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Hyland Facility Associates - Interim Decision 2, March 6, 1992

Interim Decision 2, March 6, 1992

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

In the Matter of

the Application of HYLAND FACILITY ASSOCIATES for Permits to Construct and 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

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

SECOND INTERIM DECISION

March 6 , 1992

Second Interim Decision of the Commissioner

This Second Interim Decision is in relation to appeals filed from the December 18, 1991 ruling (the "Ruling") of Administrative Law judge ("ALJ") Susan J. DuBois. The Ruling held that the Hyland Facility Associates ("Hyland" or the "Applicant") needed to apply for variances from two provisions of the Department's solid waste management regulations, 6 NYCRR Part 360 ("Part 360"). Still pending is the ALJ's ruling on issues for adjudication and party status.

The first variance relates to the requirement that there be a minimum of 100 feet horizontal separation between deposited solid waste and the mean high water elevation of surface waters (6 NYCRR 360-2.13(a)(2)). This requirement by its very terms is intended solely to prevent surface water contamination. While the 100 foot separation is not in and of itself a guarantee that surface water contamination won't occur, it is a minimum requirement.

Compliance with that standard must be determined based on site conditions that exist when solid waste disposal occurs. In this instance the diversion of the existing springs would therefore be taken into account. Hence, if the Applicant can demonstrate that prior to the disposal of any wastes, the distance between mean high water of the springs is at least 100 feet away from all areas where solid wastes will be placed, no variance is needed. This conclusion makes no judgment concerning whether there are any substantive concerns about the effect of the diversion on the springs or whether the diversion will be reliable.

The second variance relates to the location of the leachate collection and removal system. The Rulings hold that Part 360 requires all leachate collection and removal pipes to be above the liner system. I find this is too narrow a reading of the regulations.

The regulations address the question of the location and design of the leachate collection and removal system in order to ensure that it is designed to collect all leachate and to prevent causing undue pressure on the liners. Those two goals are not in any way inconsistent with the type of system proposed by the Applicant.

While there may be other concerns which relate to the penetration of the liners, designs which have this feature may require additional precautions but are not precluded by regulation. In fact, no leachate removal system can avoid penetrating either the bottom liner or the cap at the time of facility closure. The regulations do not dictate where these pipes must exit the landfill. Once again, the determination that the proposed design does not require a variance from Part 360 is not a conclusion concerning whether there are substantive issues about the engineering safety of what is proposed in this application.

Conclusion

I have concluded that the Applicant need not apply for either of the variances which were required by the Ruling. This matter is remanded back to ALJ DuBois for continued proceedings consistent with this Second Interim Decision.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Second Interim Decision to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York this 6th day of March, 1992.

_____________/s/_____________
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
THOMAS C. JORLING, COMMISSIONER

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