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Integrated Waste Systems, Inc. - Decision, April 15, 1997

Decision, April 15, 1997

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1010

In the Matter

- of the -

Application for a renewal permit to continue operating the Schultz Landfill on Indian Road
in the Town of Cheektowaga, Erie County, as a construction and demolition debris disposal site,

- by -

INTEGRATED WASTE SYSTEMS, INC.

DEC Permit No. 9-1430-00133/00001

DECISION

April 15, 1997

Decision of the Acting Deputy Commissioner

The attached Hearing Report by Administrative Law Judge ("ALJ") Edward Buhrmaster in the Matter of the Application of Integrated Waste Systems, Inc., for renewal of a permit to continue operating the Schultz Landfill on Indian Road in the Town of Cheektowaga, Erie County, as a construction and demolition debris disposal site, is hereby adopted as my Decision in this matter, subject to my findings and comments below.

Because Acting Commissioner Cahill served as the Department's General Counsel during the time that this matter was the subject of hearings, the responsibility for making the decision in this case has been delegated to the Acting Deputy Commissioner for Natural Resources.

This hearing was triggered by the Applicant's objection to specified special conditions of a renewal/modification permit issued by Department Staff on July 18, 1995. The ALJ concludes that the contested permit conditions involve retrofitting of the landfill facility, and that the contested conditions are not authorized by a provision of the transition rules of the 1988 Part 360 regulations. The ALJ's recommendation is supported by an April 24, 1992, Commissioner's Interim Decision, In the Matter of the Application of Seneca Meadows, Inc. I agree with the ALJ's conclusion and the reasoning expressed in his report.

The ALJ concludes that the contested permit conditions are unauthorized because the 1988 transition rules do not allow Staff to require waste removal and liner installation at a pre-1988 permitted landfill. While I agree with this conclusion, Department Staff may, in light of this decision, determine that other appropriate permit conditions should be added to the permit. For example, Staff may desire to impose conditions that would require the permittee to mitigate actual or potential adverse environmental impacts related to groundwater contamination, but which do not require waste removal and liner installation. Potentially, in light of the ALJ's decision, Staff might even want to reconsider its determination to allow filling in the Western Continuation Area portion of the landfill.

The parties stipulate that groundwater contamination was revealed during the course of a hydrogeologic investigation of the landfill site from December of 1991 through November of 1992. However, the record is undeveloped on issues such as the contamination sources, the extent to which the Schultz facility may contribute to the contamination significance, and appropriate remedial options. I cannot offer specific suggestions on the record before me. Therefore, I hereby remand the matter to Staff. In the event unresolvable disputes arise, the matter can be referred again to the Office of Hearings and Mediation Services for hearing and resolution.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: Frank M. Dunstan
Acting Deputy Commissioner

Dated: Albany, New York
April 15, 1997

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, NY 12233-1010

In the Matter

- of the -

Application for a renewal permit to continue operating the Schultz Landfill on Indian Road
in the Town of Cheektowaga, Erie County, as a construction and demolition debris disposal site,
- by -

INTEGRATED WASTE SYSTEMS, INC.

DEC Permit No. 9-1430-00133/00001

HEARING REPORT

- by -

_____________/s/_____________
Edward Buhrmaster
Administrative Law Judge

Proceedings

Background and Brief Project Description

On or about August 31, 1988, an application was filed for renewal of a permit to continue operating the Schultz landfill on Indian Road in the Town of Cheektowaga, Erie County, as a disposal site for up to 600 tons per day of construction and demolition debris. The application underwent several revisions and a final amended application was filed on August 18, 1993.

The entire site encompasses 20.5 acres. Department of Environmental Conservation ("DEC") Staff interpret the 1988 application as one for continued operation of an active landfill area of 14.2 acres and the amended application as one for a permit to continue operation of the active landfill area and to construct and operate the contiguous 6.3 acres known as the Western Continuation Area ("WCA"). However, the Applicant, Integrated Waste Systems, Inc. ("IWS"), interprets the 1988 application as one for the entire 20.5-acre site and maintains that plans for the WCA were submitted in December 1988.

On July 18, 1995, Department Staff issued a renewal/modification permit with certain conditions. (A copy of that permit is attached to this report as Appendix "A".) The renewal permit was to construct and operate a solid waste management facility pursuant to Article 27, Title 7, of the Environmental Conservation Law ("ECL") and Part 360 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR Part 360).

By letter dated August 15, 1995, the Applicant requested a hearing as to any and all of the permit's special conditions that required, pertained to, or assumed the removal of previously landfilled wastes from the Western Continuation Area, the provision of a stable subgrade in that portion of the facility, and the construction there of a double composite liner. In particular, the Applicant objected to special permit conditions 1, 2(d), 5 through 12, 13(b), 14 through 16, 22, 23 and 30. The Applicant's hearing request was made pursuant to 6 NYCRR 621.13(d).

Legislative Public Hearing

A Notice of Public Hearing dated November 27, 1996, was published in the Department's Environmental Notice Bulletin on December 11, 1996. It was published as a legal notice in The Buffalo News on December 20, 1996.

As announced in the hearing notice, a legislative hearing was held on the morning of January 17, 1997. The hearing, at the Julia Boyer Reinstein Library in Cheektowaga, was held to receive public comments on the permit renewal, including the contested special permit conditions. Three people offered oral statements, and the record was held open for a petition from neighbors of the landfill, and for a written statement from Cheektowaga Town Councilman Thomas M. Johnson, who was unable to attend the hearing.

- - Town Councilman Thomas M. Johnson

In a letter dated February 7, 1997, Councilman Johnson said that the permit conditions contested by the Applicant should be fully enforced as necessary for the public good and consistent with the intent and purpose of the Environmental Conservation Law.

Councilman Johnson said the landfill is close to Cayuga Creek, a protected stream, and to a residential subdivision immediately to the east and across the creek. Furthermore, he said that the 6.3-acre Western Continuation Area intrudes upon and is contiguous with a preliminarily surveyed but not yet delineated potential federal wetland that might also be subject to state jurisdiction.

To better protect the Cayuga Creek, the neighboring subdivision, and the alleged wetland area which might be adversely affected by landfill wastes and runoff, Councilman Johnson said the Department should maintain the contested conditions.

- - Marcia T. Orwat

A Cheektowaga resident and neighbor of the landfill, Ms. Orwat requested that DEC deny the permit to expand the landfill and order that it be capped and closed. She complained that the existing operation generates loud equipment noise as well as dust and dirt that carries to nearby houses. She expressed concern that dumped material might contain carcinogens or other material (such as asbestos) that is hazardous to human health, noting that neighbors already complain of allergies and respiratory distress. Also, she said the landfill expansion would likely push wildlife populations (such as deer, turkeys and skunks) deeper into a residential neighborhood she described as already ringed with landfill sites.

In a petition Ms. Orwat mailed to me after the hearing, 117 people describing themselves as "concerned neighbors of the landfill" requested that the landfill be closed and capped in the interests of the health and well-being of the neighborhood and future generations. In lieu of that, the petition also requested that DEC enforce all conditions pertinent to the landfill expansion.

- - Sheldon Weaver

Identifying himself as a Cheektowaga resident and IWS stockholder, Mr. Weaver said that an environmental impact statement was required for the landfill expansion and that, without one, this hearing is "illegal, premature, a farce." He questioned whether DEC had taken a "hard look" at the landfill's impacts consistent with the State Environmental Quality Review Act ("SEQRA", ECL Article 8).

As indicated in the hearing notice, DEC Staff determined that the permit renewal was an unlisted action and would not result in any significant adverse environmental impacts. A Negative Declaration was issued on September 16, 1993. No coordinated review was performed and therefore no lead agency was designated.

Responding to Mr. Weaver, DEC Staff said that it had taken the required "hard look" at impacts of the landfill expansion and had conditioned its permit accordingly. Both the Applicant and DEC Staff indicated that the renewal permit had already been issued and that the only remaining issues involved the contested special permit conditions. I agreed that the Applicant's objections to specified permit conditions would frame any issues to be adjudicated, and that issues of SEQRA compliance were untimely. According to DEC Staff, no objections or hearing requests were received during the public comment period after its Negative Declaration was issued. An information request presented by Mr. Weaver at the legislative hearing was answered in writing on February 21, 1997, by DEC Staff counsel Abby Snyder.

- - Michael Papero

Mr. Papero identified himself as vice president of the Depew-Cheektowaga Taxpayers' Association and said he was also representing the Dr. Victor Reinstein Nature Preserve. He complained that the landfill "stands out like an ugly sore" and requested some beautification effort to lessen neighborhood impacts. He also complained of dust blowing on a prevailing northwest wind toward the nature preserve and a nearby housing development.

Issues Conference

An issues conference was held immediately after the legislative hearing to determine party status for any person or entity seeking to raise issues for adjudication. No filings were received prior to the deadline set in the hearing notice, and none were presented at the hearing. Therefore, the conference was concerned solely with defining the issues underlying the dispute between the Applicant and DEC Staff concerning the contested special permit conditions.

The Applicant, Integrated Waste Systems, Inc., was represented by Duke, Holzman, Yaeger & Photiadis, LLP, 2500 Main Place Tower, Buffalo (Peter G. Ruppar, Esq., of counsel).

DEC Staff was represented by Abby M. Snyder, Esq., regional counsel, and Maureen A. Brady, Esq., assistant regional counsel, of DEC's Region 9 office at 270 Michigan Avenue, Buffalo.

According to DEC regulation, an issue is adjudicable if it relates to a dispute between DEC Staff and the Applicant over a substantial term or condition of a draft permit. [6 NYCRR 624.4(c)(1)(i)]. In this case the permit has already been issued. However, because the Applicant contests certain of its special conditions, those contested conditions have no legal effect unless the dispute is resolved in Staff's favor. In the meantime, the parties agree that the renewal permit, absent the contested conditions, governs the Applicant's operation.

Prior to the issues conference the Applicant and DEC Staff agreed that their dispute was essentially legal in nature, and could be resolved by relating a set of stipulated facts to the Part 360 regulations governing landfill permitting. At the conference they said that the issue, framed broadly, was whether the contested permit conditions involve retrofitting of the landfill facility in violation of Part 360 transition rules and prior Department decisions, as argued by the Applicant, or whether such conditions are consistent with applicable law, as argued by DEC Staff. Again, the contested conditions are 1, 2(d), 5 through 12, 13(b), 14 through 16, 22, 23 and 30, and the reader is referred to the issued permit (attached to this report) for their content.

Before referring the case for adjudication, DEC Staff agreed with the Applicant to a statement of facts on which both parties concluded their permit dispute could be decided. That statement of facts was offered at the issues conference and received as Exhibit No. 5. This report's findings basically restate the facts accepted by the parties as a basis for discussion and resolution of the legal issues they identified.

The issues conference was adjourned after a schedule was set to brief the identified legal issues. Consistent with that schedule, initial briefs dated February 5, 1997, were received from both DEC Staff and the Applicant. Also, reply briefs dated February 19, 1997, were received from both parties.

Consistent with the understanding reached at the issues conference, the record in this matter closed upon receipt of the reply briefs on February 21, 1997, subject to whatever re-opening I or the Commissioner would deem necessary to resolve the presented legal issues. The parties and I agreed that an evidentiary record would need to be developed only if it became apparent that the stipulated facts required clarification or supplementation. Also, the Applicant confirmed at the issues conference that it disputes only the Department's authority to impose the contested permit conditions; if the Commissioner finds such authority, the conditions can take effect immediately since the Applicant is not challenging them on any other basis.

Positions of the Parties

- - Department Staff

According to Department Staff, the contested conditions in the 1995 permit are consistent with and justified by the Environmental Conservation Law and the Part 360 regulations. Staff contends that landfilling in the Western Continuation Area (WCA) constitutes a horizontal expansion of an active facility beyond limits previously imposed by DEC in a 1985 permit. According to Staff, the contested permit conditions do not constitute retrofitting pursuant to the 1988 transition rules because the 1985 permit did not permit filling in the WCA.

- - Applicant

According to the Applicant, the excavation of existing waste from the Western Continuation Area to install a liner system constitutes a retrofit of the landfill facility prohibited by the 1988 transition rules as interpreted by former Commissioner Jorling's 1992 Seneca Meadows interim decision. Furthermore, it claims that the renewal application does not involve an expansion of the previously permitted Schultz facility.

Findings of Fact

The following findings are a restatement of the "Agreed Statement of Facts" negotiated by the Applicant and DEC Staff. The statement includes references to various exhibits which are also part of Exhibit No. 5. The parties represent that the exhibits supplement and support the facts in the statements to which they are referenced.

  1. The Schultz Landfill ("the Facility") is a Construction and Demolition Debris Solid Waste Management Facility. The entire property is approximately 20 acres in size. Active landfilling is presently being conducted on approximately 14 acres in the eastern portion of the site. The property is located on Indian Road near Broadway in the Town of Cheektowaga. See Exhibit A. Part of Exhibit A was prepared in 1990 and indicates that, at that time, 10 acres of the site were being used for active landfilling. The parties agree that the current active landfill area is approximately 14 acres.
  2. The Facility is bounded on the east and south by a Browning-Ferris, Inc. transfer station and the former Land Reclamation sanitary landfill, on the north by a New York State Department of Transportation maintenance facility and on the west by Buffalo Crushed Stone, Inc. See Exhibit A.
  3. Available records indicate that from 1965 until 1979 the Facility was owned by Beatrice Schultz and operated by Wilfred E. Schultz as a construction and demolition debris landfill pursuant to a permit issued by the Erie County Health Department ("ECHD"). See Exhibit B.
  4. In June 1979, the New York State Department of Environmental Conservation ("DEC") issued a Construction and Demolition Debris Disposal Site permit to Wilfred E. Schultz, effective August 16, 1979, with an expiration date of August 16, 1980. See Exhibit C. A final grading plan submitted in support of Schultz's permit application reflected that the entire site was to be filled. See Exhibit C. Permit condition (2) provided that "[d]ebris shall be deposited at the toe of the existing mound of refuse located on Land Reclamation property." See Exhibit C. A new permit was issued to Wilfred E. Schultz by the DEC on March 24, 1981, and renewed on October 4, 1982, with an expiration date of October 1, 1983. The permit was not transferable and required that any new owner would have to obtain a permit. See Exhibit C.
  5. On or about September 28, 1983, Wilfred E. Schultz submitted a permit renewal application to the DEC. See Exhibit D. On October 3, 1983, the DEC sent a Notice of Incomplete Application to Wilfred E. Schultz. See Exhibit D.
  6. On October 24, 1984, the DEC sent Wilfred E. Schultz a letter notifying him that since his September 28, 1983 permit application was incomplete and he had failed to submit anything further, the 1982 permit had expired on October 3, 1983 and he was operating in violation of Part 360 of the ECL. See Exhibit E.
  7. On October 17, 1984, Walt's Tree Service ("Walt's") filed an application with the DEC to operate the Facility. See Exhibit F. A closure plan and closure map submitted in support of the application also reflected that the entire site was to be utilized. See Exhibit F. The DEC sent Walt's a Notice of Incomplete Application ("NOIA") on April 11, 1985. See Exhibit F. On May 23, 1985, the DEC notified Walt's that it was operating the Facility without a permit in violation of Part 360 and was to cease operation. See Exhibit F. Walt's sent the DEC additional information concerning Walt's permit application on May 31, 1985. See Exhibit F. Walt's purchased the Facility from Beatrice Schultz on August 15, 1985. See Exhibit F. The DEC issued another NOIA to Walt's on August 16, 1985. See Exhibit F. Following a further submission, Walt's application was deemed complete.
  8. Historically, wastes (construction and demolition debris, as well as industrial waste and municipal solid waste) have been deposited at varying depths over the entire 20 acre site, but mainly over the 14 acre active landfill area. See Exhibit G.
  9. In 1985, concern was raised over maintaining the integrity of a storm sewer which crossed the site in a generally north-south direction, separating the 14 acres on the eastern portion of the site from the remaining 6 acres on the western portion of the site. A site operating plan ("Operating Plan") prepared by JEB Consultants in September 1985, and submitted as part of Walt's application, addressed the storm sewer problem as follows:

    "The pipe which runs under the demolition site is a 36" dia. storm sewer which was built as part of the Dick Road reconstruction project. Structural considerations limit the amount of fill over the pipe to a height of 28'. If [sic] view of this, the proposed final closure contours have been shown for the eastern portion of the site only (see Final Closure)."

    The Operating Plan further stated:

    "Since there reportedly is a 28' limit to the amount of fill which can be placed over the 36" dia. storm sewer which crosses under the site (see Exhibit No. 1), ultimate final closure contours have not been shown. Since there are a number of alternatives for dealing with this limitation, and since it will be a number of years before the proposed interim contours are achieved, the ultimate final contours for the western portion of the site will not be presented until the disposition of the landfill volume over this sewer line is resolved."

    See Exhibit H.

  10. On October 16, 1985, a DEC initial permit to operate the Facility was issued to Walt's ("the October 16, 1985 Permit"). The permit was an initial issue and not a renewal because of the change in ownership. Because the weight of fill placed over the storm sewer could cause it to collapse, the October 16, 1985 permit contained special conditions requiring, among other things, that the depth of fill above the storm sewer be limited to 26 feet, and that certain "Proposed Interim Final Closure Contours" be adhered to. See Exhibit I.
  11. Since the issuance of the October 16, 1985 permit, Walt's and subsequent site operators have limited filling at the site to the eastern 14 acres in accordance with the Proposed Interim Final Closure Contours referenced in the permit conditions and the Operating Plan.
  12. On or about August 31, 1988, Walt's applied for renewal of its October 16, 1985 Permit to Operate ("Renewal Permit Application"). The application noted that 15 acres of the 20 acre site were in use and that the interim final closure contours would still be adhered to because no decision had been made regarding the storm sewer referenced in paragraphs 9 and 10. See Exhibit J. The DEC's Regional Permit Administrator received the application on September 8, 1988, and sent Walt's notice that their application was incomplete on September 23, 1988. See Exhibit J. The DEC treated the October 16, 1985 Permit as extended pursuant to the State Administrative Procedures Act 401.2. See Exhibit J.
  13. Effective December 31, 1988, Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 360 was revised. 6 NYCRR Part 360 - 7.9 required that construction and demolition debris ("C and D") landfills over 5 acres in size be constructed with a low permeability compacted soil liner and a leachate collection system. Pursuant to 6 NYCRR Part 360 - 7.6(b) all C and D landfills over 2 acres in size required water quality monitoring. All C and D landfills required post-closure environmental and facility monitoring pursuant to 6 NYCRR Part 360 - 7.11(d). See Exhibit K. Site selection criteria were set forth in 360-2.12(c)(5) and additional water quality monitoring requirements were set forth in 360-2.11(c)(4)(ii). See Exhibit K.
  14. Effective December 31, 1988, Title 6 NYCRR Part 360 - 1.7(a)(2) set forth transition rules for existing facilities and facilities with pending applications. The transition rules provided that "retrofitting of facilities (or stages of ones) that were constructed pursuant to a permit before the effective date of this Part," in order to meet the design and construction requirements of the new regulations was not required. See Exhibit L. The interim decision of the Commissioner in Application of Seneca Meadows, Inc., DEC Project No. 8-4532-00023/3-0 (4/24/92) addressed the issue of retrofitting. See Exhibit L.
  15. On December 30, 1988, Walt's submitted a draft unsigned engineering report incorporating a liner and leachate collection system which met and exceeded the new requirements of Part 360. The draft application was for both an operation and construction permit due to a decision to relocate the storm sewer and extend active landfilling into the western 6 acres of the site (the "Western Continuation Area"). See Exhibit M. A revised Permit Application and signed engineering report were formally submitted to the DEC on January 22, 1990, and a further revision was submitted in May 1990. The construction design submitted provided that a liner was to be constructed over the Western Continuation Area and would be placed adjacent to the toe of the western slope of the Interim Final Closure Contour. The application noted that the storm sewer referenced in paragraphs 9 and 10 of these findings would be relocated and that filling would occur in the Western Continuation Area following construction of a liner and a leachate collection system. See Exhibit M.
  16. In December of 1989, the storm sewer discussed in paragraphs 9 and 10 was excavated and removed. See Exhibit N.
  17. On or about March 28, 1990, Integrated Waste Systems, Inc. ("IWS") filed an application to become the operator of the facility. See Exhibit O. On May 8, 1990, the October 16, 1985, Permit was modified to add Integrated Waste Systems, Inc., as the operator of the Facility. Walt's Tree Service remained as the facility owner. See Exhibit O.
  18. During the course of performing a hydrogeologic investigation of the site, from December of 1991 through November of 1992, as part of the Renewal Permit application process, well logs and soil borings revealed that previously deposited waste in the Western continuation Area approached 20 feet in thickness and would not support the weight of the proposed liner system. See Exhibit P. The investigation also revealed groundwater contamination in the form of metals and organics in the overburden and in the bedrock wells. See Exhibit P.
  19. After completion of the hydrogeologic investigation, the Department determined that due to the existing groundwater contamination and the inability to separately monitor the new waste going into the Western Continuation Area, special liner requirements incorporating a leak detection system pursuant to 360-2.12(c)(5) would be required.
  20. Subsequent to the submittal of the Draft Permit Application, the design of the landfill liner and the associated documents submitted in support of the Renewal Permit Application underwent several revisions, due, in part, to the Department's requirements set forth in paragraph 19 above. The final plans, which were submitted in June, 1993, are attached as Exhibit Q. Also included as a part of Exhibit Q is a schematic cross-section drawing which depicts the general relationship between the active landfill area on the Eastern Portion of the site, the liner system and the Western Continuation Area.
  21. On August 18, 1993, an amended permit application was submitted by IWS to the Department. The amended application listed IWS as both the owner and operator of the Facility. On September 16, 1993, a Notice of Complete Application ("NOCA") and a Negative Declaration under SEQRA were issued by the DEC. The NOCA stated that the project was an unlisted action under SEQRA and described the project "as part of the previously approved Schultz Construction and Demolition Debris Landfill on Indian Road in the Town of Cheektowaga. [This project is] to construct and operate the 6.3 acre Western Continuation Area and continue the 14.2 acre existing fill area for construction and demolition debris." See Exhibit R.
  22. Effective October 9, 1993, new C&D landfills greater than three acres require a minimum of single composite liners (360-7.4(b)(7)(i)), and new and operating C&D landfills require water quality monitoring (360-7.5(a)) and post-closure facility (360-7.6) and environmental monitoring plans (360-2.11(c)). See Exhibit S.
  23. Effective October 9, 1993, Title 6 NYCRR Part 360 Transition rules provide:

    "The permittee of a permit to operate that was issued before the effective date of this Part must comply with the conditions of the permit and the solid waste management facility regulations in effect on the day when such permit was issued for the duration of that permit. In the event of renewal or expansion, the permittee must comply with the operational requirements of this Part."

    and:

    "Retrofitting of facilities (or stages of ones) that were constructed pursuant to a permit issued before the effective date of this Part, in order to comply with the design and construction requirements of this Part, is not required, except for expansions of such facilities."

    See Exhibit T.

  24. On July 18, 1995, the Renewal Permit was issued. It was conditioned, among other things, on the removal of all previously deposited waste from the Western Continuation Area, the provision of a stable sub-grade, and the construction of IWS' proposed double composite liner conforming to IWS' June 1993 final plan submittal. Also, the Renewal Permit was conditioned on the implementation of an operating Environmental Monitoring Plan. See Exhibit U.
  25. By letter dated August 15, 1995, IWS requested a hearing regarding "any and all Special Conditions of the Renewal Permit which require, pertain to or assume the removal of previously landfilled wastes from the portion of the facility known as the Western Continuation Area, the provision of a stable subgrade for liner construction in that portion of the facility, and the construction of a double composite liner as described in the Engineering Plan in that portion of the facility." See Exhibit V.
  26. IWS has estimated that there are approximately 140,000 cubic yards of previously deposited waste in the 6 acre Western Continuation Area and that excavation and off-site disposal of this material will cost in excess of $3,000,000. See Exhibit W. The DEC agrees that the cost of excavating the existing fill in the Western Continuation Area would be considerable. It does not believe, however, that sufficient information exists upon which an accurate cost estimate can be based.

Discussion

The decision whether the contested permit conditions are authorized turns on whether they constitute an unauthorized retrofit of the facility prohibited by the 1988 Part 360 transition rules. I conclude that they do constitute an unauthorized retrofit and, for that reason, should be stricken because the Applicant objects to them.

As noted in the Applicant's reply brief, both parties appear to agree that the completed 1993 renewal application is to be judged by the design and construction standards of the former Part 360 regulations which took effect on December 31, 1988. These regulations contained, as part of their transition rules, a grandfathering provision which read:

"It is not the intention of this Part to require retrofitting of facilities (or stages of ones) that were constructed pursuant to a permit before the effective date of this Part, in order to have them comply with the design and construction requirements of this Part."

6 NYCRR Part 360-1.7(a)(2)(i)(e) [eff. 12/31/88].

- - Seneca Meadows Decision

This provision was interpreted by former Commissioner Jorling in the Seneca Meadows interim decision. Located in Seneca Falls, New York, Seneca Meadows is a sanitary landfill that received its first DEC permit in 1981; permit renewals were issued in 1985 and 1989. In 1990 Seneca Meadows applied for another renewal of its permit as well as for a modification which would allow for a 127-foot vertical expansion of the previously existing facility.

The Department Staff took the position that the new construction requirements of the 1988 Part 360 regulations applied and that the Seneca Meadows facility would have to be fitted with a base liner system, or obtain a variance, before any vertical expansion would be permitted. Seneca Meadows argued that to install a liner at the existing facility would require excavating the existing waste bed and would constitute retrofitting of the facility in contravention of the grandfathering provision at 6 NYCRR 360-1.7(a)(2)(i)(e).

In his interim decision, the Commissioner sided with Seneca Meadows and held that requiring the placement of a double composite liner for the vertical expansion would constitute retrofitting of an earlier stage of the facility, precisely the result that the grandfathering provision sought to avoid. Also, he explained,

"Clause (e) expresses an intent to avoid requiring the retrofitting of facilities, or even stages of facilities, that were constructed while the prior regulations were in effect. The desire to avoid retrofitting is not limited to a particular time period but, more generally, to facilities designed and constructed under prior regulations."

The Commissioner said that he read the transition rules as exempting "existing permitted facilities from any design or construction requirements that would require retrofitting. This exemption would apply both to the permit renewal and to vertical expansions, if such vertical expansion could be accommodated under prior regulations."

The Commissioner concluded that existing facilities were subject to the construction and operation requirements of the 1988 Part 360 regulations only insofar as the requirements did not involve retrofitting, which he defined in the context of landfills as "alteration of the existing waste bed."

- - Schultz Landfill "Retrofitting"

In this case the contested permitted conditions anticipate removal of previously landfilled wastes from the Western Continuation Area. This amounts to an alteration of the existing waste bed: in other words, a landfill retrofit.

Also, the retrofit involves a facility that was constructed before the Part 360 revisions that took effect on December 31, 1988. According to the statement of facts, the facility (historically known as the Schultz landfill) goes back at least to 1965, and was operated from then until 1979 as a construction and demolition debris landfill permitted by Erie County. No waste has been dumped in the Western Continuation Area (WCA) portion of the facility since October, 1985, so all the waste there predates the 1988 Part 360 revisions.

Because the WCA was a constructed, permitted landfill before the 1988 Part 360 revisions took effect, its retrofitting now cannot be required. This result is consistent with the transition rules' intent and with the Seneca Meadows decision, where a similar vertical expansion of an existing, previously permitted landfill was allowed to proceed without retrofitting.

- - Alleged Landfill "Expansion"

Department Staff contend that the contested permit conditions do not constitute retrofitting pursuant to the 1988 transition rules on the theory that the WCA is a horizontal expansion of the existing active landfill on the 14 acres on the eastern portion of the site, and that waste in the WCA was not placed there pursuant to DEC-issued permits. However, as noted by the Applicant, whether landfilling in the WCA constitutes a facility expansion is irrelevant to the anti-retrofitting provisions of the 1988 Part 360 regulations. The former 6 NYCRR Part 360-1.7(a)(2)(i)(e) [eff. 12/31/88] makes no exception for facility expansions; that exception appears for the first time in the 1993 revision of Part 360 [at 6 NYCRR 360-1.7(a)(3)(i)(e)], which Staff concede applies only to the operation, closure and post-closure of the Schultz facility, and not to its construction.

At any rate, this is not a horizontal expansion since the entire 20-acre site was previously permitted, even if actual filling has been restricted to the eastern 14 acres since 1985.

As the Applicant argues, there is nothing to suggest that DEC's 1985 permit, or the ones it issued before it, covered anything less than the entire Schultz landfill facility. DEC's 1979 permit (Exhibit C) broadly refers to the permitted facility as the "Schultz Demolition Site . . . located at Indian Road near Broadway in the Town of Cheektowaga in Erie County." The parties stipulate that the final grading plan upon which the 1979 permit was granted contemplated that the entire 20-acre site would be filled and capped. The 1981 and 1982 permits also broadly describe the site, as does the 1985 permit, whose supporting grading plan also reflects that the entire site would be filled.

The Applicant correctly depicts the "interim" closure contours described in the 1985 permit not as limiting the aerial extent of the permitted facility, but as temporarily limiting the depth of fill that could be placed over the 36-inch diameter storm sewer which had been found to traverse the site. The limitation was dictated solely by the wall strength of the storm sewer pipe and its ability to resist external pressure due to soil loading. Once the sewer was excavated and removed in December 1989, the height limitation was rendered academic, as noted in the Applicant's reply brief.

Far from being a horizontal expansion, filling in the WCA is, if anything, a vertical expansion (i.e. placing new waste on top of previously existing waste) like the one expressly approved by the Commissioner in the Seneca Meadows case.

Furthermore, it makes no difference whether waste in the WCA was deposited there pursuant to a DEC permit; it's enough that the waste was deposited under some permit authority prior to the effective date of the 1988 regulations. Former Section 360-1.7(a)(2)(i)(e) does not distinguish among different permitting authorities, but simply refers to facilities (or stages of ones) that were constructed pursuant to "a permit" before the regulation's effective date. Also, the Seneca Meadows decision reiterates that the regulatory desire to avoid retrofitting was not limited to a particular time period but, more generally, to facilities designed and constructed under prior regulations.

- - Remaining Staff Arguments

To support its argument that landfilling in the WCA constitutes an expansion beyond previously-approved limits, DEC Staff notes that the contested permit is listed as a "renewal/modification" of a previous permit. However, as the Applicant points out, Staff's denomination of the permit does not by itself demonstrate the nature of the underlying application.

In a similar vein, Staff asserts that it processed the application as a new one involving a material change in the scope of the permitted action, despite having said in the short environmental assessment form that it was a renewal and not an expansion. The Applicant asserts there is nothing to support this, but in any event, it makes no difference. The Department also treated the Seneca Meadows application (an application to "modify") as one for a new permit and (unlike in this case) required the preparation of a Draft Environmental Impact Statement. Despite this, the Commissioner still ruled that retrofitting of the facility was not required for the purpose of installing a liner, as argued by the Applicant in its reply brief.

Staff argues that the 1983 "expiration" of DEC's 1979 permit prevents that permit's use in determining whether the 1995 permit is for the expansion or merely the continuation of a previously permitted activity. However, as the Applicant replies, one does not have to rely upon the 1979 permit (or its subsequent renewals) since the facts, as well as the reasonable inferences to be drawn from them, stand on their own with regard to the 1985 permit encompassing the entire facility.

Staff's initial brief discusses the character of groundwater contamination detected during a hydrogeologic investigation conducted as part of the permit renewal process and states that, without imposing special permit conditions, DEC will not be able to distinguish potential impacts due to the operation of the WCA from existing impacts. This is not relevant to the strictly legal issue at stake in this matter. That legal issue concerns the Department's authority to impose the contested conditions, not the conditions' merits from a scientific or technical standpoint.

Conclusion

The contested permit conditions involve retrofitting of the landfill facility which is not authorized by and is inconsistent with the relevant Part 360 transition rules, as interpreted by the Commissioner's Seneca Meadows decision.

Recommendation

The contested permit conditions should be removed from the 1995 permit and the matter remanded to DEC Staff. While the contested conditions are unauthorized, there may be other means to address Staff's underlying concerns about groundwater contamination. Such means were not explored in this hearing given its narrow scope and the purely legal issue presented. For that reason, I have no basis to suggest or evaluate substitute conditions at this time.

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