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Hyland Facility Associates - Interim Decision 4, August 29, 1994

Interim Decision 4, August 29, 1994

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

FOURTH INTERIM DECISION

August 29, 1994

Interim Decision of the Commissioner

This Interim Decision is in response to the June 24, 1994 rulings (the "ALJ Ruling") of Administrative Law Judge ("ALJ") Susan J. DuBois in the captioned matter. In addition, it also addresses the legal question concerning the status of general permits under the State Pollution Elimination Discharge System ("SPDES") that was referred in the ALJ Ruling to the Commissioner for resolution.

Appeals were filed by Hyland Facility Associates (the "Applicant"), the Town of Angelica and the Concerned Citizens of Allegany County (collectively the "Intervenors") and the Staff of the Department of Environmental Conservation ("Staff"). Since the issues appealed by Staff are a subset of those appealed by the Applicant, both sets of appeals will be addressed together.

Applicant and Staff Appeals

Expansion of the Mine Area

The Applicant argues that the expansion of the mine area need not be adjudicated because its submittal has resolved any outstanding questions that remained after the Commissioner's November 18, 1993 Ruling on Motion for Reconsideration (the "November Ruling").

The November Ruling remanded five issues for additional adjudicatory hearings. Soil testing and materials was one of those issues. The November Ruling required ALJ DuBois to provide an opportunity for the parties to raise additional issues but did not give her the authority to remove any of the issues from consideration that had been specifically remanded. This issue continues to be one that will require adjudication.

Revised Hydrogeologic Documents

The ALJ Ruling requires the Applicant to depict the seasonal high groundwater table and to update other hydrogeologic information concerning the site, in particular stratigraphic profiles, cross sections, and piezometric surface contours. It holds that this information is needed to resolve three of the remanded issues - separation to groundwater; slope stability; and foundation analysis. As discussed below, all of this information is either irrelevant or superfluous to the resolution of these issues and therefore none of it need be submitted as part of the hearing process.

The Applicant has requested a variance from the provisions of former 6 NYCRR 360-2.13(d) which requires a five-foot separation between the liner and the seasonal high groundwater table. This request presupposes the lack of an adequate separation. Hence, the need to depict seasonal high groundwater table would arise in the context of this issue, if at all, only if it is relevant to determining whether the Applicant is entitled to a variance.

In order to demonstrate entitlement to a variance, an applicant must show that the proposed activity would have no significant adverse impact on the public health, safety or welfare, the environment or natural resources and will be consistent with the provisions of the ECL and the performance expected from 6 NYCRR Part 360 [6 NYCRR 360-1.7(c)(2)(iii)]. In the context of this application, such a showing relates to whether the pore pressure relief system functions as a substitute for a physical separation.

The design of the pore pressure relief system can be based on the actual field conditions at the site or a "worst case" scenario. The Addendum submitted by the Applicant at page 1.4 indicates that the Applicant has chosen the latter route in designing the system. So long as the Applicant demonstrates that the assumed conditions indeed represent a "worst case" scenario from the perspective of the functioning of the pore pressure relief system, the depiction of the seasonal high groundwater table (i.e., actual field conditions) is not needed in order to assess the variance request.

The depiction of the seasonal high groundwater table would not affect the adjudication of the foundation analysis issue either. Instead, that analysis is dependent upon the testing of actual soil samples taken where the liner will lie. The information on depth to groundwater which would become available from the depictions would only provide an indirect source of information relevant to resolving this issue. In light of the availability of the results of testing of actual soil samples, this secondary information is unnecessary. However, the foundation analysis issue does encompass whether the soil samples upon which tests were performed were representative of actual site conditions, the validity of the analyses used to determine the input parameters for the analyses, and the ability of the analyses performed to represent conditions during the life of the landfill.

Likewise the other information related to hydrogeology is not needed. It would be relevant only to the environmental monitoring plan and this issue has already been satisfactorily resolved. Due to the variance request, it is obviously not relevant to the separation to groundwater issue. Although the information at issue would help define the site stratigraphy by better placing specific soil types, it would provide no new information concerning the broad geotechnical properties of the soil materials upon which the resolution of the other two issues rests.

Although the submittals required by the ALJ Ruling are not needed to resolve any hearing issue, I agree with ALJ DuBois' comment regarding the need for refinement of the hydrogeologic depictions based on the new information obtained during the application process and in the course of installing the monitoring wells. Therefore, a special condition should be added requiring the Applicant to revise all the hydrogeologic depictions using this updated information. The revisions must be submitted to the Department and approved prior to initiation of operation.

Slope Stability

The ALJ Ruling indicated that the slope stability issue would need to address the effect of hydrostatic pressures and any change in the properties of the ash which are occasioned by the Applicant's commitment to not accept ash that is a hazardous waste under Subtitle C of the Resource Conservation and Recovery Act (42 U.S.C. 6921-6934) as determined by the recent U.S. Supreme Court decision, City of Chicago v. Environmental Defense Fund, __ U.S. __ (1994). I find that it is not necessary to address either of these potential problems.

The main functional purpose of a pore pressure relief system is to remove groundwater and construction water before any hydrostatic pressure is exerted on the landfill. Thus, if the head in the pore pressure relief system remains less than the thickness of the pore pressure relief system, it will perform as required.

The adjudication of the Applicant's request for a variance will determine whether the pore pressure relief system is designed correctly. If the applicant can make this showing, there will be no hydrostatic pressure on the liner.

With respect to the properties of the ash, the offers of proof do not demonstrate that the characteristics of the ash that are relevant to the slope stability analysis will change because of the restrictions placed on the type of ash that will be accepted at the facility. To the contrary, the Directors of the Department's Divisions of Solid Waste and Hazardous Substance Regulation have submitted a letter stating that there would be no such change. Without any basis to doubt this conclusion, no further showing by the Applicant is required.

Storm Water Management Practices (Separation of Contaminated and Uncontaminated Runoff/Liner System Integrity)

The November Ruling held that the Applicant would need to redo the computerized water balance calculations (the "HELP" model) in order to demonstrate compliance with former 6 NYCRR 360-2.14(b)(1)(iii) which relates to ensuring the head on the liner system is maintained at less than one foot in order to minimize leachate migration through the liner. It held that if the Applicant were going to include less than the total amount of runoff in the calculations for the model, it would need to demonstrate the feasibility of separating out the uncontaminated runoff. The ALJ Ruling implies that the Applicant will need to make this demonstration.

Such a demonstration is not necessary. Although the Applicant's storm water management plan still includes provision for diverting uncontaminated runoff, the revised HELP model assumes, for purposes of calculation, that all runoff enters the leachate collection system. Hence if the HELP model demonstrates that the integrity of the liner is protected under these circumstances, the cited rule is adequately satisfied.

The only other related problem is that contaminated runoff might be diverted away from the leachate collection system. This potential problem is separately addressed by Applicant's agreement to sample in the detention basin, which will store the supposedly uncontaminated runoff. If any of the water in the basin proves to be contaminated, additional groundwater monitoring will be initiated and the diversion problem corrected. Hence, from these two perspectives, there is no issue concerning any of the storm water management practices or the separating contaminated from uncontaminated leachate.

Financial Assurances

The ALJ Ruling holds that compliance with the requirements of 6 NYCRR 360-2.19 should be added as an issue for adjudication. The ALJ found that the issue relates to a new requirement imposed by the revised Part 360, and that it was substantive and significant. Although I concur that there is an issue for adjudication, the issue should be more narrowly defined than was done in the ALJ Ruling.

The new rules only require that there be a financial guarantee to meet the costs of closure and post-closure care [6 NYCRR 360-2.19(e)]. Hence, general charges, such as property taxes, are not intended to be guaranteed by these mechanisms.

There is also no substantive issue concerning the method used by the Applicant for estimating costs. It used a standard industry cost-estimating method. There is nothing in the Intervenor's submittals that casts doubt this is the most reliable method for making these estimates.

The current estimates would be updated many times during the course of the facility's operation. Hence the fact that the current estimates for the first year of operation are not up-to-date are of no real significance. They would be updated as part of the further submittals if the project is approved.

Finally, while there is a substantive dispute concerning the inclusion of some items as part of the costs of closure and post-closure care (e.g., mobilization, quality assurance), a review of those items demonstrates that the costs involved are not significant and hence need not be adjudicated. The Staff should review the items which the Intervenors seek to have included as part of its periodic review of the value of the financial guarantees.

There is a substantive and significant issue about (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).

The rules do not allow for a mechanism other than a trust fund to be employed for post-closure care unless approved by the Department. The record does not yet reflect a basis for varying this requirement.

6 NYCRR 360-2.19(e) contains the various methods for assuring funds are available for the costs of closure and post-closure care when required. The Intervenors have raised a substantive question concerning whether the method proposed by the Applicant is consistent with these methods.

Intervenors Appeal

Compliance with General SPDES Permit

The issue being appealed is closely related to the one which was referred to me by ALJ DuBois and both will be addressed herein. The questions raised concern whether the Staff's determination that the Applicant is entitled to coverage under the storm water general SPDES permits can be challenged in the administrative hearing and whether the compliance with any of the terms of the general permits can be subject to adjudication.

In cases where the only Department permit required for a project is the storm water SPDES permit (whether for project construction, operation, or both), the project sponsor can, in effect, "automatically" obtain coverage under the general permits by: (1) submitting to the Department a notice of intent to be covered by the general permit(s) at least 2 days prior to commencing the activity, (2) maintaining a copy of the requisite pollution prevention plan at the project site, and (3) in the case of a construction permit, submitting to the relevant local government a copy of the pollution prevention plan.

However, where other, non-storm water, Department permits are required for a project, the "automatic" coverage is not available. This is reflected in the terms of the general permit; specifically the construction permit states:

New storm water discharges associated with construction activity which require any other Uniform Procedures Act permit (Environmental Conservation Law, 6 NYCRR Part 621) must submit the information specified in Appendix G.

Upon review of this information, DEC may authorize the applicant to submit a NOI to obtain coverage under this general permit. (GP-93-06 Part I.D.6).

The referenced Appendix G is a list of items to be required in an application for an individual permit. The general permit for other industrial activities contains substantially similar language (see GP-93-05 Part I.B.2.b.).

The determination to permit coverage under the general permit in such situations is discretionary. Moreover, unlike the completeness determination under the Uniform Procedures Act (ECL Article 70), there are no circumstances under which it will be made by default or by operation of law. Hence, the Staff determination to permit coverage under the general permit is reviewable in the hearing context, just as other determinations Staff makes that are not ministerial or otherwise compelled by law.

In this instance, however, there is an inadequate basis to reconsider the determination to rely on the general permits. There is no substantial question that the proposed activities are in the category of activities that qualify for general permit treatment. Moreover, no substantial question has been raised about the adequacy of the conditions which will govern the regulation of storm water management. These conditions are found in both the storm water SPDES general permits and in the solid waste management facility permit.

The only outstanding matter is whether there is any substantive and significant issue concerning whether the project, as designed, will meet all of these conditions and, if there is such an issue, whether it can be the subject of adjudication. In particular, the Intervenors raise the question of whether or not the detention basins are sized properly in order to avoid increases in turbidity that would cause a substantial visible contrast to natural conditions in the receiving stream (GP-93-05 Part II.B.3; GP-93-06 Part II.B.1).

At present, it is not possible to adequately assess the project design because the detailed storm water management controls have not been submitted by the Applicant. Under the terms of GP-93-05 a description of these controls would normally be submitted as part of the storm water pollution prevention plan (see GP-93-05 Part III.D.2). This submittal would not normally be due as part of an Applicant's initial filing to determine coverage under the storm water general SPDES permits (see GP-93-05 Part I.B.; GP-93-06 Part I.D.); it would only need to be submitted at some time prior to the filing of the Notice of Intent required by GP-93-06, up to two days prior to the commencement of construction (see GP-93-06 Part I.E., III.A. and III.D.). In fact, the Applicant has argued that there are factors relevant to the development of the final storm water plan that cannot be reasonably ascertained until just before construction.

In this case, the storm water management issue raised by the Intervenors has the potential to affect practices which are relevant to compliance with 6 NYCRR Part 360 and it is also relevant to the findings that must be made in satisfaction of the State Environmental Quality Review Act ("SEQRA"). As such, the issue cannot await resolution until after the adjudicatory hearing. Contrary to the Applicant's argument, resolving this issue in the context of the adjudicatory hearing is not contrary to the intent behind the use of the storm water general SPDES permits. The elimination of any pre-approval review for coverage under such permits was only intended to extend to single permit situations (see SEQRA determination of no significant impact issued in connection with the issuance of both storm water general SPDES permits dated August 28, 1992). Where projects required other permits as well, reliance on the storm water general SPDES permits was not intended to exclude the review of matters that would have otherwise been part of the overall project review.

To remedy this situation, the Applicant will need to submit a description of the storm water management controls that address the matters covered by Appendix D to GP-93-06. If site specific conditions cannot be reasonably ascertained at this time, the Applicant should adopt reasonable assumptions to perform its analyses. If the project is approved, this information will need to be refined later just prior to construction.

This submission will be circulated to all parties and will reviewed expeditiously by the Department Staff. When Staff finds that the submittal is adequate to be reviewed in the public hearing, it will so notify the ALJ and indicate whether an amendment to the draft permit is required. The ALJ will then provide an opportunity for the other parties to raise issues for adjudication. Any such issue is limited to the question of whether the turbidity requirements of the storm water general SPDES permits will be met.

Financial Assurance

All of the issues on which the Intervenors seek clarification have already been addressed above.

Airborne Ash

The ALJ Ruling correctly states that the November Ruling precludes further adjudication of the issue of airborne fugitive ash. It did so on the basis that the adjudication demonstrated that standard control measures could minimize the impact of airborne ash. However, as noted in the hearing report, some of those standard control measures have not been incorporated as binding permit conditions.

The draft permit already requires the washing of the exterior of vehicles prior to their exit from the landfill cell (Special Condition 45). Further, it is part of the Applicant's proposal to wash any bulldozer before using it to place daily cover (Exhibit 85). The only other management condition that lacks an enforceable basis is one which requires periodic checking of the moisture content of the ash in incoming vehicles. Therefore, Staff are directed to amend the draft permit to include such a condition which will require inspection of not less than one truck per week on a random basis. With the addition of this condition, I find that the Applicant will be employing best management practices and that any impacts from airborne fugitive ash will be mitigated to the maximum extent practicable.

Summary

The five issues that were remanded to hearing in the November Ruling will need to be adjudicated. The slope stability issue need not address the impact of hydrostatic pressure on the landfill nor any potential impacts from the agreement to accept only non-hazardous ash at the facility. For purposes of adjudicating the liner issue, the Applicant will not be required to demonstrate the feasibility of separating the contaminated and uncontaminated components of runoff. The foundation analysis issue need not consider the depth to groundwater but should encompass the sub-issues set forth above. The adjudication of the five remanded issues does not require the submission of the additional depictions that were required in the ALJ Ruling.

There is a new issue concerning financial assurances, as defined and limited above. Whether there is an adjudicable issue concerning the ability of the storm water plan to avoid an increase in turbidity must await a further submittal by the Applicant. Any question about the airborne fugitive ash is resolved by the imposition of the additional condition described above.

This matter is remanded to ALJ DuBois for further proceedings consistent with this Interim Decision.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this 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 29th day of August, 1994.

DEPARTMENT OF ENVIRONMENTAL CONSERVATION
_____________/s/_____________
LANGDON MARSH, COMMISSIONER

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