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Integrated Waste Systems, Inc. - Decision, May 15, 1996

Decision, May 15, 1996

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

In the Matter

- of -

the Application

of

Integrated Waste Systems, Inc.
201 Ganson Street
Buffalo, New York 14203

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

DEC Project Number 9-0438-00004/00003-9

DECISION

May 15, 1996

Decision of the Commissioner

The attached Hearing Report/Final Environmental Impact Statement ("FEIS") of Administrative Law Judge ("ALJ") Robert P. O'Connor, including its Findings of Fact, Conclusions, Discussion and Recommendation, in the matter of the application of Integrated Waste Systems, Inc., ("IWS" or the "Applicant"), 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, New York, is hereby adopted as my Decision in this matter, subject to my findings and comments below.

This Decision constitutes the Department's post-conceptual review decision pursuant to the procedures in 6 NYCRR 621.11(i), and is consistent with Commissioner's Organization and Delegation Memorandum #90-39, of December 3, 1990, "Solid Waste Management Facility Siting and Conceptual Review." This O&D Memo outlines the use of the conceptual review procedure specifically for the siting of solid waste management facilities throughout the State.

This Decision also constitutes my final decision on conceptual review of the siting of the proposed facility, pursuant to the State Environmental Quality Review regulations in 6 NYCRR Part 617. This Decision, therefore, incorporates the ALJ's Hearing Report/FEIS on the conceptual review request.

Project Description and Chronology

The Applicant proposes to construct and operate, at its own expense, a solid waste management facility consisting of a solid waste landfill, recyclables processing area and yard waste composting area, on the proposed site. The solid waste landfill portion of the Project would utilize 137 acres of the site and have a 3,000 ton per day capacity, with a projected 15 year life span.

IWS initially asked the Department to conduct a conceptual review of its proposal on April 2, 1991. Department Staff review of the project and its components ensued, and on January 20, 1994, Staff determined the Applicant's proposal was sufficiently developed for the purpose of commencing conceptual review.

The request for conceptual review of the Applicant's siting study was accepted by the Department Staff as being complete on October 8, 1993; revised regulations governing solid waste management facilities in the State of New York became effective the following day, October 9, 1993. In accordance with the transition provisions in revised regulations, the conceptual review regarding the siting of the proposed facility is being reviewed for compliance with the prior regulations in 6 NYCRR Part 360, effective December 31, 1988, as revised May 28, 1991. (See also discussion at page 8 on the Interim Decision in this matter.)

Following two sessions of a legislative public statement hearing and then an issues conference held in September 1994, ALJ O'Connor issued a comprehensive ruling on December 6, 1994 which dealt with all of the issues concerning the site selection process which had been raised by the issues conference participants. ALJ O'Connor found that no adjudicable issues were raised regarding: potential State-regulated freshwater wetlands on the site; potential presence of a federally designated sole source aquifer underlying the site; the location of a groundwater or surface water divide; the site selection criteria and the weighing process considered in the Applicant's site selection study; the need for the facility; compatibility of the project with the County's economic development plans; engineering and design details; and the Applicant's record of compliance.

ALJ O'Connor also found that adjudicable issues had been raised regarding: whether the hydrogeological characteristics of the formations underlying or adjacent to the site should be categorized as a principal aquifer; the ability of the Applicant to meet the stability, monitorability and remediability requirements under the regulations due to site specific conditions; the potential absence of low permeability unconsolidated deposits underlying the site; the characterization of the site's underlying bedrock conditions related to groundwater flow; and the site's groundwater flow patterns.

Numerous of the ALJ's rulings were appealed, and on March 4, 1995, Executive Deputy Commissioner Gary L. Spielmann issued an Interim Decision addressing the appeals. In the Interim Decision, two issues were certified for adjudication: the potential of a principal aquifer underlying or adjacent to the site, and the ability of the Applicant to meet the stability requirements due to site specific conditions. The Interim Decision also provided an opportunity for the parties to submit additional comments regarding the Applicant's comparative analysis of alternate sites, particularly with respect to the criteria for low permeability unconsolidated deposits underlying the site and the characterization of the site's underlying bedrock conditions, especially as related to groundwater flow. ALJ O'Connor additionally ruled that the parties could submit comments on the presence of the State-listed threatened plant species identified on the Farmersville site.

ALJ O'Connor, on July 24, 1995, issued Supplementary Rulings which addressed the issue of the threatened plant species, shrubby St. Johnswort, and the comparative analysis of alternate sites regarding low permeability unconsolidated deposits, bedrock conditions and groundwater flow.

Requirements for Conceptual Review of Solid Waste Management Facility Siting

As applied to solid waste management facilities, to receive conceptual approval for siting of a proposed project, the 1988 regulations require an applicant to demonstrate that the preferred site can satisfy the requirements under 6 NYCRR ..360- 1.14(c) (Prohibited siting) and 2.12 (Landfill siting). Additionally, pursuant to 6 NYCRR .360-2.12 (a)(1), an applicant must demonstrate that the range of alternative sites evaluated was reasonable, considering the applicant's own objectives and capabilities, and that the selected site is the most appropriate alternative, consistent with the State Environmental Quality Review Act.

In its Site Selection Study Report, the Applicant initially evaluated 81 potential sites. The Applicant employed a screening process which eliminated those sites which did not meet the Applicant's size criteria, those which were in locations which did not meet the regulatory criteria of Part 360, those located in areas where local jurisdictions had enacted zoning or ordinances which prohibited such siting and those which were unavailable in the real estate market. This screening process reduced the number of potential sites to four. The Applicant was able to secure options for the purchase of two of these sites. Following on-site investigations and through the application of a numerical ranking system, the Applicant determined the Farmersville site to be the most suitable site for development of its proposed solid waste management facility.

The ALJ resolved the issue of comparative assessment of alternate sites in his supplemental rulings. Except for the two certified adjudicable issues, ALJ O'Connor and Executive Deputy Commissioner Spielmann addressed all the other siting issues in the initial Rulings and the Interim Decision, respectively. Both the ALJ's Rulings documents and the Interim Decision in this matter are incorporated by reference in the ALJ's Hearing Report/FEIS.

The Adjudicable Issues

The two adjudicable issues identified as potential restrictions to siting the proposed facility in Farmersville relate to the characteristics of the Carpenter Brook Valley aquifer and the adequacy of the soils on the hillside on the site to support the landfill without extensive engineering.

- The Principal Aquifer Issue

Here, the record of the proceeding is clear that the Carpenter Brook Valley aquifer has no reasonable potential to be categorized as a principal aquifer. The Carpenter Brook Valley is predominately composed of relatively low impermeability glacial till materials with very little water bearing or water yielding capacity. Within the tills in the valley, various reasonably higher permeability lenses of sandy materials exist. These sand lenses readily transmit water, but on a limited basis, due to lack of available storage and recharge. These deposits do not suggest the presence of an abundant potential water supply indicative of a principal aquifer as defined at 6 NYCRR 360-1.2(b)(10)(ii) of the applicable rules.

The record demonstrates, moreover, that these discontinuous sand lenses in the Carpenter Brook Valley do not have either the areal extent, the requisite thickness or the sustainable yield to meet the criteria developed by this Department's Division of Water for guidance in determining a principal aquifer. Nor does it appear that the Carpenter Brook Valley aquifer should be considered as an extension of the Ischua Creek Valley aquifer, as the Intervenors suggest. When compared with nearby aquifers in the Ischua Creek Valley, designated as a principal aquifer, and in the Olean area, designated as a primary water supply aquifer, the Carpenter Brook Valley aquifer does not have the ability to provide a reliable, sustainable yield of water for a municipal water system.

I concur with ALJ O'Connor that the Carpenter Brook Valley aquifer is not a principal aquifer.

- The Slope Stability Issue

The record on the slope stability issue demonstrates that the subsurface foundation soils on the Farmersville site consist of glacial tills which have adequate capacity to support the weight of the proposed landfill without extensive engineering.

When analyzed using a variety of inputs for the landfill geometry, and as the Intervenors did, with different strength parameters, the iterations performed showed that the static factors of safety for the proposed landfill fell within or exceeded the range of 1.3 to 1.5. This range has generally been considered acceptable under the 1988 regulations. The Applicant's calculated safety factors, without varying its selected values for the municipal solid waste strength, but with varying geometries, were somewhat higher than those calculated by the Intervenors. Therefore, both the Applicant and the Intervenors demonstrated that the Farmersville site is stable when judged under the criteria specified in the 1988 regulations.

The Intervenors and the Applicant both arrived at static factors of safety of 2.0 or greater in certain of the iterations performed. This is an indication that the site may be able to satisfy the current regulations regarding slope stability and related standards for factors of safety. However, these calculations must not be considered as final, being based only on information which is appropriate for a conceptual review. Once a final design for the landfill is developed, the Applicant should provide the Department Staff with a comprehensive parametric analysis of the slope stability and safety factors for the site.

Furthermore, since the site has certain features which will likely require the employment of mitigating measures to comply with the current landfill construction and operation regulations, until the Applicant submits a final design which incorporates the appropriate mitigating features, I can conclude at this time only that the preferred site's foundation satisfies the appropriate stability and strength criteria for purposes of this conceptual review. However, this conclusion is subject to review of the final design and under the criteria and safety factors applicable at the time a permit application for the project is submitted.

Conceptual Approval of the Site Selection Process

For the above reasons, I find that the Applicant's site selection process satisfies the requirements of 6 NYCRR .360- 2.12, that based on the information provided in the Applicant's Site Selection Study Report, the Applicant has evaluated a reasonable range of alternative sites, and, subject to evaluation of need as discussed below, the Farmersville site is the most appropriate site for the Project as required by 6 NYCRR 360-2.12(a)(1).

This Decision granting conceptual approval is limited to the scope of the conceptual review requested by the Applicant, and as further defined in the ALJ's Rulings and Interim Decision in this matter. Further, the conceptual review approval is limited to the Applicant's site selection process and selection of the Farmersville site as the preferred site for the proposed project.

In summary, this conceptual review Decision approves the Applicant's site selection process and selection of the Farmersville site for the proposed IWS solid waste management facility. Pursuant to 6 NYCRR .621.11 this Decision will remain binding on the Department and in effect as long as the proposed project continues to conform to the descriptions contained in the Applicant's request for conceptual review, subject to the limitations in Part 621 concerning modifications.

State Environmental Quality Review Act (SEQRA)

Based on the record of this proceeding for conceptual review of the siting process, I also find that the Applicant's site selection study, which determined the Farmersville site to be the preferred site, satisfies the requirements of SEQRA (ECL Article 8 and implementing regulations in 6 NYCRR Part 617). When compared with a reasonable range of alternatives, as demonstrated in the Applicant's Site Selection Study Report using Department approved methodology, the Farmersville site, through a screening and weighted numerical ranking system, was shown to provide the Applicant with the greatest opportunity to meet the regulatory criteria for landfill siting, while minimizing adverse environmental impacts and meeting the Applicant's objectives and capabilities. In the weighted scoring analysis, the Farmersville site scored higher than the second leading candidate site and significantly higher than the third and fourth alternate sites.

Should the Applicant decide to pursue its plans to develop a solid waste management facility at the Farmersville location, it must now submit a complete application for a solid waste management facility pursuant to the current 6 NYCRR Part 360. The Part 360 review will also be subject to a supplemental review under SEQRA. Pursuant to current 6 NYCRR .617.9(a)(7), a supplemental environmental impact statement must accompany the application. The Applicant should be guided by the provisions in 6 NYCRR .617.9 (Preparation and content of environmental impact statements) in its preparation of the supplemental EIS for development of the site in accordance with the Applicant's final design plans.

The question of the need for the proposed facility and its consistency with the State and County Solid Waste Management Plans, including Regional plans, should be revisited in the supplemental environmental impact statement. While not issues for adjudication in the conceptual review proceeding (See ALJ Rulings of December 6, 1994; and see Interim Decision of March 9, 1995) they will be ripe for consideration in the SEIS. Consideration should be given to the public sector socioeconomic impacts of operation of the proposed facility on existing New York municipal solid waste facilities within the waste shed (See DEIS, Apppendix Q). The rapidly changing economic realities of solid waste management should be taken into account. The impact of operating the proposed facility on potentially affected existing County and other municipal solid waste management facilities is a matter to be addressed as part of the need issue.

The application must include all necessary requirements for the proposed components of the project: a municipal solid waste landfill, a recyclables processing area and a yard waste composting area. The conceptual review process revealed that development of the site may require mitigating measures to ensure compliance with the regulatory requirements for separation distances between the landfill's constructed liner system and groundwater/bedrock, or an application for variances from these requirements. As noted in the Hearing Report/FEIS, the final design of the facility must also include avoidance or mitigation measures to assure the continued survival and propagation of the New York State threatened plant species, Hypericum prolificum, shrubby St. Johnswort.

Any future application for permits to construct and operate a solid waste management facility will be processed in accordance with the procedures in 6 NYCRR Part 621 which provide for public notice and the opportunity for public comment. The Department Staff will determine whether to refer the application to the Office of Hearings and Mediation Services to conduct a hearing on the application based on the standards in Part 621.

Certification of Findings to Approve the Conceptual Review

Having considered the Draft and Final Environmental Impact Statements, and having considered the preceding written facts and conclusions relied upon to meet the requirements of former 6 NYCRR .617.9, as made applicable by the transition provisions of existing .617.19, this Statement of Findings certifies that:

  1. The requirements of 6 NYCRR Part 617 have been met; and,
  2. Consistent with social, economic and other essential considerations, I find the siting of the proposed project at the Farmersville site to be the alternative which minimizes or avoids adverse environmental effects revealed in the environmental impact statement process to the maximum extent practicable, as required by ECL .8-0109 and former 6 NYCRR 617.9(c)(3).
  3. Additional SEQRA findings on all other aspects of the proposed project will be required at the conclusion of the permit application review process. Should the application for permits to construct and operate the facility be found to be approvable, any permits issued will assure that adverse environmental impacts will be avoided or minimized to the maximum extent practicable by incorporating as conditions to the decision those mitigative measures that were identified as practicable.

I direct that this matter be remanded to the Department Staff to complete the SEQRA notice and filing requirements for completion of a Final Environmental Impact Statement required by 6 NYCRR Part 617. This Decision shall then be effective ten (10) days following the date of publication of notice of completion of the FEIS.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: Michael D. Zagata, Commissioner

Dated: Albany, New York
May 15, 1996

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1550
(518) 457-3468

In the Matter

- of -

the Application

of

Integrated Waste Systems, Inc.
201 Ganson Street
Buffalo, New York 14203

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

DEC Project Number 9-0438-00004/00003-9

HEARING REPORT/FINAL ENVIRONMENTAL IMPACT STATEMENT

- by -

_____________/s/____________
Robert P. O'Connor
Administrative Law Judge

Hearing Report/Final Environmental Impact Statement

Table of Contents

SUMMARY

PROCEEDINGS

Project Description
Request for Conceptual Review
SEQRA Status
Applicable Statutory and Regulatory Criteria
Outcome of the Conceptual Review Process
Public Statement Hearing and Comment Period
Issues Conference
The Adjudicatory Hearing
Summary Positions of the Parties

THE APPLICABLE REGULATORY STANDARDS FOR THE ADJUDICABLE ISSUES

FINDINGS OF FACT

The Principal Aquifer Issue
The Slope Stability Issue

CONCLUSIONS

The Principal Aquifer Issue
The Slope Stability Issue

DISCUSSION

The Principal Aquifer Issue
The Slope Stability Issue
Shrubby St. Johnswort, Protected Native Plant
Conceptual Review

RECOMMENDATIONS

The complete hearing record, including the Draft Environmental Impact Statement ("DEIS"), comments received at hearing, the Applicant's responses to comments, rulings, interim decision, all correspondence in this matter after the date of the hearing notice, all hearing exhibits, the stenographic transcript of the hearing and post-hearing briefs, is on file in the Department's Office of Hearings and Mediation Services, Room 423, 50 Wolf Road, Albany, New York 12233-1550. The entire hearing record, consisting of all the above documents, is incorporated by reference in this Hearing Report/Final Environmental Impact Statement.

Copies of the DEIS and the stenographic transcript of the hearing proceedings are on file in the Department's Division of Regulatory Services, Room 538, 50 Wolf Road, Albany, New York 12233-1750 and in the Blount Memorial Library, 5 North Main Street, Franklinville, New York 14737.

SUMMARY

This Summary Statement is provided as a prologue to the Hearing Report/Final Environmental Impact Statement ("FEIS") pursuant to Environmental Conservation Law ("ECL") Article 8 (Environmental Quality Review) and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 617 (State Environmental Quality Review).

In the instant case, Integrated Waste Systems, Inc. ("IWS" or the "Applicant") has requested the New York State Department of Environmental Conservation ( the "Department" or "Staff") to conduct a conceptual review of its proposal to construct and operate a solid waste management facility on land along NYS Route 98 in the Town of Farmersville, Cattaraugus County, New York. The primary purpose of the conceptual review request is to ascertain if the Applicant's preferred site is acceptable, pursuant to the 1988 landfill siting regulations in 6 NYCRR .360-2.12, for the location of the proposed solid waste management facility.

Legislative public statement hearings were held on September 21, 1994 to receive comments on the proposed project and Draft Environmental Impact Statement ("DEIS"). An issues conference was held on September 22, 1994. Following rulings, appeals and an interim decision, two issues were certified for adjudication. An adjudicatory hearing to receive testimony and evidence on these issues was conducted on seven days between July 25 and August 2, 1995. A site visit was conducted on August 2, 1995.

Incorporated by reference in this Hearing Report/FEIS is the complete hearing record, including the DEIS, comments received at hearing, the Applicant's responses to comments, rulings, interim decision, all correspondence in this matter after the date of the hearing notice, all hearing exhibits, the stenographic transcript of the hearing and post-hearing briefs. The entire hearing record in this matter provides the basis for this Hearing Report/FEIS and for the Department to issue its Decision.

As mentioned, the Applicant provided responses to the comments received at hearing in a Responsiveness Summary dated December 29, 1995. This document was assigned Exhibit No. "HHH", and was accepted as the response to substantive comments. Comments on the Responsiveness Summary were received from Cattaraugus County/City of Olean and from the Concerned Citizen's of Cattaraugus County and were assigned Exhibit Nos. "III" and "JJJ", respectively. All are incorporated into the hearing record.

As discussed in detail in the subsequent sections and paragraphs of this Hearing Report/Final Environmental Impact Statement, the siting of the proposed solid waste management facility at the Applicant's preferred Farmersville location is conceptually approvable.

The Department's decision on conceptual review is not a permit. Such a decision is intended to provide a potential applicant with a binding decision from the Department as to the general acceptability of a proposed project, or any component or issue specified, the standards which will be applied to the project and desirable design standards. Conceptual review does not relieve an applicant of the requirement of obtaining all permits otherwise necessary, prior to commencing a proposed project.

PROCEEDINGS

Project Description

Integrated Waste Systems, Inc., 201 Ganson Street, Buffalo, New York 14203, proposes to privately finance, construct, own and operate the Southern Tier Sanitary Solid Waste Management Facility ("STSSWMF") which would consist of a solid waste landfill, recyclables processing area and yard waste composting area (collectively, the "Project"). The Project would utilize a total of 180 acres on a 435 acre parcel located approximately 3.5 miles northeast of the Village of Franklinville, on the north side of Route 98, west of the Route 98/Kingsbury Hill Road intersection, in the Town of Farmersville, Cattaraugus County, New York. The proposed 137 acre landfill would have a 3,000 ton per day capacity, with a projected 15 year life span, drawing solid waste from within a 300 mile radius of Buffalo, but specifically excluding New York City and Long Island from the projected waste shed.

Request for Conceptual Review

On July 26, 1991, IWS formally requested the Department, pursuant to 6 NYCRR .621.11, to conduct a conceptual review of all issues related to the siting of its proposed Project in western New York, with its preferred site being in the Town of Farmersville, as described above.

On January 20, 1994, pursuant to the provisions in 6 NYCRR ..621.5 and 621.11, the Department Staff who were reviewing the Applicant's proposal determined the Applicant's proposal for the above described Project was sufficient for the purpose of commencing conceptual review.

SEQRA Status

Pursuant to the State Environmental Quality Review Act ("SEQRA"), ECL Article 8, and 6 NYCRR Part 617, the Department's Staff, as Lead Agency, determined on January 30, 1992 that the proposed Project may have a significant effect on the environment and issued a Positive Declaration. In response to the Positive Declaration, IWS prepared a Draft Environmental Impact Statement ("DEIS") for the Project. The Department Staff accepted the DEIS for the proposed action on January 20, 1994 and initiated a public comment period on the proposal.

On February 24, 1994, IWS requested a suspension of the Department's Uniform Procedures time frames to perform additional hydrogeological investigations and to supplement its original Hydrogeologic Site Investigation Report to address concerns expressed by the Department Staff. IWS submitted its supplemental hydrogeologic report on May 20, 1994 and the Department Staff commenced a new public comment period on that date.

Applicable Statutory and Regulatory Criteria

The application for conceptual review was filed and is being processed pursuant to Environmental Conservation Law ("ECL") Article 3, Title 3 (Department of Environmental Conservation, General Functions, Powers, Duties and Jurisdiction); Article 8 (Environmental Quality Review); Article 27 (Collection, Treatment and Disposal of Refuse and Other Solid Waste); Article 70 (Uniform Procedures); and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 360 (Solid Waste Management Facilities) (effective 12/31/88, revised 5/28/91); Part 617 (State Environmental Quality Review); Part 621 (Uniform Procedures); and Part 624 (Permit Hearing Procedures).

Outcome of the Conceptual Review Process

This conceptual review proceeding considers: Acceptability of the Applicant's iterative site selection methodology, including the manner in which the Applicant implemented the chosen methodology in narrowing a potential 81 sites down to the preferred site in Farmersville; Adequacy of the preferred site relative to the applicable standards in 6 NYCRR Part 360 (Solid Waste Management Facilities), including whether the Applicant's preferred alternative is the most appropriate under 6 NYCRR .360- 2.12; and Suitability of the preferred site for the size and type of facility being proposed. Additionally, this proceeding addresses whether, pursuant to 6 NYCRR .617.9, the preferred alternative has the potential to avoid or minimize adverse environmental effects to the maximum extent practicable, as compared to the alternatives.

Public Statement Hearing and Comment Period

Following publication of the required hearing notice in several newspapers in western New York, a legislative public statement hearing to receive comments on the proposed Project was held before Administrative Law Judge ("ALJ") Robert P. O'Connor of the Department's Office of Hearings in two sessions in the Franklinville Fire Hall, 75 North Main Street (NYS Route 16), Franklinville, New York at 1:00 P.M. and 7:00 P.M. on Wednesday, September 21, 1994. Approximately 140 people attended the afternoon session of the hearing, with approximately 360 persons in attendance at the evening hearing session. Twenty-nine persons made statements for the record during the afternoon session, while 41 people spoke at the evening session.

The public comment period remained open until the day of the legislative public statement hearing. A total of 37 written comments were received during the comment period. The comments, both written and the oral comments received at the hearing were overwhelmingly opposed to the proposed Project.

Issues Conference

A pre-adjudicatory hearing issues conference was held in the Franklinville Fire Hall at 10:00 A. M. on Thursday, September 22, 1994 to consider any potentially adjudicable issues and all timely filed applications to participate in any adjudicatory hearing which might be held in this matter.

ALJ O'Connor issued Rulings on Party Status and Issues on December 6, 1994. Various of the issues conference participants appealed the rulings, and on March 4, 1995, Executive Deputy Commissioner Gary L. Spielmann issued an Interim Decision which addressed such appeals. The December 1994 Rulings and March 1995 Interim Decision discuss the scope and purpose of this conceptual review and rejected all but two issues for adjudication.

The Interim Decision certified as adjudicable issues: 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)]. Additionally, the parties were allowed to submit further comments regarding the comparative assessments of alternate sites, including whether the Farmersville preferred alternative meets the criteria in 6 NYCRR .360-2.12(d).

ALJ O'Connor issued Supplementary Rulings on Issues on July 24, 1995. These rulings addressed the issue of the protected native plant, shrubby St. Johnswort, Hypericum prolificum, noting the necessity of an avoidance/mitigation plan to minimize any potential adverse impacts on the threatened plants and their critical habitat on the preferred Farmersville site, should development of the site occur at some future time.

The supplementary rulings also considered the comparative assessments of the Applicant's two top-ranked sites, Farmersville and Albion/Murray, with respect to the landfill siting requirements regarding low permeability unconsolidated deposits [6 NYCRR .360-2.12(d)(1)], characterization of bedrock conditions [6 NYCRR .360-2.12(d)(2)] and groundwater flow/groundwater divide [6 NYCRR .360-2.12(d)(3)]. Both sites were found to have met these requirements, and no adjudicable issue was found to have been raised regarding comparative assessment of alternative sites.

The Adjudicatory Hearing

The adjudicatory hearing in this matter commenced in the Franklinville Fire Hall on July 25, 1995 and continued on July 26, 27, 28 and 31, and August 1 and 2, 1995. Following conclusion of the testimony at the hearing, a site visit was conducted on the Applicant's Farmersville property on the afternoon of August 2, 1995.

The Applicant was represented at the hearing by Gregory P. Photiadis, Esq. and Peter G. Ruppar, Esq., both from the firm of Duke, Holzman, Yaeger and Photiadis, 2500 Main Place Tower, Buffalo, New York 14202. The Applicant is a mandatory party to the proceeding pursuant to 6 NYCRR .624.5(a).

The assigned Department Staff is also a mandatory party to the proceeding pursuant to 6 NYCRR .624.5(a). The Staff was represented by Annette M. Sansone, Esq., Assistant Region 9 Attorney, in the Department's offices at 270 Michigan Avenue, Buffalo, New York 14203-2999.

Cattaraugus County and the City of Olean (collectively, the "County/City") were represented by Michael B. Gerrard, Esq., from the firm of Arnold and Porter, 399 Park Avenue, New York, New York 10022-4690. The County/City were granted party status pursuant to 6 NYCRR .624.5(b).

The Town of Farmersville (the "Town") was represented by Donald J. Swanz, Esq., from the firm of Moriarty and Swanz, 4 South Main Street, Franklinville, New York 14737. The Town was granted party status pursuant to 6 NYCRR .624.5(b).

The Concerned Citizens of Cattaraugus County (the "Concerned Citizens") were represented by R. Nils Olsen, Jr., Esq., University at Buffalo Legal Assistance Program, P.O. Box 9, Getzville, New York 14068-0009. The Concerned Citizens were granted party status pursuant to 6 NYCRR 624.5(b).

Following receipt of the stenographic transcript of the proceedings and an extended briefing schedule, the record of the hearing was closed on March 1, 1996. On April 25, 1996, the Applicant granted an extension of the 60 day time frame for issuance of a Decision in this matter until May 15, 1996.

On May 1, 1996, ALJ O'Connor received from Attorney Gerrard, on behalf of the County/City, a letter, press clippings and Ohio EPA/consultant reports concerning a massive slide of municipal solid waste (msw) which occurred at the Rumpke Sanitary Landfill near Cincinnati, Ohio on March 9, 1996. To the extent such information may be deemed relevant by any party, it may be brought up in any future permit proceeding as appropriate. There is no need to reopen the conceptual review proceeding to consider the information regarding the Ohio incident at this time.

Summary Positions of the Parties

The adjudicable issues in the instant proceeding involve:

(a) whether the proposed site lies over a principal aquifer, and (b) whether the site is stable, i.e. - whether the site is capable of handling the weight of the landfill without extensive engineering. An opportunity has also been provided for the parties to submit comments on mitigation of potential impacts on a New York State protected native plant species.

- The Applicant

The Applicant contends that the Carpenter Brook Valley aquifer is not a principal aquifer. This contention is based upon the areal extent of aquifer-like materials, thickness of saturated deposits and sustainable well yields in the Carpenter Brook Valley, and by comparison of those hydrogeologic characteristics with the Department's guidelines (TOGS 2.1.3 - Principal and Primary Aquifer Determinations). With respect to the site stability issue, the Applicant analyzed the overall stability of the site under a variety of scenarios and determined the site can adequately support the weight of the proposed landfill while achieving a sufficient safety factor to meet the regulatory standards. The Applicant believes it has met its burden to receive conceptual approval for the proposed landfill site in the Town of Farmersville, i.e. - that its site selection study is satisfactory, that the siting criteria in Part 360 do not prohibit a landfill on the Farmersville site and that the Farmersville site is suitable for the type and size solid waste management facility which the Applicant proposes to construct and operate.

- The Department Staff

It is the Staff's opinion that the site does not overlie a principal aquifer, based upon the Department's guidelines in the above noted TOGS 2.1.3, and that the stability of the site is adequate for the purposes of deciding the conceptual review of the preferred site. The Staff did note that, while the Applicant's site stability analysis for the instant proceeding is satisfactory to demonstrate compliance with the applicable siting regulations, the Applicant will need to submit an extensive soils analysis and detailed design for a landfill at the site before a final conclusion may be made regarding the landfill stability. The applicable regulations do not preclude an applicant from engineering the site, i.e. - modifying the site, to satisfy the regulatory requirements for landfill construction. The Staff has opined that for the purposes of conceptual review, under the siting criteria set forth in 6 NYCRR Part 360, there are no prohibitions or restrictions which would preclude the use of the preferred Farmersville site as a solid waste landfill.

- Cattaraugus County/City of Olean

The County/City contends the Applicant has chosen a site in Farmersville which is on a steep, unstable hillside and overlies a principal aquifer, i.e. - the Carpenter Brook Valley aquifer which is tributary to the Ischua Creek Valley aquifer, a designated principal aquifer. The County/City contends the two aquifers should be considered together as a single principal aquifer. Due to these factors, the County/City maintains that conceptual review approval cannot be granted for the preferred Farmersville site.

- Town of Farmersville

The Town is on record in the instant proceeding as being opposed to the proposed project. In the interest of economy, the Town has deferred to and joined with the County/City in its concerns regarding the potential principal aquifer and slope stability issues.

- Concerned Citizens of Cattaraugus County

The Concerned Citizens contend the evidence in this proceeding is indicative of a principal aquifer along the Carpenter Brook Valley, and that contamination of this aquifer by leachate from a landfill at the proposed site could be transmitted directly down the valley into the much larger Ischua Creek Valley aquifer. Additionally, the Concerned Citizens have expressed concerns over the potential lack of stability to support a large landfill on the steep hillside at the preferred site. The Concerned Citizens also submitted comments on mitigation proposals for the threatened plant species Hypericum prolificum, shrubby St. Johnswort, identified on the site.

THE APPLICABLE REGULATORY STANDARDS FOR THE ADJUDICABLE ISSUES

The December 31, 1988 version of 6 NYCRR Part 360, revised May 28, 1991, provides the regulations with which an applicant must comply regarding landfill siting in Section 2.12. Section 2.12(c) itemizes several landfill siting restrictions.

The first restriction to landfill siting, in .2.12(c)(1), lists: Primary water supply and principal aquifers. Subparagraph (i) states, "Except in Nassau and Suffolk Counties, . . . no new landfill . . . may be constructed over primary water supply aquifers, principal aquifers, or within public water supply wellhead areas." Subparagraph (iii) continues, "The required horizontal separation between deposited solid waste, and primary water supply aquifers, principal aquifers or public water supply wellhead areas must be sufficient (based on the rate and direction of groundwater flow, landfill design, and requirements for corrective action in the event of failure of the facility's containment system) to preclude contravention of groundwater standards in the aquifer."

The fourth restriction to landfill siting, in .2.12(c)(1), lists: Unstable areas. Subparagraph (i) states, "A landfill must not be located in unstable areas where inadequate support for the structural components of the landfill exist or where changes in the substrate below or adjacent to the landfill may result in failure of the facility." Subparagraph (ii) continues, "Factors to be considered when determining unstable areas include: soil conditions that may result in differential settling and subsequent failure of dikes, berms, or containment structures; geologic or man-made features or events that may result in sudden or gradual failure of dikes, berms or containment structures; the anticipated loading due to height and density of waste deposition; and the stability characteristics of the waste to be deposited."

FINDINGS OF FACT

The Principal Aquifer Issue - TOGS 2.1.3, A DEC Guidance Document For Determining Whether An Aquifer Is Considered A Primary Water Supply Aquifer Or A Principal Aquifer

  1. The terms primary water supply aquifer or primary aquifer and principal aquifer are defined in 6 NYCRR .360- 1.2(b)(10). The significant difference between a primary water supply aquifer and a principal aquifer is one of utilization. Whereas the hydrogeological characteristics of both categories of aquifers are the same, the primary water supply aquifer is one which is currently being used as a source of water supply.
  2. A principal aquifer is "a formation or formations known to be highly productive or deposits whose geology suggests abundant potential water supply, but which is not intensively used as a source of water supply by major municipal systems at the present time." Principal aquifers, therefore, are not currently tapped at substantial levels, but have the potential to provide significant public water supplies at some future time.
  3. In October 1990, the Department's Division of Water issued Technical and Operational Guidance Series (TOGS) document number 2.1.3, Primary and Principal Aquifer Determinations. In applying the TOGS to determine if an aquifer qualifies as a primary water supply aquifer or a principal aquifer, the Division of Water uses the following guidelines relating specifically to the question of aquifer productivity:
    • The aquifer should occupy an area of at least five to ten square miles of contiguous area at a minimum;
    • Saturated deposits of highly permeable materials should average at least 20 feet through much of the area, with some locations at least 50 feet thick; and
    • Sustained yields to individual wells should be at least 50 gallons per minute (gpm) or more from sizable areas (two square miles or greater) throughout the aquifer.
  4. While the TOGS notes that some degree of flexibility may be used in applying the above guidelines, the document states, "In all cases, however, the general level of water resource capability suggested by these three guidelines should be met."
  5. Additionally, the TOGS suggests that to qualify as a principal aquifer, overall yields should be comparable to those of the smaller primary water supply aquifers. Roughly, this means the ability to supply a population of 5,000 to 10,000 people, or a yield of 500,000 to 1,000,000 gallons of water per day (gpd).
- The Carpenter Brook Valley Aquifer - Size
  1. The Applicant's preferred Farmersville site is located on the north side of the Carpenter Brook Valley, approximately 1.70 to 2.65 miles (straight line distance) east of the Ischua Creek. (The site itself, on an east-west axis, is approximately one mile long.)
  2. The entire watershed of the Carpenter Brook Valley is approximately five square miles. The areal extent of the Carpenter Brook Valley aquifer is certainly less than one square mile, and possibly less than 0.5 square mile.
  3. There is some speculation that the presence of sand and gravel deposits at a dam site near the confluence of the Carpenter Brook Valley and the Ischua Creek Valley may be indicative of a continuation of highly permeable materials upstream within the Carpenter Brook Valley and thus a larger areal extent to the Carpenter Brook Valley aquifer than identified. Continuity of such permeable deposits throughout the Carpenter Brook Valley could provide a pathway for transport of any potential contaminants which might be released from a landfill at the proposed site.
  4. The grain size distribution of the sand and gravel deposits at the downstream confluence of the Carpenter Brook and the Ischua Creek is not consistent with the grain size distribution upstream which shows a much higher percentage of fines for the permeable materials found in the Carpenter Brook Valley in the area of the proposed site. Moreover, the existence of mining operations for economically exploitable sand and gravel deposits which would be indicative of significant aquifer materials is limited in this area to the Ischua Creek Valley and its fringes. No such mining operations are found upstream within the Carpenter Brook Valley. The prevailing deposits in the Carpenter Brook Valley mostly consist of relatively low permeability glacial tills.
  5. The predominant unit of the unconsolidated sediments within the Carpenter Brook Valley, underlying most of the valley, is lodgement till. This material is dense and poorly sorted, made up of silt, clay, sand and gravel. A notable characteristic of the lodgement till is its inability to transmit water, thus causing most water wells in the valley to be completed in the bedrock unit below the lodgement till.
  6. In places within the valley, the lodgement till is overlain by pockets of flow till and stratified kame deposits. These deposits are more permeable than the lodgement till, but are limited in thickness and areal extent. At certain locations, very limited deposits of well sorted, permeable fluvial deposits are also found.
  7. The so-called flow till materials are not homogeneous and at different intervals, the ability of the flow tills to transmit groundwater is very different. Much of the flow till contains fines, e.g. - silts and clays, in varying percentages. These fine grained materials serve to inhibit the flow of water through the deposits. The flow tills may be 20 to 27 feet thick in locations in the Carpenter Brook Valley near the proposed site, and perhaps as thick as 45 feet at one location. The average thickness of the flow till materials below the valley floor is 12 to 14 feet.
  8. The most permeable materials, i.e. -- well sorted sands, within the flow till represent the primary water yielding unit, and have a maximum thickness of approximately 8 feet. It is important to note that the flow tills do not exist throughout the valley, and even more importantly, the well sorted sand interval is not always present where the flow till sequence does appear within the valley. As noted above, even within the interval of the flow till containing well sorted sands, there is a higher percentage of fines than in the outwash sands and gravels present at the downstream confluence of the Carpenter Brook Valley with the Ischua Creek Valley.
- Pump Test, PW-1, Carpenter Brook Valley Aquifer
  1. In January 1992, consultants for the Applicant conducted a 72 hour pump test on well PW-1, in the Carpenter Brook Valley, at a location south of Route 98 and north of Carpenter Brook, near the easterly boundary of the Farmersville site. The 8 inch casing for the well was screened in the flow till material at approximately 20 feet below ground surface (bgs) and packed with a large quantity of well sorted sand. The pumping test was accomplished by inserting a 2 inch diameter intake hose into the casing at approximately 19 feet bgs, or one foot off the bottom of the well. The intake line was attached to a gasoline powered trash pump with a 2 inch diameter discharge line.
  2. A step-drawdown test was conducted on the well to determine the optimum sustainable pumping rate. The maximum pumping rate achieved was 97 gpm, using a 50 foot discharge line length. With an average pumping rate of 95 gpm and a drawdown of 2.8 feet, the well's specific capacity was calculated to be 34 gpm/ft. (A measure of well performance or productivity, specific capacity is the discharge rate in gallons per minute per foot of drawdown per foot of screened saturated thickness.) During the 72 hour pump test, due to use of a much longer discharge hose, 800 feet in length, the constant pumping rate achieved was 82 gpm, with a drawdown of 2.71 feet, resulting in a calculated specific capacity of 30 gpm/ft. Maximum available drawdown was 12.3 feet, the saturated thickness of the flow till at that location.
  3. Using drawdown, time, and the discharge rate, the aquifer parameters of transmissivity and hydraulic conductivity were calculated by the Applicant's consultant. (Transmissivity represents the rate of flow under a unit hydraulic gradient through a cross section of unit width over the whole saturated thickness of the aquifer or a measure of the ability of water to move through a saturated deposit. Transmissivity is directly proportional to the saturated thickness of the deposit. Hydraulic conductivity is the velocity at which a porous medium will transmit a unit volume of water in a unit time.) The transmissivity for well PW-1 was calculated to be 1.29 x 100 ft2/min. The average hydraulic conductivity of the saturated flow till at PW-1 was calculated to be 3.07 x 10-2 cm/sec.
  4. The Applicant's consultant observed that by the end of the pump test of PW-1, the well's cone of influence had intercepted the banks of Carpenter Brook. Although unquantified, the Applicant's consultant believes the pump test may have been influenced to some degree by induced streambed infiltration from Carpenter Brook. However, the stream is occasionally intermittent, i.e. - it sometimes dries up, thereby limiting the availability of significant induced recharge to the water bearing deposits during times of low or no stream flow.
  5. The data from the PW-1 pump test indicate that the pumping process encountered hydraulic barriers. This is an indication that the water bearing deposit in which the well was located was yielding water faster than it could be replenished, or in other terms, the aquifer was being dewatered due to inadequate recharge, available either through adjacent formations or from induced filtration through the bed of the Carpenter Brook. Based on data obtained during the early portion of the pump test, transmissivity was estimated to be between 89,000 and 118,000 gpd/ft. This is indicative of how much water can be moved through the formation, not how much water is available. Because drawdown in the well continued through the duration of the pump test, it is apparent that the aquifer could not sustain withdrawal of water at the pumping rate of 82 gpm. The data obtained during the latter portions of the pump test indicate the transmissivities of surrounding formations to be significantly lower than 100,000 gpd/ft.
- Flow Through the Carpenter Brook Valley Aquifer, Productivity and Effective Yield
  1. By utilizing the above calculations in conjunction with Darcy's law to factor in the width of the aquifer and the hydraulic gradient, the daily flow through the aquifer can be calculated. The Applicant has suggested using an aquifer width of 800 feet, based on the 1,750 foot elevation contour along the valley sides. At this elevation, the primary water bearing units of the valley floor taper to minimal thickness and become localized on the slopes of the valley. At this elevation also, the shape of the valley sidewalls changes, with the slope sharply increasing to the 12.5% gradient which is the subject of the following section of this report. In the area of the proposed site, the width of the valley at the 1,750 foot contour actually varies from 800 to approximately 1,200 feet.
  2. The County/City has proposed a 1,500 foot aquifer width, based on the 1,800 foot elevation contour along the valley sides. The County/City has also proposed a high transmissivity, 100,000 gpd/ft, based solely on early time data from the PW-1 pump test, and the use of a hydraulic gradient of 0.006, taken from an isopach map in the PW-1 Pumping Test Report, to arrive at a flow through the aquifer of 1,000,000 gallons per day. However, the County/City hydraulic gradient is incorrectly calculated due to an error on the isopach map from the PW-1 Pumping Test Report which plotted a wrong water level in observation well OW-1. Use of the correct water level elevation would result in a revised hydraulic gradient of 0.0038, and bring the calculated flow through the aquifer closer to 500,000 gpd.
  3. The Staff proposed a reasonably conservative aquifer width of 1,200 feet, based on the topography of the valley, and a hydraulic gradient of 0.0034. With these inputs, the flow rate through the aquifer is calculated to be 483,000 gpd.
  4. The flow through the aquifer does not equate to the sustained yield of the aquifer. One hundred percent of the flow through an aquifer could never be extracted from the ground. In the instance of the Carpenter Brook Valley aquifer, even if there is a flow through the aquifer of 0.5ñ mgd, this quantity of water could not be pumped from the aquifer. The pump test at PW-1 demonstrated that extended pumping, even at a rate of 82 gpm, cannot be sustained, because the pumped well will experience continuing drawdown and negative hydraulic boundaries.
- Comparison With Other Aquifers

The following information is presented to highlight the relative differences in the abilities of the Carpenter Brook Valley aquifer and two neighboring aquifer systems to provide a source of water supply. The two aquifers used for comparison are the Ischua Creek Valley aquifer and the Olean aquifer.

- The Ischua Creek Valley Aquifer
- Size and Productivity

  1. The aquifer formed in the Ischua Creek Valley is a comparatively small water supply aquifer in western New York. The Ischua Creek Valley aquifer, between Machias and Franklinville, has an areal extent of approximately 5.5 square miles. The Ischua Creek Valley aquifer is designated as a principal aquifer by the Department, as it has the potential to provide much more water than is currently being utilized.
  2. The information for the Ischua Creek Valley aquifer is taken from a production well located near Route 16 in the Town of Machias, Cattaraugus County. The 10 inch well is screened in a moderate to well sorted gravel, with little sand, from approximately 41 feet to 51 feet bgs, with a sump area extending to approximately 54 feet bgs. The screen has a natural gravel pack. The unit in which the well is screened exhibits artesian conditions, and it is known that in this aquifer groundwater discharges to Ischua Creek.
  3. Step-drawdown and constant rate pumping tests were conducted on the Machias well in May 1978. The step-drawdown test achieved a maximum pumping rate of 350 gpm, with a drawdown of 1.13 feet. The specific capacity of the Machias well is approximately 310 gpm/ft. Maximum available drawdown is approximately 40 feet. The constant rate test was a continuous 24 hour test at a discharge rate of 350 gpm.
  4. The transmissivity for the Machias well is 2.50 x 101 ft2/min. The hydraulic conductivity of the saturated thickness at the Machias well is approximately 3.17 x 10-1 cm/sec.

- The Olean Aquifer
- Size and Productivity

  1. For additional comparative purposes, some information regarding the Olean (Allegheny River Valley) aquifer is also presented. The City of Olean has several water supply wells situated along the Allegheny River. The wells are screened in the thick sequence of sands and gravels underlying the City. The areal extent of the Olean aquifer is approximately 38 square miles. It has a maximum thickness of 125 feet, a maximum well yield of 1,000 gpm and an average daily pumpage of 3.15 mgd (Golder Associates, 3/19/92) to 10.1 mgd (Hearing Exhibit 21) from high yield wells capable of producing in excess of 700 gpm. The Olean aquifer is classified as a primary water supply aquifer by the Department.

The Slope Stability Issue

  1. The Applicant proposes to locate its landfill on a hillside with a natural gradient of approximately 12.5% - 15%. Placement of municipal solid waste in any landfill which might be constructed on the site could increase the gradient to as much as 18% - 19%.
  2. Under the applicable Part 360 regulations for this conceptual review, i.e. - the so-called 1988 regulations, there are no specified requirements for minimal factors of safety under static conditions for the bearing capacity and settlement of the landfill's subbase. It has generally been considered that, under the 1988 regulations, safety factors in the range of 1.3 to 1.5 have been appropriate for overall static stability of the landfill foundation.
  3. If conceptual approval is granted through this proceeding, and if the Applicant decides to proceed with its plans for construction and operation of the solid waste management facility, the Applicant will have to comply with all the construction and operation related requirements set forth in the current Part 360 regulations, i.e. - those which became effective on October 9, 1993.
  4. The current regulations, in .360-2.7(b)(6), as part of the detailed site analysis required in the engineering report, specifies requirements for the "analysis of the structural integrity and overall stability of the landfill site, the subbase, each component of the composite liners and each component of the final cover." These regulations require that "(T)he landfill design shall achieve the following minimum factors of safety under static conditions of 2.00 for the bearing capacity and settlement of the landfill's subbase (at full load conditions), 1.25 for the structural design of the facility liner and leachate collection and removal system components and 1.50 for the final cover system, unless otherwise approved by the department".
  5. For the purposes of conceptual review, the site stability analysis must consider the site characteristics, the waste properties and the proposed geometry of the landfill. The Applicant must demonstrate that the proposed site is capable of handling the weight of the landfill without extensive engineering. In this Hearing Report, the factors of safety of 1.3 to 1.5 are used to determine if the preferred site can comply with the regulations applicable to this conceptual review, while the 2.0 safety factor is used as an indication of the proposed facility's ability to comply with the current regulations, should the Applicant desire to apply for construction and operation permits.
  6. The near surface unconsolidated deposits found on the sloped site consist of topsoil and mottled silt, the latter extending down as much as several feet. In the event of construction, these soft materials either will be removed or will be manipulated by proofrolling and compaction to achieve the desired characteristics.
  7. Underlying the soft surficial soils are typically glacial tills of medium to high density. The tills found on the site have generally moderate to low permeabilities and are typically strong materials regarded as having excellent foundation characteristics.
  8. The proposed landfill footprint on the site exhibits locally high groundwater and, in places, shallow bedrock. These are features of the site which will have to be considered in greater detail should the Applicant desire to proceed with construction.
  9. Both the Applicant and the Intervenors used the Slope/W computer program to analyze slope stabilities and calculate safety factors with a variety of inputs. Both used a variety of inputs for types of landfill geometry, e.g. - slope angles, use of berms and subdrains. However, whereas the Intervenors used sets of different strength parameters as inputs for municipal solid waste, liner, berm and base soil, the Applicant used only one set of strength parameters for these inputs. The Applicant's calculations included landfill configurations which ranged from 200 to 215 in height and 1,100-1,750 in the longest horizontal dimension. These configurations resulted in potential slope lengths of 1,200 to 1,600 feet.
  10. All particulate materials such as soils can be characterized by two major strength parameters. The strength parameters used as inputs to the Slope/W program have two components, denominated "c" for cohesion, expressed in units of stress, e.g. - pounds per square foot (psf), and "phi" or è (also í) for the angle of internal friction expressed in degrees (ø). These factors are, in general, inversely proportional, i.e. - if a material has a high è value, it will usually be associated with a low c value, with sand and gravel being a good example. Conversely, a material such as clay will have a low è value and a high c value.
  11. Municipal solid waste can also generally be defined in terms of strength parameters. Much interest, but little data, has been available regarding the strength of msw. In recent years, research has been conducted regarding the strength parameters of msw, with several researchers having published papers on the subject. The authors Singh and Murphy are credited with having done landmark research in this area, and their 1990 paper, "Evaluation of the Stability of Sanitary Landfills," setting forth a range of recommended values for c and è, is a standard point of reference for professionals involved in landfill design and site analysis. This range is considered to be conservative.
  12. Other researchers and authors have more recently added to the universe of knowledge available to landfill design and analytical professionals. In fact, Singh and Murphy commented on the lack of data available to them in the preparation of their paper, as did Kavazanjian et al. in mentioning the difficulty in obtaining information on the properties of msw.
  13. In carrying out its slope stability analysis, the Applicant utilized information regarding solid waste strength reported in some of the more recent papers to supplement the Singh and Murphy data. Principally, the Applicant relied on a 1995 paper by Kavazanjian et al., "Evaluation of MSW Properties for Seismic Analysis," and a 1995 USEPA document, "RCRA Subtitle D (258) Seismic Design Guidance for Municipal Solid Waste Landfill Facilities," which plot strength differently than do Singh and Murphy. In fact, the Kavazanjian et al. paper excludes much of the Singh and Murphy data as unreliable and calls into question the suitability of using Singh and Murphy's recommended range of values for c and è.
  14. The Applicant arrived at a set of parameters, c = 600 psf and è = 26ø, which it asserts are similar to the lower bound msw strength parameters recommended in the Kavazanjian et al. paper and the USEPA document. The Applicant's calculated static factors of safety, based upon these parameters, were all greater than 1.5 and several exceed 2.0.
  15. The Intervenors have criticized the Applicant's parameters as not being conservative and unsuitable for use in slope stability analyses, because such analyses will yield safety factors which are too high. In fact, use of the Kavazanjian et al. parameters will result in safety factors which are approximately five percent higher than the Applicant's results.
  16. The Intervenors, using more conservative parameters than the Applicant, calculated total factors of safety which are typically 10 to 25 percent lower than the Applicant's figures. However, in all of cases analyzed by the Intervenors, static factors of safety were calculated to be 1.4 (1.38) or higher, i.e. - acceptable under the 1988 regulations. Several of the iterations performed by the Intervenors resulted in a static factor of safety of at least 2.0.
  17. The bearing capacity calculation performed by the Intervenors appears to be based on the presence of a weak clay layer, approximately 10 foot thick, on the surface of the site. The Intervenors postulate that a landfill built on these soils as a foundation would be limited in height to between 50 and 73 feet. As noted above, the surficial soils must either be removed or reworked to achieve the necessary characteristics prior to any construction event.

CONCLUSIONS

The Principal Aquifer Issue

  1. The Carpenter Brook Valley aquifer, with an areal extent of less than one square mile, does not meet the principal aquifer guideline of five to ten square miles of contiguous area at a minimum. Even if the aquifer underlaid the entire watershed of the Carpenter Brook Valley, which is virtually impossible, given the slopes and paucity of high permeability materials on the lateral margins of the valley, the aquifer would only minimally meet the terms of the areal extent guideline for a principal aquifer.
  2. The flow till deposit, which is not highly permeable, is in excess of 20 feet thick in some locations below the valley floor, with at least one location showing a thickness of approximately 45 feet. The average thickness of the flow till deposit is 12 to 14 feet. The flow till is discontinuous throughout the deposits in the Carpenter Brook Valley.
  3. The saturated deposits of highly permeable materials within the Carpenter Brook Valley aquifer consist of the interval of well sorted sands within the flow till deposit. At its maximum thickness, this permeable water bearing material is only 8 feet thick. Even this material, although the most permeable in the Carpenter Brook Valley, has an elevated percentage of fines compared to the rich water bearing outwash sands and gravels found in the Ischua Creek Valley aquifer, for example. This well sorted sand deposit is not found to be continuous throughout the flow till. Thus, the Carpenter Brook Valley aquifer does not meet the principal aquifer guideline for thickness of the highly permeable deposits averaging at least 20 feet throughout much of the area, with some locations at least 50 feet.
  4. While it might be possible to sustain a yield of 50 gpm in localized areas of the Carpenter Brook Valley aquifer, such a pumping rate could not be sustained over the sizable area - two square miles or greater - required by the principal aquifer guideline. As noted above, the Carpenter Brook Valley aquifer does not have an areal extent of even one square mile.
  5. Neither the Applicant nor the Department Staff performed a water balance for the Carpenter Brook Valley. However, the information which would be provided by such a calculation is not needed to make a judgement concerning the available sustained yield from the Carpenter Brook Valley aquifer. The Carpenter Brook Valley aquifer, while perhaps able to yield a quantity of water approaching 500,000 gpd on a short term basis, could not do so on a sustained basis. The relatively small size of the watershed and lack of available storage in thick saturated water bearing deposits would not provide enough recharge to sustain pumping at that rate. When the aquifer was stressed in a pump test which lasted for three days, the test well experienced continuing drawdown and negative hydraulic boundaries when pumped at a rate of 82 gpm. Pumping at a higher rate and/or with a better developed well would rapidly dewater the aquifer.
  6. It is not possible for the overall yield of the Carpenter Brook Valley aquifer to be comparable to yields of the smaller primary water supply aquifers in the state. There is no potential for the Carpenter Brook Valley aquifer to adequately supply a population of 5,000 to 10,000 people, i.e. - with a sustained yield of 500,000 to 1,000,000 gpd.
  7. The areal extent, saturated thickness of highly permeable deposits and sustained yields of the Carpenter Brook Valley aquifer are all insufficient to meet the criteria in TOGS 2.1.3 for a principal aquifer. I conclude that the Carpenter Brook Valley aquifer is not a principal aquifer, either in terms of the TOGS guidelines or the regulatory definition in Part 360.

The Slope Stability Issue

  1. The calculations performed by both the Applicant and the Intervenors demonstrated that with a variety of inputs, the proposed landfill could be constructed on the Farmersville site in satisfaction of the intent of the 1988 regulations, i.e. - with a static factor of safety in the range of 1.3 to 1.5 or higher. In several of the calculations, the slope stability analyses performed by both the Applicant and the Intervenors demonstrated that the required static safety factor of 2.0 could be achieved to meet the current regulations.
  2. The bearing capacity analysis performed by the Intervenors is faulty, in that it is predicated on a 10 foot layer of soft soil material upon which the landfill would be constructed. The Applicant has acknowledged that the soft surficial soils will have to be removed or reworked prior to any construction. What this analysis does point out, however, are the practical difficulties which the Applicant may encounter in designing a landfill which can meet the regulatory requirements set forth in the current Part 360. For instance, if the surficial soils are removed to get to suitable foundation materials, the base of the landfill would in many places on the site be below the groundwater table, requiring a groundwater drainage system or possibly a variance in order not to be in violation of the regulations. In other places on the site, such an excavation of the surficial soils would bring the base of the landfill on top of bedrock, also potentially necessitating a variance in order to avoid being in violation of the regulations. These are not necessarily insurmountable problems in landfill design, but may require modification of the proposed landfill footprint to satisfy all the mandatory design and construction requirements of the current regulations.
  3. The glacial till foundation soils found within the proposed landfill footprint are adequate to support the weight of the landfill without extensive engineering. Therefore, I conclude that the landfill is not proposed to be located in an unstable area, as defined in the 1988 regulations.

DISCUSSION

The Intervenors in this case have criticized virtually every aspect of the two issues certified for adjudication, with the exception of the Applicant's selection of the Slope/W computer program to analyze the stability of the slope on the site to determine static factors of safety. This criticism has been helpful in focusing attention on those subject areas which required the development of additional information through the hearing process. A healthy exchange of expert testimony and professional interpretation of a variety of factors relating to these issues has occurred.

At the conclusion of the hearing process, the views of the parties have not changed. The Applicant believes it has met its burden to receive a conceptual approval for its proposal. The Department Staff contends a conceptual approval is warranted. The Intervenors remain unalterably opposed to the project and still point to shortcomings in the Applicant's interpretation of data and application of scientific principles.

The Principal Aquifer Issue

All the conjecture regarding the extent of highly permeable deposits and their ability to yield copious quantities of water for a source of public water supply does not negate the fact that, geologically, the Carpenter Brook Valley largely consists of deposits of relatively impermeable glacial till materials which provide little, if any, potential for public water supply use. The highly permeable water bearing deposits within the Carpenter Brook Valley are localized in areal extent, limited in thickness and incapable of sustaining any substantial yield which could provide a reliable source of supply for a public water system. This is further supported by information that households in the Carpenter Brook Valley draw their water predominately from bedrock wells, indicating a lack of significant exploitable water-bearing deposits above the bedrock regime in the valley.

The high yield sands and gravels found near the confluence of the Carpenter Brook Valley/Johnson Creek Valley and the Ischua Creek Valley are properly considered as a fringe portion of the Ischua Creek Valley aquifer, but are not continuous up the Carpenter Brook Valley. The high permeability sand and gravel lenses within the Carpenter Brook Valley are interspersed with much lower permeability till materials. However, since the area of the proposed site is up-gradient from the Ischua Creek Valley, there is a natural hydraulic connection, not only via the surface waters of Carpenter Brook, but also through the subsurface deposits.

Potential contaminant travel times between the proposed site and the Ischua Creek would be measured in days for transport by surface waters. Transport via groundwater would be measured in multiples of years, and through some of the least permeable deposits in multiples of hundreds or perhaps even thousands of years. It is postulated that groundwater through Carpenter Brook Valley discharges to surface water in the stream bed at the confluence of Carpenter Brook, Johnson Creek and Ischua Creek.

Any contaminants which could possibly reach the Ischua Creek Valley aquifer via the above routes would likely be highly diluted by the surface waters in Ischua Creek. Since the public water supply wells downstream of the confluence are screened in very deep deposits and exhibit minimal streambed infiltration, it is unlikely that potential contamination from a landfill at the proposed site would have any significant impact on downstream public water supplies served by wells. It is noted, however, that the City of Olean, in addition to its groundwater sources of supply, utilizes quantities of surface water from the Olean Creek, downstream of the Ischua Creek, in its municipal water system. Therefore, surface water pathways for contamination represent a potential threat, however slight, to the City's water supply. If the Applicant decides to proceed with the proposed landfill project at some future date, it must thoroughly address prevention and mitigation measures regarding any potential leachate releases from the site.

The Slope Stability Issue

The Applicant, using a single set of parameters for the shear strength of municipal solid waste, performed the Slope/W calculations to demonstrate satisfactory static factors of safety for a variety of landfill geometry and design features. The Intervenors, using a much more comprehensive set of input parameters for msw strength, performed the same and additional Slope/W calculations and arrived at a set of static factors of safety which, by and large, fell within the acceptable range, albeit somewhat lower than the Applicant's numbers, generally attributed to the 1988 regulations.

The Intervenors contend that if the Applicant had utilized a greater variety of parameters for msw strength as inputs to the Slope/W computer program, it too would have arrived at lower factors of safety, demonstrating the folly of attempting to place the proposed landfill on the hillside of the Farmersville site. The Intervenors contend that a comprehensive parametric analysis is absolutely essential to an acceptable slope stability analysis, and the Applicant has failed to conduct such a parametric analysis.

The Applicant counters that the factors which it considered are conservative, within acceptable limits and are sufficient to satisfy the demands of a conceptual review based upon the generally accepted range of safety factors in the 1988 regulations. The Applicant further acknowledges that it will need to conduct comprehensive parametric analyses for design and construction purposes, should it decide to proceed with the proposed project.

Shrubby St. Johnswort, Protected Native Plant

The Applicant submitted a Conceptual Review Mitigation Plan for the protected native plant, shrubby St. Johnswort, Hypericum prolificum, noting that it anticipated further comment on the plan and would be receptive to considering a range of mitigative options to ensure continued survival and propagation of the plant. The Concerned Citizens submitted comments on the Applicant's plan, and the Department Staff commented on both the Applicant's plan and the Concerned Citizens' submission.

The Concerned Citizens recommend total avoidance of the plants on the site, which would require a significant reconfiguration of the landfill footprint. Should the Applicant choose not to avoid the areas where the shrubby St. Johnswort currently appears to be thriving on the site, the Concerned Citizens recommend a series of mitigative steps, including a thorough assessment of environmental conditions at the existing plant sites, experimental plantings at similar sites and development of a concerted program to assure success of any transplanted or newly propagated mitigation plantings.

The Department Staff continues to endorse avoidance of the plants on the site to the extent practicable and the implementation of a mitigation plan designed to compensate for the loss of individual plants in the event of project development. The Staff has indicated that the Applicant's mitigation proposals are an acceptable starting point for conceptual review purposes. The Staff also endorses in large part the recommendations of the Concerned Citizens and has stated that detailed mitigation measures must be included in any application for construction and operation permits for the proposed facility.

There are no issues raised regarding the shrubby St. Johnswort protected native plant. It appears that all the parties to the proceeding are traveling the same road to assure the continued survival and propagation of this plant species. Any further details regarding protection/mitigation measures regarding this species may await any future permit application review processes which might occur regarding this site.

Conceptual Review

The whole purpose of the conceptual review provisions of ECL Article 70 and 6 NYCRR Part 621 is to determine, early in the review process, whether or not all or portions of a proposed project are consistent with the applicable environmental standards. Such a determination allows a project sponsor to obtain a binding decision from the Department regarding the acceptability of a regulated action prior to investing substantial time and money in project planning and permit application preparation.

Given the difficulty of siting major solid waste management facilities in the State of New York, the identification of a potentially suitable site as an initial step in the regulatory review process is crucial to the project's viability. If an applicant makes a wrong decision regarding selection of a site, the enormous expenditures which follow for subsequent stages of the project may be rendered valueless.

Conceptual review of the site selection process offers the project sponsor an option to obtain a formal determination from the Department regarding the adequacy of the site identification process prior investing further in the development of the project. The information necessary for a conceptual review does not require the detailed level of study and analysis needed for final design related factors necessary to complete the permit application process.

In the instant case, it is the detailed type of evaluation required in the permit application process which the Intervenors seek for the site selection process. However, this level of detail and analysis is not warranted for conceptual review of a proposed project. What is required is sufficient information to enable the Commissioner to make an informed decision on whether, in concept, an applicant can locate the proposed project on the preferred site, and in so doing, can satisfy the applicable statutory and regulatory requirements.

Here, the Applicant has shown by a preponderance of the evidence that the Carpenter Brook Valley aquifer does not have the capacity to serve as a source of public water supply and cannot be considered as a principal aquifer. Further, the Applicant has demonstrated, with a sufficient level of detail, that a landfill of the type and size proposed, can, in concept, be located at the Farmersville site. There are foundation materials located below the surficial soils on the site which are capable of adequately supporting the weight of the proposed landfill without extensive engineering.

If nothing else, should the Applicant decide to proceed with the project as proposed, massive earthmoving to reconfigure the site will be necessary prior to any landfill construction activities. In all likelihood, however, the Applicant's proposed project would need design features and/or variances to provide reasonable assurance of meeting the bedrock and groundwater separation distances required in the current Part 360 regulations. These are matters for consideration, not at this juncture, but in any future permit application proceedings.

Unlike the principal aquifer issue which can be conclusively determined at this stage of review, no final decision on the stability of the site can be made until the Applicant selects a final design and subjects it to a comprehensive parametric analysis.

In conclusion, it is my determination that the Applicant has chosen and properly implemented an acceptable site selection methodology. The site has been shown to adequately meet the applicable landfill siting standards in the 1988 version of 6 NYCRR Part 360. The site is not inappropriate in terms of the siting prohibitions in 6 NYCRR 360-1.14 or the landfill siting restrictions in 6 NYCRR 360-2.12(d). On the basis of the record compiled in this case, the preferred Farmersville site, with proper final design and mitigative details, has the potential for minimizing environmental impacts to the maximum extent practicable as weighed against a similar size and type of facility at an alternative location.

RECOMMENDATIONS

  1. The Applicant's proposal satisfies the terms of the 1988 Part 360 regulations, under which the proposal is being considered for conceptual review. Pursuant to the Environmental Conservation Law, if an applicant can demonstrate compliance with the applicable regulations, said applicant is entitled receive a conceptual approval for its proposal.
  2. Should an approval be granted for this conceptual review process, the Applicant must still apply for permits to construct and operate the solid waste management facility and must demonstrate compliance with the laws, rules and regulations governing such facilities at that time.
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