corrected versions of certain drawings will need to be provided in order for the application to comply with former 360-2.11(b)(2)(i) and (ii). The depictions in question are the stratigraphic profiles (Exhibit 38, sheets 46-49), cross sections (Ex. 38, sheets 50 to 54), and the piezometric surface contours. The District had also requested these documents as part of a discovery request. On May 3, 1994, I denied this portion of the discovery request since the documents did not exist, but I stated that the significance of any changes which might be made in these documents may be argued in the submissions regarding new issues. This has been presented as a proposed issue, and it is also a request that additional information be required.

The depiction of the seasonal high groundwater table in the soil (the perched groundwater) has already been required by the present rulings, in the discussion of the issue of the groundwater separation variance.

In response to the District's proposed additional issue, the Department Staff stated that the relevance, if any, of the information sought by the District would be in connection with the variance application. The Department Staff stated that the new information was "a fleshing out of the data previously in the application that was delineated primarily by means of interpolation" and that the new borings do not show great disparity from the data in the original hydrogeologic report.

The Applicant argued against requiring revised depictions on the basis that this was a question of completeness of the application, which had already been determined by the Department Staff and was their prerogative. The Applicant also cited Mr. West's April 28, 1994 affirmation which was submitted in opposition to the discovery request.

The affirmation stated, among other things, that a consultant for the Applicant had estimated that "the cost to create the documents would be in excess of $58,000" (emphasis in original), and that the Applicant estimates that the time to produce those documents would delay the proceeding by a minimum of three months. The affirmation specifically stated that this was the cost to create the documents, but it is not clear that this is also the cost (or the time involved) for revising the existing documents to take into account data that the Applicant has already obtained.

The Applicant suggested that requiring these depictions to be revised would constitute revoking the determination that the application was complete, and cited the Interim Decision In the Matter of LaFever Excavating, Inc. (October 28, 1991) as supporting the principle that a determination of completeness cannot be revoked. Requiring the revisions would not affect the determination of completeness, but rather would be a matter of requiring additional information. If additional information is necessary in order to make a determination required by law, it can be required even after the application is complete. This would be consistent both with the LaFever interim decision and with 6 NYCRR 621.15(b).

With regard to the need for revisions, the main questions are the likely magnitude of the changes which would be needed in order to incorporate the new information, and what additional use (in the reconvened hearing or at a later time) would be made of the depictions in question.

Two examples of such changes, plus an apparent omission of the data from one of the original wells, are noted below. These pertain to depictions of the site which were used in the testimony on some of the issues which have been remanded. Some of the changes which would need to be made are not minor. The additional information obtained from the new wells would lead to some different conclusions than some of those which were stated in the testimony of witnesses for the Applicant in 1992 and 1993 and which were based on or illustrated using the stratigraphic profiles.

For example, during the hearing in 1992-93 there was testimony regarding the depth below which glaciofluvial and glaciolacustrine sediments could be expected. This is relevant to a number of the remanded issues. The Applicant maintained that these sediments would not be found deeper than about 30 feet below the present land surface, which is also the maximum depth at which they appear on the stratigraphic profiles. The Applicant now has data from MW-15-93 (one of the new wells) which the District has interpreted as showing silty lake sediment and alluvial outwash even at the lower parts of the boring, about 110 feet below the surface. Although the logs in the Addendum do not characterize the soil in the same manner as was done in the original application, the field log for MW-15-93 contains notes about "clayey slackwater sediment" as deep as 68 feet below the surface, shortly below which the descriptions of this type cease although the well is deeper. This new well is not on one of the profile lines, but the information from it adds significantly to the depiction of this area of the site as presented in the nearest profile.

The Department Staff, the District and the Applicant have submitted conflicting interpretations regarding the depth to bedrock as depicted for the location of MW-20-93 in various drawings and the well log. Some of the depictions are consistent or indicate only a depth of 41 feet as opposed to actual depth of 51 feet. In contrast, the depth to bedrock at this location is depicted on the stratigraphic profile as being about 90 feet. (This takes into account the difference in the vertical and horizontal scales on Exhibit 68). The stratigraphic profile, which was based on wells that are almost in a straight line with MW-20-93, was used extensively during the hearing.

In addition, although MW-K is just about on a straight line between MW-1 and MW-4, MW-K is not shown on the profile which includes the other two wells. The lake sediments and water-sorted sediments described in the log for MW-K are not depicted on the profile which includes MW-1 and MW-4.

The profiles and the cross sections were used in the hearing in connection with a number of issues which have been remanded and they would be relevant again when the hearing reconvenes. It appears likely that they would be used in the reconvened hearing, and they will need to be corrected prior to the hearing.

In addition, the District alluded to use of the depictions of site stratigraphy and hydrogeology in future years, if there was a groundwater contamination problem which needed to be remediated. It is also quite possible that some of the hydrogeologic information collected in the application process may be used at the time when the landfill is closed (see new 360-2.15(a)). The hydrogeology of the site would be better understood ten or twenty years from now if the drawings are corrected now, based on the new information recently developed by the Applicant, rather than waiting until then and attempting to reconcile inconsistent documents at that time.

Draft permit condition No. 49

The November 18, 1993 Ruling stated that the issue of water-borne fugitive ash "can be resolved by a permit condition which requires the collection and off-site treatment of the waters in the ditches and ponds in the event that the testing discussed above reveals contamination." (Ruling, p. 3) This ruling led to inclusion of Special Condition No. 49 in the current draft permit (most recently revised on April 14, 1994).

The District stated that this permit condition does not comply with the ruling and that there is a new issue since the Applicant has not quantified or proved its ability to contain the runoff. The Department Staff opposed adjudicating this proposed issue, stating that it complied with the ruling's direction to require containment of the runoff, not to further address the containment. The Applicant also stated that the permit condition complies with the ruling, and that the District has only presented conclusory comments.

The draft permit requires that under certain conditions, including various events providing "physical evidence of waste release," the surface water must be contained and sampled. If the water is found to be contaminated, the water must be handled in accordance with the Contingency Plan. The District's criticism focuses on the lack of "quantification or proof of the capability to contain the runoff." The Contingency Plan (at section 2.01.02) contemplates building temporary containment structures to contain contaminated water, which would then be transported to a treatment facility. While the Contingency Plan's provisions about containing contaminated runoff are also quite brief and general, the District's comment does not create a substantive dispute about the feasibility of handling contaminated water in accordance with the Contingency Plan. No issue has been raised regarding draft special condition No. 49.

Regulation of ash under RCRA

This proposed issue, as identified by the District, would involve several things which the District suggested as consequences of the May 2, 1994 U.S. Supreme Court decision (City of Chicago v. Environmental Defense Fund). The question of whether exclusion of particular kinds of ash would affect the properties of the ash is discussed above under the slope stability issue.

None of the other concerns raise fact issues for adjudication, although an opportunity will be provided for argument regarding whether draft permit special condition No. 22 or other draft permit conditions need to be revised to reflect the testing which would be required and by whom the testing would be done. This is a legal issue rather than a fact issue.

There has been no showing that changing economic conditions associated with ash disposal, and changes in the anticipated revenues and costs of operating the facility, would by themselves raise any new dispute which could affect permit issuance.

The District also proposed that there be an evaluation of the anticipated leachate from the facility and its disposition, relative to the Supreme Court decision. Leachate disposal was not an issue in the hearing prior to the Supreme Court decision, and there has been no showing that there would now be new impacts or questions of compliance with respect to leachate disposal. If anything, the exclusion of ash which tested as hazardous waste might diminish any problems in disposing of the leachate.

55 Acre mitigation area

The District proposed, as a new issue, the "55 acre expansion of the monofill site and its intended usage." As discussed earlier, this is not a new issue but is a matter of clarifying the information about mitigating the impacts of the mine.

Financial assurance

The Town and CCAC proposed as a new issue the Applicant's compliance with several financial assurance requirements for closure and post-closure which are contained in section 360-2.19 of the new version of Part 360. This is a new issue which will require adjudication. It is within one of the categories of potential new issues which were allowed by the Commissioner's November 18, 1993 Ruling (issues arising out of new operational requirements) and it is a substantive and significant issue.

The Town and CCAC cited a number of alleged defects, including the form of the financial security and several factors involved in the amount of the financial security (whether the costs are those for a third party to do the work, omission of certain costs, the percentages used to account for inflation and other factors, the use of estimated costs from 1991 or earlier, and the way in which trust fund deposits were calculated). The Town also requested that local property tax obligations be incorporated into the post-closure cost estimates.

Department Staff stated that adjudication of this issue was not appropriate, since the Applicant appears amenable to re-casting its financial assurance computations in order to comply with the new regulation, and since the requirements are new and complex. Staff proposed instead to develop a draft permit condition to require the Applicant to re-do its calculations and to submit to the Department an approvable financial assurance program at least 60 days prior to the commencement of operation.

The Applicant argued that the Town and CCAC were relying on the wrong regulatory section (the section pertaining to trust fund rather than that for a surety bond with a standby trust fund, the latter being the financial assurance proposed by the Applicant) and that a variety of forms of financial security were allowable. The Applicant also submitted a May 23, 1994 affidavit by Mr. Leydecker responding to some of the Town's and CCAC's criticisms regarding the costs and calculations. The Applicant argued that once the project is constructed, the Applicant will be required to update its estimates annually.

The Town and CCAC stated that the Applicant is proposing to comply with the requirements for a trust fund (360-2.19(e)(1)). This mischaracterizes the Applicants proposal, which is found at pages 35 to 43 of the March 7, 1994 Post Closure Monitoring and Maintenance Manual and which states that a bond would be posted and a reserve trust fund would be established (360-2.19(e)(2)). The Town and CCAC mentioned a need for Departmental approval of alternative mechanisms other than trust funds, but did not provide a citation for this.

The Applicant has proposed to use two bonds, one for closure costs and the other for post-closure maintenance, plus a reserve trust fund of $1.00 per ton with contributions to the fund stopping after year 11. I am interpreting "bond" to mean the same thing as "surety bond" and "reserve trust fund" to mean the same thing as "standby trust fund." A surety bond with a standby trust fund is among the allowable financial assurance mechanisms identified in 360-2.19(e), but 360-2.19(c)(3) states that unless otherwise specifically approved in advance by the Department in writing, a trust fund must be established for post-closure care. The reasons for this are discussed at page 19 of the Final Environmental Impact Statement for the recent amendment of Part 360.

Thus, the type of financial security proposed by the Applicant would be usable for closure costs but not for post-closure care unless specifically approved by the Department. The Department's response to the proposed issue does not indicate that this approval has been given. Mr. Stever's May 25, 1994 letter indicated that the Applicant's financial assurance proposal will need to be changed but did not comment on the form of the financial security.

With regard to the disputes about the cost estimates and growth of the reserve fund, there are disputes not only about whether the numbers are current but about the concepts by which the amounts would be calculated. The Applicant's brief suggests that it is willing only to update the numbers used in its calculation of financial security. The Department Staff has acknowledged that the financial security program will need to be revised. This should be done in the context of the hearing, rather than waiting until shortly prior to the date on which operation would commence. In addition to the Department's interest in ensuring that adequate funds are available for closure and post-closure maintenance, the Town has asserted an interest in this issue.

Sand bag diversion berms

As noted above, this is already part of the remanded liner system issue.

CCAC has proposed as an issue the Applicant's assessment of stormwater runoff, particularly with regard to runoff from interim cover, and the proposed project's compliance with the general permits for discharges of stormwater under the State Pollutant Discharge Elimination System ("SPDES", ECL Article 17 Title 8). The significance of this dispute is that under one outcome, the Applicant would need to apply for a SPDES permit along with its Part 360 application, while under the other outcome it would be eligible for a general permit and the hearing would not include review of the stormwater discharges or the pollution control measures for the stormwater discharge.

As discussed below, the only question which will need to be adjudicated with regard to SPDES is the feasibility of separating runoff from various parts of the landfill as proposed by the Applicant. This is already part of the remanded issue regarding the liner system, and it is also relevant to eligibility for a SPDES general permit for stormwater discharges. The remaining aspects of this proposed issue are not being identified as a new issue for adjudication.

The general permits in question are GP-93-05 and GP-93-06, issued by the Department on July 14, 1993. In recent years, the regulation of stormwater discharges under the National Pollutant Discharge Elimination System (40 CFR 122.26) and SPDES has changed, and the Department's administration of the stormwater permit program is relatively recent.

Stormwater discharges from some facilities are regulated under individual permits, but stormwater discharges for what the Department Staff has described as the vast majority of facilities are under general permits, one for construction and one for industrial activity other than construction (GP-93-06 and GP-03-05, respectively). The general permits set generic requirements and do not require submission of a SPDES permit application. Instead, a facility would submit a notice of intent two days before commencing the regulated activity and would prepare a pollution prevention plan, which plan is not subject to DEC approval prior to its implementation.

Mr. Stever's letter of March 4, 1994 stated that the proposed monofill facility would be subject to the general permit program. CCAC and the Town contested this, in a letter dated March 17, 1994. The Department Staff, the Applicant, CCAC and the Town have presented further argument on this subject in subsequent correspondence. The present discussion addresses both proposed issue number IV of the May 16, 1994 letter from CCAC and the Town plus their earlier arguments regarding whether an individual SPDES permit would be required for the facility.

In order to be subject to a general permit, a discharge must be only stormwater, not mixed with non-stormwater (section I.C of both general permits). In the present case, "non-stormwater" would include any water that is leachate as defined in 6 NYCRR Part 360.

The Applicant is now proposing to manage runoff from the active area of the landfill (ash and daily cover) as leachate. The runoff from intermediate cover and inactive areas would be managed as stormwater runoff and would flow to the sedimentation ponds, along with general site runoff from outside the cell areas. The Commissioner's November 18, 1993 ruling on the motion for reconsideration has already required that the Applicant demonstrate the feasibility of separating the flows that would not require treatment as leachate.

This separation of runoff is a concept which was introduced on the 32nd day of a 36 day hearing and which represented a significant change in the Applicant's proposal (see hearing report, Findings Nos. 73, 89 and 92 and the discussion on pages 57 and 58). The effects and feasibility of this manner of handing runoff were not adjudicated to a meaningful extent in the hearing during 1992-1993. The November 18, 1993 ruling gave the Applicant the option of pursuing this approach to handling runoff, in the context of the liner system issue and limiting the production of leachate, but required that the Applicant demonstrate the feasibility of separating the flows. In its application Addendum, the Applicant submitted additional information on runoff management (Addendum, section 4.4). Separation of the runoff is already part of the remanded issues.

The general permit for industrial activity other than construction states that when other permits which are subject to the Uniform Procedures Act (ECL Article 70) are required for the activity, the Department will review certain information to determine if the activity is subject to the general permits or requires an individual permit (GP-93-05, Appendix D). This information overlaps to a large extent the information which is already in the permit application and the DEIS. This review is discussed in Mr. Palumbo's memo which is attached with Mr. Stever's letter of May 6, 1994. The application materials do not, however, appear to contain an estimate of the total suspended solids or other listed parameters which could be expected for the outfalls under the current proposal. Even if this information was submitted separately to the Department's Division of Water, it is not in the hearing record.

There is a question of what criteria (as opposed to information) are used by the Department Staff in determining whether a general permit or an individual permit is appropriate in situations where other Uniform Procedures Act permits are required. Mr. Stever's May 6, 1994 letter and the attached memos discuss this determination but do not cite any authority that sets forth the criteria. Mr. Stever's letter describes the determination as being ministerial, based on whether the project was among the listed categories for an individual permit and on whether the information specified in Appendix D of GP-93-05 was present in the application. Mr. Adriance's memo, however, suggests that this determination involves assessing impact potential and pollution prevention method suitability. The memo also states,

"Individual permits will only be considered where particularly sensitive resources, or extreme site conditions, dictate a need for strict performance standards such as effluent limitations and extensive monitoring. EPA's stormwater permitting strategy relies upon documented or likely water quality problems as a criteria for increasing individual permit issuance."

None of the parties has identified any EPA guidance documents, Department guidance documents, EPA/DEC memoranda of understanding or similar documents which might identify the criteria. The EPA regulation concerning general permits under NPDES and SPDES does, however, provide some guidance (see 40 CFR 122.28). The two general permits in question contain some provisions similar to those in 40 CFR 122.28, although not 40 CFR 122.28(b)(3)(i), which identifies types of situations in which the Director (i.e., the Commissioner of Environmental Conservation) may require a discharger authorized by a general permit to apply for and obtain an individual permit. These situations include cases where a discharger is not in compliance with the conditions of the general permit (40 CFR 122.28(b)(3)(i)(A)).

As to the procedures to be followed in a hearing, the Department Staff has stated that the determination to use a general permit (as opposed to an individual permit) should be treated like a determination of significance under SEQR or a determination that an application is complete. Another procedural approach, to a dispute such as the present proposed issue, would be to treat it as a question of applicability or exemption from a particular permit. An additional way of handling it would be to view it as a petition from an "interested person" that the Commissioner require an individual permit (see 40 CFR 122.28(b)(3)(i) or standard condition VI.M of GP-93-05). It is not clear whether such petitions would be entertained in the review of a proposed project, or only after the project is being carried out under the authority of a general permit.

The stormwater SPDES permit program is new enough that no precedent has been set regarding it by any Decisions or Interim Decisions of the Commissioner, and it is also not addressed by either the old or new version of Part 624. 6 NYCRR Subdivision 621.15(d) mentions general permits under SPDES, but this reference may be to the original issuance of a general permit (which took place in July 1993 for the stormwater permits) and as such would not provide guidance for the present hearing process. As stated below, I am referring this question regarding hearing procedures and the general permits to the Commissioner.

If the question of the project's compliance with the general permits is to be adjudicated at all, there is also the question of the scope of this potential issue. CCAC and the Town have alleged that the project would not comply, and/or has not been shown to comply, with certain provisions of the general permits. Of the specific provisions discussed in the May 16, 1994 statement by CCAC and the Town, all but one involve compliance with Appendix D of GP-93-06.

Although Appendix D has considerable importance, it is not a fixed set of requirements. General permit GP-93-06, at section III.D.2.c (found on page 12 of the permit), in discussing the contents of a pollution prevention plan, states that,

"Stormwater management controls shall conform to and be implemented in a manner consistent with the technical standards set forth in Appendix D. Where conformance to Appendix D is not attainable, the operator shall describe what practices will be implemented together with an explanation as to why conformance with Appendix D cannot be achieved."

GP-03-06, at section III.A.2, requires that the plan be developed prior to the submittal of the notice of intent (which in turn is submitted at least two days prior to commencement of construction) but does not require that the plan be submitted any earlier nor reviewed by the Department prior to construction. When the plan is submitted, it could contain either controls consistent with Appendix D or other practices plus the required explanation.

Thus, compliance with provisions of Appendix D would not be adjudicated, even if the proposed project's compliance with the general permit itself would be adjudicated in the hearing.

Only one of the allegations pertains to the general permits themselves. This is the allegation that there would be water quality degradation due to increased turbidity, which, if true, would violate II.b.1 of each general permit. There is a substantive factual dispute regarding this question, but (as discussed above) it is not clear that compliance with the general permit is something which would be adjudicated in a permit hearing. In addition, the outcome of this dispute would not necessarily be that an individual permit was required. The Commissioner has the option of requiring an individual permit if the discharger is not in compliance with the conditions of the general permit, but this outcome is not mandatory under 40 CFR 122.28(b)(3). It is possible that the plan could be amended or the general permit could be modified (GP-93-05, III.c and VII.A; GP-93-06, III.c.2.b)

The question of whether compliance with the terms of the SPDES general permits for stormwater can be adjudicated in a hearing on an application for other permits is respectfully referred to the Commissioner, since there is no direct precedent or requirements on this.

The only portion of this proposed issue which I am identifying as part of the reconvened hearing is the question of whether the current proposal demonstrates the feasibility of separating leachate from the flows which will not require treatment (separating stormwater from non-stormwater). This is already part of one of the remanded issues. It also relates to whether the discharges are eligible for coverage under the draft permit.

I am not requiring that the Applicant apply for an individual SPDES permit prior to the reconvened hearing.

Prefiled Testimony

The Town and CCAC have requested use of prefiled testimony and the Applicant has opposed this request. The main purpose which prefiled testimony would serve in this hearing would be to provide the parties with adequate time to review complex or technical evidence prior to the hearing, and to better prepare for cross-examination. Evidence of this type may be expected in the reconvened hearing, similar to that presented earlier. Prefiled testimony does, however, require time to prepare.

The purpose for which prefiled testimony would be useful here can be served by requiring the parties to distribute, to the other parties and to me, copies of any calculations, tables, maps or figures which they will use or present in their direct testimony. These are to be distributed in time to be received a week prior to the expected date of the testimony. The questions and answers of the testimony would be presented live, rather than as prefiled testimony.

Appeals

The present rulings may been appealed to the Acting Commissioner as an issues ruling. Former 6 NYCRR Subdivision 624.6(d) would apply. The deadline for receipt of any such appeals by the Acting Commissioner will be July 8, 1994. Any replies to the appeals must be received by July 15, 1994.

Any appeals and replies must be filed in triplicate, addressed to: Acting Commissioner Langdon Marsh, c/o Robert H. Feller, Assistant Commissioner for Hearings, New York State Department of Environmental Conservation, 50 Wolf Road, Albany, New York 12233-1550. A copy of any appeals and replies must be transmitted to me and to all persons on the service list.

At the request of Mr. Feller, and in order to expedite the review process, appeals are limited to ten pages double spaced. Replies are limited to 5 pages double spaced.

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

Dated: Albany, New York
June 24, 1994

To: All persons on 6/13/94 service list

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