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Integrated Waste Systems, Inc. - Supplemental Ruling, July 24, 1995

Supplemental Ruling, July 24, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Applications of

INTEGRATED WASTE SYSTEMS, INC.
201 Ganson Street
Buffalo, New York 14203

for conceptual review of its proposal to site a solid waste management facility
in the Town of Farmersville, Cattaraugus County pursuant to
the Environmental Conservation Law ("ECL") and Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR")

SUPPLEMENTARY RULINGS
OF THE ADMINISTRATIVE LAW JUDGE

ON ISSUES

DEC Project No.

9-0438-00004/00003-9

In the March 4, 1995 Interim Decision in this matter Executive Deputy Commissioner Gary Spielmann certified as issues for adjudication: a) the potential existence of a principal aquifer underlying the proposed Farmersville site [6 NYCRR 360-2.12(c)(1)], and b) whether the site is located in an unstable area [6 NYCRR 360-2.12(c)(4)]. The parties are preparing for the adjudicatory phase of this hearing regarding these two issues.

Additionally, the Interim Decision provided for submissions from the parties regarding the comparative assessments of alternate sites, including whether the criteria in 6 NYCRR 360-2.12(d) are satisfied by the preferred alternative. I have received additional submissions from the Applicant, the Department Staff and consolidated party, Cattaraugus County and the City of Olean ("County/City").

Furthermore, in my initial Rulings, dated December 6, 1994, I suggested that additional survey work was necessary to determine the presence and distribution on the preferred site of the New York State threatened plant, Hypericum prolificum, shrubby St. Johnswort. An additional survey of the Farmersville site was conducted on May 11, 1995, with representatives of the Applicant, the Department Staff, the Town of Farmersville and the Concerned Citizens of Cattaraugus County ("Concerned Citizens"). I have received submissions on this subject from the Applicant, the Department Staff, and Concerned Citizens.

This Supplementary Ruling deals with the above noted submissions on alternate sites/compliance with 6 NYCRR 360-2.12(d) and the presence of a State-listed threatened plant on the preferred site.

New York State threatened plant, Hypericum prolificum, Shrubby St. Johnswort

The Solid Waste Management Facility regulations applicable to the conceptual review of siting the proposed facility, in 6 NYCRR 360-1.14(c)(3) Endangered species, require that: "Solid waste management facilities must not be constructed or operated in a manner which causes or contributes to the taking of any endangered or threatened species of plants, fish or wildlife; or to the destruction or adverse modification of their critical habitat."

As a result of the May 11, 1995 field investigation conducted by interested parties in this matter, it was found that the New York State threatened plant, Hypericum prolificum, shrubby St. Johnswort, occurs in several predominately upland locations on the Applicant's proposed Farmersville site. These locations are in areas which could be expected to be disturbed by a proposed landfill development on the Farmersville site. At least one location, situated within the proposed landfill footprint, contained a reported 80 shrubby St. Johnswort plants.

My original Rulings relied on a literal reading of 6 NYCRR 360-1.14(c)(3) to conclude that the presence on the site, especially within the proposed landfill footprint, of a threatened plant and/or its critical habitat might be sufficient to raise an adjudicable issue with respect to whether conceptual approval could be granted for development of a landfill at the Farmersville site, or alternately, might be cause for adjustment of the proposed landfill footprint.

It is now apparent that I did not delve deeply enough into the regulations to realize the endangered/threatened species section quoted above, i.e. - 6 NYCRR 360-1.14(c)(3), hinges on the definition of endangered or threatened species found in 6 NYCRR Part 182 (Endangered and Threatened Species of Fish and Wildlife; Species of Special Concern). [See 6 NYCRR 360-1.2(b)(48)]. The Department Staff's submission on this subject is precisely on point.

Part 182 of the Department's rules and regulations is promulgated pursuant to ECL Article 11 (Fish and Wildlife). ECL 11-0535 (Endangered and threatened species), in paragraph (1), states in pertinent part, "'endangered species' shall mean those species of fish, shellfish, crustacean and wildlife", and "'threatened species' shall mean those species of fish and wildlife" (emphasis added).

"Shrubby St. John's Wort" (sic), Hypericum prolificum, is included in the Department's rules and regulations, 6 NYCRR 193.3 as a "Protected native plant", and in paragraph (c) of this section, is listed as a threatened native plant which is likely to become endangered within the foreseeable future throughout all or a significant portion of its range in the state. The plant is apparently not known widely in New York State, other than for its most noted occurrence in the western part of the State, and particularly in the Farmersville area of Cattaraugus County. It is likely that this area is at the northeasternmost fringe of the plant's range, due largely to limiting climatic factors.

The regulations in 6 NYCRR Part 193 (Trees and Plants) are promulgated pursuant to Article 9 of the Environmental Conservation Law (Lands and Forests). ECL Section 9-1503 (Removal of protected plants), in paragraph (1), sets forth the statutory definitions for protected plants, i.e. - species of native shrubs, trees, herbs, ferns, fern-allies and wild flowers, in New York State, including the definition of "threatened species". ECL Section 9-1503(2) authorizes the Department to adopt a list or lists of protected plants which by reason of their endangered, rare, threatened or exploitably vulnerable status should not be picked or removed from their natural habitat, i.e. - the lists of protected native plants in 6 NYCRR 193.3. ECL Section 9-1503(3) prohibits any person, without the consent of the owner of protected native plants, from picking, plucking, severing, removing, damaging or carrying away such plants.

Ruling: Therefore, although the applicable version of "Part 360" for this proceeding notes the presence of endangered or threatened species of plants or their critical habitat as a potential prohibition to landfill construction or operation, it is clear that the definition of "endangered or threatened species" in the context of Part 360 relates only to fish and wildlife, and not to plants. Indeed, the most recent version of Part 360, effective October 9, 1993, corrects this internal inconsistency and deletes any reference to endangered or threatened species of plants in the prohibited siting criteria. [See new 6 NYCRR 360-1.7(a)(2)(iii)].

Nevertheless, as pointed out in the Staff's submission, the occurrence of Hypericum prolificum, shrubby St. Johnswort, on the Farmersville site and the potential adverse impacts of the proposed project on a New York State protected native plant must still be considered in the instant proceeding pursuant to the State Environmental Quality Review Act ("SEQRA"). In this context, the occurrence of shrubby St. Johnswort on the site is not an absolute prohibition to the siting of a landfill on the property. The plant's presence does, however, warrant mitigation measures to minimize any potential adverse impacts on the threatened plant species and its critical habitat, even if those adverse impacts are caused by the owner of the land on which the plants occur. Thus, parties are invited to submit proposals for avoidance and/or appropriate mitigative conditions requiring preservation of Hypericum prolificum, shrubby St. Johnswort, on the project site. I note that the Applicant has already suggested several options for avoidance and/or mitigation. No issue is raised for adjudication, but I recommend the Applicant's suggested options be further developed and submitted in accordance with a briefing schedule to be established during the course of the adjudicatory hearing.

Siting Requirements [6 NYCRR 360-2.12(d)]

  • Low permeability unconsolidated deposits, 6 NYCRR 360-2.12(d)(1)
  • Characterization of bedrock conditions, 6 NYCRR 360-2.12(d)(2)
  • Groundwater flow/Groundwater divide, 6 NYCRR 360-2.12(d)(3)

The Applicant and the Department Staff both believe the regulatory criteria for landfill siting requirements set forth in 6 NYCRR 360-2.12(d) have been satisfied in the context of a site selection study for conceptual review. The County/City believes unresolved issues remain regarding comparative assessment of the Applicant's two leading sites with respect to the nature of the unconsolidated deposits, the characterization of the bedrock and groundwater flow patterns on and around the sites.

As part of a landfill site selection study, one of the required considerations is that "unconsolidated deposits on the site must be those most likely to minimize the migration of contaminants from the facility. Preferred sites should be underlain by thick sequences of homogeneous, clay and silt rich, low permeability materials where permeable lenses and channels are unlikely to be present. In evaluating alternative sites, preferred sites should have the greatest possible thickness of these materials to provide a barrier to contaminant migration into bedrock".

In the instant case, the unconsolidated materials located at Site 52 - Albion/Murray are more homogeneous and generally less permeable than the overburden materials at Site 19 - Farmersville. However, the thickness of the unconsolidated materials is greater at Farmersville than at Albion/Murray.

As part of a landfill site selection study, a required consideration is that "bedrock subject to rapid or unpredictable groundwater flow without thick, low permeability cover must be avoided. Preferred sites should have the greatest possible thickness of low permeability materials".

Here, the bedrock materials found at both sites are not typically of the type which exhibits rapid or unpredictable groundwater flow. The Albion/Murray site, underlain by shale, is potentially less subject to rapid or unpredictable groundwater flow than the sandstone and shale at Farmersville, but the unconsolidated deposits overlying the bedrock at the Albion/ Murray site are shallower than at Farmersville.

As part of a landfill site selection study, "probable groundwater flow patterns ... must be considered in finding areas where containment failure would do the least environmental damage and would be easiest to correct".

Both sites were rated equally in this category.

Ruling: Both sites satisfy the landfill siting requirements in 6 NYCRR 360-2.12(d). Based on the preliminary site investigation information utilized in preparing the Applicant's Site Selection Study Report, there were no identified limiting factors which would preclude the siting of a landfill at either Albion/Murray or Farmersville.

Through the use of a scoring and ranking matrix, the methodology for which was approved by the Department Staff, the Applicant considered 81 potential sites and narrowed the number to these two viable candidate sites. Through a weighing and evaluation process, Farmersville scored higher than Albion/Murray. While another evaluator could possibly rank Albion/Murray higher than Farmersville on the basis of the landfill siting requirements in 6 NYCRR 360-2.12(d), other weighing factors in the overall evaluation led this Applicant to determine Farmersville was the preferred site.

The Applicant has complied with Part 360 requirements relating to comparative assessment of alternate sites. No adjudicable issues are raised.

The Adjudicatory Hearing

The adjudicatory hearing will commence at 1:00 P.M. on Tuesday July 25, 1995 in the Franklinville Fire Hall and will continue day-to-day as discussed during the conference telephone call among the parties held on June 28, 1995.

Appeals

Pursuant to 6 NYCRR 624.6(e) and 624.8(d), these Rulings on party status and issues may be appealed in writing to the Commissioner within ten days of receipt of the Rulings. I am extending this time period in view of the involvement of the parties in the adjudicatory hearing.

Any appeals must be received at the office of Commissioner Michael D. Zagata (NYSDEC, Room 604, 50 Wolf Road, Albany, New York 12233-1010) no later than August 11, 1995. Additionally, responses to the initial appeals will be allowed. All responses must be received as above no later than August 18, 1995.

The parties shall ensure transmission of all appeal and reply papers to me and all others on the Service List at the same time and in the same manner as transmission is made to the Commissioner.

_____________/s/_____________
ROBERT P. O'CONNOR
ADMINISTRATIVE LAW JUDGE

Dated: Albany, New York
July 24, 1995

To: Service List (enclosed)

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