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Hyland Facility Associates - Ruling 6, September 13, 1994

Ruling 6, September 13, 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

September 13, 1994

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

On September 2, 1994, Mr. West wrote to Commissioner Marsh regarding proposed stipulations about the stormwater permits issue and the financial assurances issue. Assistant Commissioner Feller has referred the correspondence on this to me for a response. The present memorandum also discusses the schedule for the hearing.

Financial Assurances Issue

The Applicant proposed to stipulate to a permit condition requiring closure and post-closure trust funds in place of the forms of financial assurance which are proposed in the application. The Applicant also stated that it was willing to fund the trust funds in accordance with 6 NYCRR 360-2.19(e)(1) and that this would resolve the issue.

Concerned Citizens of Allegany County and the Town of Angelica disagreed with the Applicant's conclusion that this would resolve the issue, for the reasons stated in Mr. Seeger's letter of September 6, 1994. The Applicant responded to this on September 6, 1994.

The August 29, 1994 Fourth Interim Decision limited the issue to two questions: (1) whether a mechanism other than a trust fund should be allowed for post-closure care, and (2) whether the methods proposed for accruing funds for the costs of closure and post-closure care are sufficient to assure the funds are available whenever they may be needed pursuant to the requirements of 6 NYCRR 360-2.19(e).

If the Applicant proposes a trust fund for post-closure care, the first part of the issue would no longer be in question. With regard to the accrual of funds, Mr. West's letter of September 6, 1994 notes that there is a specific formula for payments to trust funds for closure and post-closure care (see 360-2.19(e)(1)). This formula appears simpler to apply than the procedure which is proposed in the application (the reserve fund of $1 per ton, with certain assumptions involving inflation and discounting; see 3/7/94 Post-Closure Monitoring and Maintenance Operations Manual, pp. 35 to 43). Updating the application and the draft permit to reflect use of the formula from Part 360 may resolve the second part of the issue, but the proposed change will need to be specified.

The Applicant will need to submit an amended version of the relevant section of the Post-Closure Monitoring and Maintenance Operations Manual. Following that, the Department Staff will need to make the necessary amendments to the draft permit, to reflect the change in the proposed financial assurance. These two submissions would need to be provided at or before the start of the hearing, but no additional schedule for comments on them is necessary. They can be discussed at the start of the hearing. If the modifications resolve the issue, no testimony on the issue would be necessary.

SPDES Permit for Stormwater Discharges

The Commissioner's Fourth Interim Decision required that the Applicant submit a description of the stormwater management controls that address the matters covered by Appendix D of general permit GP-93-06. The Interim Decision also provided for distribution of this submission to the parties, review by the Department Staff, and an opportunity for the parties to raise issues concerning whether the turbidity requirements would be met.

The Applicant, in Mr. West's letter of September 2, 1994, proposed an abbreviated procedure in which the Applicant would stipulate to the adjudicability of the stormwater issue as defined in the Fourth Interim Decision (regarding turbidity requirements). The Applicant also proposed that it distribute its description of the stormwater management controls two weeks prior to the hearing, and that the Department Staff comment on the submissions at the start of the hearing. CCAC and the Town generally agreed with this proposal, although with some reservations.

The Applicant may submit its description of the stormwater management controls two weeks prior to the hearing. This document would need to be received by the parties and by me on or before September 27, 1994. The Department Staff's comments on the stormwater controls would, however, need to be provided by October 4, 1994, one week prior to the hearing, rather than at the start of the hearing. This is the date for receipt of the comments by the parties and by me. The issue, of whether the turbidity requirements of the stormwater general permits would be met, will then be adjudicated in the hearing.

If the stormwater controls involve modifications that affect other issues which were remanded, there may need to be time for the parties to review the effect of these modifications and possibly to present additional testimony related to the changes. The additional description of the stormwater controls is not in the record yet so I do not know whether or how these controls may affect other aspects of the project.

Schedule

On September 9, 1994, Mr. Seeger wrote to me concerning a proposed schedule for the hearing and his discussion with Mr. West about this. The letter requested that the hearing reconvene on October 11, 1994 and that Dr. Evans be scheduled to testify commencing on October 25, 1994.

Although predictions of the length of testimony frequently turn out to be underestimates, including in the earlier part of this hearing, the parties would be more able to predict this than I would. Mr. Seeger's letter states that eight days appear to be ample time for the Applicant's and the Department Staff's direct cases, and neither Mr. West nor Mr. Stever have asked for a different schedule.

The hearing will reconvene on Tuesday, October 11, 1994, at 9:00 A.M. and will continue on October 12 through 14, 1994. Mr. Seeger's letter requested that the hearing dates in the next week be scheduled for Monday, October 17 through Thursday, October 20, 1994, and stated that this is agreeable to Mr. West and Mr. Sinclair. I have not received any objection to this from the other parties and it does not pose a problem for my schedule, so the hearing will continue on October 17 through 20, 1994.

The hearing would continue on October 25 through 28, 1994. If additional days are required beyond this, the hearing would continue on November 1, 1994 and the remaining days in that week as necessary.

The hearing will take place in the Allegany County courthouse annex to the extent that this can be arranged, or at alternate locations. I will notify the parties of the location for October 11, 1994 once this is confirmed.

Mr. West has asked that a copy of any correspondence related to the schedule of the hearing be sent to Ms. Tredway, for her information in scheduling when she will need to be taking the transcript of the hearing. Ms. Tredway's address is: JoAnn E. Tredway, 9741 Route 446, Cuba, New York 14727.

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

Dated: Albany, New York
September 13, 1994

To: All persons on 6/13/94 service list (enclosed)
JoAnn E. Tredway (with copy of Mr. Seeger's 9/9/94 letter)

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