Skip to main navigation

Oneida-Herkimer Solid Waste Management Authority (Ava Landfill) - Decision, March 19, 2004

Decision, March 19, 2004

The Oneida-Herkimer Solid Waste Management Authority (the "Authority") proposes to construct and operate a full-service sanitary landfill in the Town of Ava, Oneida County. The Authority seeks a variety of permits and variances from the Department of Environmental Conservation ("Department") in order to construct and operate the landfill.

In his hearing report (attached), Administrative Law Judge ("ALJ") Edward Buhrmaster concluded that the Authority met its burden of proof on all the issues identified for adjudication. Accordingly, he recommends that the permits requested by the Authority be granted, consistent with the drafts prepared by Department Staff.

After reviewing the record in this case, including the parties' comments on the hearing report, I hereby adopt the ALJ's hearing report. The report, together with my comments herein, constitute my decision in this matter. Accordingly, I hereby grant the Authority's permit application.

Permit Application Proceedings

The ALJ's hearing report contains a complete recital of all proceedings leading up to the issuance of that report, which will not be repeated here. In sum, in an interim decision dated April 2, 2002, the following issues were certified for adjudication:

Hydrogeology

• Whether the landfill would be constructed over a principal aquifer in violation of 6 NYCRR 360-2.12(c)(1)(i);

• Whether the Authority correctly characterized the critical stratigraphic section and groundwater flows under the landfill;

• Whether the groundwater suppression system would have the unintended effect of facilitating leachate migration off site;

Wetland Impacts

• Whether the groundwater suppression system would substantially lower the water table at the site and, thereby, adversely impact wetlands and other surface water resources;

• Whether the leachate collection system would substantially alter the hydrology of the site and surrounding wetlands by diverting precipitation;

• Whether the landfill would have an adverse impact on area flood controls;

Threatened Bird Species Habitat Impacts

• Whether the construction or operation of the proposed landfill would cause or contribute to the adverse modification of the critical habitat of several threatened bird species;

Air Quality Impacts

• Whether concentrations of PM10 resulting from the operation of the landfill would exceed National Ambient Air Quality Standards; and

• Whether emissions of the hazardous air pollutants vinyl chloride and acrylonitrile would exceed State guidelines during the life of the landfill.

After extensive hearings on the matter, the ALJ issued a hearing report concluding that the Authority met its burden of proof on all certified issues, and recommending that the permits requested by the Authority be granted. On June 26, 2003, the hearing report was released, pursuant to 6 NYCRR 624.13(a)(2)(ii), as a recommended decision for comment by the parties to the proceedings. The Authority, Department Staff, and project objectors ("Objectors") all filed comments and replies.

Related Proceedings

Previously, on June 17, 2003, Objectors requested that a determination on the Authority's permit application be held in abeyance pending a decision on a related wetlands reclassification request filed with the Department by the Adirondack Communities Advisory League ("ACAL"), one of the Objectors in this proceeding. That request, originally filed in 2002, sought reclassification of State regulated wetland WL-2, which occupies portions of the project site, from Class II to Class I.

By letter dated June 26, 2003, the parties were informed that the Commissioner was reserving decision on the abeyance request until the comment period on the recommended decision expired. In their comments on the recommended decision, Objectors renewed their abeyance request.

By letter determination dated March 19, 2004, I denied ACAL's request to reclassify WL-2 from Class II to Class I. Accordingly, Objectors' request in these proceedings that a determination on the Authority's permit application be held in abeyance has been rendered academic.

Discussion

ALJ Buhrmaster's hearing report contains a complete analysis of the hearing record and the arguments of the parties presented in their closing briefs. For the reasons stated in the hearing report, I affirm and adopt the ALJ's analyses, conclusions, and recommendations concerning the issues adjudicated and the points raised by the parties in their briefs.

One issue raised in the parties' comments on the hearing report, however, requires further discussion. Objectors argue that, prior to permit issuance, the Authority should be required to conduct a full-scale pump test to determine whether a principal aquifer exists under the landfill site. Objectors contend that uncertainties exist concerning the hydrologic productivity of the deep sand/till unit, referred to herein as the "buried valley aquifer," and its confinement or vulnerability to activities at the surface. Objectors assert that a full-scale pump test will confirm, one way or the other, the productivity of the buried valley aquifer and, thus, its status as a principal aquifer. They also claim that such a test would not cause any significant delay, and its cost would be insignificant compared to the overall cost of developing the landfill project.

The Authority argues, as an initial matter, that once the hearing record is closed, no statutory or regulatory authority exists for directing further testing by a permit applicant. In the alternative, the Authority contends that the evidence on the hydrogeology issues is conclusive, especially the evidence supporting the principal aquifer determination. The Authority argues that because the results of a pump test will not undermine the conclusion that the buried valley aquifer is confined, such results will not affect the principal aquifer determination by the ALJ and, thus, the testing is not reasonably necessary. Moreover, the Authority points out that Objectors have had ample opportunity to request permission to conduct their own pump test, but have failed to do so.

Staff argues that the Authority's hydrogeological testing was both extensive and complementary and, therefore, provides a high degree of confidence in the Authority's site characterization. Staff contends that the aquifer determination process used in this case -- independent review by two different Department divisions, the Division of Water and the Division of Solid and Hazardous Materials -- also provides for a high degree of reliability. Staff concludes that because the current record provides a reasonable and adequate basis upon which to evaluate the permit application, further testing is neither reasonable nor necessary.

As an initial matter, the Authority's argument that additional testing is not authorized once the hearing record is closed is rejected. ECL 70-0117(2) provides:

"At any time during the review of an application for a permit * * * the department may request additional information from the applicant * * * with regard to any matter contained in the application * * * when such additional information is necessary for the department to make any findings or determination required by law"

([emphasis added]; see also 6 NYCRR 621.15[b] [similar]; Matter of Peckham Materials Corp., Interim Decision of the Commissioner, Jan. 27, 1992, at 1 [the sources of authority to require additional information from an applicant during the course of the permitting process are ECL 70-0117(2) and 6 NYCRR 621.15(b)]). Nothing in ECL 70-0117(2) or 6 NYCRR 621.15(b) limits the language "at any time" to any time before the hearing record closes. Thus, if additional information is necessary for the Commissioner to make any findings or determinations on the permit application, the Commissioner is authorized to require such testing, even at this stage of the proceedings.

Even though authority exists to require additional testing by an applicant, based upon this record, and in the exercise of discretion, no further testing is required in this case. Whether additional information should be required of an applicant is determined by asking "whether the information is reasonably necessary to make [the necessary legal and factual] determinations or whether the current record would suffice" (Matter of Peckham Materials, at 2). The determination to require such information is discretionary with the Department (see id.). In the later stages of the review process, such as here -- after release of the ALJ's hearing report as a recommended decision -- however, the discretion to require additional information is more circumscribed than earlier in the process, and should be limited to that information that is important to decision making but lacking in the record (see id.). Information is important at this stage "where there is a likelihood that it will change the basic outcome of this proceeding" (id.).

In determining the sufficiency of the current record, particularly in a landfill siting case under 6 NYCRR part 360, a standard of reasonableness is applied to the technical evidence (see Matter of Hyland Facility Assocs., Decision of the Commissioner, April 13, 1995):

"The regulatory criteria specified in Part 360 are designed to provide environmental protection, as well as certainty to applicants who undertake landfill projects. The level of technical detail required in an application depends upon site conditions, to the extent they are known or can be reasonably inferred from borings, well logs, soil sampling and testing, and other data. Professional judgments supplement this information and assess the level of detail submitted to meet the regulatory criteria, the validity of the data and the probable environmental impacts expected.

To ensure regulatory compliance and conformity, the confidence level assigned to technical evidence must consider regulatory criteria, permit conditions and the reliability of the information. While scientific or engineering "certainty" is a laudable goal, it is an unrealistic expectation in complex environmental matters"

(id. at 2). Instead, a "reasonable standard of judgment" is applied when determining the "sufficiency" of the current record (id.). Even "[i]nadequate or incomplete information should be considered in light of existing 'valid' information" (id.).

Objectors' request for a full-scale pump test is relevant to the issue whether the project would violate 6 NYCRR 360-2.12(c)(1)(i). That regulation provides that no new landfill may be constructed over a principal aquifer. A principal aquifer is defined as:

"a formation or formations known to be highly productive or deposits whose geology suggests abundant potential water supply, but which is not intensively used as a source of water supply by major municipal systems at the present time"

(6 NYCRR 360-1.2[b][10][ii]).

Departmental guidance for determining whether an aquifer should be considered a primary aquifer is provided by Division of Water Technical and Operational Guidance Series (2.1.3.), Primary and Principal Aquifer Determinations ("TOGS"). According to the TOGS, an aquifer will be deemed a "principal aquifer" and, thus, subject to the "enhanced" regulatory protection afforded by section 360-2.12(c)(1)(i), when it is both (1) highly productive -- has the potential to provide water for large populations -- and (2) highly vulnerable -- highly vulnerable to contamination from activities on the land surface directly over the aquifer (see TOGS, at 2).

With respect to aquifer vulnerability, the TOGS provides that where a highly productive aquifer is overlain by thick, continuous impermeable deposits, and the predominant recharge to the aquifer is from land areas outside the aquifer area, the aquifer does not qualify as a principal aquifer (see id. at 3). With respect to aquifer productivity, the TOGS provides several factors to consider in determining whether an aquifer is sufficiently "highly productive" to qualify as a principal aquifer, including the area of the aquifer, the thickness of the saturated deposits, and obtainable well yields (see id. at 6-7).

The ALJ held that the buried valley aquifer underlying the project site is stratigraphically confined and, thus, not highly vulnerable to activities at the landfill site. The ALJ held that the buried valley aquifer is overlain by continuous impermeable deposits, roughly 40 to 160 feet thick, and that the predominant recharge to the aquifer is from land areas outside of the landfill site. He rejected Objectors' specific criticisms of the Authority's testing data and analyses as unpersuasive and unsupported by the physical evidence.

The ALJ held that due to the variability of the permeable deposits within the deep sand/till unit, the lack of significant groundwater recharge to that unit from the overlying tills and bedrock, and the lack of a hydrologic connection to a large surface water body, the buried valley aquifer was unlikely to provide sufficiently sustainable well yields to be considered "highly productive." Given the likely lack of productivity and the lack of vulnerability to surface activities, the ALJ sustained Department Staff's determination that the buried valley aquifer does not qualify as a "principal aquifer" for purposes of the section 360-2.12 siting prohibition.

By requesting that a full-scale pump test be required, Objectors seek to test the ALJ's conclusions concerning the productivity of the buried valley aquifer underlying the project site. At this late stage of the review process, however, additional testing in the form of a full-scale pump test is not reasonably necessary in order to confirm the ALJ's conclusion that the buried valley aquifer does not require the "enhanced" regulatory protection afforded by the section 360-2.12(c)(1)(i) siting prohibition. Objectors' own comments suggest that, although a pump test might provide relevant information concerning the productivity of the buried valley aquifer, it would provide little or no additional information concerning the permeability of the overlying tills. Thus, the results of such a test, whatever they might be, would not undermine the conclusion that the buried valley aquifer is confined and, therefore, not vulnerable to landfill activities at the surface. Accordingly, because the conclusion on a key factor in the principal aquifer determination -- aquifer vulnerability -- would not change, the pump test would not change the basic outcome of the case.⁽¹⁾

Moreover, as Staff contends, the technical evidence supporting the principal aquifer determination is reasonably reliable, and the permit conditions requiring, among other things, extensive environmental monitoring, provide reasonable assurance that applicable regulatory standards will be met and maintained. Thus, the current record provides a sufficient basis upon which to base a determination on the permit application. Accordingly, further testing is not reasonably necessary.

SEQRA Findings and Conclusion

The ALJ's hearing report, taken in conjunction with the entire hearing record and the Final Environmental Impact Statement ("FEIS"), prepared by the Authority as lead agency, affords an adequate basis for my finding, on behalf of the Department as an involved agency pursuant to ECL 8-0109(8) and 6 NYCRR 617.11(c), that the requirements of the State Environmental Quality Review Act ("SEQRA") contained in ECL 8-0109 and 6 NYCRR part 617 have been met, and that, consistent with social, economic, and other essential considerations, including reasonable available alternatives, the Authority's project is one that avoids or minimizes adverse environmental impacts to the maximum extent practicable, and that adverse environmental impacts will be avoided or minimized to the maximum extent practicable by incorporating as conditions to the permits those mitigative measures that were identified as practicable.

Department Staff is hereby directed to issue the permits requested by the Authority, consistent with the drafts prepared by Department Staff.

Albany, New York
March 19, 2004

PROCEEDINGS
Background and Brief Project Description
Legislative Public Hearing
Issues Conference
Rulings on Issues and Party Status
Commissioner's Interim Decision
Resolution of Threatened Bird Species Issue
Pre-Hearing Matters
The Adjudicatory Hearing
Witnesses for the Parties
The Hearing Record

SUMMARY POSITIONS OF THE PARTIES
Position of the Authority and Department Staff
Position of the Objectors

ISSUE NO. 1 - HYDROGEOLOGY
Scope of the Issue
Position of the Authority
Position of Department Staff
Position of the Objectors

FINDINGS OF FACT
Project Description
Leachate Generation, Management and Removal
Drawdown Impacts of Groundwater Suppression System
Surficial and Subsurface Geology
Unconsolidated Deposits
Bedrock
Monitoring of Critical Stratigraphic Section
Groundwater Monitoring Program

DISCUSSION
Introduction
Authority's Site Investigation
Buried Valley Aquifer
Principal Aquifer Issue
Application of TOGS Memorandum
Aquifer Productivity
Area of Aquifer
Thickness of Saturated Deposits
Obtainable Well Yields
Aquifer Vulnerability
The Case for Confinement
Hydrograph Data
Temperature Data
Tritium Data
Nitrate Data
Moose Creek Water Elevation Data
Coliform In Well Water
Conductivity Data
Piper Diagrams
Conclusions
Additional Testing
Pump Test
Geophysical Testing
Additional Tritium Testing
Characterization of Critical Stratigraphic Section
Reliability of Authority's Hydraulic Conductivity Measurements
Field Testing for Horizontal Conductivity
Laboratory Testing for Vertical Conductivity
Bedrock as a Conduit for Contaminants
The Effect of the Leachate Collection System on Area Hydrology
The Effect of the Groundwater Suppression System on the Water Table
The Effect of the Groundwater Suppression System on Contaminant Transport
Modeling of Groundwater Flow in the Critical Stratigraphic Section
Identification of Issue
Modeling Overview
Objectors' Criticisms of Authority Modeling
Assignment of Hydraulic Conductivity Values
Identification of Recharge Rate
Model Calibration
Modeling of Bedrock
Adequacy of MODFLOW
Other Claims
Conclusions

CONCLUSIONS -- HYDROGEOLOGY ISSUES

ISSUE NO. 2 -- AIR QUALITY IMPACTS

VINYL CHLORIDE AND ACRYLONITRILE
Position of the Authority
Position of Department Staff
Position of the Objectors
FINDINGS OF FACT

DISCUSSION
Overview of Testimony
Estimation of Emissions
Methane Estimation
Collection Efficiency

PM-10
FINDINGS OF FACT
DISCUSSION

CONCLUSIONS -- AIR QUALITY ISSUES

RECOMMENDATION

Background and Brief Project Description

The Oneida-Herkimer Solid Waste Management Authority ("the Authority") proposes to construct and operate a full-service sanitary landfill in the Town of Ava, Oneida County. The site, known as WLE-5 East, is four miles west of the Village of Boonville, on the south side of State Route 294 and west of Gleasman (formerly Germanski) Road. The landfill footprint - - the area in which waste would be deposited - - would occupy 150 acres. With a proposed design capacity of 1000 tons per day, the landfill is expected to take in solid waste for 62 years, and to rise to a height of 1625 feet above mean sea level at completion.

To move ahead with this project, the Authority is requesting various permits from the New York State Department of Environmental Conservation ("the Department"), including a permit to construct and operate a solid waste management facility. Issuance of such a permit is governed by Title 7 of Article 27 of the Environmental Conservation Law ("ECL") and Part 360 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR Part 360").

In conjunction with this permit, the Authority requests variances from 6 NYCRR 360-1.7(a)(2)(iv) concerning construction and operation of a solid waste management facility within the boundary of a DEC-regulated wetland, and from 6 NYCRR 360-2.13(p) regarding the manner of construction of the landfill's gas venting layer. Also, the Authority requests a waiver from the landfill construction requirement of 6 NYCRR 360-2.13(d) that it maintain a minimum separation of five feet between the base of the constructed liner system and the seasonal high groundwater elevation.

The Authority is also requesting the following permits from the Department:

(1) A permit to conduct activities in state-regulated wetlands and their adjacent areas, pursuant to ECL Article 24 and 6 NYCRR Part 663;
(2) A permit regulating disturbance of protected streams, as well as a permit for construction of dams that permanently or temporarily impound water, both pursuant to ECL Article 15 and 6 NYCRR Part 608;
(3) A waste transporter permit to haul leachate from the site, pursuant to ECL Article 27 and 6 NYCRR Part 364;
(4) Stormwater discharge permits, pursuant to Section 122.26 of Title 40 of the Code of Federal Regulations ("CFR");
(5) A water quality certification, pursuant to Section 401 of the federal Clean Water Act; and
(6) A permit for landfill gas emissions, pursuant to ECL Article 19, 6 NYCRR Part 201, Title V of the federal Clean Air Act, and 40 CFR Part 60.750 et seq.

On June 4, 2001, the U.S. Army Corps of Engineers issued a permit to fill on-site wetlands regulated by the federal government under Section 404 of the Clean Water Act. According to the Authority, construction and operation of the landfill would affect 46.6 acres of federally regulated wetlands, 14.34 acres of which are also part of state-regulated freshwater wetland WL-2. The Authority intends to compensate for the loss of federal and state wetland acreage through a combination of on-site wetland creation and off-site land acquisition and preservation.

As lead agency, the Authority performed a coordinated review of the project pursuant to ECL Article 8 (the State Environmental Quality Review Act, or "SEQRA") and 6 NYCRR Part 617. The Authority completed a Draft Environmental Impact Statement ("DEIS") on January 12, 1998, a Final Environmental Impact Statement ("FEIS") on August 24, 1998, and a SEQRA findings statement that was issued on September 16, 1998. The Department is an involved agency in the SEQRA review because the Department has discretion whether to grant certain permits for the project, as noted above. The Authority's application to the Department was deemed complete on November 16, 1998.

Legislative Public Hearing

A joint public hearing of the Department and the U.S. Army Corps of Engineers was held during the afternoon and evening of August 10, 2000, in the Kunsela Auditorium of the SUNY Institute of Technology at Utica/Rome. According to press accounts, about 75 people attended the afternoon session, while 450 people attended the evening session. The evening session drew many more people than the auditorium could handle, so many watched the proceedings from closed-circuit television monitors that had been set up in the outside hallway and an adjacent cafeteria.

Speakers against the project easily outnumbered those in favor, especially at the evening session, which featured an organized protest by project opponents. A caravan of about 90 vehicles bearing anti-dump balloons, including three school buses, traveled to the evening session from Boonville, and people attending the session included a large number of military veterans, some in uniform or carrying American flags. The veterans were particularly concerned about a landfill being constructed near a forest that, a half-century ago, Oneida County dedicated as a veterans memorial. For more than a week prior to the legislative hearing, a group called Veterans Defending Our Memorial Forest camped by the forest monument to protest the landfill siting.

Project opponents who spoke at the legislative hearing included several veterans groups, officials of affected local governments (the Town of Ava, the Town and Village of Boonville, and the Town and County of Lewis), and members of the Adirondack Communities Advisory League, an anti-landfill citizens' organization. The need for the landfill, its siting near the veterans memorial forest, and the environmental, health and safety impacts of the landfill's construction and operation are the main concerns of these and other landfill opponents, as demonstrated by the oral and written comments received as part of the legislative hearing record.

At the request of Oneida and Herkimer County officials, the Authority was established by state law in 1988, and its board is made up of members who are appointed by the two counties' governments. The Authority's duties include providing solid waste management services and developing solid waste management facilities for the benefit of the two counties. The Authority wants to build its own landfill for non-recyclable waste, which would end the current practice of exporting that waste for disposal. For project proponents, which include many local manufacturers, an Authority-operated landfill would provide local residents, businesses and industries with reasonably and reliably priced disposal services, close to where the waste is generated, saving the transportation costs associated with exportation and providing the infrastructure that could bring more jobs and thereby help revive the regional economy.

Claiming that the project is not needed, opponents argued at the legislative hearing that landfills and incinerators within the state have unused capacity that the Authority should negotiate for in the context of a long-term disposal contract. Opponents argued that in the absence of flow control, and given a shrinking local population and expanded recycling efforts, a landfill in Ava might not be able to take in enough waste to pay for itself, leading the Authority to sell or lease its permit to a private entity that would take in waste from outside the region, perhaps from as far away as New York City.

According to project opponents, the Department should not issue a variance to its regulation prohibiting the construction and operation of new solid waste management facilities in state-regulated wetlands. Opponents say the wetlands that would be affected by the project are more extensive and of higher quality than the Authority and Department Staff have acknowledged. They say that landfilling would affect wildlife in the wetlands and in the area adjacent to them, and that, in terms of the mitigation proposed by the Authority, it is difficult to create and maintain wetlands in places where they do not now exist.

Among other arguments against the landfill project, the following dominated in the oral and written comments that were received in response to the hearing notice:

- - The Authority violated its own siting methodology by locating the landfill footprint in a wetland area, and by failing to adequately investigate alternative sites within the two-county region.
- - The Authority settled on the Ava site not because of its environmental merits, but because it is far from population centers, in a rural area whose residents, the Authority presumed, would lack the money, education and political clout to successfully resist the project.
- - Poor road conditions coupled with severe winter weather would create safety hazards for motorists, especially with school buses sharing the roads with waste- and leachate-bearing trucks.
- - The location of the site far from area hospitals would complicate an emergency response to accidents.
- - Escaping landfill leachate would penetrate a buried valley aquifer beneath the landfill footprint, spreading contaminants quickly in the direction of Boonville and its well field.
- - The system designed to suppress groundwater beneath the landfill would lower the water table over a large area outside the footprint, destroying or changing the character of wetlands that are not lost directly by filling.
- - The landfill would draw rats, seagulls and other vectors, create an odor nuisance, and spread blowing papers around the area, a particular concern with regard to the Veterans Memorial Forest.
- - The landfill would pose a health threat to local residents and children at nearby schools, who would be at a greater risk of cancer, leukemia and respiratory illnesses.
- - The landfill would be a visual blight on the surrounding community, blocking scenic views, diminishing tourism and lowering property values.
- - Landfilling would affect threatened bird species who may use the site for activities such as hunting and nesting, as well as brook trout who live in Moose Creek, into which the site's surface waters flow.

Supporters of the landfill were heavily outnumbered by opponents at the legislative hearing, and likewise there were more letters against the landfill than for it. Nevertheless, the project has many proponents, particularly among local manufacturers concerned about the high costs and uncertainties associated with exporting waste to distant landfills. Proponents argue that a landfill constructed according to current regulations (which require double liners and built-in leachate collection systems) are much safer than the unlined, uncovered landfills of years ago. They say that any groundwater contamination would be detected through a network of monitoring wells, allowing for prompt remediation that would avoid off-site impacts. Some commenters congratulated the Authority on the job it had done so far, especially with its recycling center, and said the Authority should be trusted to operate a landfill competently and safely. They said it is preferable to have landfills operated by public entities in the context of an overall plan for solid waste management, rather than by large private outfits more concerned with dominating a market so they can control disposal prices and maximize profits.

Apart from various local businesses, supporters of the landfill project include the New York State Association for Solid Waste Management, the Herkimer County Industrial Development Agency, and the Oneida County Environmental Management and Water Quality Council.

Issues Conference

On August 28, 2000, I started an issues conference at the State Office Building in Utica. The conference was held to determine which issues bearing on DEC's permitting decision would require adjudication, and who, among the petitioners for party status, would participate in an adjudicatory hearing, should one be required. The conference continued on August 29 - 31 and was followed by a visit to the project site and nearby locations, during which I was accompanied by representatives of the conference participants.

Participants at the conference included counsel for the Authority, DEC Staff, and prospective intervenors who filed petitions for party status.

One petition was filed on behalf of a coalition of project opponents (herein referred to as "the Objectors"). This group consists of the Town of Ava, the Town and Village of Boonville, the Town of Lewis, the Adirondack Communities Advisory League, the Harland J. Hennessey Post 553 of the Veterans of Foreign Wars, the Charles J. Love D.S.C. Post 406 of the American Legion, and Veterans Defending Our Memorial Forest. (Since the conference, Lewis County has joined the Objectors.)

A second petition was filed on behalf of Michael Daskiewich, a resident and property owner on the north side of State Route 294 in Ava, across the road from the project site.

Department Staff proposed no issues for adjudication at the issues conference, maintaining the position it took when the hearing was noticed: that the proposed landfill meets all the criteria for the approvals requested by the Authority, provided that the landfill is constructed and operated consistent with the terms and conditions of Staff's draft permit. The Authority had no objection to these terms and conditions, and therefore the only issues considered for adjudication were those proposed by the prospective intervenors. The record of the issues conference, which was augmented by several post-conference submissions, contains the intervenors' offers of proof as well as the responses of the Authority and Department Staff. The Authority and Department Staff both argued that the issues proposed by the prospective intervenors were not substantive and significant and, therefore, that a formal adjudicatory hearing was not necessary.

Rulings on Issues and Party Status

On January 30, 2001, I issued written rulings on party status and issues. These rulings certified four broad issues for adjudication:

(1) Project impacts on wetland resources;
(2) Need for the landfill, especially since its construction would involve the filling of state-regulated wetlands;
(3) Project impacts on several threatened bird species; and
(4) Project impacts on site hydrogeology.

The latter issue, I wrote, concerned the adequacy of the Authority's hydrogeologic investigation, the possibility that the project site overlies a principal aquifer, the characterization of the critical stratigraphic section (which bears on the ability to monitor any contaminants that might escape from the landfill), and the adequacy and potential adverse impacts of the groundwater suppression system.

I granted the Objectors full party status with regard to the adjudication of each of the certified issues, since the issues were identified based on the petition that was filed on their behalf. I denied Mr. Daskiewich party status because I found that his proposed issues did not meet the standards for adjudication, and that he had not shown how he could meaningfully contribute to the record on the issues raised by the Objectors.

Commissioner's Interim Decision

On April 2, 2002, Department Commissioner Erin M. Crotty issued an interim decision addressing appeals of my rulings by the Authority, Department Staff and the Objectors.

Of the four broad issues that I certified for adjudication, two, concerning impacts on threatened bird species and site hydrogeology, survived the appeals and remained joined for adjudication. [Interim Decision, pages 19 and 20 (concerning threatened bird species) and pages 20 to 23 (concerning site hydrogeology).]

A third issue, regarding need for the landfill, was removed from adjudication entirely. [Interim Decision, pages 13 to 19.] The Commissioner reversed my ruling on this point based upon "the clear case of need demonstrated by the Authority and the failure of the Objectors to seriously challenge the Department's determination that the need for the project outweighed the loss of the wetlands to be impacted. Given the thorough analysis of need undertaken by the Authority and the appropriateness to give deference to the decision of the Authority, as a governmental entity, that such a project is necessary to fulfill an essential governmental function, the criticisms set forth in the Objectors' proposed documentary evidence, unsupported by any proposed testimony, fall short of raising a substantive and significant issue requiring adjudication." [Interim Decision, page 17.]

The remaining issue, regarding project impacts on wetland resources, survived the appeal but only in part. [Interim Decision, pages 6 to 19.] One sub-issue, concerning the extent to which the project site should be considered wetlands subject to federal and state regulation, was removed from adjudication after the Commissioner determined that the Objectors' offer of proof was inadequate when weighed against the "convincing" evidence of the Department concerning the wetland boundaries. [Interim Decision, pages 9 and 10.] A second sub-issue, concerning the adequacy of the Authority's wetland impacts mitigation plan, was also removed because the Commissioner accepted Department Staff's view that the plan provides satisfactory compensation for state wetlands that would be lost to filling, and is feasible to the extent that lost wetlands can be re-created successfully elsewhere at the site. [Interim Decision, pages 10 to 12.] Finally, the Commissioner removed a sub-issue concerning the effect of upland habitat destruction on wetland species, finding that the Objectors' offer of proof here was "nothing more than speculation." [Interim Decision, page 12.]

While eliminating these aspects of the wetland impact issue, the Commissioner sustained my ruling to adjudicate other sub-issues bearing on wetland impacts. These sub-issues concern the effect of the groundwater suppression system on the water table, the effect of the leachate collection system on area hydrology, and the effect of the landfill site on area flood flows. [Interim Decision, page 12.] These sub-issues also bear on site hydrogeology and have been adjudicated in the context of the hydrogeology issue.

The Commissioner's interim decision added one issue for adjudication that had been excluded in my issues rulings. That issue concerns air quality impacts associated with the landfill's operation, more particularly those associated with particulate matter 10 microns or less in diameter (PM-10) and certain hazardous air pollutants. [Interim Decision, pages 23 to 25.] The Commissioner concluded that the adjudicatory hearing must consider whether the predicted total maximum concentrations of PM-10 resulting from the landfill's operation would exceed national ambient air quality standards (NAAQS). [Interim Decision, page 25.] Also, she concluded that the hearing must consider whether the maximum predicted emission of the hazardous air pollutants vinyl chloride and acrylonitrile from the landfill's operation would exceed state guidelines. [Interim Decision, page 26.]

Resolution of Threatened Bird Species Issue

The Commissioner's interim decision affirmed my ruling that an issue existed as to whether construction or operation of the proposed landfill would cause or contribute to the adverse modification of the critical habitat of four bird species considered "threatened" according to Department regulation: the least bittern, northern harrier, upland sandpiper and Henslow's sparrow. After this issue was certified in my issues ruling but before the interim decision was issued, a project site bird survey was conducted during the spring and summer of 2001 on behalf of the Objectors.

In the wake of the interim decision, the Objectors proposed that a more limited survey, focused on the northern harrier and upland sandpiper, be conducted on six dates between May 13 and June 6, 2002. By a letter of May 1, 2002, the Authority denied the Objectors' consultants access to the project site, claiming that there had already been a full and fair opportunity for them to evaluate it as bird habitat, and, therefore, further access was unnecessary. This prompted the Objectors to seek my permission for site access pursuant to 6 NYCRR 624.7(c)(4), which in turn prompted the Authority to request a protective order, arguing that another bird survey would cause it unreasonable annoyance and expense in terms of its monitoring of survey dates. Department Staff agreed with the Authority that the Objectors had already been afforded sufficient site access, and that there was ample available information to adjudicate the issue of impacts to the four threatened bird species.

By a written ruling dated May 8, 2002, I granted the Objectors' request that their consultants be allowed access to the site on the six dates they requested, with the understanding that Authority and Department Staff representatives would have the opportunity to monitor site activities and verify any findings that were made. I allowed site access after finding there was no serious doubt that the bird study would provide material and relevant information about the actual use of the site by the identified threatened bird species, which would help determine whether the site is critical habitat for any of them.

The 2002 bird survey went forward as planned by the Objectors. When it was finished, their counsel sent me a letter dated June 10, 2002, withdrawing the issue as to all four of the threatened bird species identified in my issues ruling and the Commissioner's interim decision. With the withdrawal of the issue, the Commissioner may conclude that construction and operation of the proposed landfill would not be in violation of the siting prohibition [at 6 NYCRR 360-1.7(a)(2)(iii)] against the construction and operation of solid waste management facilities in a manner that causes or contributes to the taking of any endangered or threatened species or to the destruction or adverse modification of their critical habitat.

Pre-Hearing Matters

This matter proceeded to adjudication according to a schedule the parties agreed to for

(1) identification of proposed witnesses, (2) submission of discovery demands and motions for protective orders, and (3) production of documents. A conference call involving me and the parties' counsel was held on May 31, 2002, concerning objections that were made to the formal discovery demands that had been circulated. I ruled on some issues, there was agreement on others, and further written submissions were allowed on those issues that remained unresolved, as confirmed in my June 3 memorandum to the parties.

After another conference call on June 20, I released written rulings dated June 27 which resolved the discovery disputes that remained at that time. In response to one of the Objectors' discovery demands, I granted the Authority a protective order confirming that its air quality consultants did not have to review and reveal files of clients other than the Authority for information that was not used, relied on or even reviewed with respect to the issues in this proceeding. Also, in response to another of the Objectors' discovery demands, I reserved a ruling on Department Staff's motion for a protective order, directing instead that the two parties enter discussions to see if a demand Department Staff considered overbroad could be narrowed based on better knowledge of the relevant information the Department maintains concerning air emissions from landfills. (Pursuant to this directive, Department Staff counsel provided additional information to the Objectors, and the discovery dispute was apparently resolved, as it was not brought back to me again.)

The Adjudicatory Hearing

Adjudication of the hearing issues occurred on a schedule of dates that was agreed to in advance by the parties. Adjudication of the issues bearing on site hydrogeology occurred on September 19, 20, 24, 25, 26 and 27, and October 1, 2, 3, 4, 17 and 18, 2002. Adjudication of the air quality issues occurred on October 8, 9 and 10, 2002. A site visit was conducted by me and the parties' counsel on October 16, 2002, allowing an opportunity to see many of the site features that were referenced in the hearing testimony.

The Authority was represented by Louis A. Alexander and H. Dean Heberlig, Esqs., of Bond, Schoeneck & King, PLLC, in Syracuse.

Department Staff was represented by Randall C. Young, Esq., of the Department's Region 6 office in Watertown.

The Objectors were represented by Michael B. Gerrard and Heidi Wendel, Esqs., of Arnold & Porter in New York City.

All hearing sessions were held at the State Office Building in Utica. This was the location proposed by the Authority and Department Staff. The Objectors proposed that the hearing be held at the Ava Town Hall.

In a memorandum dated April 29, 2002, after reviewing the parties' written and oral submissions, I settled on the Utica State Office Building as the place for the hearing. I did this in consideration of factors including proximity to the project site, the availability of suitable facilities, and the convenience of the parties and witnesses, in accordance with 6 NYCRR 624.3(b)(2). Of the two locations proposed by the parties, I found that the Ava Town Hall best met the standard of site proximity, but that its facilities would not be as suitable as those at the State Office Building, or as convenient for the hearing participants, all of whom traveled from out of town.

By letter of August 12, 2002, the Objectors requested permission for Common Cents Media, a videography company in Utica, to film the adjudicatory hearing so residents of Ava and the surrounding communities who could not attend the hearing would be able to view it, and for possible rebroadcasting of the hearing on television. After soliciting responses from the Authority and Department Staff, both of which opposed any filming, I denied the Objectors' request in a memorandum of August 29, 2002. As is more fully explained in the memorandum, my ruling was based on the Department's longstanding policy disallowing filming or videotaping of its adjudicatory hearings. Filming or videotaping these hearings is prohibited by Section 52 of the state's Civil Rights Law and Section 624.6(f) of the Department's permit hearing regulations. Though I allowed local news stations to film the opening of the adjudicatory hearing, filming was prohibited once the first witness took the stand.

Witnesses for the Parties

The following witnesses testified on the hydrogeology issues:

- - For the Authority:

- - Marc W. Sanford, a principal scientist with ARCADIS Geraghty & Miller (G&M), who managed the hydrogeologic site investigation;
- - Michael F. Wolfert, a hydrogeologist with ARCADIS G&M, who directed the hydrogeologic site investigation;
- - Steven M. Feldman, a senior modeler with ARCADIS G&M, who evaluated existing and predicted groundwater flow conditions associated with the site and landfill development;
- - David C. Schafer, a groundwater hydraulics and modeling expert formerly employed by ARCADIS G&M, who reviewed and provided guidance on field test procedures and groundwater flow modeling for this project;
- - William F. Southern, Jr., an engineer with Barton & Loguidice, who addressed environmental protections afforded by the proposed landfill's leachate collection and groundwater suppression systems;
- - Donald L. Coogan, Jr., a scientist with Terrestrial Environmental Specialists, who was involved in the delineation and evaluation of the site's wetlands; and
- - Dr. Donald I. Siegel, an earth sciences professor at Syracuse University and a consultant to the Authority, who reviewed the results of its hydrogeologic investigation.

- - For Department Staff:

- - Lincoln B. Fancher, a hydrogeologist assigned to the Division of Solid & Hazardous Materials in the Department's Region 6 (Watertown) office, who was the main Department reviewer of the Authority's hydrogeologic investigation;
- - Robert James Bazarnick, an engineering geologist with the Department's Division of Solid & Hazardous Materials in Albany, who reviewed the Authority's request for a principal aquifer determination;
- - James D. Garry, a geologist with the Department's Division of Water in Albany, who also reviewed the Authority's request for a principal aquifer determination; and
- - Mark D. Craig, a conservation biologist with the Department's Division of Fish, Wildlife and Marine Resources, who reviewed wetland matters related to the landfill application.

- - For the Objectors:

- - Dr. Andrew Michalski, a consulting hydrogeologist from New Jersey, who reviewed and critiqued the Authority's hydrogeologic investigation;
- - Dr. Ying Fan Reinfelder, a hydrogeology professor at Rutgers University, who reviewed the Authority's groundwater modeling; and
- - Gretchen Stevens, a botanist with Hudsonia Ltd., a non-profit environmental research institute in Annandale, New York, who considered impacts of the landfill's construction on wetland resources.

The following witnesses testified on the air quality issues:

- - For the Authority:

- - William F. Southern, Jr., an engineer with Barton & Loguidice, who described aspects of landfill design and construction bearing on air quality issues and the control of landfill gas;
- - Scott D. Nostrand, a senior managing engineer with Barton & Loguidice, who developed the Title V air permit application for the Authority, and estimated emissions of various pollutants; and
- - Gordon Reusing, an environmental engineer with Conestoga-Rovers & Associates in Ontario, Canada, who evaluated issues of air dispersion modeling, emissions estimates and ambient air concentrations for the pollutants of concern in this hearing.

- - For Department Staff:

- - Thomas R. Christoffel, an environmental engineer employed by the Department's Division of Air Resources in Albany, who reviewed the Authority's air modeling and performed additional modeling for the Department.

- - For the Objectors:

- - Daniel Gutman, an independent consultant from New York City, who reviewed and critiqued the Authority's assessment of air quality impacts related to construction and operation of the landfill.

Each of the above witnesses was cross-examined on the basis of prefiled testimony that is part of the hearing exhibits. On each of the two issues, the Applicant presented its case first, followed by DEC Staff and then the Objectors. In addition, the Authority, which was directed to prefile its testimony before the other parties, presented a rebuttal case addressing the Towns' arguments on both the hydrogeology and air quality issues. For both of these issues, the rebuttal case involved calling back witnesses who had previously testified.

The Hearing Record

The hearing record includes a transcript of the oral testimony as well as various numbered exhibits. There were 134 numbered exhibits on the hydrogeology issues and 37 numbered exhibits on the air issues. These exhibits include the prefiled direct testimony of hearing witnesses as well as attachments to the prefiled testimony. Exhibits were numbered as they were marked for identification; those exhibits that were received in evidence are so noted. Some exhibits were marked for identification and not offered or received in evidence. Others were withdrawn and returned to the presenting party.

Witnesses were offered the opportunity to make minor corrections to their prefiled testimony as they took the stand, and their corrections were marked in pen on the face of the typewritten testimony before cross-examination began. Also, portions of the prefiled testimony were struck for various reasons. After the Objectors withdrew the hydrogeology sub-issue addressing project-related impacts on flood flows, I struck testimony by Authority witness William Southern and Department Staff witness Mark Craig addressing that sub-issue. Also, I struck portions of the prefiled testimony of Objector witness Gretchen Stevens in response to objections to the testimony by the Authority and Department Staff, as explained in the hearing transcript.

Separate sets of transcripts were developed for the hydrogeology and air issues. The air transcript consists of pages 1 to 573, and the hydrogeology transcript consists of pages 1001 to 3520. After the transcripts were developed and made available to all parties, there was an opportunity for each party to propose corrections, followed by an opportunity to comment on corrections proposed by other parties. Proposed corrections that met no objection were made; where a correction was opposed by another party, I ruled whether the correction would occur. Later, based on my reading of the transcripts, I proposed additional corrections. Again, those corrections which met no objection were made, and to the extent there was an objection I reviewed the record again before deciding whether the correction would occur. The process of correcting the transcript and my rulings about which corrections would be made are confirmed in the file of correspondence among me and the parties' counsel. All corrections have been handwritten into the transcripts themselves.

Because the parties' positions were already clear from the issues conference, no opening statements were taken in this matter. However, the parties were afforded an opportunity to submit briefs at the conclusion of testimony. Two rounds of briefs were solicited from each party. The initial brief was to lay out what the party thought was factually demonstrated at the hearing, as well as what legal conclusions should be drawn from the facts and what action should be taken by the Commissioner. The second brief was to be a reply to the arguments of the other parties. Pursuant to a schedule set by the parties and extensions to that schedule which they negotiated themselves, initial briefs were received on February 4, 2003, and reply briefs were received on February 28, 2003.

On March 13, 2003, I issued a memorandum to the parties' counsel requesting that Department Staff provide draft air permit language that would memorialize the Authority's commitment to a time frame for completing and starting up its landfill gas collection and control system. Department Staff provided that language in a letter of March 20, 2003, and it was discussed during a follow-up conference call I had with attorneys for all three parties. During that call, held on March 25, 2003, the parties all agreed to the language, and it should now be considered part of any air permit that is issued to the Authority.

In my March 13, 2003 memorandum, I also requested that the Authority provide me a copy of the site investigation plan that it had referred to in its evidence and argument on the hydrogeology issue. That plan was provided under a cover letter of Authority counsel on March 19, 2003, and with the parties' agreement during the March 25 conference call, it was received as part of the record without allowance for additional briefing or comment.

A memorandum confirming matters discussed and decided as a result of the March 25 conference call was issued by me to the parties' counsel on April 1, 2003. That memorandum confirmed that with the record of exhibits having been completed, the transcript having been fully corrected, and the initial and reply briefs having been received, the hearing record would be considered officially closed as of that date, April 1, pursuant to 6 NYCRR 624.8(a)(5).

SUMMARY POSITIONS OF THE PARTIES

Position of the Authority and Department Staff

The Authority has met its burden of proof that the proposed landfill will comply with all applicable laws and regulations and, therefore, all necessary approvals should be issued consistent with the terms of Department Staff's draft permits.

Position of the Objectors

The Authority has not met its burden of proof with regard to either the hydrogeology or air quality issues that were certified for adjudication and, therefore, Department permits should be denied. In lieu of denying the landfill permit, the Department should find that additional site work, including a pump test, is reasonably necessary to make determinations on the hydrogeology issues.

ISSUE NO. 1 - - HYDROGEOLOGY

Scope of the Issue

Issues concern the adequacy of the Authority's hydrogeologic investigation, the possibility that the project site overlies a principal aquifer, the characterization of the critical stratigraphic section (which bears on the ability to monitor any contaminants that might escape from the landfill), and the potential of the groundwater suppression system to facilitate leachate migration. Also, with regard to wetland impacts, issues concern the effect of the groundwater suppression system on the water table and the effect of the leachate collection system on area hydrology. (The sub-issue concerning the effect of landfill construction on area flood flows, and the possible loss of flood control values, was not adjudicated after being withdrawn by the Objectors at the start of the hearing.)

Position of the Authority

According to the Authority, the critical stratigraphic section has been properly characterized as including all geologic units at the site, each of which would be adequately monitored under a comprehensive plan if the project is approved. The Authority contends that groundwater modeling undertaken on its behalf was appropriate and reasonably represents site conditions. The Authority argues that bedrock at the site would not provide a rapid migration pathway for contaminant flow, and that streams at the edge of the landfill footprint are gaining (that is, receiving groundwater flow), rather than losing water into their beds.

The Authority claims that evidence presented at the adjudicatory hearing reconfirms Department Staff's initial determinations that site WLE-5 East does not overlie a principal aquifer and that a deep sand/till unit in the footprint subsurface (in which the Objectors claim the aquifer exists) is confined by thick layers of till. Conducting a pump test or any additional testing in this unit or elsewhere at the site is not reasonably necessary or technically justifiable, the Authority asserts.

According to the Authority, the operation of the groundwater suppression system proposed for the site would not facilitate leachate migration and would not negatively impact state-regulated wetlands in the southwest corner of the landfill site, which it says are primarily dependent on precipitation and surface water runoff.

Position of Department Staff

Department Staff's position with regard to the hydrogeology issues is essentially identical to that of the Authority.

Department Staff concur with the Authority's characterization of the critical stratigraphic section and views the Authority's groundwater modeling as a reasonable representation of site conditions. Staff finds that the Authority's modeling results are consistent with reported and observed field conditions and provide a reasonable basis for the Authority's groundwater monitoring plan, which includes upgradient and downgradient wells in each layer of the critical stratigraphic section. Department Staff reject Objectors' claim that contaminants would travel rapidly into and through the deep sand/till unit.

Department Staff reaffirm their prior determination, made early in this project's development, that no principal aquifer exists at the site. According to Department Staff, the low permeability of the glacial tills above the deep sand/till unit precludes that unit from being highly vulnerable to contamination. Staff also maintain that the limited potential for recharge to the deep sand/till unit, and the variability of deposits in the unit, prevent the unit from having sufficient sustainable yield to be a principal aquifer.

Department Staff maintain that the groundwater suppression system provides an additional level of monitoring which would allow a break in the liner to be detected soon after it occurred. Staff rejects the Objectors' claim that excavation for this system would expose macropores and fractures in the underlying tills and thereby facilitate the downward movement of contaminants. In fact, Staff claim that if a leak occurred, the groundwater suppression system would intercept the leachate and conduct it along a path of least resistance to the outlet or discharge point of the system.

Department Staff agree with the Authority that the radius of influence of the groundwater suppression system would not extend significantly beneath wetland areas west and south of the footprint, and that precipitation and other sources of surface water would sustain these wetlands even if the project reduces the amount of groundwater entering them.

Position of the Objectors

According to the Objectors, the Authority has not met its burden of establishing that the proposed landfill would not overlie a principal aquifer. The Objectors claim that data from the Authority's site investigation indicate that there is a high rate of groundwater flow into an aquifer located in a bedrock valley buried beneath the site, and that this aquifer is capable of transmitting large volumes of water. The Objectors assert that the Authority's own data show that the water table in the buried valley aquifer rises strongly and rapidly in response to heavy precipitation and decreases rapidly during drier weather. Furthermore, they claim that the data indicate there are pathways by which contaminants could reach the aquifer through the tills overlying the aquifer and the bedrock surrounding the aquifer. Overall, the Objectors argue, the buried valley aquifer drains groundwater moving through the sediments and bedrock in the site subsurface.

The Objectors assert that the Authority's claims that the aquifer receives little groundwater and is protected from contamination by low-permeability sediments are contrary to the bulk of data collected at the site. According to the Objectors, the Authority has placed undue reliance on small-scale permeability tests which are mere snapshots of tiny fractions of soils and rock, and failed to capture the large-scale characteristics of the site hydrogeology. The Objectors point out that the Authority has consistently refused to conduct a pump test which they claim would eliminate any uncertainty as to whether the buried valley aquifer is sufficiently productive to qualify as a principal aquifer and whether it is fully protected from contamination by the overlying sediments. The Objectors claim there is already ample evidence showing that the buried valley aquifer meets standards the Department has developed to define principal aquifers, and that Department Staff's prior determination that it does not meet these standards was based on an inaccurate site portrayal provided by the Authority. The Objectors assert that the Authority's testing seriously underestimated the permeability of site deposits and violated industry standards with regard to sample collection and laboratory procedures as well as data interpretation.

According to the Objectors, the Authority has failed to properly characterize the critical stratigraphic section in light of evidence showing that contamination from the landfill would travel rapidly through the buried valley aquifer toward Boonville. Furthermore, the Objectors assert that, due to various flaws, the Authority's groundwater model does not accurately depict groundwater flow at the site. The Objectors claim that the model results are based on excessively low hydraulic conductivity inputs and an excessively low recharge rate, and depend heavily on the failure to include most of the bedrock beneath the site in the model domain. They state that the model is not reliable because it was not properly calibrated, and is invalid because its results do not match the actual site data. Finally, they assert that the groundwater model is inappropriate for this site because the model does not accommodate unsaturated conditions that exist within parts of the deep sand/till unit.

According to the Objectors, the groundwater suppression system would accelerate the rate at which contaminants would migrate from the landfill to the buried valley aquifer, and would draw down a near-surface water table, thereby removing groundwater that is essential to state-regulated wetlands near the site's southwestern corner. Finally, the Objectors claim that the proposed environmental monitoring system is inadequate to the extent it is based on mistaken assumptions about groundwater flow pathways.

In lieu of denying the landfill permit, the Department should direct that the Authority perform additional site testing, the Objectors argue. On issues involving the buried valley aquifer, they say this testing should include the following:

- - A pump test capable of gauging the productivity of the buried valley aquifer over a large area;
- - Geophysical testing to determine the aquifer's extent and path, particularly downgradient to the east, in the direction of Boonville; and
- - Tritium testing of groundwater in the aquifer and the overlying deep gray till, to assess the alleged confinement of the aquifer.

With regard to the site's bedrock, the Objectors propose that the Authority be required to do borehole geophysical testing to identify water-transmitting fractures, followed by packer testing to quantify the fractures' hydraulic conductivity and transmissivity.

FINDINGS OF FACT

- - Project Description

1. The Authority proposes to construct and operate a long-term, full-service sanitary landfill at Site WLE-5 East, which is located on the south side of State Route 294 and west of Gleasman (formerly Germanski) Road in the Town of Ava, Oneida County. The landfill has a design capacity of 1000 tons of solid waste per day, and a planned life expectancy of 62 years.

2. The proposed landfill site consists of more than 685 acres. The landfill footprint would occupy 150 acres of a 252-acre construction zone. Included in the construction zone would be an access road, leachate storage tanks, stormwater detention basins, a sediment control system, and other support facilities. More than 400 acres of the site would remain in a natural state and serve as a buffer, portions of which would be used for wetland creation and the construction of five small ponds for spotted salamander habitat. (A project site map showing the landfill footprint and other project features, and identifying property owners as of August, 2002, was received as Hydrogeology Exhibit 2.)

3. The highest elevation within the site occurs in a broad, sloping plateau located in the site's western portion. From this area of highest elevation, the land surface across the majority of the proposed development area slopes gradually to the east towards the south branch of Moose Creek. Elevation of the land surface ranges from about 1,480 feet above mean sea level in the western portion of the development area to 1,360 feet above mean sea level along the south branch of Moose Creek.

4. Slopes across the site typically average five to six degrees, with greater slopes associated with drainage swales located in the eastern half of the proposed development area, and a steep-sided ravine (occupied by Tributary No. 14 of the south branch of Moose Creek) in the northern portion of the development area. A number of the small drainage swales and relatively flat low-lying areas throughout the site are occupied by federally regulated wetlands, some of which are also part of the state-regulated wetland WL-2.

- - Leachate Generation, Management and Removal

5. Water percolating down from the surface of the landfill footprint would create leachate as it comes into contact with and passes through the underlying waste mass. Leachate contains contaminants that pose a threat to surface water and groundwater if the leachate is allowed to escape through the liner system at the bottom of the landfill.

6. The Authority plans several measures to minimize the generation of leachate, including:

- - Construction of an earthen berm around the landfill perimeter to minimize surface water runoff into active disposal areas;
- - Phased construction of landfill cells;
- - Minimization of the landfill's working face;
- - Placement of intermediate soil cover, establishment of vegetation on inactive areas of the landfill working face, and diversion of runoff into stormwater detention basins located around the site perimeter;
- - Construction of surface water diversion berms to prevent clean surface water from entering the leachate collection system;
- - Removal of snow from waste disposal areas, to the extent practical; and - - Capping of closed portions of the landfill with low-permeability soils (or an equivalent cover system approved by the Department).

7. Leachate created within the landfill waste mass would move into a leachate collection and removal system. That system would be an integral part of the double composite liner system which is meant to separate the leachate from the groundwater moving beneath the site. The double composite liner system consists of two separate composite liners, one constructed above the other. Each composite liner would consist of a leachate collection and removal system underlain by a composite of low permeability soil and high-density polyethylene geomembrane. The leachate collection and removal system would direct the flow of leachate to pump stations from which the leachate would be pumped into storage tanks. The leachate would then be trucked to an off-site wastewater treatment plant for disposal.

8. The performance of the primary composite liner system would be monitored on a daily basis, by measuring the amount of leachate collected in the secondary leachate collection system. Groundwater discharged from the groundwater suppression system would also be tested to ensure that the liner system is functioning properly. Finally, a network of groundwater monitoring wells would be installed at the landfill site. These wells would be sampled and tested quarterly to provide another way to determine whether the landfill's liner and leachate collection systems are working as intended.

9. In an average year, Site WLE-5 East receives about 58 inches of precipitation. The average amount of leachate that would be transported offsite for disposal would be about 9,633,000 gallons per year. That amount represents about 1.15 percent of the 58 inches of precipitation that would fall in an average year over the 532-acre development area. Stated another way, it represents about two-thirds of an inch of precipitation in an average year, and less than .002 inches on an average day. The loss of water resulting from the offsite transportation of leachate would be well within the range of year-to-year precipitation changes normally experienced by the site.

10. Site WLE-5 East is located in the 13,660-acre Moose Creek drainage basin and in the uppermost reach of a 1,697-acre sub-basin of the south branch of Moose Creek. This sub-basin represents the drainage area of the south branch of the Moose Creek defined by the location at which it exits the Authority's site.

11. Assuming average annual precipitation of 58.04 inches, the off-site transportation of an average of 9,633,000 gallons of leachate per year represents, for an average year, about 0.04 percent of the precipitation that would fall on the entire drainage basin and about 0.36 percent of the precipitation that would fall on the sub-basin. Stated another way, the leachate transported offsite would represent less than 0.03 inches of precipitation from the entire drainage basin in an average year (i.e., about 0.00007 inches of precipitation on an average day), and about 0.2 inches of precipitation from the sub-basin in an average year (i.e., less than 0.0006 inches of precipitation on an average day).

12. Operation of the leachate collection and removal system would result in the diversion of less than one and one-half percent of the precipitation falling within the drainage area of the south branch of Moose Creek, defined by and including its confluence with Tributary No. 14 on the north side of the site. This removal of surface runoff from the streams and wetlands on the site perimeter would minimally change the amount of fresh water entering the system, considering that five tributaries and the main channel of the south branch of Moose Creek all enter the WL-2 wetland from the south or west side of the wetland.

- - Drawdown Impacts of Groundwater Suppression System

13. The Authority's project design includes a groundwater suppression system that would be developed under the double composite liner system throughout the landfill footprint to prevent groundwater from contacting and interfering with the liners. There is a groundwater surface that is less than five feet from the base of the proposed liner system in certain areas of the landfill footprint. This is caused by the generally low permeability of underlying deposits in these areas. The Department requires a minimum separation of five feet between the bottom of the liner system and the seasonal high groundwater elevation, but allows for a reduction or waiver of this separation distance if a groundwater suppression system is installed underneath the liner system. [See 6 NYCRR 360-2.13(d).]

14. The groundwater suppression system proposed by the Authority would consist of a six-inch thick Type "C" select fill layer with a minimum permeability of 1 x 10-2 centimeters per second (cm/sec). The system would drain groundwater away from the bottom of the liner system to ensure that groundwater pressure would not damage the liner.

15. At landfills constructed with composite liner and leachate collection systems, if the water table is allowed to rise through the soil component of the landfill system, it can result in "floating" of the geomembrane liner, resulting in a separation of the geomembrane from the liner's soil component. The period of concern is the construction phase of the landfill, before the geomembrane has been adequately weighed down by placement of overlying drainage system materials, additional liner construction materials, and solid waste. The high-permeability of the fill in the groundwater suppression system is intended to promote rapid lateral movement of groundwater from beneath the landfill and prevent contamination that would occur if groundwater were able to mix with the waste mass.

16. In response to comments submitted by Department Staff on the DEIS for this project, the Authority modified the landfill design to reduce the depth of excavation in the southern half of the landfill footprint and to provide for a gravity flow or "daylight" groundwater suppression system which will not require the use of pumps to remove collected water.

17. With exceptions in the northern part of the footprint where the system would be above the water table, the groundwater suppression system would draw down the near-surface water table in the vicinity of the landfill footprint, as groundwater flows into the system in that area. Because of the generally low horizontal permeability of the near-surface soils, the amount of groundwater moving into the system would be limited, as would the area of drawdown.

18. In situations where groundwater now discharges to onsite wetlands, the lowering of the water table by the groundwater suppression system would reduce the rate of groundwater discharge to the wetlands. This could eliminate the flow of groundwater to wetlands in those areas where the water table declines beneath the land surface. When the landfill is fully built there would be a two-foot drawdown of the water table in some portions of state-regulated wetland WL-2 in the western and southwestern portions of the site, closest to the landfill footprint, and a lesser drawdown in other parts of the wetland farther from the footprint in these directions.

19. The modest drawdown of the water table beneath portions of the wetlands in the western and southwestern portions of the site would not have a significant impact on the wetlands in those areas. That is because the wetlands primarily depend upon precipitation and surface runoff from adjacent areas for the water that sustains them. This situation would not change during and after landfill development.

20. Though some groundwater from beneath the landfill footprint does flow westward and then upwell into these wetlands, groundwater recharge to the wetlands is negligible in comparison to the amount of water that sustains the wetlands directly through falling precipitation. (As noted above, the site receives about 58 inches of precipitation in an average year.)

21. The soil composition of the wetlands provides further indication of the wetlands' use of precipitation and surface runoff for its water resources. A very dense clay layer exists within six inches to one foot of the wetland surface. This clay layer effectively traps surface water runoff and direct precipitation. The soils at the site are very poorly drained and water readily pools on their surface. Precipitation falling on the wetlands during the growing season is retained for a sufficient period of time in the topsoil layer to maintain the area's wetland characteristics.

22. Wetland WL-2 in the western and southwestern portions of the site has developed largely because the underlying soils are so clayey that they drain very poorly. The wetland contains a mixture of vegetation types (all very common to wetlands in upstate New York) including mud flats in what used to be a beaver pond, as well as scrub-shrub, emergent, evergreen and mixed forest wetlands. A stream flows from south to north through the area; later, that stream flows east along the northern part of the landfill site before discharging to the south branch of Moose Creek.

23. To the extent that the groundwater suppression system would lower the water table in wetland areas, the natural process of capillary action would continue to move water upward from the water table to the roots of wetland vegetation. In fine-grained materials like clay and silt which underlie the wetlands, water can move up distances of ten to twenty feet, making a two-foot drop in the water table insignificant.

24. Wetland vegetation depends not only on water but the nutrients that are carried in the water. While groundwater is a source of these nutrients, so is rain falling on the site. Once the rain strikes the clayey soil, it begins to dissolve the soil. Because the soil is fine-grained, the rate of reaction is rather fast, increasing the concentration of dissolved substances fairly quickly.

25. Even for plants associated with calcareous groundwater discharges, such as many identified in these wetlands, the removal of groundwater due to project-related drawdown would not present a problem, since the clayey wetland soils themselves contain calcium carbonate. Rainfall striking and then percolating through these soils, even at shallow depths, would be adequate to dissolve enough calcite to create the environment these plants need.

26. The landfill, including the groundwater suppression system, would be constructed in phases. There would be no construction of the landfill footprint or the groundwater suppression system in the southern and southwestern portions of the site until at least 40 years after the commencement of operations, meaning that any drawdowns outside the footprint in these areas would be associated only with late stages of the project. Moreover, over the life of the landfill, the Authority, both by permit condition and by commitments made in the Department permit review process, would be monitoring wetlands that are not displaced by construction. Special condition No. 3 in the federal wetland permit requires submission of monitoring reports not later than December 31 for the first five years following construction.

27. In addition, in a formal response four years ago to comments of Department Staff, the Authority indicated that wetlands along the landfill perimeter would be visually inspected on an annual basis in conjunction with other on-site monitoring efforts, to determine if a change in wetland conditions has taken place. The Authority pledged that if it appeared that the wetland status of a particular area was changing as a result of landfill-related activities, a more intensive investigation would be performed. The Authority wrote that it would advise the Department of any apparent changes to state-regulated wetlands and that potential remedial measures would be discussed and, if determined to be appropriate, implemented. For instance, the Authority wrote, additional surface flow could be accomplished by constructing either ditches or low berms, depending on the location of the area and surrounding topography.

28. Consequently, the Authority would have the opportunity to evaluate any potential impacts on the wetlands - - and to undertake appropriate remedial measures - - several decades prior to the construction of the groundwater suppression system near the wetland areas west and southwest of the landfill footprint.

29. Finally, as part of the landfill's stormwater management design features, much of the surface flow at the site would be directed to two stormwater detention basins outside the landfill footprint - - one to the west and one to the southwest - - and these basins would discharge collected water to the wetlands in those areas, thus supplementing the water the wetlands would continue to receive from direct precipitation.

- - Surficial and Subsurface Geology

- - Unconsolidated Deposits

30. The surficial geology of the site is primarily glacial till, with exposed shale bedrock and alluvium (sand, gravel and silt deposited by moving water) which occur in the steep-sided ravine to the north of the proposed footprint. The surficial till is brown in color and contains both fine-grained and coarse-grained matrix material. The fine-grained material is silty and the coarse-grained material is comprised of various amounts of sand and gravel. The brown till is exposed along the walls of the ravine to the north of the footprint, as well as at various locations along Moose Creek. Shale bedrock is also exposed along the streambed of the unnamed tributary located within the ravine, as well as along the lower 15 feet of the ravine walls above the stream.

31. Overburden deposits at the site, from the land surface downward, are designated as brown till, gray till, and deep sand/till. The overburden deposits occur within and atop a buried bedrock valley that is oriented in a generally northeasterly direction beneath the site. Thickness of the overburden deposits ranges from about 10 feet in the northern part of the site to over 263 feet along the axis of the buried bedrock valley in the southern portion of the site.

32. Till is a poorly sorted, compact to dense assemblage of silt, clay, sand, gravel and cobbles. The matrix, or fine-grained portion of the surficial brown till, is typically composed of clayey or sandy silt. The thickness of the brown till is typically in the range of 5 to 15 feet. In the northwest portion of the site where the depth to bedrock is in the range of 10 to 14 feet, the brown till directly overlies bedrock. In all other areas of the site, the brown till is underlain by and in contact with the gray till. There is a shallow water table in the brown till, reflecting the generally lower permeability of the gray till in comparison to the brown till. Within the northern half of the footprint, this shallow water table slopes towards Moose Creek and its unnamed northern tributary. The color of the brown till reflects the effects of oxidation due to its location near the surface. (The gray till does not show these effects.)

33. In general, the gray till has a silty clay to sandy silt matrix, with varying amounts of sand and fine gravel within the otherwise fine-grained matrix. The gray till is typically more dense and of lower permeability than the brown till, and does not exhibit the effects of weathering because of its depth. The gray till is also generally less variable than the brown till with respect to grain size distribution, moisture content and density. The thickness of the gray till generally increases from north to south across the site, reaching a thickness of 190 feet in the south-central part of the site before thinning again to less than 60 feet in the southern part of the site. The increasing thickness of the gray till in a north-to-south direction coincides with a pronounced increase in depth to bedrock in the area of the buried bedrock valley.

34. The gray till is stratigraphically underlain either directly by shale bedrock in the northern and southern portions of the site, or by an intervening deposit of sand interlaced with till, which the Authority refers to as the "deep sand/till unit." The deep sand/till occupies the buried valley trough which trends west-southwest to east-northeast beneath the south-central area of the site. The buried valley is up to 260 feet deep along its central axis.

35. Materials that comprise the deep sand/till unit range from over 150 feet thick beneath the south-central portion within the axis of the buried bedrock valley, to much lesser thicknesses both north and south of that axis. The materials of the deep sand/till unit are absent in the northernmost and southernmost area of the site, and thus comprise only the deeper portion of the materials filling the buried bedrock valley. The remainder of the materials filling the buried bedrock valley are comprised of the overlying gray till deposits. The width of the buried valley increases in the east-central portion of the site, and the materials of the deep sand/till unit within the buried bedrock valley extend off-site both east and west of the site, though their extent in both directions has not been conclusively established, particularly to the east.

36. The materials comprising the deep sand/till unit are everywhere onsite overlain directly by the gray till unit. The thickness of the gray till deposits overlying the deep sand/till materials ranges from 11 feet in the northeastern portion of the site (outside the area of the proposed landfill footprint) to greater than 180 feet in the south-central area of the site. The deep sand/till unit is bounded on both sides and underneath by shale bedrock.

37. The materials of the deep sand/till unit vary in terms of their lithology, density, hydraulic conductivity, and degree of saturation. They include damp to wet, loose to compact, brown silty sand, with some gravel (including some areas that have a cemented fine-grained matrix), dry, dense, light brown sand with little silt, and gray-brown, black and gray till.

38. Complete saturation of the unit occurs only at elevations below a water level that fluctuates generally in the range of 1295 to 1297 feet. The area of the deep sand/till unit below this level is referred to by the Objectors (and identified in this report) as the buried valley aquifer. The buried valley aquifer is bounded by the water level (or, as the Objectors call it, the water table) at its top and has bedrock on its sides and bottom.

39. Horizontal groundwater flow predominates in the buried valley aquifer that is incised into the bedrock surface. The horizontal hydraulic gradient in the buried valley aquifer is extremely flat, the maximum measured value being a one-foot decline in head over a distance of 2,625 feet. The prevailing direction of groundwater flow in the buried valley aquifer is generally northeastward. Hydraulic gradients in adjacent hydrogeologic units (the gray till and bedrock), and a comparison of groundwater levels between the units, indicate that the deep sand/till unit is recharged from above by the gray till and from its sides and below by the bedrock.

- - Bedrock

40. The upper part of the bedrock unit underlying the unconsolidated materials is comprised of dark gray to black shale with thin beds of light gray sandstone and siltstone. However, where the bedrock is exposed in a ravine at the extreme northern area of the site (i.e., where the tributary to Moose Creek is incised into the bedrock), bedrock exposures within the walls of the ravine have been weathered to tan color and consist of fractured thin to medium shale beds with horizontal bedding fractures.

41. The bedrock at the site is either of the Whetstone Gulf Formation or in a transitional zone between the Whetstone Gulf Formation and the Utica Shale, which stratigraphically underlies the Whetstone Gulf Formation. There is a valley incised into the bedrock beneath the project site, as noted above. This buried bedrock valley has no surface expression at or near the landfill site, being entirely filled with glacial sediments. The depth to bedrock varies dramatically across the site, from its exposure at the ground surface in the northern portion of the site, to over 260 feet within the axis of the steep-sided buried valley.

42. Bedrock can vary with depth, with different layers exhibiting different properties. Open, extensive fracturing of the bedrock is more likely where the bedrock is at or close to the surface, than where it is deep under the overburden sediments. Where the bedrock is closest to the surface, it is more likely to be weathered.

- - Monitoring of Critical Stratigraphic Section

43. The Authority has determined that contaminants exiting from the base of the landfill could flow through portions of the four different units discussed above (the brown till, the gray till, the deep/sand till, and the upper portion of the bedrock) during the active life of the landfill (62 years) and 30 years after its closure. Therefore, the Authority has designated these units as the critical stratigraphic section pursuant to 6 NYCRR 360-1.2(b)(47) for the purpose of groundwater monitoring. Monitoring locations for all these units have been fixed downgradient, upgradient and crossgradient of the footprint, based on the Authority's understanding of groundwater flow directions. (The locations of proposed groundwater monitoring wells are shown on Figure 28 of the site investigation report, a large-scale mounted version of which was received as Hydrogeology Exhibit 13.)

44. Based on Part 360 requirements for well spacing, 55 wells are proposed as part of the groundwater monitoring network. This monitoring well network consists of 19 well clusters around the perimeter of the landfill with two to four nested wells at each cluster. There would be 19 wells in the brown till, 24 wells in the gray till, four wells in the deep sand/till unit and eight in the bedrock.

45. In accordance with Part 360, groundwater monitoring to establish existing water quality would be conducted prior to deposition of waste as each new landfill phase is constructed. Over the course of the landfill's life and during the 30-year post-closure period, the monitoring wells would be sampled and the groundwater analyzed for Part 360 baseline and routine parameters in accordance with a schedule described in the Authority's environmental monitoring plan.

46. The proposed monitoring well network would consist of wells spaced 500 feet apart along the northern, eastern and southern perimeter of the footprint. This is consistent with Part 360 requirements for downgradient well spacing, and represents a conservative approach for groundwater monitoring.

47. The only exception to this spacing distance is along the western perimeter of the landfill footprint, where the configuration of the landfill relative to the groundwater flow indicates an upgradient position for the groundwater monitoring wells. Wells in this area would be spaced between 500 and 900 feet apart, still less than the 1,500 feet spacing that is allowed between upgradient wells under Part 360.

48. All monitoring wells would be placed within about 50 feet of the landfill area. In some areas of the landfill, wells would be located within the berm. The placement of monitoring wells as close as practical to the landfill footprint is meant to facilitate early detection of a leachate plume. [See 6 NYCRR 360-2.11(c)(1)(i)(e).]

49. The Authority has designated the brown till as the first water-bearing unit of the critical stratigraphic section. This is appropriate because the brown till is the uppermost geologic material, present at the ground surface over the entire area of the proposed landfill footprint. Although the proposed landfill design involves the removal of the brown till from much of the area of the footprint, portions of the brown till unit would remain in place around the full landfill perimeter. The Authority has proposed monitoring well coverage for the surficial brown till unit for the full footprint perimeter at 19 locations.

50. The saturation of the gray till provides an opportunity for contaminants reaching it to move with and through the groundwater. The Authority has proposed 24 monitoring wells for the gray till unit, at fourteen locations, with two separate depth intervals to be screened at locations where sufficient thickness of the gray till unit warrants a second monitoring well.

51. Fifteen of the gray till monitoring wells have been proposed at nine downgradient locations along the east and south sides of the proposed facility. The spacing between proposed monitoring well locations on the east and south sides of the facility is 500 feet. At six of the locations, on the south and southeast portions of the perimeter, two separate monitoring wells have been proposed, with screening of two separate depth intervals. At the remaining three locations, along the northern portion of the eastern perimeter, one gray till unit well has been proposed due to thinning of the gray till in a south-to-north direction.

52. The remaining nine gray till monitoring wells have been proposed for five upgradient locations on the west side of the facility. Two monitoring wells would be installed at each of four locations along the west side of the southern perimeter of the landfill. At a fifth upgradient location (MW-12G1), a single upgradient monitoring well has been proposed due to thinning of the gray till unit in a south-to-north direction.

53. No gray till unit wells have been proposed for the north side of the landfill due to absence of the gray till there or because the gray till, where present, lacks sufficient saturated thickness for well placement.

54. One upgradient and three downgradient monitoring wells have been proposed for the deep sand/till unit. The proposed downgradient wells are to be located on the southern portion of the east side of the landfill. Existing monitoring well MW-24DS2, located off the southwest corner of the proposed footprint, would be used as the upgradient monitoring point. This location is on the axis of the buried bedrock valley in which the deep sand/till unit is situated, and is an appropriate location for monitoring upgradient background groundwater quality for the deep sand/till unit.

55. Bedrock monitoring wells have been proposed at six downgradient locations along the northern and northeastern perimeter of the proposed facility, and at two upgradient locations on the west side of the site.

- - Groundwater Monitoring Program

56. The monitoring well system is intended to detect the release of contaminant-bearing leachate which escapes into the subsurface environment. Under the operational groundwater monitoring program, samples would be collected quarterly from the groundwater monitoring network and analyzed three time per year for routine parameters and once per year for Part 360 baseline parameters.

57. If a significant increase above existing groundwater quality values were detected for one or more of the parameters, the Department would be notified within 14 days of the Authority's receipt of the analytical results confirming the increase. If the significant increase were in a routine parameter, the Authority would then sample and analyze the groundwater monitoring network for baseline parameters during the next quarterly sampling round and semiannually thereafter until the significant increase is determined not to be landfill-derived or the Department determines that such monitoring is not needed to protect public health or the environment. If the significant increase is in a baseline parameter, the Authority would initiate a contingency groundwater quality monitoring program within 90 days unless a demonstration could be made that the increase was caused by a source other than the landfill, resulted from a sampling or analytical error, or was due to a natural variation in groundwater quality.

58. Though a monitoring well system is important to groundwater protection, the first line of defense for groundwater protection is the landfill liner system. The liner system would be about five feet thick, containing two separate leachate collection systems and two separate composite low-permeability protective barrier layers. Leachate would be collected by a series of drains and a collection zone placed above the sloped liner surface. Downward migration of leachate into the liner would be minimized by the runoff-inducing slope and high conductivity of the leachate drain materials, which are intended to prevent the buildup of hydrostatic head on the liner. Should the primary leachate collection system fail, the secondary leachate collection system would also serve as a leachate collection and detection system. Both the primary and secondary leachate collection systems would be monitored regularly during the operational and post-closure periods.

59. Monitoring of the leachate collection and removal systems and the groundwater suppression system would be conducted for each of the landfill cells as they are constructed. Monitoring of any particular landfill cell would begin prior to its operation. Leachate samples would be collected on a semiannual basis from the leachate collection and detection systems and analyzed for Part 360 expanded parameters, to characterize the nature of the leachate generated from each phase of the landfill.

60. Additional monitoring would be conducted by collecting groundwater samples from the groundwater suppression system. These samples would be collected on a semiannual basis and analyzed for Part 360 parameters. Monitoring of the groundwater suppression system would begin just prior to the operation of each landfill cell.

61. Surface water samples would be collected from Moose Creek and the unnamed tributary on a quarterly basis and analyzed for routine parameters. On an annual basis, the water samples would be analyzed for baseline parameters.

62. In the event the landfill liners are breached, the groundwater suppression system would offer protection against the subsurface spread of leachate. The system would consist of a granular high-permeability soil layer that would collect groundwater seeping inward toward the landfill footprint except in parts of the far northern portion of the footprint (in cell numbers 1 and 5) where the groundwater suppression system would always be above the high water table. Should leachate migrate through both liner systems, the groundwater suppression system would collect and remove leachate throughout almost all the footprint area.

DISCUSSION

Introduction

Resolving the hydrogeology issues in this matter requires an understanding of the movement of water over and through the subsurface materials of the landfill site, both as it occurs now and as it would occur in the future should the landfill be built and operated. Rates and directions of groundwater flow must be understood because if leachate were to enter the subsurface environment, the groundwater would carry it. Understanding the patterns of groundwater flow allows one to develop a monitoring plan that would allow for the early detection of a spreading leachate plume, affording time for remediation before there are off-site impacts.

Because hydrogeologic factors are so important to a landfill permitting decision, a complete application for the initial permit to construct and operate a landfill must contain a hydrogeologic report which:

- - Defines the landfill site geology and hydrology and relates these factors to regional and local hydrogeologic patterns;
- - Defines the critical stratigraphic section for the site;
- - Provides an understanding of groundwater and surface water flow at the site sufficient to determine the suitability of the site for a landfill;
- - Establishes an environmental monitoring system capable of readily detecting a contaminant release from the facility and determining whether the site is contaminating surface or subsurface waters; and
- - Forms the basis for the design of the facility and contingency plans relating to ground or surface water contamination. [6 NYCRR 360-2.3(h), 360-2.11.]

This discussion recapitulates the important features of the investigation that resulted in the Authority's hydrogeologic report, the review of that investigation by Department Staff, and the critique of the investigation by the Objectors' chief witness, Dr. Andrew Michalski. (There is also a discussion of the Authority's groundwater modeling, which was done as part of the investigation, and which was critiqued by the Objectors' other hydrogeology witness, Dr. Ying Fan Reinfelder.) The differing conclusions that the parties drew from that investigation - - the Authority and Department Staff on one side, and the Objectors on the other - - are pointed out. As is noted below, the parties disagree on many issues bearing on the proper characterization of the critical stratigraphic section (including the permeability of the various geologic units) and the possibility that the site overlies a principal aquifer (and therefore runs afoul of a Part 360 siting restriction).

Authority's Site Investigation

As explained in Mr. Sanford's testimony for the Authority, hydrogeologic investigations of Site WLE-5 East were conducted over a four-year period beginning in 1993. Initially, a preliminary subsurface investigation was conducted in 1993 and 1994. This was done to evaluate the suitability of geologic conditions relative to the Department's Part 360 regulations and the Authority's siting criteria.

The preliminary subsurface investigation included the drilling and continuous sampling of 20 soil borings and excavation of six test pits throughout the site. The soil boring program also included collection of undisturbed soil samples and determination of soil permeability and other geotechnical properties. The results of the preliminary investigation indicated to the Authority that the subsurface geologic conditions and the permeability of the soil would make the site suitable for the construction and operation of a landfill facility.

A more detailed site investigation was subsequently performed during 1995 and 1996, and included the following components:

- - A literature search to obtain background information on regional and local hydrogeologic conditions in the site vicinity;
- - A survey to locate any municipal, industrial, agricultural, and private water wells within an approximate one-mile radius of the site;
- - A subsurface investigation involving the installation of monitoring wells, the drilling of additional soil borings, the installation of staff gauges and piezometers along Moose Creek and its unnamed tributary, and laboratory geotechnical testing of undisturbed and bulk soil samples collected from monitoring well and soil boring locations;
- - Determination of the elevation and horizontal coordinates of all wells, borings, piezometers and staff gauges;
- - A water quality sampling program consisting of the collection of groundwater and surface water samples from a representative number of locations and analysis of the samples for both expanded and baseline parameters;
- - A groundwater age-dating study involving sampling for tritium;
- - Field testing for horizontal hydraulic conductivity, involving slug tests and pump-out tests;
- - Water level measurements at monitoring well, piezometer and staff gauge locations on a monthly basis from November 1995 to October 1996; and
- - Groundwater flow modeling to evaluate flow patterns as they now exist and as they would change after landfill construction.

The data collected during the investigation were used in preparing tables, cross-sections, and maps that were evaluated, in combination with site observations, to develop an understanding of groundwater movement beneath and around the landfill footprint. According to the Authority, the results of the investigation confirmed that the subsurface conditions were suitable for development of a landfill meeting the requirements of Part 360. The hydrogeologic data, flow modeling, and environmental monitoring plan were presented in a five-volume site investigation report prepared by Geraghty & Miller. (That report, along with other landfill project documents, is incorporated by reference to the hearing record.) Volume I of the site investigation report provides, among other topics, a narrative review of the methodology employed by the Authority (Section 3.0) and the results and findings of the site investigation (Section 6.0).

Data collection methods and protocols were set out in a site investigation plan reviewed by the Department in 1995. The site investigation plan outlined the goals and objectives of the investigation as well as the scope of work to be performed.

According to Mr. Fancher for Department Staff, the methods employed on behalf of the Authority for its site investigation were current, standard, generally accepted procedures, appropriate for the geologic setting in which the site is located. Mr. Fancher also testified that the findings and conclusions of the Authority's investigation were consistent with his understanding of the regional geologic setting.

An elaborate discussion of site hydrogeology is contained in the pre-filed testimony of Mr. Wolfert for the Authority. According to Mr. Wolfert, groundwater flow occurs within both the overburden deposits (both the brown and gray till, and the deep sand/till unit) and the underlying shale bedrock. He says that the movement of groundwater at and in the vicinity of the site is influenced by topography, proximity to Moose Creek and its tributaries, wetland areas, and the "low permeability" of the till setting. Of the 58 inches of average annual precipitation that falls on the site, Mr. Wolfert says that 30 to 35 inches run off to streams due to the low permeability of the soils and the sloping surface topography, another 19 to 21 inches are lost through evapotranspiration, and a relatively small amount, less than one inch up to 2.5 inches per year, recharges the groundwater system. (The Objectors claim that the amount of recharge has been understated.)

According to Mr. Wolfert, there is one water table at the site, and it occurs near the ground surface (generally less than four feet down) within the brown till. He says that the field-observed water level distribution across the site, the results of the tritium age-dating study, and steady-state model simulations of the existing groundwater flow system all indicate that most of the recharge to the groundwater system remains within the brown till and the upper gray till. He adds that groundwater within this shallow system generally moves laterally, discharging to streams and wetlands on-site, though a relatively small portion flows downward to the underlying gray till, deep sand/till, and bedrock.

Mr. Wolfert testified that groundwater movement within the gray till is predominantly downward to the deep sand/till and bedrock, while groundwater flow within the saturated deep sand/till (what the Objectors call the buried valley aquifer) is mainly lateral to the northeast. Mr. Wolfert says that flow within the bedrock moves from areas of higher to lower bedrock elevations mainly toward the axis of the bedrock valley, and that along this axis upward flow from the bedrock to the deep sand/till is suggested by an upward gradient observed at the MW-5 well cluster.

To estimate the speed at which contaminants could move in flowing groundwater beneath the site surface, the Authority calculated the horizontal and vertical permeability of the subsurface deposits. Horizontal permeabilities were determined by in situ slug tests, and vertical permeabilities were determined by laboratory testing of soil samples.

According to Mr. Wolfert, within the brown till, the horizontal permeabilities were deemed to be in the range of 10-3 to 10-7 cm/sec, with a majority of the slug test results in the 10-4 to 10-5 range. Horizontal permeabilities within the gray till were calculated as generally one to two orders of magnitude lower than those in the overlying brown till, with a majority of the slug test results in the 10-5 to 10-6 cm/sec range. (Within the proposed footprint area, the gray till had calculated horizontal permeabilities ranging from 10-5 to 10-8 cm/sec, with a majority of results in the 10-6 to 10-7 cm/sec range.)

Slug tests give a rough approximation of horizontal permeability that helps determine whether the tills are tight enough to significantly restrict contaminant migration. Though the Objectors claim that the Authority misinterpreted the slug test data, I find no significant error in the derivation of the Authority's horizontal permeability values, as discussed further below.

The Authority's laboratory testing of soil samples resulted in calculated vertical permeabilities in the range of 10-6 to 10-8 cm/sec in the brown till, and 10-6 to 10-9 cm/sec in the gray till (with a majority of the gray till results in the 10-7 to 10-8 range). These values suggest a high level of impermeability that greatly impedes the downward flow of groundwater. The fact that these values were determined in the laboratory and not in the field may mean that they somewhat overstate the till's impermeability, as discussed below. However, there is no reason to think that any overstatement is significant in terms of the tills' ability to impede the downward flow of water.

Mr. Wolfert testified that the measured values of hydraulic conductivity in the tills conform with literature values in Domenico and Schwartz (1990), which cites values as low as 10-10 cm/sec, and Driscoll (1986), which cites values as low as 8 x 10-11 cm/sec. However, as he conceded on cross-examination, typical conductivity values for glacial till vary across eight orders of magnitude, and while the Authority's calculated values are at the "tight" end of the spectrum, other values suggesting much greater permeability would also be typical for such a deposit. This makes accurate testing particularly important.

Mr. Wolfert testified that although the permeability of the deep sand/till unit is higher than that of the overlying gray till, there is very limited recharge to that unit from the overlying gray till and the underlying bedrock. He said that because the hydrologic system always strives to maintain a balance where inflow equals outflow, the very flat gradient in the deep sand/till (what the Objectors refer to as the water table of the buried valley aquifer) is a mechanism to reduce discharge from the unit and thereby balance the limited recharge that the unit receives. According to Mr. Wolfert, the underlying bedrock is less permeable than the deep sand/till and discharges water upward and laterally into the deep sand/till.

Mr. Wolfert claimed that the brown till is saturated below the shallow water table in that unit, the gray till and bedrock are saturated throughout their extent at the site, and the deep sand/till has both saturated and unsaturated portions. Saturated means that all the pore spaces in the unconsolidated sediments (and, for the bedrock, all the pore spaces and fractures) are filled with water, with the water table representing the top of the saturated zone. Conversely, unsaturated means that pore spaces and fractures are not completely filled with water, though they may be partially filled.

Mr. Wolfert testified that the portion of the deep sand/till located along the axis of the bedrock valley is saturated throughout its vertical extent with the exception of the southwestern portion of the site around Well Cluster 24, where the upper portion of the unit is unsaturated while the lower portion is saturated. He said that at Well Cluster 18, where the deep sand/till occurs along the northern wall of the bedrock valley at relatively higher elevations, the unit is unsaturated throughout its vertical extent. Finally, at Well Cluster 3, also located along the northern wall of the bedrock valley, the deep sand/till is unsaturated over at least the upper 26 feet of the unit, Mr. Wolfert claimed.

As noted above in my findings of fact, the Authority designated the brown till, gray till, deep sand/till, and upper portion of the bedrock as the critical stratigraphic section for the purpose of groundwater monitoring. For the upper bedrock, only that portion of it in the northern part of the site was included in the critical stratigraphic section, since it was determined that a hypothetical release from the landfill would not migrate to the bedrock through the thick till in the southern portion of the site, according to Mr. Wolfert.

To determine the critical stratigraphic section, groundwater levels were evaluated and a groundwater model was developed to simulate flow under post-landfill construction conditions. The critical stratigraphic section was determined by considering two scenarios: (1) the projected 62-year active life of the landfill, with the groundwater suppression system operating; and (2) a 30-year post-closure period, with the groundwater suppression system not operating.

The results of the Authority's groundwater modeling exercise are explained in the pre-filed testimony of Mr. Feldman. According to Mr. Feldman, the overall effect of the groundwater suppression system on water levels would be to lower the water table in the brown till by about two to 14 feet at the landfill perimeter, inducing an inward hydraulic gradient and a small amount of groundwater flow toward the groundwater suppression system. Mr. Feldman said that the horizontal component of flow toward Moose Creek and its unnamed tributary would be maintained during the operating life of the landfill. He said a downward component of flow within the gray till to the deep sand/till would also remain; however, most recharge would remain in the shallow groundwater system and discharge to creeks and wetlands.

Authority modeling for the 30-year post-closure monitoring period (with the groundwater suppression system not operating, and the groundwater flow system returning to present-day conditions) indicated that leachate entering the water table in the northwest part of the landfill footprint and around its perimeter would remain in the shallow groundwater system, and move toward Moose Creek, its unnamed tributary, or wetlands to the west of the landfill. Leachate escaping beneath the central part of the footprint generally would move eastward in the gray till toward the axis of the buried valley aquifer. Leachate escaping beneath the southern portion of the footprint would travel only short distances (primarily vertically downward) in the gray till, due to the till's anticipated low vertical permeability. The Authority concludes that some leachate entering beneath the eastern and central portions of the footprint would enter the deep sand/till and move in a northeast direction, but not beyond the footprint boundary. In the northeastern corner of the footprint, escaping leachate would move northeastward, and while some of it would reach the bedrock, it would not migrate past the footprint boundary.

The use of a computer simulation model was proposed by the Authority and accepted by Department Staff in 1996, due to the relative complexity of the groundwater flow regime at the site, involving various units with different hydrogeologic properties. Overall, Mr. Fancher found that the model developed by the Authority to evaluate the groundwater flow conditions was well-supported and employed assumptions appropriate to the conditions present at the site, and produced a reasonable representation of site conditions both as they now exist and as they would be expected to change due to construction of the landfill. Despite the Objectors' critique of the modeling effort, I agree with Mr. Fancher's conclusion.

Buried Valley Aquifer

The Authority's findings regarding surficial geology and the identification of four distinct geologic units within the subsurface (brown till, gray till, bedrock, and deep sand/till) were adopted by Department Staff and went largely unchallenged by the Objectors, allowing my own findings to basically track the testimony of Mr. Sanford and Mr. Fancher. The major difference between their testimony and Dr. Michalski's in this regard relates to Michalski's subdivision of the deep sand/till unit to include what he calls the "buried valley aquifer," with a water table at its top separating the aquifer from dry (or unsaturated) deposits above it over large portions of the unit.

Under cross-examination, Authority witness Mr. Wolfert acknowledged the presence of a valley (or "depression," as he called it) which runs across the bedrock surface beneath the site. He also acknowledged that it may have been created by an ancient river or, at the least, that a river may have flowed through it at some point. Finally, he acknowledged that while the feature's orientation can be determined, at least under the site, its lateral extent is unknown. As part of its preliminary subsurface investigation, the Authority did several borings that located the bedrock surface west of the site, but no borings have been done beyond the site's eastern boundary at Gleasman (formerly Germanski) Road.

Though the existence of the buried bedrock valley is acknowledged by all parties, neither the Authority nor Department Staff accept Dr. Michalski's characterization of a buried valley aquifer. Such a feature does not appear in the Authority's drawings, nor is it described in its hydrogeologic report.

Generally speaking, an aquifer is defined as a saturated permeable geologic unit that can transmit significant quantities of water under ordinary hydraulic gradients. To be considered an aquifer, the unit should be permeable enough to yield economic quantities of water to wells.

The extensive saturation of the deep sand/till unit, particularly at depth, is acknowledged by all the parties. However, the unit's permeability and transmissivity are in dispute, which means there is no agreement about the long-term productivity of wells that could be placed in the unit, and therefore whether an aquifer, properly speaking, exists.

As the Objectors argue in their closing brief, water levels measured in monitoring wells within the deep sand/till (at MW-5DS2, MW-6DS2, MW-7DS2, and MW-24DS2) are all at virtually identical elevations just below 1300 feet above sea level, suggesting the presence of a water table and a saturated deposit beneath it in the same way that the surface of an above-ground river evidences the presence of a water body beneath it. On cross-examination, Mr. Fancher for Department Staff acknowledged that, in portions of the deep sand/till unit that are not completely saturated, there is a water level in the area of about 1300 feet, and that the top of the water could be described as a water table.

The Department's solid waste management facility regulations define an aquifer as "a consolidated or unconsolidated geologic formation, group of formations or part of a formation capable of yielding a significant amount of groundwater to wells or springs." [6 NYCRR 360-1.2(b)(10)]. Though the regulations do not define "significant" in this context, monitoring wells screened in the buried valley aquifer (at MW-6DS2 and MW-24DS2) did produce some appreciable amount of water during development, and the Objectors argue that well developed production wells screened over the entire saturated portion of the aquifer could produce much more. That water was produced, at least on a short-term basis, from monitoring wells screened below the water table in the deep sand/till unit tends to indicate the presence of an aquifer, at least as that term is commonly applied. However, the parties disagree about what type of long-term yield the aquifer could produce, which depends in large part on the amount of recharge it receives.

According to Mr. Wolfert, the very flat slope of the water surface of the deep sand/till appears attributable to very limited recharge to that unit from the overlying gray till and the surrounding bedrock. To the contrary, Dr. Michalski claims there is plentiful recharge to the buried valley aquifer, and that its almost flat water table indicates the aquifer is highly transmissive, meaning it can move large quantities of water off-site in a relatively short time.

The key conclusions reached by Dr. Michalski in his pre-filed testimony are as follows:

(1) The buried valley aquifer beneath the landfill site is prolific and laterally extensive, fully satisfying Department criteria for classification as a principal aquifer.
(2) Owing to its high transmissivity and water level deep beneath the site su