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Integrated Waste Systems, Inc. - Ruling, December 6, 1994

Ruling, December 6, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Applications of

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

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

RULINGS OF THE ADMINISTRATIVE LAW JUDGE

ON

PARTY STATUS AND ISSUES

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

Project Description

Integrated Waste Systems, Inc. ("IWS" or the "Applicant"), a major western New York solid waste management company, 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"). IWS proposes to develop this Project on a total of 180 acres of 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 solid waste landfill portion of the Project is designed to encompass 137 acres of the site. The landfill would have a 3,000 ton per day capacity, with a projected 15 year life span. IWS proposes to receive wastes at the site from within a 300 mile radius of Buffalo. However, IWS has explicitly excluded New York City and Long Island from the projected waste shed, i.e. -- wastes from New York City and Long Island would not be disposed of at the site.

Request for Conceptual Review

Preliminarily, on April 2, 1991, IWS requested the New York State Department of Environmental Conservation (the "Department"), pursuant to Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Section 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. IWS formalized this request on July 26, 1991. This original request was for a decision on Conceptual Review which would apply to the Applicant's preferred site, as well as to the alternate sites suggested by IWS. On November 10, 1992, IWS modified its request for Conceptual Review to apply solely to its preferred Town of Farmersville site described above.

On January 20, 1994, pursuant to the provisions in 6 NYCRR Sections 621.5 and 621.11, the Department's Division of Regulatory Affairs Staff (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. The Department Staff determined the Conceptual Review would consider: Acceptability of the site selection methodology; Adequacy of the preferred site relative to the applicable standards in 6 NYCRR Part 360 (Solid Waste Management Facilities), including hydrogeology; and Suitability of the preferred site for the size and type of facility being proposed.

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.

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 Regulations

The present version of 6 NYCRR Part 360 governing Solid Waste Management Facilities was effective October 9, 1993. Section 360-1.7(a)(3)(vii) states if an application for a permit to construct or operate a solid waste management facility was not complete on or before the effective date of Part 360, the application must satisfy the completeness requirements identified in the current Part 360. However, any component of a complete application which the Department determined in writing before October 9, 1993 as satisfying a particular application requirement identified in the Part 360 regulations in effect at the time of acceptance shall be deemed to satisfy the equivalent completeness requirement in the current regulations, but only if a complete application is submitted to the Department no later than October 9, 1994.

In the instant case, the Applicant's siting study and the Carpenter Brook Valley Aquifer Study were accepted by the Department Staff as being complete on October 8, 1993. In accordance with the transition provisions of the current Part 360, the conceptual review of the siting study for the proposed Project will be reviewed for compliance with 6 NYCRR Part 360, effective December 31, 1988, as revised May 28, 1991.

The Carpenter Brook Valley Aquifer Study, however, is a component part of the Applicant's hydrogeological studies, e.g. - see the first sentence of text in the Study report on page 1, "This report presents the results of a hydrogeologic study that was conducted to determine the aquifer potential of overburden deposits within Carpenter Brook Valley, Cattaraugus County, New York." The report continues in the first full paragraph on page 2, ". . . discussions of the distribution of and hydrologic characteristics of overburden deposits, where appropriate, are presented discretely for the proposed STSF footprint area, the entire proposed STSF property, and the entire study area." The Applicant's hydrogeologic investigations and reports continued, with a submission to the Department Staff of the December 1993 Hydrogeologic Site Investigation Report, which was deemed complete by the Staff on January 20, 1994. Then in May 1994, the Applicant submitted a supplemental report to the Staff "to present specific clarifications with respect to the site geologic/hydrogeologic information in response to NYSDEC preliminary technical review comments."

As noted above, the remainder of the application was determined complete enough to commence conceptual review of the application on January 20, 1994. Thus, with the express exception of the Site Selection Study Report, all other aspects of the proposed Project, including hydrogeologic investigations, must satisfy the completeness or application requirements in the current Part 360 regulations, i.e. - effective October 9, 1994.

The application for conceptual review was received in the Office of Hearings on July 29, 1994. The provisions of the current version of 6 NYCRR Part 624 (Permit Hearing Procedures) apply to those proceedings in which the determination to hold an adjudicatory hearing was made on or after the effective date of these regulations which was January 9, 1994. Therefore, the provisions of 6 NYCRR Part 624, effective January 9, 1994, govern this proceeding.

Outcome of the Conceptual Review Process

A goal of the conceptual review process regarding siting of solid waste management facilities is to resolve any questions regarding alternatives and the necessity for mitigating measures such that issues related to siting would not have to be revisited in any subsequent permit proceeding.

The opportunity for conceptual review is provided in the regulations, 6 NYCRR 621.11, to help an applicant get an early reading from the Department regarding the conceptual suitability of its proposal in view of the permitting requirements with which it must comply. By learning of the general suitability of its proposals at a relatively early time in the permitting process, an applicant may be able to refocus its efforts, as necessary, before having expended large sums of time and money in detailed project design, only to learn that its project could not be permitted because, even in concept, it could not meet one or more of the criteria necessary for permit issuance. Because of the long lead times necessary and the enormous costs involved, the Department has encouraged the use of conceptual review in the siting of solid waste management facilities.

The conceptual review process, in this proceeding, will look at and resolve: (1) whether the preferred site is acceptable with respect to the applicable siting standards in 6 NYCRR Part 360, but not whether any future proposal to construct and operate a solid waste management facility on the preferred site meets the permitting standards of 6 NYCRR Part 360.

Additionally, this conceptual review process will look at and resolve: (2) whether the methodologies used in the Site Selection Study are acceptable in view of the provisions of 6 NYCRR 360-2.12(a), but not whether the implementation of the methodologies used by the Applicant was acceptable, or by implication, not whether the alternative selected by using those methodologies is the most appropriate under 6 NYCRR 360-2.12 and whether pursuant to 6 NYCRR 617.9 the preferred alternative is the one which avoids or minimizes to the maximum extent practicable the Project's adverse environmental effects.

Lastly, this process will determine: (3) the suitability of the preferred site for the type and size solid waste management facility proposed. I understand this determination to mean: is the site appropriate for development of a 137 acre municipal solid waste landfill with a 3,000 ton per day capacity, a 10 acre recyclables processing area, a 15 acre yard waste composting area, a landfill gas recovery system and all the appurtenant features required for these facilities, or, given the area of the wasteshed proposed to be served by the facility, would the site be better suited for a different type or size of solid waste management facility, e.g. -- a waste-to-energy facility, a smaller landfill, a larger recycling facility, etc., and/or is the sequence of development of the facilities proposed by the Applicant appropriate for this site. I also understand this to consider whether there are factors other than those in 6 NYCRR Part 360 which would mitigate against use of the site for the size and type facility proposed.

In this case, from the 81 sites initially identified in its Site Selection Study, the Applicant narrowed its potentially viable alternatives to two candidate sites. In a non-traditional approach to conceptual review, however, the Applicant then asked the Department to limit the scope of conceptual review to consider the suitability of only its preferred Town of Farmersville site to support a solid waste management facility. As a result, the decision on conceptual review cannot assure that certain of the siting issues, specifically, consideration of alternatives and several of the hydrogeological issues enumerated in a following section "Rulings on Proposed Issues", will not have to be adjudicated in the anticipated future permit hearings.

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 24, 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 all timely filed applications to participate in any adjudicatory hearing which might be held in this matter.

At the issues conference, the Applicant was represented 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 Department Staff was represented by Mitchell Goroski, Jr., Esq., Special Projects Counsel in the Department's Division of Legal Affairs, Room 608, 50 Wolf Road, Albany, New York 12233-1500.

Cattaraugus County and the City of Olean (collectively, the "County/City") were represented by Michael B. Gerrard, Esq., from the firm of Berle, Cass and Case, 45 Rockefeller Plaza, New York, New York 10111. Subsequent to the issues conference, Mr. Gerrard advised the persons on the Service List (appended hereto) that he would be continuing in this matter as special counsel to the County/City, but as a member of the firm of Arnold and Porter, 399 Park Avenue, New York, New York 10022-4690.

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 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.

A diverse group of professional university professors, research specialists, clergymen, business persons, planners and economic developers in western New York ( the "Concerned Professionals") were represented by Dennis L. Gaffin, PhD., P.O. Box 11, Centerville, New York 14029.

The South Towns Homeowners Association, Inc. (the "STHA") was represented by James L. Pickering, P.O. Box 51, Arcade, New York 14009-0051.

Upon hearing oral arguments regarding petitions for party status and the proposed potential issues, I established a timetable for detailed written submissions from the above participants to address the proposed issues. In a confirming memorandum dated October 6, 1994, I notified the issues conference participants that initial responses were due to be mailed to the service list not later than October 7, 1994, with reply responses due to be mailed not later than October 24, 1994.

Summary Positions of the Participants

- The Applicant

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. In sum, the Applicant believes it has adequately and appropriately addressed all potential concerns and regulatory criteria relating to the siting of its proposed facility; there are no issues which are substantive and significant enough to require adjudication; and therefore, no hearing is warranted.

- The Department Staff

The Staff contends the Applicant's DEIS and supporting documents suitably characterize the project site and the surrounding area. It is the Staff's opinion that the site does not overlie a principal or primary water supply aquifer and is not within the drainage area contributing to a designated sole source aquifer. Under the siting criteria set forth in 6 NYCRR Part 360, there are no prohibitions or restrictions which would preclude the use of the proposed site as a solid waste landfill. However, the site does possess various attributes which require exceptional care in defining the landfill footprint and engineering the Project to meet the design, operational and closure requirements for landfills pursuant to Part 360. Design modifications will be necessary for the proposed Project to avoid adverse impacts on a significant deer wintering area. Certain highway improvements which would be the responsibility of the Applicant will be necessary to maintain an acceptable level of service on the road network in the Project area. Additional mitigation measures proposed by the Applicant to be undertaken by the Town of Farmersville have not been agreed to by the Town. These modifications and mitigation features must be finalized before the proposed Project would be acceptable to the Department Staff. However, the Staff believes these details are not appropriate for consideration in the conceptual review process, but rather in the design process which would follow if the conceptual review of the Project is approved. Finally, the Staff investigation of the Applicant's record of compliance is ongoing. The Staff believes it would be premature to consider record of compliance issues in the conceptual review process, and therefore, suggests this potential issue be deferred until subsequent proceedings.

- Cattaraugus County/City of Olean

At the outset, the County/City maintains the conceptual review provisions in 6 NYCRR Part 621 are not appropriate for the proposed Project on the proposed site. The County/City contends that because the proposed site fails to meet many of the mandatory minimum physical requirements of 6 NYCRR Part 360 the proposal poses a threat to public health. The County/City maintains the Project design and operational characteristics must be considered simultaneously with the review of the site selection methodology. To do otherwise is to artificially separate the site from the engineering necessary to meet the regulatory requirements. The County/City believes the only way to properly evaluate the Applicant's proposal is to consider a full Part 360 application in the formal adjudicatory hearing process. The County/City notes there is no need for the proposed Project under the Cattaraugus County solid waste management plan, which has been approved by the Department. Additionally, the proposed Project is not consistent with tourism and the County's long standing plans for development along the NYS Route 16 corridor.

- Town of Farmersville

The Town has regulatory and permitting authority for any landfill proposed within the Town's jurisdictional boundaries. The Town has identified potential issues regarding the Applicant's ability to comply with the regulatory site selection and hydrogeologic criteria. The Town believes that as currently presented, i.e. - without detailed plans regarding how the Applicant will design and engineer the landfill to fit the site, the proposed Project cannot be permitted. Additionally, the Town contends the Project is overdesigned and too large for the proposed service area. Furthermore, the DEIS concentrates on the landfill portion of the Project and does not adequately deal with the yard waste composting and recyclables recovery portions of the Project.

- Concerned Citizens of Cattaraugus County

The Concerned Citizens contend that the biological data reported in the DEIS are insufficient to make an assessment of the impacts of the proposed Project on federal and state wetlands and on endangered or threatened animals, plants and ecological communities within and adjacent to the landfill footprint. Specifically, the Concerned Citizens maintain that the site contains federal, if not state, wetlands, and that the threatened plant species Hypericum prolificum, shrubby St. Johnswort, has already been identified on the site. Additionally, the Concerned Citizens contend that newly available pumping test results are indicative of a principal aquifer along the Carpenter Brook Valley, and that contamination of this aquifer by leachate could be transmitted directly down the valley into the much larger Ischua Creek Valley aquifer. In addition to the siting concerns, other issues raised by the Concerned Citizens echo those identified above by the County/City and the Town regarding the ability of the Applicant to meet the specific design, construction and operational requirements of Part 360. Lastly, the Concerned Citizens contend the proposed Project will have an adverse human resource impact on the rural community of Farmersville and that the Project is incompatible with Cattaraugus County's comprehensive land use and economic development plans.

- Group of Concerned Professionals

The Concerned Professionals has keyed its interests to the social, economic and cultural impacts of the proposed Project, citing such potential impacts as: socioeconomic effects on farmers and farming practices, socioeconomic effects on rural poverty, effects on local community members' physical and psychological health, effects on religious beliefs and practices, and host community's social, economic and cultural relationships to other communities. This group contends the Applicant failed to comprehensively consider the site evaluation criteria in 6 NYCRR 360-2-12(e). They believe the inclusion of only Farmersville as the host community is far too narrow, particularly with respect to potential water contamination and traffic impacts.

- South Towns Homeowners Association, Inc.

The only concern raised by the STHA relates to the potential for the landfill to overlie the federally designated Cattaraugus Creek sole source aquifer, and the potential impacts of the proposed Project on this aquifer.

The Issues Proposed for Adjudication

The first group of proposed issues relates to the acceptability of the preferred site with respect to the applicable siting standards in 6 NYCRR Part 360.

  • The issues which have been raised as potential prohibitions [6 NYCRR 360-1.14(c)] to siting the facility at the Farmersville location concern the identification of threatened or endangered species on the site, and the possibility that federal jurisdictional wetlands exist on the site. Additionally, although not a Part 360 prohibition, ECL 15-0514 contains a prohibition which could be relevant to the proximity of the preferred site to the federally designated Cattaraugus Creek sole source aquifer.
  • The issues which have been raised regarding siting restrictions [6 NYCRR 360-2.12(c)] concern the possibility that the site overlies a principal aquifer and the potential that the site might be located in an unstable area or in an unmonitorable or unremediable area.
  • The issues which have been raised regarding siting requirements [6 NYCRR 360-2.12(d)] concern interpretations of various hydrogeologic characteristics of the site, including the presence of low permeability unconsolidated deposits, characterization of bedrock conditions and the groundwater flow patterns on and around the site.

The second group of proposed issues relates to the acceptability of the methodologies used in the site selection study in view of the provisions of 6 NYCRR 360-2.12(a).

  • The issues which have been raised regarding the required site evaluation criteria [6 NYCRR 360-2.12(e)] concern the Project's impacts on population density and anticipated growth, adequacy of transport routes, impacts on the host community including conformance with local land use planning and zoning restrictions and any financial impacts on the community, impacts on the environment including air quality and visual impacts, proximity to open space, cultural, historical and recreational resources, and impacts on agriculture and agricultural lands. An additional issue concerns the application of and relative weighing of the site selection criteria.

A third group of proposed issues relates to the suitability of the preferred site for the type and size solid waste management facility proposed.

  • The issues which have been raised regarding the suitability of the site relate to the "need" for the proposed facility and the compatibility with Cattaraugus County's economic development goals.

A fourth group of proposed issues includes those which do not fall within the above three subject areas for which the Applicant seeks conceptual review. These issues include elements of the detailed engineering and design features of the proposed Project and how the facility would satisfy the construction and operation regulations in 6 NYCRR Part 360. This includes proposed issues regarding the physical separation distances of the unconsolidated deposits and bedrock on the site, which are construction related, not siting related. This group of issues is generally not ripe for adjudication during the conceptual review process, but will be appropriate for consideration in the event there is a need for future permit hearings for the proposed facility. Review of the siting criteria may, however, involve some consideration of these issues, although not in the detail necessary for a permit hearing.

An additional issue, which does not fall within the above categories, relates to the suitability of the Applicant to receive a permit. The Department Staff is not prepared to present this issue for adjudication at this time.

Additionally, several of the intervenors disagree with the Department Staff's determination of completeness of the application for conceptual review. The intervenors cite what they consider as a lack of completeness as the basis for adjudicating various issues. In this instance, the permit hearing regulations in 6 NYCRR 624.4(c)(6) are clear that completeness of an application will not be an issue for adjudication.

Rulings on Proposed Issues

In order for an issue to be adjudicated, the issue must relate to a dispute between the Department Staff and the applicant over a substantial term or condition of the draft permit; relate to a matter cited by the Department Staff as a basis to deny the permit and is contested by the Applicant; or it is an issue proposed by a potential party and which is both substantive and significant.

An issue is substantive if there is sufficient doubt about the applicant's ability to meet statutory or regulatory criteria applicable to the project, such that a reasonable person would require further inquiry. An issue is significant if it has the potential to result in the denial of a permit, a major modification to the proposed project or the imposition of significant permit conditions in addition to those proposed in the draft permit.

6 NYCRR 624.4(c)(4) specifically provides that in situations where the Department Staff has reviewed an application and finds that a component of the Applicant's project as proposed or as conditioned by the draft permit, conforms to all applicable requirements of statute and regulation, the burden of persuasion is on the potential party proposing any issue related to that component to demonstrate that it is both substantive and significant. Such is the case in the instant matter, with the Department Staff having determined that there are no statutory or regulatory prohibitions or restrictions which would preclude the use of the proposed site as a solid waste landfill. It is the intervenors' burden to demonstrate that the issues they are raising warrant adjudication.

In the instant case, the task is to determine, detailed engineering and design features aside, if the Farmersville site selected by the Applicant is appropriate, in concept, for development of a solid waste management facility. Through their offers of proof, the intervenors have raised factual questions regarding several of the facility site selection considerations, thus warranting a further examination.

Site Acceptability Pursuant to Applicable Siting Standards

- Prohibitions to Siting [6 NYCRR 360-1.14(c)], Pursuant to 6 NYCRR 360-2.12(a)(2)(i)

- Endangered Species, 6 NYCRR 360-1.14(c)(3)

The Concerned Citizens contend the existence of the threatened plant Hypericum prolificum, shrubby St. Johnswort, at several locations on the site raises an immediate red flag to the provisions of 6 NYCRR 360-1.14(c)(3) Endangered species. "Solid waste management facilities must not be constructed or operated in a manner which causes or contributes to the taking of any endangered or threatened species of plants, fish or wildlife; or to the destruction or adverse modification of their critical habitat."

The DEIS lists Hypericum prolificum as occurring in the rich graminoid fen in the natural buffer zone. (A rich graminoid fen is a peatland area fed by mineral rich waters, in which the dominant vegetative species are sedges, but including grasses and rushes.) A rich graminoid fen also exists within the landfill footprint on the site. Since the majority of the species on the plant list for the rich graminoid fen in the buffer zone is the same as the majority of the species on the plant list for the rich graminoid fen within the proposed landfill footprint, there is a great potential for the shrubby St. Johnswort to be present within the area proposed for the landfill footprint. The Concerned Citizens have made an offer of proof that on the basis of the information provided in the DEIS, it is not unreasonable to suspect that even if the plant itself is not present in the area proposed for landfilling, the critical habitat for this threatened species of plant is present in the area of the proposed landfill footprint. The alterations proposed on the site would almost certainly cause adverse impacts to this critical habitat and no avoidance or mitigation plans have been proposed by the Applicant.

Additionally, the Concerned Citizens contend the information reported in the DEIS is too superficial and too sparse to verify the presence or absence of any other endangered or threatened species of plants, animals and ecological communities. They cite the lack of or incomplete substantial field methodology data. They claim no surveys were conducted for breeding birds, macroinvertebrates, amphibians or reptiles. In particular, the Concerned Citizens cite circumstantial evidence to support their claim that the DEIS contains inadequate information to conclusively rule out the presence of additional threatened or endangered species. They note the Allegheny watershed supplies excellent habitat for mollusk species, which suggests that a rare, threatened or endangered species of mollusk could be supported in Carpenter Brook on the project site. Further, they claim that the site provides habitat to support the breeding of Circus cyaneus, the northern harrier, and Buteo lineatus, the red-shouldered hawk, both of which are threatened in New York State, and that due to a lack of a breeding bird survey in the DEIS, the presence or absence of these birds on the site cannot be confirmed. They further claim that their preclusion from the site has impaired their ability to gather information necessary to support their contentions regarding the potential presence of these species.

With respect to the potential existence of a threatened plant species and/or critical habitat in the rich graminoid fen within the proposed landfill footprint, an adjudicable issue is raised. I carefully reviewed the DEIS regarding this matter, and have determined the information provided by the Applicant is not convincing that the shrubby St. Johnswort or its critical habitat could not be found in the rich graminoid fen within the landfill footprint. However, as an alternative to immediately adjudicating this issue, it may be more appropriate for the Applicant to undertake a supplemental comprehensive examination of the site, particularly in the rich graminoid fen within the proposed landfill footprint, to determine the presence or absence of additional representatives of this species and the critical habitat which would support these threatened plants. Adjustment of the proposed landfill footprint or other appropriate mitigating measures could ultimately resolve this issue.

With respect to the presence of any other endangered or threatened species of animals, plants or ecological communities, the Applicant acknowledges that additional threatened species could occur on or in close proximity to the site. However, no species other than those identified in the DEIS were observed on or near the site during the year long investigation of ecological resources in the area of the site. The offer of proof submitted by the Concerned Citizens is too speculative and insufficient to raise this issue to the level which requires adjudication.

- Freshwater Wetlands, 6 NYCRR 360-1.14(c)(4) or amended 6 NYCRR 360-1.7(a)(2)(iv)

With respect to the Concerned Citizens' proposed issue of potential federal jurisdictional wetlands being present on the site, also raised by the County/City, neither the siting regulations in the prior version of 6 NYCRR 360-2.12 nor even the amended regulations in 6 NYCRR 360-2.12(c)(8), if they were applicable, absolutely preclude the siting of a solid waste management facility if federal wetlands are located on a proposed site. In the presence of federal wetlands, an applicant must secure the appropriate permit from the U.S. Army Corps of Engineers, not from this Department. Under the amended siting regulations, not applicable in this instance, an applicant must also be able to make a series of demonstrations to the Department, but again these are not prohibitions.

The Concerned Citizens contend the rich graminoid fen within the landfill footprint may exhibit characteristics which would allow its delineation as a federal jurisdictional wetland. Currently, there is no indication in the Applicant's submissions that the rich graminoid fen within the proposed landfill footprint, or any other portions of the site, contain federal wetlands. This fen, however, does contain wetland indicator species of vegetation, and may contain other federally defined wetlands criteria. As the Staff has noted, a further investigation could determine if the fen possesses the characteristics of a federally regulated freshwater wetland.

With respect to the potential construction and operation of a solid waste management facility on the site, the Applicant must comply with the amended Part 360 regulations. The provisions of amended 6 NYCRR 360-1.7(a)(2)(iv) are the same as those of the previous 6 NYCRR 360-1.14(c)(4) and do prohibit the construction and operation of any new solid waste management facility within the boundary of a (state) regulated wetland.

However, the Department Staff has determined on the basis of the currently available information there are no state regulated wetlands on the site. Moreover, there is no information in the instant record concerning any requests pending before the Department to amend the Freshwater Wetlands Maps for Cattaraugus County with respect to this site. Even if such requests were pending, amendment of freshwater wetlands maps pursuant to 6 NYCRR 664.7 is a process which must be accomplished in a separate proceeding, not in this adjudicatory hearing.

In any event, the proposed issue regarding potential federal wetlands does not require adjudication in this state proceeding. Furthermore, since there are no state regulated wetlands on the site, there are no statutory or regulatory bars to potential landfill siting. However, it is appropriate for the Applicant to conduct a supplemental wetlands delineation on the site. Depending on the results of the supplemental investigations, it may be appropriate to reconsider these issues at a future date.

- Prohibition of Certain Incompatible Uses Over a Federally Designated Sole Source Aquifer, ECL 15-0514

The Environmental Conservation Law, in 15-0514, addresses the "Prohibition of certain incompatible uses over primary groundwater recharge areas or federally designated sole source aquifers."

The only issue raised by STHA, and endorsed by the County/City, concerns the impact of the proposed Project on the federally designated Cattaraugus Creek sole source aquifer. The federal Environmental Protection Agency, in its narrative description of the Cattaraugus Creek Basin Aquifer System, has recognized that "(r)unoff and leachate from landfills pose a potential contamination problem." The federally designated boundaries of this aquifer do indeed encompass a portion of the Town of Farmersville, Cattaraugus County. The Department, however, has not undertaken any mapping of the recharge area for the Cattaraugus Creek sole source aquifer.

In this instance, neither STHA nor the County/City have made any showing that the preferred site is either within the identified boundaries of the Cattaraugus Creek sole source aquifer or within the recharge area for this aquifer. In fact, the documentation supplied in the post-issues conference submissions of the Department Staff, the County/City, the Town and the Applicant demonstrate that the proposed site is a minimum of two to two and one half miles south of the aquifer's federally designated boundary in the Town of Farmersville. Moreover, the Applicant's proposed site is located in a different drainage basin (Allegheny Basin) than is the Cattaraugus Creek sole source aquifer (Lake Erie Basin). The proposed site is at a location in the Allegheny Basin where surface waters and groundwater ultimately flow south, away from the Cattaraugus Creek sole source aquifer.

No issue is raised for adjudication with respect to the federally designated Cattaraugus Creek sole source aquifer.

- Siting Restrictions [6 NYCRR 360-2.12(c)]

- Principal aquifer, 6 NYCRR 360-2.12(c)(1)

No new landfill may be constructed over primary water supply aquifers or principal aquifers. A primary aquifer is a highly productive aquifer presently being utilized as a source of water supply by a major municipal water supply system. A principal aquifer is one which is known to be highly productive or whose geology suggests abundant potential water supply, but which is not intensively used as a source of water supply by any major municipal system at the present time.

The County/City has presented information which indicates the highly permeable sand and gravel deposits occurring in the Carpenter Brook Valley could be considered as a principal aquifer. The County/City has interpreted the Applicant's hydrogeological information to indicate the "flow till" deposits which underlie a portion of the site are part of a buried valley aquifer within the Carpenter Brook Valley, and that these highly permeable deposits are in direct hydraulic connection with the Ischua Creek Valley aquifer. The County/City has alleged defects in the Applicant's Carpenter Brook Valley Aquifer Study and has proposed the aquifer potential of the permeable deposits underlying and in close proximity to the site is much greater than has been reported in the Applicant's hydrogeologic studies. The County's/City's analysis indicates the areal extent of and the potential yield from these deposits is sufficient to allow the Department to designate the groundwater resource as a principal aquifer. Such a designation could be an impediment to the siting of a landfill at the proposed location.

The Applicant, the Department Staff and the Town's consultant, Rust Environment and Infrastructure Inc., all contend that the conditions of areal extent, saturated deposits of highly permeable materials and obtainable well yields necessary to define a principal aquifer under the Department's guidelines for determining primary and principal aquifers have not been met in the instance of the Carpenter Brook Valley aquifer.

Here, there is a disputed issue of fact regarding the correct interpretation of the Applicant's hydrogeologic data and reports to properly define the capabilities of the potential water supply resource in the vicinity of the preferred site and within the Carpenter Brook Valley. Resolution of this issue could potentially result in denial of a permit, or cause a major modification to the Project and/or the imposition of significant permit conditions on the Applicant. An issue is raised for adjudication.

- Unstable, unmonitorable or unremediable areas, 6 NYCRR 360-2.12(c)(4) and (5)

Landfills must not be located in unstable areas which could lead to structural failure of the facility or in areas where environmental monitoring and site remediation cannot be conducted.

The County/City and the Concerned Citizens contend the Applicant's preferred site encompasses a very steep slope which, when covered with the mandatory depth of low permeability soil over bedrock, the liner system and then potentially 150 feet of solid waste overburden, will become dangerously unstable and subject to collapse and landslide which would inundate Route 98 and halt only at the creekbed at the bottom of the slope. They also note that because of the complex hydrogeology of the site, it may not be monitorable or remediable.

The issues raised by the County/City and the Concerned Citizens regarding the Applicant's choice of a site which is potentially unstable and unmonitorable are based on the incomplete nature of the Applicant's submissions for these issues for conceptual review purposes. While the Staff's analysis of these two issues does not indicate either that the site is inherently unstable or that a monitoring scheme is unachievable, the Staff noted that the detailed consideration of both matters must await the completion of the Applicant's engineering and design plans to be considered in any subsequent phase of review.

The Applicant proposes to extensively rework soils in the landfill footprint portion of the site to address stability issues. The Applicant will also be submitting a detailed monitoring plan for the site. However, the prospect that both these issues will be thoroughly considered in the event the Applicant submits a complete permit application for the construction and operation of a landfill on the site is insufficient to determine the acceptability of the preferred site with the applicable siting standards. If the Applicant desires a conceptual review determination regarding its compliance with these standards, then it must provide the information which will allow an informed decision to be made.

Therefore, a substantive and significant issue has been raised regarding the ability of the Applicant to meet the stability, monitorability and remediability requirements in the applicable siting regulations. The primary purpose of conceptual review related to landfill siting is to resolve in the conceptual review process those issues which relate specifically to siting in order that they will not require adjudication in any future proceedings. Without information adequate to conduct a comprehensive conceptual review of the Applicant's proposal, no decision can be made regarding the acceptability of the preferred site with regard to the siting standards in 6 NYCRR Part 360. Thus, the issues of site stability and monitorability and remediability are adjudicable issues in the instant proceeding.

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

The various site selection study requirements which have been raised by the County/City, the Town and the Concerned Citizens in several instances overlap. These issues pertain to the nature of the unconsolidated deposits, the characterization of the bedrock and groundwater flow patterns on and around the site. In the several instances where the intervenors referenced the amended 360-2.13, related to hydrogeological requirements in the construction of a landfill, such references are not applicable to the conceptual review of siting.

However, the intervenors have raised issues regarding the Applicant's compliance with the requirements of 6 NYCRR 360-2.12(d)(1), (2) and (3). The siting requirements in 6 NYCRR 360-2.12(d) state, "The following criteria must be considered in a landfill site selection study". However, these requirements in 360-2.12(d)(1), (2) and (3) go beyond being just a consideration, as the requirements, respectively, contain the phrases, "must be those most likely to minimize", "must be avoided", and "must be considered in finding areas". The "considerations" in paragraphs (1), (2) and (3) of this section, then, are mandatory requirements with which all applicants must comply.

- Low permeability unconsolidated deposits, 6 NYCRR 360-2.12(d)(1)

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

The landfill siting regulations applicable in this instance do not contain specific vertical distance requirements between the bottom of a landfill liner system, groundwater and bedrock. These vertical separation requirements are contained in the landfill construction requirements, 6 NYCRR 360-2.13, as amended.

The intervenors cite the Applicant's own studies as evidence the on-site conditions are such that permeability requirements cannot be met on the preferred site.

With respect to permeability of the underlying soils, the Applicant proposes to provide mitigating measures which will address the expressed concerns. The information before me does not indicate that these issues are not insurmountable, if state-of-the-art engineering practices are appropriately employed. However, compliance with the requirement for low permeability unconsolidated deposits cannot be determined until the Applicant's mitigation plans are known.

The site conditions related to low permeability unconsolidated deposits may not necessarily preclude the siting of a solid waste management facility at the proposed location. However, no determination can be made in this regard without reviewing the Applicant's detailed plans for its site work which will address, among other items, the permeability concerns. The issue of soil permeability, then, is substantive and significant in order to determine compliance with 6 NYCRR 360-2.12(d)(1). Failure to address this issue during the conceptual review proceeding will jeopardize any determination on acceptability of the site with respect to the applicable siting standards. Therefore, an adjudicable issue is raised

- Characterization of bedrock conditions, 6 NYCRR 360-2.12(d)(2)

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

The Applicant's characterization of the bedrock conditions under the site has been disputed by the intervenors. Specifically, the County/City and the Concerned Citizens contend the site is underlain by bedrock subject to rapid or unpredictable groundwater flow. These intervenors would present evidence that the Applicant's hydrogeologic investigations of bedrock are inadequate to accurately predict the groundwater flow conditions under the site, and also that the available information in the Applicant's studies misrepresents the occurrence and complexity of groundwater flow in the site's underlying bedrock.

The type of bedrock typically subject to rapid or unpredictable groundwater flow is found in limestone, dolomite or other soluble deposits. However, the preferred site is underlain by mostly sandstone and shales, which may have fissures, thereby perhaps accounting for the loss of drilling fluid in several of the Applicant's drilling operations. The underlying bedrock deposits generally do not exhibit the properties which would typically make them susceptible to rapid or unpredictable groundwater flows. Nevertheless, it is critical to the Applicant's ability to monitor and possibly remediate the site to have a comprehensive understanding of the site's groundwater flow characteristics, not only through the unconsolidated deposits, but also through the underlying bedrock.

There is a factual dispute regarding the characterization of the bedrock deposits underlying the site. Moreover, the nature of the underlying deposits is related to the issue of permeability, and therefore, monitorability and remediability, as discussed above. This issue must be comprehensively addressed prior any determination that the site selected by the Applicant is acceptable with respect to the siting standards in 6 NYCRR Part 360. The issue of bedrock characterization, then, is appropriate for adjudication during the instant site selection proceedings.

- Groundwater flow/Groundwater divide, 6 NYCRR 360-2.12(d)(3)

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

Consideration of the on-site and proximate groundwater flow conditions is an issue on which the intervenors dispute the Applicant's analysis of the subsurface conditions on the site. This issue concerns the ability of the site to contain or transmit leachate which might escape the liner system, as well as the monitorability and remediability of the site. The County/City proposed witness has provided information indicating the Applicant's analysis of the groundwater flow regime was based upon potentially inadequate test well data.

As noted above, the Applicant proposed to submit its detailed monitoring and remediation plans at a future date as part of its anticipated construction and operation permit application. Since the groundwater flow characterization is important to determining the design of the Applicant's site monitoring and remediation plans, the matter of groundwater flow patterns must be resolved in the site selection process.

The characteristics of the groundwater flow conditions are extremely important to the consideration of several siting restrictions and requirements. Based on groundwater flow patterns, it is possible that an appropriate monitoring and remediation design might require a major modification of the Project or require the imposition of significant permit conditions. The issue of groundwater flow patterns is a substantive and significant issue which requires adjudication.

In a related issue the Town raised concerns related to the currently proposed footprint of the landfill being situated just south of, and parallel to, a groundwater divide between the Johnson Creek Valley watershed to the north and the Carpenter Brook Valley watershed to the south. As presently depicted in the Applicant's proposal, the northern toe of the landfill footprint is approximately at the apex of the hillside, in the same area as the groundwater divide which trends along the axis of the crest of the ridge.

Several of the issues conference participants, including the Applicant, have acknowledged the potential for fluctuation of the groundwater divide at this location. It is not inconceivable that leachate leakage through the entire liner/leachate collection system of any landfill at this location could enter the northward groundwater flow in the more permeable Johnson Creek Valley watershed.

As noted above, the issues of groundwater flow patterns and characterization of bedrock on the site are adjudicable issues in the instant proceeding. Location of the landfill footprint with respect to any groundwater divide on the site is subject to design details which may evolve from the Applicant at a future date. However, the Applicant is hereby placed on notice that location of any landfill footprint at or near the groundwater divide, or any surface water divide, on the site is a design/engineering feature which may be a legitimate issue for adjudication in any future proceedings.

Acceptability of Site Selection Methodologies

- Site Selection Criteria [6 NYCRR 360-2.12(e)]

The following criteria must be considered when evaluating the environmental suitability of potential landfill sites:

  1. population density and anticipated growth, both around the site and around major transportation routes to the facility;
  2. adequacy of transport routes for the anticipated additional traffic and any increased safety hazards which might result;
  3. proximity to incompatible structures, e.g. - schools, churches, nursing homes, hospitals, commercial districts, etc.
  4. proximity to utility lines and the likely effects, if any, the facility may have on them;
  5. impacts on the host community including conformance with local land use planning and zoning restrictions and any financial impacts on the community;
  6. risk due to fires and availability of appropriate emergency services;
  7. impacts on the environment including air quality and visual impacts;
  8. proximity to open space, cultural, historical and recreational resources; and
  9. impacts on agriculture and agricultural lands.

The applicable site selection regulations in 6 NYCRR 360-2.12(e) only require that the above criteria be "considered" in a site selection study. There is no requirement which mandates the level of consideration. A reasonable interpretation of the regulations is that the above criteria must be considered in a rational way. Failure of an applicant to consider these factors at all or failure to consider them in a rational manner would be cause to raise an issue. However, if an applicant has considered these criteria in a rational way in the site selection study, there is no basis under the regulations to raise an issue.

The issues related to the above site evaluation criteria were predominantly proposed by the Concerned Professionals, but also were mentioned by the Concerned Citizens and the County/City. These three groups cite a variety of concerns related to the evaluation of the criteria in 360-2.12(e) in the Applicant's siting study. Generally, the concerns raised relate to an allegation of inadequate consideration of the primarily socio-economic criteria and human impacts related to landfill siting. The areas of concern are the alleged insufficient evaluation of the Project's impacts on population density and anticipated growth, adequacy of transport routes, impacts on the host community including conformance with local land use planning and zoning restrictions and any financial impacts on the community, impacts on the environment including air quality and visual impacts, proximity to open space, cultural, historical and recreational resources, and impacts on agriculture and agricultural lands.

The Applicant's DEIS and Site Selection Study have both considered and described the potential impacts which the Applicant anticipates regarding each of the above factors. The manner in which the Applicant has dealt with each of these factors cannot be said to be irrational. The treatment of each of the factors in these documents may not be as exhaustive as desired by the intervenors, and the conclusions drawn by the Applicant may be substantially different from those of the intervenors. However, there is sufficient supporting documentation to demonstrate that each of these criteria was considered rationally and adequately in order for the Applicant to seek conceptual approval of its preferred site. With respect to the "consideration" of the listed criteria, that is all the regulations require.

No issues are raised with respect to the above criteria which would cause the Applicant to fail to meet the requisite statutory or regulatory standards, or which would cause ultimate denial of a permit, major modification to the proposed Project or the imposition of significant permit conditions. The Applicant has satisfied the intent of the regulations in 6 NYCRR 360-2.12(e). Therefore, these issues do not warrant adjudication.

- Application of and Weighing of Site Selection Criteria

In a related issue proposed for adjudication, the County/City, the Concerned Citizens and the Concerned Professionals all contend that the requirements set forth in 6 NYCRR 360-2.12 for a site selection study have not been met by the Applicant. They cite an inconsistency in the way the Applicant applied and weighed the screening criteria among the 81 sites initially identified by the Applicant.

Due to the request of the Applicant to limit this conceptual review to only its preferred site, the acceptability of the implementation of the methodologies, or in other words, the manner in which the Applicant applied its screening criteria to other identified sites is not an adjudicable issue in the instant proceeding.

Suitability of the Site for the Size and Type Facility Proposed

- Need for the Facility

The County/City has raised the issue of "need" for the proposed facility, in that the facility is not part of the Cattaraugus County approved Solid Waste Management Plan.

In this instance, the authority to inquire into the need for the proposed facility is founded in the State Environmental Quality Review Act, ECL Article 8.

The County/City has based its offer of proof on the County's approved Solid Waste Management Plan. This plan deals with the disposal of solid wastes from within Cattaraugus County and does not include the proposed facility as being necessary for disposal of the County's solid wastes. The County/City also cites the New York State Solid Waste Management Board April 1994 report entitled, "Solid Waste Disposal Capacity in NYS: A Look Ahead to 1997," as stating, "if the State's 50% reduction/reuse/recycling goal were achieved by 1997 and waste flows freely to facilities that are underutilized, available in-state landfill capacity would essentially be sufficient to meet state disposal needs."

Here, the Applicant has submitted a proposal for a regional merchant-operated facility, drawing its waste stream from a 300 mile radius of the site. The Applicant's proposal goes far beyond the narrow focus of waste disposal options solely within and only for Cattaraugus County. In fact, it is conceivable that the proposed facility might never be utilized for the disposal of any wastes generated within Cattaraugus County. Moreover, the Applicant's proposal extends beyond the scope of New York State disposal capacity with its large interstate, even international, proposed wasteshed.

In this instance, it is sufficient for the Applicant to have determined that the proposed Project is necessary to meet its corporate goals and to satisfy its perception of a requirement for additional solid waste disposal capacity within its defined wasteshed in the foreseeable future. Therefore, there is no adjudicable issue relating to the need for the proposed Project in this conceptual review proceeding. Need, however, is a factor which may be appropriate for adjudication in any forthcoming proceeding in order for the Department to make its mandated SEQRA findings statement.

- Compatibility with the County's Economic Development Plans

The County/City raised an issue regarding the lack of the Project's compatibility with the County's efforts to promote tourism and development in the Route 16 corridor.

The County/City assertions to the contrary, the Applicant, in its Site Selection Study and DEIS, did consider the proposed facility's impacts on cultural and recreational resources and a variety of socioeconomic impacts in the vicinity of the preferred site. The Applicant's consideration of these factors was not irrational, even though its conclusions in this regard are at odds with those of the County/City.

However, there is no requirement under the applicable siting regulations that the proposed Project must be consistent with or compatible with the County's land use and economic goals.

Therefore, in the absence of any applicable regulatory criteria, there are no issues raised for adjudication of the compatibility with the County's tourism and development efforts.

Miscellaneous

- Engineering and Design

The potential issues raised by the intervenors which are inappropriate for adjudication in the conceptual review process are those related to the detailed design of the proposed landfill footprint and the detailed engineering practices through which an applicant may satisfy the applicable sections of the Part 360 regulations with respect to construction, operation and closure requirements.

Therefore, with respect to issues regarding whether the Applicant can meet minimum separation distances required in 6 NYCRR Part 360, these requirements are part of the regulations which deal with the design and construction of a solid waste management facility, i.e. - current 360-2.13, not part of the siting regulations in the prior 360-2.12. As such, it is appropriate to consider these issues as part of any subsequent permitting process.

Therefore, it is premature to adjudicate issues related to minimum distances to bedrock and groundwater under the landfill footprint. In any future proceeding to consider an application to construct and operate a solid waste management facility on this site, the Applicant has the burden of proof to demonstrate compliance with the applicable statutory and regulatory criteria for permit issuance. Any issues which are then determined to be substantive and significant will be adjudicated in view of the construction and operation requirements of 6 NYCRR Part 360, as amended.

- Record of Compliance

A proposed issue which does not fit into the above categories relates to the Applicant's fitness to receive the requested permits or the Applicant's record of compliance. The Applicant's record of compliance issue is not yet ripe for adjudication. The Department Staff has indicated that its investigation of this issue is not yet complete. The Staff has suggested that, should it be necessary to adjudicate record of compliance as an issue, it would be appropriate to consider this issue in any subsequent proceedings. I concur.

At this time, it is premature to adjudicate the issue of the Applicant's record of compliance. This issue may, however, be appropriate for consideration in any future permit hearing.

Ruling on Party Status

Pursuant to 6 NYCRR 624.5(a), the Applicant and the assigned Department Staff are automatically full parties to the proceeding. The other above listed participants, except for the Concerned Professionals, have applied for full party status to participate in any adjudicatory hearing which may be held in this matter. The Concerned Professionals initially applied for full party status, but based upon discussions with the ALJ during the issues conference, the Concerned Professionals modified their request to apply for amicus status.

Pursuant to 6 NYCRR 624.5(d), the ALJ's ruling on entitlement to full party status will be based on: (i) a finding that the petitioner has filed an acceptable petition pursuant to paragraphs 624.5(b)(1) and (2); (ii) a finding that the petitioner has raised a substantive and significant issue or that the petitioner can make a meaningful contribution to the record regarding a substantive and significant issue raised by another party; and (iii) a demonstration of adequate environmental interest. The ALJ's ruling on entitlement to amicus status must be based upon: (i) a finding that the petitioner has filed an acceptable petition pursuant to paragraphs 624.5(b)(1) and (3); (ii) a finding that the petitioner has identified a legal or policy issue which needs to be resolved by the hearing; and (iii) a finding that the petitioner has a sufficient interest in the resolution of such issue and through expertise, special knowledge or unique perspective may contribute materially to the record on such issue.

In conjunction with the above rulings, I am granting full party status to the combined entity of Cattaraugus County and the City of Olean, to the Town of Farmersville and to the Concerned Citizens of Cattaraugus County. To the extent the issues proposed by each of these parties are identical or overlap, the three parties are directed to provide a consolidated presentation for the hearing record.

The issues raised by the Group of Concerned Professionals are primarily socio-economic and human impact issues which do not warrant adjudication. Although the Concerned Professionals have also raised the issue of acceptability of the site selection methodology, they have keyed all of their comments to the applicant's alleged improper weighing of social, economic and human impact factors. Since these issues are not adjudicable, the petition of this Group for amicus status is denied.

Since the only issue raised by STHA relates to the federally designated Cattaraugus Creek sole source aquifer, and since this issue does not require adjudication, the South Towns Homeowners Association, Inc. petition for party status is denied.

Preparation for an Adjudicatory Hearing

The principal function of an adjudicatory hearing is to resolve disputed issues of fact. Since the above rulings on proposed issues have identified several disputed issues of fact, I am ordering an adjudicatory hearing be held in this matter to consider the conceptual review of the Applicant's preferred site for its proposed Project. The hearing will be limited in scope to issues identified above.

A proper adjudication of the above issues will likely depend upon the Applicant's collection and development of additional specific technical information and the availability of expert witnesses for the Applicant. Therefore, I direct the Applicant to provide to the Service List at the earliest opportunity all pertinent information, not already available in its application papers and the DEIS, relating to the above listed issues upon which it intends to rely in the presentation of its direct case. I also direct the Applicant to provide to the Service List a list of the witnesses, with curriculum vitaes, whom it proposes for each of the above listed issues, along with an outline of each witness's direct testimony.

Upon my receipt and review of the above information, I will establish a timetable by which the Department Staff and intervening parties shall submit to the Service List a list of their respective witnesses, with curriculum vitaes, and an outline of each witness's direct testimony. Simultaneously, with input from the parties, I will schedule the adjudicatory hearing.

Once the adjudicatory hearing is commenced, I anticipate going forward on a day-to-day Tuesday morning through early Friday afternoon schedule, subject to modification depending on special circumstances. The order for presentation of cases will be Applicant first, followed by the Department Staff, and then the Intervenors.

Appeals

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

Any appeals must be received at the office of Commissioner Langdon Marsh (NYSDEC, Room 604, 50 Wolf Road, Albany, New York 12233-5500) no later than December 23, 1994. Additionally, responses to the initial appeals will be allowed. All responses must be received as above no later than January 4, 1995.

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

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