Monroe County (Mill Seat) - Commissioner Ruling, April 14, 1993
Commissioner Ruling, April 14, 1993
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 WOLF ROAD
ALBANY, NEW YORK 12233-1550
In the Matter
- of the -
Application of MONROE COUNTY to construct and operate the MILL SEAT SOLID WASTE LANDFILL in the Town of Riga, Monroe County
RULING ON MOTION TO REOPEN THE HEARING
April 14, 1993
The captioned matter was the subject of an Interim Decision dated July 2, 1991 which held that there were no issues for adjudication. The Interim Decision remanded the matter to Staff to complete certain outstanding permit processing matters and to then issue permits for the project. A final permit to construct was issued on August 6, 1991. The construction of the facility is now complete as is the Staff's review of the construction and related submittals. The permit to operate is pending for issuance.
The issuance of construction permits to the Applicant was challenged in a petition filed pursuant to Article 78 of the CPLR by some of the parties who had sought to intervene in the administrative proceeding. On March 2, 1992, the Supreme Court, Monroe County, essentially affirmed the Department's actions and dismissed the petition. The petitioners then appealed the Supreme Court decision to the Appellate Division, Fourth Department, where as yet, no decision has been rendered.
By letter dated February 26, 1993, the Environmental Committee of Riga, Inc. ("ECOR") and the Residents of Bergen Believe in the Environment and Democracy ("ROBBED") (collectively referred to as "the Petitioners") filed a petition requesting that the previously granted permit be suspended or revoked pursuant to 6 NYCRR 621.14(1) and (4) and that adjudicatory hearings be held regarding the several issues covered in the petition. The principal basis for requesting this relief is the allegation that there is newly discovered information which indicates that the previous determination not to hold an adjudicatory hearing was based on materially inaccurate documents. By letter dated March 3, 1993, the Office of Hearings, on my behalf, indicated that it would treat the request as a petition to reopen the hearing and established a schedule for interested parties to respond and reply.
The procedures for permit modification and revocation pursuant to 6 NYCRR 621.14 are only available where the Department Staff determines that such action is justified on grounds set forth in that regulation. In fact, even though a third party may petition Staff to take action pursuant to that provision, the regulation is clear that, if Staff declines to do so, the petitioning party has no administrative recourse (6 NYCRR 621.14(a)). Accordingly, as noted above, the instant petition is being considered as a request to reopen the above mentioned hearing.
Although there is no explicit provision in 6 NYCRR Part 624 (Permit Hearing Procedures) to reopen a final decision, the Department does have inherent authority to do so. In the absence of any explicit provision for reopening, the standard for so doing should be the same as the standard for reopening a civil judgment (see CPLR 5015). The bases alleged in the petition for reopening the hearing are encompassed by CPLR 5015(a)(2) - "newly discovered evidence which, if introduced at trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404."
In the context of the Department's permit hearing rules, in order for evidence from an intervenor to affect the outcome of the hearing (let alone to be found likely to produce a different result), it is first necessary that the evidence be judged sufficient to raise a substantive and significant issue for adjudication (see 6 NYCRR 624.6(c)). Therefore, Petitioners need to demonstrate that there is new information which was not previously available and that the information raises a substantive and significant issue about whether the project, as conditioned in the permit, meets all applicable standards in law and regulation including compliance with the State Environmental Quality Review Act ("SEQRA").
The submittals do not demonstrate the existence of any new information that was not previously available. A new analysis of existing information does not constitute new information previously unavailable unless accompanied by a satisfactory explanation of why such analysis could not have been performed at the time that the hearing was pending. While Petitioners disagree with the Applicant's interpretation of hydrogeologic data, they have also failed to point to any materially false information in the application. Nor does evidence of alleged fluctuation in tipping fees constitute new information since changes in those fees were always anticipated. However, given the Petitioners' concerns about the potential for groundwater contamination, I have decided to address the petition on its merits nonetheless.
Even overlooking Petitioners' failure to demonstrate that there is any new information that was unavailable at the time of the hearing, they must still demonstrate that their submittal raises a substantive and significant issue for adjudication, i.e. one that has some realistic potential for changing the decision. That demonstration is not automatically made by the submission of testimony or a report from an expert which runs counter the analysis of the Applicant (In the Matter of Jay Giardina, Interim Decision of the Commissioner, September 21, 1990). Rather, such a determination is only reached after a qualitative review of the strength of the parties' submittals. That review follows.
ECOR and ROBBED rely on a report prepared by Stephen W. Smith of Geo Hydro Cycle, Inc. (the "Smith Report") to articulate their concerns with hydrogeology work performed by the Applicant. Those concerns fall into four areas that will be addressed below: (1) the permeability of the overburden soils; (2) the hydraulic characteristics of the bedrock; (3) the adequacy of off-site investigations; and (4) the adequacy of a landfill designed and constructed in accordance with 6 NYCRR Part 360 ("Part 360") and the Technical and Operation Guidance Series ("TOGS") issued by the Department's Division of Water.
Permeability of the Overburden Soils
With respect to the overburden permeability testing, the Smith Report alleges that "... the raw field data was absent, line plots were presented without justification and several plots and analyses were not presented" (Smith Report at pg. 6). On this basis, the Smith Report claims that it is difficult to reproduce the results obtained by the Applicant's consultant, Haley and Aldrich ("H&A") and that therefore the results should be considered unreliable.
The Smith Report calls invalid all permeability calculations using wells that did not recover to at least 90% of the static water level existing in the well. It selects 10 permeability tests where the 90% recovery criterion was met and recalculates the permeabilities using Hvorslev basic time lag method, the Hvorslev variable head method and the Bouwer and Rice method. Using these results, it calculates an arithmetic mean which it holds represents the permeability of the overburden soils. The mean calculated in the Smith Report is more than two orders of magnitude greater than the comparable number reached in the H&A report.
At the outset, it must be noted that the allegation concerning the unavailability of raw data is simply untrue. The data has been available upon request for several years through the Applicant or the Department.
The point of departure for the Smith Report was that the use of wells that do not recover to at least the 90% criterion cannot be validly used to predict permeability. However, this criterion was assumed and no scientific justification was provided. The only justification offered was a citation to an article by Herman Bouwer in the Journal of the Association of Groundwater Scientists and Engineers (Vol. 27, No. 3, May-June 1989). Review of this article finds no support whatsoever for the criterion cited by Smith.
The only reference to limiting the analysis of data from wells that have recovered to 90% of equilibrium is found in the Hvorslev methodology. The purpose behind selecting a 90% recovery (or any other recovery) is to provide reasonable assurances that the data is representative of the permeability in the tested sediments. However, the instances where waiting for 90% recovery will prove to be impractical are precisely those instances where the sediments exhibit the characteristics being sought, i.e. very low permeability. Instead of relying upon a 90% recovery to provide the reasonable assurance that the data is representative, that same assurance is provided where the data points fall on a straight line over a sufficiently long period of time. The period of time must be long enough to eliminate errors which could be caused by other well influences, i.e. permeability of the sand pack surrounding the well screen. This is precisely the situation that is found in the Hvorslev plots calculated by H&A in Hydrogeologic Report, Volume 2, Appendix C which are the tests which Smith has criticized.
The Applicant also computed the permeabilities of overburden soils using the Bouwer and Rice method. Bouwer, in his 1989 article cited above, does not recommend or even mention that achieving 90% of equilibrium is necessary or even desirable. However, the Bouwer and Rice method is emphatic on eliminating portions of the plot that are either indicative of effects of the sand pack on the early stages of the test or head differences in the later portion of the test. This is precisely the approach used by the Applicant. The close correlation between the permeability calculations that resulted from using the Hvorslev method and from using the Bouwer and Rice method lend further support to the accuracy of the permeabilities reported by the Applicant.
Furthermore, the methodology used by the Smith Report to calculate the permeability has serious flaws on its face. First, six of the ten permeability tests used in Smith's calculations are from wells that are either screened across both overburden and top of bedrock (interface wells) or are screened completely in bedrock. It is obvious that the results of permeability tests from these wells are not representative of the permeability in the overburden soils. The inclusion of tests from wells screened in the interface and in bedrock improperly skew the result to a higher permeability.
Second, as a matter of statistical analysis, the use of an arithmetic mean by Smith, in contrast to the geometric mean used by H&A, is unsound. Treatises that address this topic indicate that the arithmetic mean is inappropriate where the data is based on a relatively small population and is either logarithmically derived (Statistics and Data Analysis in Geology, John C. Davis, 1973, Chapter 3, pgs. 54-123), exponential (Biometry, R.R. Sokol and F.J. Rohlf, 1981, pg. 42 and 419) or fails to exhibit normal distribution characteristics, (Air Monitoring Survey Design, Kenneth E. Noll and Terry L. Miller, 1977, pgs. 253-258; Statistical Analysis of Air Quality Data, New York State Department of Health, Division of Air Resources, 1964/1965/1966, pgs. 2 and 3). In this case, the data has all three attributes. Because he inappropriately used an arithmetic mean of the data, the Smith's result shows an anomalously high permeability for the overburden soils. Although he recalculated the mean using a geometric mean in his reply submittal dated March 17, 1993, Smith continued to use data from wells that were screened in the interface or in bedrock itself. Therefore, his recalculated average is also scientifically invalid.
Finally, in his reply, he raised the possibility that the test wells might not have been developed properly which, in turn, could result in the presence of sediment that would clog the well screen and cause anomalously low permeability readings. No basis was provided in the reply for this statement. The Work Plan for Supplemental Hydrogeologic Studies dated June 1987 sets forth the specific procedures used to ensure that all monitoring wells would be developed free of sediment. These procedures provide solid assurances that permeability readings are not distorted by clogging.
Most importantly, however, the Department has not relied solely on the testing procedures to assure that the overburden soils have a sufficiently low permeability. The Applicant committed to excavate any area that had coarse-grained material and to replace that undesirable soil with low permeability glacial till (Engineering Report, August 1990, section 2.3 - Subgrade Preparation). The construction certification report for the Mill Seat Landfill, January 1992, Contract #1, Stage 1, Site Preparation and Brew Road Construction, demonstrates that the excavation and replacement procedures were adhered to and that all permeability testing conducted on subgrade materials yielded results of less than 5 x 10-6 cm/sec.
In summary, both the Applicant's data and its methodology for calculating permeabilities in the overburden soils are sound while the Smith methodology lacks a sufficient scientific basis to warrant further consideration. Additionally, testing performed during construction demonstrates that all subgrade materials actually underlying the landfill meet the standards for permeability.
Hydraulic Characteristics of the Bedrock Aquifer
Contrary to the finding of the Applicant, the Smith Report claims that the bedrock aquifer is subject to rapid groundwater flow. It attributes this characteristic to "...the channels which have formed in the rock by solutioning of evaporates" (Smith Report at pg. 4). The Report alleges that information contained in the application itself supports the conclusion that the site overlies a bedrock aquifer that is subject to rapid groundwater flow, without thick, low permeability cover. It goes on to conclude, that this condition contravenes the purpose and intent of 6 NYCRR 360-2.12(d)(2). It also states that the Applicant's hydrogeologic report did not comply with the requirements of 6 NYCRR 360-2.11(b).
The Smith Report provides no support for its statement that the aquifer contains channels, which is the sole basis for its conclusion that the bedrock aquifer is highly permeable. There is no record in any well log which indicates that there are channels in the aquifer. Though the logs describe interbedded shale and dolomite with numerous gypsum filled fractures, these structures are not channels that could serve as pathways for rapid groundwater flow (Hydrogeology Report, Vol. 2, Appendix C).
The Smith Report itself states that the aquifer responds in a homogeneous and uniform manner. This statement, which is supported by the Applicant's permeability and pump tests, directly contradicts the existence of channelized bedrock. The Smith Report simply ignores this evidence. In fact, all testing that has been done to date supports the Applicant's conclusion not Smith's.
Nor does the argument that the site characteristics are inconsistent with the purpose and intent of 6 NYCRR 360-2.12(d)(2) have any merit. The clearest and most authoritative statement of the purpose and intent of that regulation is set forth in the rulemaking documents related to its adoption. In the rulemaking documents, it is stated that the rule is intended to limit landfill sites over karst limestone bedrock formations, unless the bedrock is overlain by thick, low permeability material (see Final Environmental Impact Statement and Responsiveness Summary for Revisions to Part 360, August 1988, pg. RS 2-41). In the case of Mill Seat, the bedrock is not karst limestone and furthermore, it has been shown that the bedrock is overlain by thick low permeability material. The overburden soils have an in-situ permeability of 10-6 cm/sec and in no instance will the thickness of the low permeability soils be less than 10 feet between the liner and the bedrock.
The Smith Report suggests that the aquifer underlying the Mill Seat site should be a primary or principal aquifer, thus warranting a higher degree of environmental protection. Neither designation is warranted under the definitions in Part 360 and TOGS 2.1.3 The natural background water quality of the bedrock aquifer exceeds New York State Department of Health standards for iron, manganese, sulfate and hardness while total dissolved solids are significantly high and aesthetically undesirable for human consumption (See TOGS 2.1.3, pg. 3 - Productivity, and natural water quality).
Finally, I conclude that the hydrogeologic report does meet the requirements of 6 NYCRR 360-2.11(b). Petitioners allegation to the contrary is without merit as it fails to cite to any specific deficiency.
Adequacy of Off-Site Investigations
The Smith Report criticizes the conclusions of the Applicant's hydrogeologic report with respect to possible groundwater flow in the bedrock aquifer to the south as well as the nature and extent of an identified zone of lower permeability between the site and the Bergen/Comstock well field to the northwest. The criticism is based upon what is termed "incomplete data by the Applicant."
The Applicant's hydrogeologic report shows that the bedrock flow under the entire site is indeed to the north and northeast and not to the south. Even if, as speculated in the Smith Report, a groundwater divide does exist south of the site, it is still physically impossible for that southerly flow of groundwater in the bedrock to influence the direction of the flow of any contaminants that might escape the landfill.
Through the use of slug tests of wells between the site and Bergen/Comstock well field and pump test response, the Applicant's hydrogeologic report also shows there is an area of low permeability in the bedrock that lies north-northwest of the site. This is consistent with other information showing that the flow of groundwater is to north and northeast, rather than in the direction of the Bergen well field. In fact, the Village of Bergen itself, which had originally raised this concern before the Administrative Law Judge, recognized that the data demonstrated that there was no possibility that its well field would be contaminated and withdrew the issue from consideration before my July 2, 1991 Interim Decision was issued.
The Adequacy of a Landfill Designed and Constructed in Accordance with Part 360 and the TOGS.
The Smith Report questions the ability of a double composite lined landfill to successfully contain leachate and prevent contamination of the bedrock aquifer. It does so based on a single article entitled Field Behavior of Double Liner Systems (Geotechnical Special Publication No. 26, Bonaparte, R. and Gross, B.A., American Society of Civil Engineers, 1990).
A permit proceeding is not an appropriate forum for contesting the adequacy of regulatory standards generically. If there are site specific conditions that warrant greater protection than those afforded by the standards, the permit proceeding may be used as a vehicle to examine those conditions and to fashion an appropriate remedy. Here, however, the Petitioners' challenge the efficacy of the double composite liners is generic. While consideration of the adequacy of this requirement should be through the rulemaking process, I will examine the merits of the arguments so that there will be no doubt that all aspects of Petitioners' argument have received due consideration.
Review of the content of the article cited by Smith demonstrates that there is no basis for concern relative to the performance of double composite liners. Although the article supports the use of double composite lined landfills and concludes that they are protective of the environment, Smith has taken selected excerpts from the text and speculated on potential leakage without taking into account the action leakage rate, the actual permeability of the underlying till soils, the effect of the groundwater suppression system in capturing any fugitive leachate and the correct hydraulic characteristics of the bedrock aquifer. Smith's lack of knowledge of landfills and landfill behavior is most apparent in his statements on the possibility of groundwater leakage into the landfill through leaks in the liner system as a cause of contamination exiting the landfill. In reality, if the groundwater gradient were directed into the landfill, leachate could not exit the landfill.
Contrary to the Petitioners' charge that the Applicant has selectively used data to support its position, it is obvious from this review that the Applicant's hydrogeologic review is scientifically sound and supplies a fair and accurate representation of site conditions. It is the Smith Report that uses data selectively and utilizes unscientific methods to justify what appears to be a preordained result.
Financial Viability of the Landfill
The Petitioners contend that events subsequent to the rendering of my July 2, 1991 decision demonstrate that the landfill is no longer an economically viable project. Specifically, they argue that the loss of revenues from competition from private landfills may compel an increase in the tipping fee.
Most fundamentally, the economic viability of a project is a matter to be addressed by the project sponsor. The decision on the acceptability of any given tipping fee is uniquely a local one. Furthermore, the Petitioners have also failed to make any substantive offer of proof on the economics of the landfill.
The Petitioners have presented no basis whatsoever to reopen the hearings or otherwise consider modifying or revoking the Applicant's permits. Staff are directed to issue the operating permits for the landfill as soon as possible.
IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Ruling on Motion to Reopen the Hearing 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 14th day of April, 1993.
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
THOMAS C. JORLING,