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Integrated Waste Systems, Inc. - Interim Decision, March 4, 1995

Interim Decision, March 4, 1995

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

In the Matter

- of the -

Application for a Conceptual Review of its proposal to site a Solid Waste Management Facility
in the Town of Farmersville, Cattaraugus County, Pursuant to Article 70 of
the Environmental Conservation Law ("ECL") and Part 621 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York ("6NYCRR")

- by -

INTEGRATED WASTE SYSTEMS, INC.

DEC Project No. 9-0438-00004/00003-9

INTERIM DECISION

March 4, 995

Interim Decision of the Commissioner

This Interim Decision relates to appeals by Integrated Waste Systems, Inc. ("IWS" or the "Applicant"), the Staff of the Department of Environmental Conservation ("Staff"), Cattaraugus County and the City of Olean (collectively the "County/City"), the Town of Farmersville (the "Town"), the Concerned Citizens of Cattaraugus County (the "CCCC"), a group of professional university professors, research specialists, clergy, business persons, planners and economic developers (the "Professionals") and the South Towns Homeowners Association, Inc. (the "STHA") of the Issues Rulings of Administrative Law Judge ("ALJ") Robert P. O'Connor dated December 6, 1994.

Since the pending appeals raise issues which are fundamental to conceptual review proceedings, I will begin with a discussion that will establish the general principles which will later be applied in resolving the individual appeals. Unless otherwise noted, all references to 6 NYCRR Part 360 ("Part 360") will be to the version that was in effect until October 9, 1993.

Common Issues Raised by the Appeals

Purpose and Scope of Conceptual Review

The purpose of conceptual review is to assist project sponsors, at a comparatively early stage in the planning process, in deciding whether to invest more time, capital and other resources in a project [Organization and Delegation Memorandum ("O&D Memo") 90-39]. Through this review, the Department can help evaluate a project's general approvability and advise the sponsor whether there are any impediments to the proposal. It is an early warning system for the project sponsor that is designed to flag problems; however, it is not a substitute for permit application review. The resulting decision binds the Department as to the general acceptability of those matters it reviewed subject to the development and submission of more detailed plans, information and applications for necessary permits that are identified in the decision [ECL 70-0117(4) and 6 NYCRR 621.11(l)].

The most common use of conceptual review for solid waste management facilities is to enable early executive decisions on the acceptability of the project sponsor's siting efforts prior to the investment of substantial time and money in long-term site monitoring, characterization and facility design (O&D 90-39). Ideally, conceptual review in siting of solid waste management facilities will resolve any questions regarding whether the site selection violates one of the prohibitions in Part 360, whether the siting study is acceptable, and whether there was adequate consideration of alternatives.

The Department has established criteria for those situations where it will entertain applications for conceptual review [6 NYCRR 621.11(a)]. Where those criteria are met, the sponsor selects those aspects of the project it wants reviewed through this procedure. Even though conceptual review could resolve all aspects of the siting issue (subject to any confirming studies that are required), it will not do so if the sponsor requests a lesser scope of review. Thus, the scope of review is defined by the project sponsor, subject to any additional questions that the Department must examine in order to satisfy the requirements of the State Environmental Quality Review Act ("SEQRA").

While it is exclusively in the project sponsor's province to decide the scope of conceptual review, the more limited the scope, the less comprehensive the final decision will be. Any issue that the sponsor excludes from conceptual review is subject to the Department's review in the more detailed permit review phase (In the Matter of the Washington County Board of Supervisors, Decision of the Commissioner dated December 7, 1992).

Level of Detail of Information Required for Conceptual Review

Detailed facility design information is not necessary in conceptual review, since requiring such information would defeat its purpose. Conceptual approval of siting methodology and preliminary selection of specific sites must be supported by sufficient information to ensure an informed decision is made; however, this level of information should be measurably less than required for a final permit decision (O&D 90-39).

Because the level of detail is less than that required for permitting purposes, the Department may issue conceptual approval contingent upon verification by more detailed site investigation. The Department will describe explicitly the scope of further investigation in the decision (O&D 90-39). Additionally, if an applicant receives conceptual approval, it must still submit a complete application for a solid waste management facility permit pursuant to Part 360 and that application must include all necessary requirements for the proposed components of the project (In the Matter of the Washington County Board of Supervisors, Decision of the Commissioner dated December 7, 1992).

Conceptual Review - Raising an Adjudicable Issue

To raise an adjudicable issue, an intervenor bears the burden of persuasion that a substantive and significant issue exists [6 NYCRR 624.4(b)(4)]. To meet the "substantive" standard in a conceptual review hearing, as in any permit hearing, an intervenor must raise sufficient doubt about the ability to meet statutory or regulatory criteria applicable to the project, such that a reasonable person would require further inquiry.

The demonstration that an issue is "significant", however, differs in the context of conceptual review. Ordinarily, an issue is significant if it has the potential to result in the denial of the permit, a major modification of the project or the imposition of significant permit conditions [6 NYCRR 624.4(c)(3)]. At the conceptual review stage, it is premature to judge these potential outcomes. Therefore, the context for judging an issue should be whether it has the potential to result in the denial of or a significant modification to the conceptual approval.

Typically, the attempt to raise issues will take the form of challenges to reliability of information in the application or the presentation of information which has been independently compiled and which is contrary to what was relied upon by the applicant. In the alternative, an intervenor may show that there is not enough information to evaluate whether there are any impediments to the conceptual approval of the proposed project. However, in order to raise an issue based on lack of information, it is insufficient to show that additional information is needed for final approval since any such deficit can be addressed by confirming studies required by the conceptual review decision.

Landfill Siting Provisions in Part 360

The landfill siting provisions are contained in 6 NYCRR 360-1.14 and 2.12. These provisions fall into three categories. Siting prohibitions [1.14(c)] and restrictions [2.12(c)] describe areas where landfill siting is not permitted. Site evaluation criteria [2.12(e)] contain general items that must be considered when evaluating sites. The rule does not require that the criteria be considered in any particular way, only that the consideration be rational. Siting requirements [2.12(d)] contain more specific criteria that must be considered, presumably when the field of potential sites has been narrowed. However, the first three paragraphs of that subdivision contain language which imposes affirmative duties on the applicant in the site selection process that go beyond mere consideration of factors.

Individual Appeals

Applicant's Appeal

To the extent that Staff has appealed the inclusion of these issues, its arguments will also be considered in this section.

Principal Aquifer

The ALJ ruled that the City/County has raised an issue of fact regarding whether the proposed site is located over a principal aquifer. The fact question involves the interpretation of the Applicant's hydrogeologic data and reports which define the capabilities of the aquifer underlying the site. IWS bases its appeal on the argument that County/City expert Dr. Andrew Michalski presented no evidence to disprove the conclusion reached by the Applicant's four experts who determined that the site is not over a principal aquifer.

Staff points out that the County/City analysis is based on the definition of principal aquifer in Part 360 [6 NYCRR 360-1.2(b)(10)(ii)] and not on the more specific criteria set forth in Division of Water Technical Guidance Series Memorandum ("TOGS") 2.1.3, which is used by the Department to make determinations of whether groundwater sources qualify as principal aquifers. Staff further argues that the City/County has not considered the TOGS criteria, citing specific data from the record.

While the TOGS is not a binding rule, it can help implement the regulatory definition of principal aquifer. However, when using the TOGS, the agency must be mindful that parties may question its substance and suggest the use of alternative methods for this purpose.

The controversy in this instance does not arise from alternative views on the methodology for determining whether a groundwater source constitutes a principal aquifer. The City/County does not take issue with the guidance provided in the TOGS. Rather, the controversy focuses on the accuracy of the interpretation of the basic data which the Applicant and Staff relied upon in determining whether the groundwater at the site constitutes a principal aquifer. Contrary to the Staff view, the offer of proof of the County/City is relevant to the question of whether a principal aquifer underlies the site, even if one accepts the TOGS guidance. The question is whether there is sufficient substance to the offer of proof to warrant adjudication.

Where, as here, the question is whether a factual dispute requires adjudication, substantial deference is given to the ALJ's judgment (In the Matter of Hyland Facility Associates, Interim Decision of the Commissioner, August 20, 1992). In the absence of a failure to apply the standard for determining adjudicatory issues, the ALJ's conclusion should be upheld. Here, the ALJ applied the proper standard and therefore his ruling is affirmed.

Unstable Areas

The ALJ ruled there was inadequate information to rule on the ability of the Applicant to meet the siting restriction relating to the use of unstable areas [6 NYCRR 360-2.12(c)(4)]. The Applicant appealed arguing that the information in the application was sufficient for purposes of conceptual review and that none of the intervenors offered any analysis or evidence tending to refute this information.

At the conceptual review stage, the Applicant need not perform the detailed design work that would ultimately be required in a permit review. Even though the Applicant will need to prepare an engineering report which addresses the stability issues that arise out of the facility design, there is enough information currently to assess the more general requirement of 6 NYCRR 360-2.12(c)(4).

Nonetheless, the offer of proof submitted by intervenors CCCC and County/City is adequate to raise an issue for adjudication. The Applicant and the Department argue that the intervenors' offer of proof lacks substance based on their understanding that the rule only requires a demonstration that any stability problem can be adequately managed by engineering practices. However, under the rule, such a demonstration would only be adequate where an existing facility is being expanded, not where a new facility is being sited [see 6 NYCRR 360-2.12(c)(4)(i)].

The intervenors' offer of proof is adequate to raise a substantive question about the stability of the natural site conditions. The Applicant will need to demonstrate that the site is capable of handling the weight of the landfill without extensive engineering. For purposes of conceptual review, this demonstration need not be made with reference to any detailed design for the facility but rather it can be based on analysis of the information about the site that is already available.

Unmonitorable or Unremediable Areas

The ALJ concluded that there was inadequate information to evaluate this siting restriction. Both the Applicant and Staff contend that the application does contain enough information and that the intervenors have not raised anything substantial to dispute the application's conclusion.

With respect to this siting restriction, the Applicant has adequately demonstrated that there are no karst terrains underlying the site. The Department has noted in earlier decisions that karst terrain is the principal formation that renders a site unmonitorable and unremediable (see In the Matter of the Application of Monroe County, Ruling on Motion to Reopen the Hearing, April 14, 1993). In the absence of any evidence showing the site cannot be monitored or remediated, no issue is raised.

Issues Relating to the Landfill Siting Requirements in 6 NYCRR 360-2.12(d).

In large measure, the provisions of this section relate to comparative analysis of alternate sites. As discussed below, the Applicant's request for conceptual review was ambiguous about its desire to have alternate sites reviewed in this proceeding. Therefore, the intervenors will be given an opportunity to make additional submissions on these requirements. ALJ O'Connor shall consider them in the context of the discussion concerning the landfill siting provisions.

Staff Appeal

This section addresses only those Staff appeals that were not already handled above.

Scope of Conceptual Review

Staff contends that the ALJ has misperceived the intended scope of the conceptual review. In particular, Staff indicates that the review should extend to all aspects of the approval of the siting report, including whether the siting criteria were reasonably applied to the alternate sites. The Applicant has also indicated its support for the Staff appeal.

Initially, IWS requested a decision on the suitability of both the preferred and the alternate sites to support a Part 360 solid waste facility. By a letter dated November 10, 1992, IWS modified its conceptual review request, asking that the Department not address alternate sites in this process. This modification was not clarified before the ALJ issued his rulings.

The ALJ, in an attempt to interpret the Applicant's intentions, ruled that the hearing process would look at and resolve (1) whether the preferred site is acceptable with respect to the applicable siting standards in 6 NYCRR Part 360, (2) whether the methodologies used in the Site Selection Study are acceptable in view of the provisions of 6 NYCRR 360-2.12(a), and (3) whether the preferred site is suitable for the type and size of solid waste management facility proposed. He further ruled that the process would not address (1) whether the implementation of the methodologies used by the Applicant was acceptable, (2) whether the alternative selected by using those methodologies is the most appropriate under 6 NYCRR 360-2.12 and (3) whether, pursuant to 6 NYCRR 617.9, the preferred alternative is the one that avoids or minimizes, to the maximum extent practicable, the project's adverse environmental effects.

From the Applicant's submissions on the appeal it is apparent that the ALJ's ruling has limited the scope of the review beyond that intended by the Applicant, and that the Applicant wants the three areas excluded by the ALJ to be addressed by the final decision on conceptual review.

Since, as discussed above, the scope of the hearing is determined by the Applicant, the ALJ's ruling is modified to allow the hearing to address those excluded areas. It now appears that the Applicant intended only to restrict considering the acceptability of any alternate sites with respect to the Part 360 siting prohibitions and not to prevent comparing those alternatives with the preferred site.

Because of the lack of clarity in the scope of the conceptual review, the hearing notice did not adequately place potential parties on notice of the scope of issues that could be raised before the ALJ. The parties and potential parties will therefore be allowed to submit proposals to the ALJ for issues on these additional aspects of the project.

SEQRA Findings on Project Need

The Staff seeks clarification of the ALJ's ruling concerning whether the SEQRA findings that result from this proceeding will include a statement of project need. The ruling could be interpreted as deferring such a finding until a final permitting determination is made.

The SEQRA findings that the Department makes as a result of this proceeding will have to address the same areas that are required of all SEQRA finding statements [see 6 NYCRR 617.9(c)]. However, these findings will not be definitive since a second findings statement will also be required after the permit applications are reviewed. If the detailed permit review demonstrates that the project would cause adverse environmental impacts which cannot be mitigated, the Applicant may then be obliged to demonstrate a need for the project that outweighs those impacts.

CCCC and City/County Appeal

The Transition Rules under Part 360

CCCC and City/County appeal the portion of the ALJ's ruling which holds that the current Part 360 does not govern consideration of the Site Selection Report. In general, the new rules govern applications which are determined complete after their effective date (October 9, 1993). However, if a component of an application was found to be complete prior to that date, the old rules would govern the review of that component so long as a complete application was submitted prior to October 9, 1994 [6 NYCRR 360-1.7(a)(3)(vii)]. The controversy in this case concerns whether the submission of a complete application for conceptual review satisfies this requirement. While the transition provision itself is not definitive on this point, I conclude that the ALJ's ruling should be sustained.

Allowing application components to be reviewed under the old rules represents an attempt to balance two competing interests. On the one hand, the Department seeks to minimize the disruption that changing standards would have on those in the midst of the application development process. On the other hand, it also wants to phase-out the application of the old rules as soon as possible. The compromise is to require applicants to perfect any application subject in part to the old rules within a set period of time. In this instance, the application component at issue is one for which the Department has encouraged the use of conceptual review (see O&D 90-39). Therefore, it is logical that the perfection of a complete application for conceptual review is adequate to satisfy the transition provision. If the intervenors' interpretation were adopted, applicants such as IWS would either be discouraged from using conceptual review or they would forfeit their investment in the work on the application component that had been completed. Such results would either be contrary to the reasons underlying the transition provision or to the policies the Department has promoted regarding conceptual review.

Endangered Species and Freshwater Wetlands

The ALJ ruled that the Applicant needed to undertake supplemental work with respect to the presence of endangered species critical habitat and federal freshwater wetlands. CCCC asks that further specificity be placed on these directions.

This is not a matter that constitutes an appeal of the rulings. Any request for further definition should be made to the ALJ in the context of his continuing administration of the hearing.

Professionals & STHA Appeal

Party Status

Both Professionals and STHA appeal the denial of party status for this proceeding. The Department's rules for permit hearings contain specific criteria for obtaining party status, whether it be full party status or amicus status [see 6 NYCRR 624.5(d)]. As pointed out in ALJ O'Connor's ruling, neither Professionals nor STHA meet the necessary criteria. They have not demonstrated expertise on the issues that are to be adjudicated nor have they demonstrated the existence of a legal or policy issue in a field that they have expertise, special knowledge or a unique perspective.

Professional and STHA may work with the other intervening parties on the issues that are scheduled for adjudication but they have not demonstrated a basis to grant party status to either of them separately.

Conclusion

In summary, this Interim Decision finds that issues have only been raised with respect to the existence of a principal aquifer [6 NYCRR 360-2.12(c)(1)] and whether the site is located in an unstable area [6 NYCRR 360-2.12(c)(4)]. The parties will be allowed to submit proposals for issues with regard to any matters that relate to the comparative assessment of alternate sites, including whether the criteria in 6 NYCRR 360-2.12(d) are satisfied by the preferred alternative.

The matter is remanded to ALJ O'Connor for further proceedings consistent with this Interim Decision.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Interim Decision to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York this 4th day of March, 1995.

DEPARTMENT OF ENVIRONMENTAL CONSERVATION
_____________/s/_____________
GARY L. SPIELMANN,
ACTING EXECUTIVE DEPUTY COMMISSIONER

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