Oneida-Herkimer Solid Waste Management Authority (Ava Landfill) - Ruling, January 30, 2001

Ruling, January 30, 2001

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

of the Application of the
ONEIDA-HERKIMER SOLID WASTE MANAGEMENT AUTHORITY
for permits to construct and operate a solid waste landfill in Ava, Oneida County.

RULINGS OF THE ADMINISTRATIVE LAW JUDGE

ON PARTY STATUS AND ISSUES

DEC Project No. 6-3024-00009/00007

Background and Brief Project Description

Legislative Public Hearing

Issues Conference

Issues for Adjudication

Wetland Impacts

Need

Threatened Bird Species

Hydrogeology

No Issue for Adjudication

Site Selection

Wetland Classification

Air Quality Impacts

Veterans Memorial Forest

Visual Impacts

Truck Traffic

Site Access

Property Values Protection

Vector Control

Environmental Justice

Other Issues

Rulings on Party Status

Appeals

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 east of Gleasman (formerly Germanski) Road. The landfill footprint would occupy 150 acres of a 252-acre construction zone within the 532-acre site. The landfill has a proposed design capacity of 1000 tons per day and a planned life expectancy of 62 years.

To move ahead with this project, the Authority is requesting various permits from the New York State Department of Environmental Conservation ("DEC" or "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:

A permit to conduct activities in state-regulated wetlands and their adjacent areas, pursuant to ECL Article 24 and 6 NYCRR Part 663;
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;
A waste transporter permit to haul leachate from the site, pursuant to ECL Article 27 and 6 NYCRR Part 364;
Stormwater discharge permits, pursuant to Section 122.26 of Title 40 of the Code of Federal Regulations ("CFR");
A water quality certification, pursuant to Section 401 of the federal Clean Water Act; and
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.

The Authority is also seeking a permit to fill wetlands regulated by the U.S. Army Corps of Engineers under authority of Section 404 of the federal Clean Water Act.

DEC Staff determined that the project application was complete and a public notice of completeness was made on November 16, 1998. A Notice of Complete Application was published in the November 25, 1998 issue of the Environmental Notice Bulletin, as well as in the Rome Daily Sentinel, the Utica Observer-Dispatch, the Herkimer Evening Telegram, and the Boonville Herald.

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. It 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.

LEGISLATIVE PUBLIC HEARING

A joint public hearing of DEC and the U.S. Army Corps of Engineers was announced in a notice issued by DEC's Chief Administrative Law Judge, Daniel E. Louis, on June 29, 2000. Copies of the notice were sent to local officials and others who had previously commented on the project. On July 5, 2000, the notice appeared in the Rome Daily Sentinel, the Utica Observer-Dispatch, the Herkimer Evening Telegram, and the Boonville Herald.

The legislative hearing went forward as scheduled during the afternoon and evening of August 10, 2000, in the Kunsela Auditorium of the SUNY Institute of Technology at Utica/Rome. The hearing was held jointly with the U.S. Army Corps of Engineers, and comments were taken with regard to all pending permit applications. In addition to comments delivered orally at the hearing, written comments provided to the Department were reviewed as a basis for further inquiry.

According to press accounts, about 75 people attended the afternoon session, while about 450 people attended the evening session. Because there were more people at the evening session than the auditorium could handle, many watched the proceedings from closed-circuit television monitors that were 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, including three school buses, traveled from Boonville to the SUNY campus in Marcy for the evening session, the vehicles bearing "anti-dump" balloons.

In addition to people who live near the project site, landfill opponents attending the hearing included a large number of veterans, some in uniform or carrying American flags. They are particularly concerned about the project going forward near a forest that was dedicated a half-century ago by Oneida County as a veterans memorial. For more than a week prior to the hearing, a group called Veterans Defending Our Memorial Forest camped by the forest monument to protest the landfill siting. Many of those speaking against the project, especially at the evening session, were local veterans who called the landfill an offense to those who fought and died in the nation's wars. These speakers included representatives of the Veterans of Foreign Wars, the American Legion, AMVETS, and Vietnam Veterans of America, many of whom had letters from their national organizations or affiliates across the country, which also condemned the landfill's placement near the forest and its memorial monument.

Project opponents who spoke at the legislative hearing - - and later petitioned jointly for adjudication of their concerns - - include several veterans groups, officials of affected local governments (the Town of Ava, the Town and Village of Boonville, and the Town of Lewis), and members of the Adirondack Communities Advisory League ("ACAL"), an anti-landfill citizens' organization. The landfill's siting near a veterans memorial, the need for the project, the environmental impacts of its construction, and the potential impacts of its operation on public safety and health are primary concerns of these and other project opponents, including New York State Assemblyman David Townsend (115^th District), Oneida County Legislators Les Porter (6^th District) and Pamela Mandryck (17^th District), and Lewis County Legislator Bruce Krug (10^th District).

At the request of Oneida and Herkimer County officials, the Authority was established by state law in 1988, and its board consists of ten members who are appointed by the two counties' governments. According to its chairman, Alfred Barbato, the Authority's duties are to provide solid waste management services and develop solid waste management facilities for the benefit of Oneida and Herkimer counties. To fulfill a mission Mr. Barbato described as developing a safe, reliable system to handle the counties' solid waste for the long term, the Authority already operates a recycling center, a green-waste compost facility, three solid waste transfer stations, a land clearing debris facility, a brush processing facility, and a household hazardous waste collection facility. Mr. Barbato said a landfill is important for the counties' non-recyclable waste because of changes on the horizon that he said would make it difficult, very costly, or even impossible for the Authority to continue exporting that waste for disposal.

Proponents of the landfill are especially concerned about the anticipated closure within a year of New York City's Fresh Kills Landfill on Staten Island, and the possibility that the U.S. Congress may pass laws restricting the interstate transportation of waste. Either event, they say, could lead to much higher tipping fees for in-state waste disposal. For project proponents, which include many local manufacturers, a landfill operated by the Authority within the two counties would provide residents, businesses and industries there with reasonably and reliably priced disposal services, close to where the waste is generated, saving the transportation costs associated with waste exportation and providing the infrastructure that could bring more jobs and thereby help revive the regional economy.

Opponents claim the landfill is not needed, saying the state now has unused disposal capacity and citing the examples of upstate landfills and incinerators which they say are seeking out new waste sources to become or remain solvent. Some opponents suggested that the Authority negotiate a long-term disposal contract with the operators of the Seneca Meadows landfill (near Rochester) or use the Development Authority of the North Country ("DANC") landfill in Rodman, which they said has lowered tipping fees and expanded its service area to attract more waste. Opponents said that with no flow-control, a shrinking local population, and wider use of recycling and other alternatives to disposal, a landfill in Ava might not 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.

Opponents say the issue of need is particularly important because wetlands would be filled during construction. According to the Authority, 46.6 acres of federally-regulated wetland (about 14 acres of which are also regulated by the state) would be affected. The Applicant would compensate for this loss by creating 32.62 acres of new wetlands on-site, funding the restoration of no less than 22 acres of wetlands within the Black River drainage basin, and purchasing and preserving at least 56 acres of ecologically noteworthy land, some of which would be wetlands, in the Rome sand plains.

Opponents question whether wetlands should be filled for the landfill's development, noting that Department regulation prohibits the construction and operation of new solid waste management facilities in state-regulated wetlands. They oppose issuance of a variance to this siting restriction, arguing also that the wetlands deserving of state protection are more extensive and of higher quality than either the Authority or DEC has acknowledged. Opponents say that filling would disrupt animal life in both the wetlands and their adjacent areas, and that it is difficult to create and maintain wetlands in places where they did not previously 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, 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 could enter area wells and penetrate a buried valley aquifer, spreading contamination quickly in the direction of Boonville.
The groundwater suppression system - - part of the landfill's design - - would lower the water table more than the Authority concedes, disrupting wetlands in addition to those that would be filled.
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 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.
Threatened bird species like the upland sandpiper, the northern harrier, and the least bittern use the landfill site as valuable habitat for hunting and nesting, and brook trout 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, including several local manufacturers who say that if a landfill were built within the two counties, it would curb the transportation costs associated with waste disposal elsewhere. Proponents argue that landfills 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 and remediated so that there would be no off-site impacts. Some commenters congratulated the Authority on the job it had done so far, especially with recycling, and said it should be trusted to operate a landfill competently and safely. They said it is preferable to have landfills operated by public entities that run them in the context of an overall plan for solid waste management, rather than by large private outfits more concerned with dominating the 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

As announced in the hearing notice, an issues conference began on August 28, 2000, at the State Office Building in Utica. The conference continued there on August 29 - 31, and was followed on the afternoon of August 31 by a visit to the site and nearby locations, during which I was accompanied by representatives of the conference participants.

Conference Participants

Participants at the issues were the Authority, DEC Staff, and representatives of prospective intervenors.

The Applicant was represented by Louis A. Alexander and H. Dean Heberlig, Jr., Esqs., of Bond, Schoeneck & King, LLP, with offices in Albany and Syracuse.

DEC Staff was represented by George E. Mead III and Randall C. Young, of the Department's Region 6 office in Watertown.

Two petitions for full party status were received.

One petition (Conference Exhibit No. 6) was from Michael B. Gerrard, Esq., of Arnold & Porter in New York City. Assisted at the conference by Heidi Wendel, Esq., also of Arnold & Porter, Mr. Gerrard filed on behalf of a coalition of project opponents (herein referred to as "the Objectors"). They are the Town of Ava, the Town and Village of Boonville, the Town of Lewis, the Adirondack Communities Advisory League, the Harland J. Hennessey Post 5538 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. This addition met no objection from the Authority or DEC Staff, because it added no new offers of proof and no new proposed issues for adjudication.)

The other petition (Exhibit No. 7) was from William J. Riley, Esq., of Boonville. He filed on behalf of Michael Daskiewich, who lives on the north side of State Route 294 in Ava, across the road from the landfill site.

Issues Conference Record

The record of the issues conference consists of 884 pages of transcript as well as 47 numbered exhibits. (A list of these exhibits is attached to these rulings as Appendix "A".) This record has been augmented by correspondence among me and the parties since the conference ended on August 31, 2000.

The correspondence includes various transcript corrections that were proposed by the Authority. Since the other conference participants did not object to the corrections, I have written them into the transcript.

The correspondence also includes a revised draft permit condition, offered by Staff counsel George Mead in a letter of November 16, 2000, addressing a landfill construction deadline, as well as a response to the condition by Authority attorney Louis A. Alexander, dated November 22, 2000. (This matter is discussed below under the issues heading of "Need.")

Finally, the correspondence includes a supplemental ambient air quality impact screening study for the landfill site, submitted under Mr. Alexander's cover letter of December 21, 2000. This study was undertaken at the Authority's initiative after the issues conference. I have received it as a supplement to the project application, and held the record open until January 12, 2001, for comments by the other conference participants. The Objectors' counsel, Mr. Gerrard, submitted a letter dated January 9, 2001, with various attachments including a memorandum from the Objectors' air expert, Daniel Gutman. DEC Staff counsel, Mr. Mead, submitted a letter dated January 11, 2001. The parties' submissions are addressed below under the issues heading of "Air Quality Impacts."

Intervenors' Environmental Interests

To secure full party status, a prospective intervenor must meet various requirements including a demonstration of adequate environmental interest in the proceeding. [6 NYCRR 624.5(d)(1)(iii).]

According to the petition submitted on their behalf, Mr. Gerrard's clients have particular interests at stake. The project itself would be in the Town of Ava, while traffic from the landfill and contamination or destruction of environmental resources would affect the Town and Village of Boonville (in Oneida County) as well as the Town of Lewis (in Lewis County).

The petition states that ACAL is the predominant local community organization concerned about the project, and that it has vigorously participated in the landfill issue since 1992. ACAL also owns 52 acres of forested land - - bordered on the east by the Paluck farm (where the footprint would be located) and on the west by the Veterans Memorial Forest - - which would be acquired as buffer by the Authority should the project go forward.

According to the petition, the Harland J. Hennessy Post 5538 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 are deeply offended by the attempt to site the landfill next to a forest dedicated to the memory of servicepeople who gave their lives for this country. The veterans groups believe that the proposal is a desecration of the forest and that construction of the landfill in the location now proposed would cause great psychological harm to their members and the families of the veterans who are memorialized at the forest monument. The petition states that many of the groups' members also live near the site, drink the local water, breathe the local air, and drive the local roads, and thus would be adversely affected in the same way as the citizens of the municipalities and the members of ACAL.

As for Mr. Daskiewich, his property on State Route 294 is about 1,800 feet from the proposed landfill footprint, and consists of about 200 acres, including a residence, barn, agricultural and timber lands, and state and federally regulated wetlands. The petition filed on his behalf registers particular concern about the project's potential groundwater, wetland, air quality, visual and traffic impacts, as well as the economic impacts of lost property values for him and other nearby land owners.

At the outset of the issues conference, I asked the Authority and Department Staff if they challenged the adequacy of the environmental interests asserted on behalf of the prospective intervenors. Neither party did. Rather than dispute the petitioners' interests, the Authority and Department Staff argued that the issues proposed in the petitions do not warrant adjudication, and therefore an adjudicatory hearing is not necessary.

Issues for Adjudication

No issues have been proposed for adjudication by Department Staff. Staff maintains the position it took when the hearing was noticed: that the proposed project meets all the criteria for the approvals requested by the Authority, provided that it goes forward consistent with the terms and conditions of the draft permits that Staff has prepared.

These permits were taken into the record on the first day of the conference as a package marked Exhibit No. 8; a revised package, embodying minor amendments and corrections, was received as Exhibit No. 8-A before the conference ended. Exhibit No. 9 is a master list of project documents. That list, a copy of which is attached to these rulings as Appendix "B", references (1) all documents bearing on the landfill siting methodology, (2) the landfill siting reports, (3) the SEQRA documents on the WLE-5 East site (including the scoping documents, the Draft Environmental Impact Statement, and the Final Environmental Impact Statement), (4) the permit applications themselves, (5) the additional reports and responses prepared by the Authority while the applications were being reviewed, and (6) the Authority's solid waste management plan, including amendments, modifications and compliance reports.

With the exception of one permit revision made after the issues conference (discussed below), the Authority does not dispute any of the terms or conditions of Staff's draft permits. Because of this, and because Staff is willing to issue the permits as written, the only issues that might be entertained in an adjudicatory hearing would be those proposed by intervenors. Such issues, to be litigated, must be both "substantive" and "significant." [6 NYCRR 624.4(c)(1)(iii).]

According to the Department's permit hearing regulations, an issue is "substantive" if there is sufficient doubt about a permit applicant's ability to meet the statutory or regulatory criteria applicable to the project, such that a reasonable person would require further inquiry. In determining whether such a demonstration has been made, the ALJ must consider the proposed issue in light of the application and related documents, the draft permit, the content of the petitions for party status, the record of the issues conference, and any subsequent written arguments authorized by the ALJ. [6 NYCRR 624.4(c)(2).]

An issue is "significant" if it has the potential to result in denial of the permit, a major modification to the proposed project or the imposition of significant permit conditions in addition to those proposed in the draft permit. [6 NYCRR 624.4(c)(3).]

Where, as here, DEC Staff has reviewed the application and finds that the project, as proposed and conditioned by its draft permits, conforms to all applicable requirements of statute and regulation, the burden of persuasion is on the potential party proposing any issue to demonstrate that the issue is both substantive and significant. [6 NYCRR 624.5(c)(4).]

ISSUES FOR ADJUDICATION

There are issues to adjudicate with regard to the following topics, as outlined below:

The project's impact on wetland resources;
Need for the landfill, in light of waste export options;
Possible impacts to habitat of four threatened bird species; and
Potential hydrogeological impacts related to the possibility that the site overlies a principal aquifer, characterization of the site's critical stratigraphic section, and the adequacy and potential impacts of the groundwater suppression system in facilitating leachate migration.

All other proposed issues are hereby excluded from adjudication. The following discussion addresses first the issues that will be adjudicated, then the proposed issues that will not.

WETLAND IMPACTS

Issues exist concerning the project's impacts on wetland resources. As noted above, the site includes both state and federally regulated wetlands which would be filled as part of the landfill's construction. The adverse environmental impacts of this activity must be considered under the State Environmental Quality Review Act to assure that they are avoided or minimized to the maximum extent practicable. Also, these impacts must be weighed with regard to the requested DEC freshwater wetlands permit, a restriction against siting landfills in federally regulated wetlands, and the Part 360 variance that is required to construct and operate the landfill within state-regulated wetlands.

Background

According to the wetland report for the project site (Exhibit No. 9-Z-1, page 1-3), 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 these impacts through a combination of on-site wetland creation and off-site land acquisition and preservation.

First, the Authority would create 32.62 acres of new wetlands within the site or its buffer area. Second, it would provide funding to an appropriate entity, such as the Oneida County Soil and Water Conservation District, to restore no less than 22 acres of wetlands within the Black River drainage basin, in as close proximity to the landfill site as is practical. (See, Exhibit No. 14, a November 23, 1998 letter from the Authority to the U.S. Army Corps of Engineers.) Third, it would acquire and preserve a minimum of 56 acres of ecologically noteworthy land (an undefined portion of which would be wetlands) in the Rome Sand Plains, an inland pine barrens area just west of Rome, New York, that includes a combination of high sand dunes and low peat bogs. (This area is more fully described in a brochure, received as Exhibit No. 13.)

The Authority's statement of SEQRA findings indicates that the proposed wetland mitigation plan was designed to replace the functions and values of the impacted wetlands, and to acquire land in the Rome Sand Plains that warrants protection and preservation. According to the findings statement:

"The wetland creation plan was based on several factors, including: spatial constraints dictated by landfill and related facilities; the acreage of wetland creation needed to satisfy the Army Corps of Engineers and Department of Environmental Conservation requirements; the existing physical features of the creation sites; groundwater and soil data; and the goal of creating wetlands dominated by wet meadow cover type. . . The loss of 46.6 acres of wetland in the proposed development area represents, at the most, 0.9 percent of the wetlands in the entire [Moose Creek] drainage basin." (SEQRA findings statement, September 16, 1998, Exhibit No. 9-V, at pages 14 and 15.)

Adjudicable issues concerning the loss of wetlands - - and the mitigation that is proposed to offset this loss - - are raised by the Objectors through expert offers of proof by two proposed witnesses: Gretchen Stevens, a wetlands specialist, and Andrew Michalski, Ph.D., a geological engineer and hydrogeologist. (Their resumes are included in Attachment "A" to the Objectors' petition, Exhibit No. 6.) Ms. Stevens' comments on the DEIS and the FEIS for the project are Attachments "D" and "E" to the Objectors' petition, and Dr. Michalski's comments are Attachments "V" and "W". Ms. Stevens visited the site twice: once in 1994 and again on August 2, 2000, shortly before the issues conference. (Photographs she took during this second visit, and figures showing her delineation of state and federal wetland areas, are included as Exhibit No. 12.) On behalf of project opponents, Dr. Michalski has been reviewing the landfill application, including all pertinent hydrogeological and engineering reports, since 1994.

Key issues separating the Objectors from the Authority and Department Staff concern the extent to which the site should be considered wetlands subject to federal and state regulation. Based on her site visits, Ms. Stevens says the site contains 48 acres of federal wetland, not 46.6 acres as claimed by the Authority. She also says that 36.7 acres of this wetland should be considered part of state wetland WL-2, not 14.34 acres as claimed by the Authority.

As part of its site investigation, the Authority had its consultants, Terrestrial Environmental Specialists, Inc. (TES) delineate the site's wetland areas. Ms. Stevens has performed her own delineation, and the difference between hers and the Authority's is significant because, in her portrayal, more acreage of protected wetlands would be filled, and therefore more mitigation efforts would be required in compensation. The Objectors argue that the wetland map prepared by TES excludes from state regulation three areas of acknowledged federal wetland contiguous to mapped wetland WL-2 which, according to TES data, satisfy the DEC-regulation criteria for hydrophytic vegetation, hydric soils, and wetland hydrology. (See, Figure D of Exhibit No. 12, showing these areas in black as X1, X2 and X3, in the center of the project site, whereas the rest of mapped wetland WL-2 is generally near the borders of the development area, outside the landfill footprint.) This affects not only whether a wetlands permit may be issued, but whether the required wetland variance may be granted.

Other factual sub-issues bearing on wetland impacts include the following:

The effect of the groundwater suppression system on the water table.
The Objectors claim that the planned groundwater suppression system would lower the water table substantially in the area south of the landfill footprint, draining beaver ponds and at least 20 acres of wetlands, and lowering the base flow of the south branch of Moose Creek. Although the Authority claims that the area's wetlands are predominantly dependent on precipitation and surface water runoff, Dr. Michalski, the Objectors' hydrogeologist, says the wetlands also depend on groundwater to a significant degree, and that the Authority's contrary conclusion is based upon flawed modeling and a faulty assumption of a hydraulic divide. Ms. Stevens states that a two-foot drawdown of the water table in some portions of the wetland at the edge of the disposal area, as predicted in the FEIS, could transform a wooded swamp, shrub swamp, or wet meadow into an upland habitat, and transform a permanent stream into an intermittent stream or dry wash.

Even though the Authority says that it would monitor, investigate and remediate wetland impacts due to water table drawdown, the extent to which such impacts are foreseeable should be considered before any permit is granted.
The effect of the leachate collection system on area hydrology.
The Objectors claim that the leachate collection system would substantially alter the hydrology of the site and its surrounding wetlands by diverting millions of gallons of precipitation annually from its accustomed paths.

The Authority claims that 91.4 percent of the precipitation falling on the site would be handled by a stormwater management and drainage system, from which it would flow into the south branch of Moose Creek, and that the remaining 8.6 percent would go into the leachate collection system, and from there into trucks for off-site treatment and disposal. The Authority intends to minimize leachate generation by building earthen berms around the landfill perimeter (to minimize runoff toward active waste disposal areas), minimizing the size of the working face, phasing construction of landfill cells, and directing runoff from inactive areas to stormwater detention basins. Even so, the collection and removal of leachate would cost the site some of the water it now derives from precipitation, and whether the impacts of this would be minor (as argued by the Authority) or significant (as argued by the Objectors) must be reviewed.
The effect of the landfill site on area flood flows.
According to the Objectors, the Authority has failed to consider the effects of the landfill site as a whole and of the affected wetlands en masse on the area's flood flows. The Objectors contend that because the region is characterized by poorly drained, moist soils, determinations of flood flows are particularly important, and that the analysis performed by the Authority is not adequate to assure that adverse impacts from wetland destruction are mitigated to the maximum extent practicable.

The Authority rated the effectiveness of the impacted state-regulated wetlands to alter flood flows by means of a Wetland Evaluation Technique analysis. All impacted portions of wetland were rated moderately effective in terms of altering flood flows, as were the proposed wetland creation sites. Therefore, the Authority asserts, the wetland creation areas, with their controlled outlet structures, would be as effective in handling flood flows as the wetland areas that would be lost because of project construction. Also, says the Applicant, the five stormwater detention basins (also outlet controlled, located at the site perimeter) and a staged sediment control system would direct runoff in a manner conforming as much as possible to existing patterns, so as to avoid increasing flood flows in downstream receiving waters. The Authority's analysis needs to be evaluated in light of the Objectors' criticisms, to see if flood control values would be lost.
The effect of destroying upland habitat on wetland species.
The Objectors contend that landfill construction would entail the destruction of more than 200 acres of upland habitat, including open fields, shrublands, and forests, which could have very substantial impacts on wetland species. According to Ms. Stevens, many organisms require both upland and wetland habitats in close proximity, and many organisms that reside primarily in one may be highly dependent on the other for food or other resources. The Objectors claim that the functional interdependence of wetland and upland habitats for species such as salamanders and turtles was not adequately considered in the project's environmental review. They say that because of the ecological importance of intact upland habitats, destroying such habitats for what may be risky wetland creation endeavors often guarantees the net loss of ecosystem functions, and should therefore be avoided in favor of mitigation at sites at some distance from the lost wetlands, even if these are outside the project area.

The Authority points out that its wetland creation plan was developed in accordance with the mitigation requirements of DEC and the U.S. Army Corps of Engineers, and that wetland creation sites were located next to existing wetlands as much as possible. Whether the mitigation proposed by the Applicant provides adequate protection for species that rely on both wetland and upland habitat deserves further exploration at an adjudicatory hearing. So do the difficulties inherent in creating replacement wetlands, and the measures that would be employed to assure that these wetlands are not overtaken by pest plant species, in light of the comments of Ms. Stevens.

Legal Bases for Consideration of Wetland Impacts

The project's impacts on wetland resources relate not only to the findings required of DEC as an involved agency under SEQRA; they also relate to standards for issuance of a required Part 360 variance and a state freshwater wetlands permit. Finally, they must also be considered in relation to a landfill siting restriction concerning federally regulated wetlands.

DEC's Part 360 regulations prohibit the construction or operation of new solid waste management facilities within the boundary of a regulated wetland. [See, 6 NYCRR 360-1.7(a)(2)(iv), and definition of "regulated wetland" at 6 NYCRR 360-1.2(b)(135) as "a wetland area regulated pursuant to ECL, article 24 (Freshwater Wetlands) or ECL, article 25 (Tidal Wetlands)."] Unless otherwise precluded by law, variances from one or more provisions of Part 360 may be granted by the Department, but no variance can be granted "which would authorize a municipal solid waste landfill to be designed, constructed or operated at standards less stringent than those defined under 40 CFR part 258, Criteria For Municipal Solid Waste Landfills" [6 NYCRR 360-1.7(c)(1)]. These federal standards, in turn, provide that a new municipal solid waste landfill unit shall not be located in wetlands, unless the owner or operator can demonstrate that the unit "will not cause or contribute to significant degradation of wetlands" regulated by the federal government [40 CFR 258.12(a)(3)].

An application for a Part 360 variance must also contain various demonstrations, including one "that the proposed activity will have no significant adverse impact on the public health, safety or welfare, the environment or natural resources and will be consistent with the provisions of the ECL and the performance expected from application of this Part." [6 NYCRR 360-1.7(c)(2)(iii).] This requires the Authority to show that the construction of the landfill within boundaries of the state-regulated wetland will not have a significant adverse environmental impact.

The Authority's application for a variance from 6 NYCRR 360-1.7(a)(2)(iv) is in Appendix "A" of its engineering report, dated September 1998 [Exhibit 9-W-2]. According to the application, approval of the variance would not result in significant adverse effects upon the environment for several reasons:

Seventy percent of the wetland acreage that would be impacted by the project consists of lower quality wet meadow wetlands, while the majority of the higher quality, large forested wetlands on site have been avoided.
Compensation for unavoidable wetland impacts would be achieved by creating 32.62 acres of new wetlands on site or within the same drainage basin (well in excess of the acreage needed to satisfy the state's 1.5 to 1 creation ratio for impacting the 14.34 acres of wetlands which the Authority says are under state jurisdiction).
The created marshlands in the sedimentation control system would be left to revert to a natural wetland ecosystem once the landfill is closed, adding eight more acres of wetland to the site, in addition to the 32.62 acres described above.
The construction of a double composite liner system, as well as the collection and removal of leachate for off-site treatment and disposal, would significantly reduce the risk of leachate entering the environment or adjacent wetlands.

Apart from the Part 360 variance, the Authority requires a freshwater wetlands permit pursuant to ECL Article 24 and Part 663 of the Department's regulations. As the Objectors point out, use of a state-regulated wetland for solid waste disposal is classified as P(X), meaning that a permit is required and that the activity is deemed "incompatible with a wetland and its functions and benefits" [6 NYCRR 663.4(d)(38)]. Also, the subject wetlands are classified by DEC as Class II. For activities classified as P(X) in class I, II and III wetlands, no permit may be issued unless the activity minimizes degradation to, or loss of, any part of the state-regulated wetland or its adjacent area, and minimizes any adverse impacts on the functions and benefits that the wetland provides. [6 NYCRR 663.5(e)(2).]

The Authority's application for a freshwater wetlands permit is in the first section of Volume A of its two-volume site wetland report (Exhibits 9-Z-1 and 9-Z-2). Intended to support applications for both state and federal wetland permits, the report describes wetland resources present on site WLE-5 East, impacts anticipated to result from the proposed action, and proposed mitigation measures.

The Department's freshwater wetland regulations provide that an applicant may suggest a proposal to enhance the existing benefits provided by a wetland or to create and maintain new wetland benefits in order to increase the likelihood that a proposed activity will meet the applicable standards for permit issuance. However, such a proposal to mitigate wetland impacts must meet certain criteria:

The mitigation must occur on or in the immediate vicinity of the site of the proposed project;
The area affected by the proposed mitigation must be regulated by the Freshwater Wetlands Act and Part 663 after mitigation measures are completed; and
The mitigation must provide substantially the same or more benefits that will be lost through the proposed activity. [6 NYCRR 663.5(g)(1).]

A conceptual wetland creation plan for the first 10 years of the project is described in Section 12 of the wetland report, with the understanding that detailed wetland creation plans for subsequent phases of the landfill development would be prepared during the first 10-year phase of landfill operation, thereby providing sufficient time to identify and determine the suitability of additional wetland creation sites. (See, Section 12.4 of wetland report, page 12-7.) Federal guidelines require mitigation in the form of creation of new wetlands at a 1 to 1 ratio. DEC has no mandated ratios for replacing lost wetland acreage, but replacement on at least a 1 to 1 ratio is considered desirable, according to the agency's guidelines on compensatory mitigation (Exhibit No. 18, page 7), and DEC Staff is requiring in this case that 1.5 acres be created for every one acre that is lost.

Finally, in addition to the provision of Section 360-1.7(a)(2)(iv) prohibiting new solid waste management facilities within the boundary of a state-regulated wetland, Section 360-2.12(c)(8) prohibits the siting of new solid waste landfills in federally regulated wetlands, unless the appropriate permits are obtained from the U.S. Army Corps of Engineers, and unless the owner and operator can make certain demonstrations to the Department, to the extent required under federal or state law. (These demonstrations are the same as those set out in 40 CFR 258.12, including the demonstration that the landfill "will not cause or significantly contribute to significant degradation of wetlands" [40 CFR 258.12(a)(3)].)

The Authority has applied to the Army Corps for a federal freshwater wetlands permit pursuant to Section 404 of the federal Clean Water Act; in fact, the legislative hearing in this matter was conducted to gather comments on that application as well as the other applications pending before DEC. Until an Army Corps permit is obtained, the Authority cannot escape the above-referenced siting restriction, even if the environmental impacts of wetland filling are not adjudicated here.

Consideration of Mitigation Efforts

In their petition for party status, the Objectors challenged whether the preservation of 56 acres of "ecologically significant habitat" in the Rome Sand Plains should be considered as mitigation for destroying state and federal wetlands. According to the Authority, the preservation of land there was never intended to address the loss of state-regulated wetlands, only those regulated by the federal government.

I find that, while laudable, the plan to preserve land in the sand plains should not be considered at all as wetland mitigation. The plan does not meet DEC's regulatory standards for wetland mitigation [6 NYCRR 663.5(g)(1)] because the Rome Sand Plains are some 30 miles from the project site (not "in the immediate vicinity of the site"), and the acreage of wetland that would be preserved is unspecified. EPA's regulations on municipal solid waste landfill siting provide for offsetting impacts to federally regulated wetlands "through all appropriate and practicable compensatory mitigation actions (e.g., restoration of existing degraded wetlands or creation of man-made wetlands") [40 CFR 258.12(a)(4)]. These actions should be undertaken, when practicable, in areas adjacent or contiguous to the affected site, or, if this is not practicable, off-site in the same geographic area (i.e., in close physical proximity and, to the extent possible, the same watershed). [See, Memorandum of Agreement Between EPA and the Dept. of the Army Concerning the Determination of Mitigation Under Clean Water Act Section 404(b)(1) Guidelines, 2/6/90, Exhibit No.17.] That is not the case here. The Rome Sand Plains are some 30 miles from the site, in a different geographic area and watershed. Also, the amount of wetland to be preserved there is unknown.

The Authority's mitigation plan also involves the restoration of at least 22 acres of wetlands within the Black River drainage basin. While the plan is to restore degraded wetlands "in as close proximity to the proposed landfill site as is practical" (Exhibit No.14), the locations of these wetlands are not specified, so there is no assurance that they will be in the immediate vicinity of the site, or that the mitigation will provide the same or more benefits in relation to the wetlands lost through the landfill's construction, as required by DEC regulation. The Authority is correct that if its delineation of on-site state-regulated wetland is accurate, its creation of 32.62 acres of new wetland on the site and its buffer area will, by itself, more than adequately satisfy DEC's 1.5 to 1 mitigation ratio. On the other hand, if the Objectors' delineation is accurate, the off-site restoration plan is a necessary mitigation measure for the loss of state-regulated wetland. In either case, the restoration effort, in combination with the creation of wetlands, is necessary to avoid a net loss of federally regulated wetlands due to the landfill's construction. [See, 40 CFR 258.12(a)(4) and 6 NYCRR 360-2.12(c)(8)(iv).]

Therefore, the restoration plan must be more specific, identifying by map where the wetland restoration efforts would occur, the wetland types there, the extent of and reasons for their degradation, the restoration measures to be employed, and how those measures will improve wetland benefits and functions. This additional information is reasonably necessary to make determinations bearing on the overall wetland impacts of the project, and therefore is requested pursuant to 6 NYCRR 621.15(b). The information shall be provided prior to the adjudication of the issues described above, unless this ruling is reversed on appeal to the Commissioner.

NEED

An issue exists as to the need for the landfill, especially since its construction would involve the filling of state-regulated wetlands. The Objectors assert that the two counties served by the Authority do not need a landfill at all because they have numerous export options.

As noted in its statement of SEQRA findings (Exhibit 9-V), the Authority evaluated waste exportation as an alternative to the development of site WLE-5 East:

"With regard to the waste exportation alternative, the Authority commissioned an independent study by the nationally recognized firm of Arthur D. Little, Inc. to evaluate future solid waste supply and demand conditions. This Market Profile study (dated December 2, 1997) indicated that, when transportation costs and future conditions of the disposal marketplace are considered, development of the proposed landfill at Site WLE-5 East will be cost competitive with waste exportation alternatives, particularly in the long run. Long-term reliance on waste exportation would not be a problem-free method of waste disposal. While exporting waste may avoid the high emotions associated with siting a new landfill, the Authority would still have to deal with the management, legal, cost, risks, uncertainties and liability issues associated with waste exportation. The waste exportation alternative is not practicable because it would not fulfill one of the basic purposes of the proposed landfill project. Such purposes include ensuring that local residents and businesses will be provided with long-term, environmentally sound disposal capacity in the two-county region that guards against uncontrollable costs associated with long-term reliance on out-of-region waste transportation and disposal." [SEQRA findings statement, Exhibit 9-V, page 24.]

The Little study (Exhibit No. 24) analyzed the demand for and the supply of solid waste disposal services to determine the probable future market conditions affecting the two-county region. The study found that the Authority's estimated cost of developing and operating a landfill (between $50 and $59 per ton) was generally in the same range as the cost of export options available to the Authority in 1997. While this suggests that a landfill is not needed, the report also notes various advantages of getting one permitted:

It would provide a disposal alternative for the two counties based much more on actual costs than on market conditions, reducing the influence of market uncertainties such as price increases, facility closures and changes in laws governing interstate transport or flow control.
It would give the Authority greater flexibility in managing local industrial and special wastes.
It would significantly enhance the Authority's leverage in contracting with waste disposal service providers, should it choose to do so.

The Little study was done in 1997, and the solid waste market has changed since then. The Authority points out that a recent spike in fuel prices has raised the transportation costs associated with waste exportation. On the other hand, the Objectors argue that waste disposal fees have dropped over the last several years, and that landfills and incinerators within New York State are looking for more waste to become or remain solvent. The availability of waste disposal sites outside the two counties and the anticipated costs of using them are matters in dispute between the Objectors and the Applicant. The Objectors are prepared to introduce documentary evidence (some of which is attached to their petition) concerning the availability of numerous export options, although they have not retained a witness on this issue.

I conclude that the issue of need should be adjudicated based on testimony and documentation that the Authority would offer to meet its burden. Any consideration of need must account for the present-day situation, since the cost figures in the Little report are already dated. The Authority should make its case in the context of an adjudicatory hearing, allowing the other parties to cross-examine its witnesses and present whatever evidence they have to supplement the record.

Consistent with the Authority's position, DEC Staff argues that building its own landfill would cushion the Authority from volatility in the solid waste market, and promote the goal of community self-sufficiency. Staff points out that while other disposal facilities may have available capacity, it does not mean they can or want to take waste from the Authority. Also, Staff points out, with the upcoming closure of New York City's Fresh Kills Landfill, available capacity in New York State may disappear, and reliance on out-of-state exportation is risky given the potential for the U.S. Congress to enact laws restricting it.

It goes without saying that, to determine the need for this project, one must identify, evaluate and weigh a number of competing factors. One might even argue that, under regular circumstances, DEC should not adjudicate this issue at all, and simply defer to the Authority's judgment, since the Authority is the solid waste management planning unit for the two counties. [See, Matter of the Application of Saratoga County, ALJ Rulings, August 1, 1995 (page 40), where need for a county landfill was dismissed as an issue because that decision "properly belongs to County residents through their elected officials," noting that according to ECL Section 27-0106(2), "the basic responsibility for the planning and operation of solid waste management facilities remains with local governments," with the state providing guidance and assistance.]

On the other hand, this landfill requires a freshwater wetlands permit, the standards for which require a weighing of need for the project against a consideration of its environmental impacts. Because landfilling in a wetland is incompatible with wetland functions and benefits, the Authority must show that it is the only practicable alternative that could accomplish its objectives [6 NYCRR 663.5(e)(2)]. A proposed activity is the "only practicable alternative" if no other is physically or economically feasible. [6 NYCRR 663.5(f)(2).]

Class II wetlands provide important benefits, the loss of which is acceptable only in very limited circumstances. Therefore, a permit shall be granted only if it is determined that the proposed activity satisfies a "pressing" economic need that "clearly outweighs" the loss of or detriment to the benefit(s) of the Class II wetland. [6 NYCRR 663.5(e)(2).] "Pressing" should suggest that for the need to outweigh the loss of or detriment to a benefit of a Class II wetland, it must be urgent and intense, though it does not have to be necessary or unavoidable. [6 NYCRR 663.5(f)(5)(ii).] "Clearly outweighs" means that the need for the proposed activity must outweigh the loss of or detriment to the benefits in a way that is beyond serious debate, although there does not have to be a large or significant margin between the need and the loss. [6 NYCRR 663.5(f)(5)(iii).]

As the Objectors point out, need is also a consideration to the extent that DEC, as an involved agency, must make SEQRA findings. In considering the "reasonable alternatives" to the project, DEC must look at the "no action alternative" of continued waste exportation. Also, project need is one of the "social, economic and other essential considerations" to be considered against the project's adverse environmental impacts. [6 NYCRR 617.11(d)(e).] "In this balancing, the greater the potential for environmental damage from a project and the more important the affected resource, the more attention must be given to satisfying public need and benefits." [See, DEC's SEQR Handbook, November 1992, page 60.]

Proposed Permit Conditions

As part of its proposed need issue, the Objectors have requested that any DEC permit incorporate a condition that guarantees that the landfill will accept no waste from outside Oneida and Herkimer counties. I agree with this proposal - - and hereby order the draft permit's amendment - - because the state law creating the Authority [Public Authorities Law Section 2049-ee(8)] already prohibits it from disposing of solid waste generated outside the area of its operation, and bringing this restriction into the permit will make it readily enforceable by the Department. At present, the draft permit (Exhibit No. 8-A) only prohibits the Authority from accepting solid waste which was generated within a New York State municipality that has either not completed and received approval for a comprehensive recycling analysis, or is not included in another municipality's approved comprehensive recycling analysis satisfying the requirements of subdivision 360-1.9(f), and implemented the recyclables recovery program determined to be feasible by that analysis. (See, operating condition No. 19 of the solid waste management facility permit, in Part B of Exhibit No. 8-A.) This condition is meant to ensure that the landfill does not undermine recycling efforts, but does not impose a geographic limit on its service area. (The Objectors are especially concerned about waste coming into the landfill from New York City, given the impending Fresh Kills landfill closure.)

The Objectors also seek a condition that prevents sale or transfer of the facility to private parties not also bound to restrict their receipt of waste to that generated within the two counties. No legal authority for such a condition has been advanced, and for that reason I cannot agree with its inclusion. The Objectors are concerned that the Authority might sell any permit it obtains to relieve itself of its debt, and that the transferee would be freed from the service area limitation imposed by the Public Authorities Law. The Authority has expressed no interest in a permit sale, and any transfer of the permit would require the prior written approval of the Department, according to 6 NYCRR 360-1.11(b). If a permit modification were proposed, in the context of a sale, to remove the service area restriction, the Objectors could voice their concerns then.

Finally, the Objectors propose that any DEC permit expire if construction does not begin within a reasonably short (i.e., two-year) period of time after permit issuance. Otherwise, they say, the local area would be effectively in a state of suspended animation for an indefinite period of time, with property values depressed and local development activity frozen as a result of uncertainty over whether the landfill would be built. The Objectors point out that other landfills in the region have been permitted but not built (an indication, they say, of excess capacity), and that the Little report contemplates that once approvals are obtained to construct the landfill, the Authority can reevaluate market conditions and all key factors affecting its decisions. (Exhibit No. 24, page 32.)

In a letter dated November 16, 2000, DEC Staff recommended that the solid waste management facility permit contain a construction condition (revised Item No. 4) to read as follows:

"Unless the Department approves an extension in advance upon written application of the permittee, construction of "Phase I" as described in condition I.1 must be completed no later than three (3) years from the date of final issuance by the Department of all required permits. For the purposes of this permit condition, permit issuance shall be considered "final" when (a) the time period within which any available administrative or judicial challenge or appeal must be commenced has passed without such challenge or appeal having been commenced, or (b) a determination of any administrative or judicial challenge or appeal has been made, and the period within which any subsequent challenges or appeals must be commenced has passed without such subsequent challenge or appeal having been commenced. In the event an extension of time hereunder is granted, the Department shall determine the appropriate length of the extension, and may impose such conditions upon granting of such extension as it deems reasonable under the circumstances present at the time it considers the request."

In a letter dated November 22, 2000, the Authority said it accepts this language, with one exception: that the condition be modified so that the three years would run from the date of final issuance of all required permits by the Department and the U.S. Army Corps of Engineers. I find this modification to be unnecessary in light of Staff's allowance for a possible extension of the three-year time period, which is meant to account for the circumstance in which construction is delayed for lack of an Army Corps permit, or challenges to any permit that is issued.

In a letter dated November 28, 2000, the Objectors took no position on the modification proposed by the Authority. The Objectors had previously requested that construction start within two years of permit issuance by DEC. However, the likelihood that any permit would be challenged, and the uncertainty as to how long such a challenge would continue in the courts, make the two-year time frame unrealistic.

The language now proposed by DEC Staff gives the Authority some opportunity to consider its options once it knows that any DEC permit it receives is secure. However, it does not allow the Authority, on its own, to defer indefinitely its decision whether or not to build, because of the short time frame in which construction of the first phase must be completed.

THREATENED BIRD SPECIES

An issue exists as to whether construction or operation of the proposed landfill would cause or contribute to the adverse modification of the critical habitat of several threatened bird species, in violation of 6 NYCRR 360-1.7(a)(2)(iii). The threatened species at issue are the least bittern, northern harrier, upland sandpiper and Henslow's sparrow. [See, 6 NYCRR 182.6(b)(6)(ii), (iv), (vi) and (x). The Objectors' petition also references the Eastern bluebird, but that species is not considered endangered or threatened, according to state regulation, and therefore its use of the site is not relevant to the above-referenced siting prohibition.]

Issues for consideration include the adequacy (in terms of timing and intensity) of the Authority's 1995 and 1997 breeding bird surveys, the credit to be given to other sightings referenced in the Objectors' petition, and the value of the site as habitat for the species listed above.

Of these four species, only one, the northern harrier, is described as threatened in the DEIS dated January 1998 (Exhibit 9-T-1). (The others are more recent additions to the threatened species list.) According to the DEIS, a single northern harrier was observed flying over the proposed development area on three occasions - - once on October 14, 1993, once on June 16, 1994, and once on April 11, 1995 - - but no harriers were observed during any subsequent visit. According to the DEIS, there is no evidence of harriers nesting on-site, and due to the constant movement and grazing of cattle there, the proposed development area is not suitable as breeding habitat for harriers, which are a ground-nesting species. The DEIS also states that to the extent that any foraging by a northern harrier may occur, it is minimal, most likely by migrants, and that there is considerable suitable habitat in the region.

The Objectors' statements on this issue are from Gretchen Stevens (Comments on the DEIS and FEIS, Attachments D and E to the Objectors' petition; a 1993 letter of Dr. Robert Andrle, a bird expert, Attachment F to the petition; and a 1994 letter of James Pitcher, Attachment G to the petition.) Ms. Stevens writes that there is "good nesting and foraging habitat" at the site for the northern harrier, Henslow's sparrow and upland sandpiper, and that the June breeding bird surveys conducted by TES on the Authority's behalf did not have an adequate time frame to detect these species during their early or late breeding periods. (Petition Attachment D, page 9.) Dr. Andrle writes that he observed a northern harrier about a half-mile east of the site's eastern boundary (as well as an upland sandpiper about 1.5 miles east of the site's eastern boundary) in July 1993. Mr. Pitcher also writes that he has seen the northern harrier and upland sandpiper near the site boundaries.

Of the four species referenced above, the DEIS discusses observations of only two: the northern harrier (atpage 1222) and the upland sandpiper (atpage 1244). Field surveys conducted in the spring of 1994 and the breeding bird surveys conducted in 1995 and 1997 failed to locate any Henslow's sparrows on the site. The least bittern is not discussed in the DEIS, but the Objectors' offer of proof includes reference to The Atlas of Breeding Birds In New York, which it says shows that the least bittern, as well as the upland sandpiper and northern harrier, are located on or within one mile of the site.

The Authority points out that it consulted with state and federal agencies in identifying the species that use the site, and that DEC Staff reviewed its bird study favorably. The Authority claims that the timing of its breeding bird surveys was appropriate, that it picked a period when early nesters would still be at the site and late nesters would be in their pre-nesting stages. Had the surveys been done earlier in the year, the Authority claims, they would have documented migrating birds, not nesting ones.

The adequacy of the Authority's bird studies must be considered to confirm those studies' conclusions, in light of the criticism offered by the Objectors. Also, the Objectors must be given an opportunity to supplement the record with their own observations about use of the site by the threatened bird species.

Although Department regulation prohibits the construction and operation of solid waste management facilities in a manner which causes or contributes to the destruction or adverse modification of threatened species' critical habitat, the term "critical habitat" is not defined in Part 360 or the Department's protected species regulations, 6 NYCRR Part 182. The term is defined under the federal Endangered Species Act [16 USC Section 1531, et seq] as habitat that is essential to the conservation of the species [16 USC Section 1532(5)(A)].

There is no evidence that any threatened species has nested at the proposed landfill site. However, in identifying this same issue, with regard to the northern harrier, as one for adjudication in another landfill permitting case (Matter of the Application of Saratoga County, Issues Rulings of August 1, 1995), I concluded that critical habitat must be considered to be more than just the specific areas where a threatened species nests; it must also address the habitat used by the species for its existence, considering the function such habitat plays in relation to the species' life cycle. [See the discussion at pages 70 and 71 of my hearing report, attached to the September 3, 1996 Decision of the Deputy Commissioner.]

In the Saratoga County matter, I found that the landfill site was critical habitat for the northern harrier, but that a mitigation plan offered by the applicant adequately addressed the loss of habitat that would be associated with the facility's construction and operation. The discussion in my hearing report as to how critical habitat should be defined or addressed was not adopted by the Deputy Commissioner, though in prior cases the Department has relied on the definition of "critical habitat" found in the Endangered Species Act. [See, for example, Matter of Scott Paper Company and Finch, Pruyn & Company, Inc., Interim Decision, December 22, 1994.] In the Saratoga County matter, the Deputy Commissioner declined to establish precedent or policy on how "critical habitat" should be addressed or defined in future cases, preferring that such matters be reviewed on a case-by-case basis. (Decision, page 7.)

Should the Ava site be determined to be critical habitat for any of the four threatened species listed above, the Part 360 permit could be denied or, at the least, conditioned to require some mitigation, as was done in the Saratoga County matter for the northern harrier. Because the Objectors have called into question the studies performed on the Authority's behalf - - and because there are competing claims about the site's habitat value - - the issue of the siting prohibition requires further development at an adjudicatory hearing.

HYDROGEOLOGY

Several issues exist with regard to site hydrogeology, based on assertions in the Objectors' petition. These issues arise from competent offers of proof by the Objectors' hydrogeology expert, Andrew Michalski, that run counter to the claims in the application. DEC Staff is basically satisfied with both the hydrogeologic investigation (performed on the Authority's behalf by Geraghty & Miller) and the conclusions that the Authority has drawn from it. However, the claims of the Objectors raise sufficient doubts that they deserve to be adjudicated before permitting decisions are made by the Commissioner.

Dr. Michalski claims, in some instances, that the hydrogeologic investigation is inadequate and that additional work is required to verify its conclusions; in others, he has analyzed the data gathered through that investigation to draw conclusions different from those of the Authority. Certain of Dr. Michalski's assertions relate to impacts the project's construction and operation may have upon wetlands, and are therefore discussed above under that heading. Other claims, discussed below, concern (1) the possibility that the project site overlies a principal aquifer, (2) the characterization of the critical stratigraphic section (which bears on the ability to monitorany contaminantss that might escape the landfill), and (3) the adequacy and potential impacts of the groundwater suppression system in facilitating leachate migration.

Principal Aquifer

An issue exists as to whether the landfill would be constructed over a principal aquifer, in violation of a siting restriction found at 6 NYCRR 360-2.12(c)(1)(i). Part 360 defines a principal aquifer 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).]

On behalf of the Objectors, Dr. Michalski claims that beneath the site is a "buried valley aquifer" which meets the definition of a "principal aquifer" and functions as a deep subsurface drain to carry groundwater away from the site toward Boonville. This aquifer, he says, is a deep sand unit that would allow a release from the landfill - - which he says could reach the aquifer in less than six months - - to travel underground more than two miles in 67 years.

Dr. Michalski faults the hydrogeologic investigation for failing to explore this alleged aquifer beyond the edge of the landfill footprint. He says that geologic reasoning indicates that the aquifer must extend in the downgradient direction for a considerable distance and then join another such buried valley aquifer to form a contiguous system, as surface rivers do. He says that the valley incised into the subsurface bedrock and the low elevation of the water table suggest that the aquifer has a distant zone of discharge, which makes determining the aquifer's extent all the more important.

What the Objectors characterize as the buried valley aquifer is classified by the Authority as a deep sand/till formation that is partially confined in a hydraulic sense and fully confined geologically by an overlying layer of thick, saturated, tight gray till. Both the Authority and DEC Staff reject the idea that there is a principal aquifer beneath the site. This issue was investigated by DEC Staff in late 1996 based on a review of hydrogeologic information submitted by Geraghty & Miller in a two-volume request for aquifer determination (Exhibits No. 9-Q-1 and 9-Q-2). This request was written and reviewed with reference to DEC's October 23, 1990 Division of Water Technical and Operational Guidance Series (TOGS) 2.1.3 memorandum addressing primary and principal aquifer determinations (Exhibit No. 33).

In the text of the request, Geraghty & Miller conclude that the deep sand/till unit is not a principal aquifer because "the very significant thickness of extremely low permeability till that will overly (sic) the sand/till unit after landfill excavation will continue to confine the sand/till," and "the very low water yielding capabilities of the sand/till itself precludes it from being classified as highly productive or anything close to it." (Exhibit No. 9-Q-1, page 12.)

In an internal DEC memorandum of November 26, 1996, Jim Garry of the Division of Water agrees that the deep sand/till unit "does not meet TOGS 2.1.3 requirements for status as a Principal Aquifer in that it is of variably low permeability, would not be capable of sustaining the high yield typical of a Principal Aquifer, and is, in any case, confined by the overlying low permeability tills. The mapped extent of this unit on-site is less than 1/4 square mile. While it is possible that the unit could extend off-site, it is unlikely to be of five to ten square miles of contiguous area. Regardless, even if a significant areal extent existed, its hydrogeologic characteristics would preclude it from Principal Aquifer status." (See, Garry memorandum, Exhibit No. 34, page 3.)

The Authority points out that Dr. Michalski's concerns on this issue were raised in comments on the DEIS and responded to in the FEIS for this project. (See, Exhibit 9-U-1, pages C-244 to C-246.) However, this exchange merely highlights the continuing dispute between Dr. Michalski and the Authority's consultants.

Also, the Authority and DEC Staff point out that DEC's aquifer determination was not challenged in court by the Objectors when it was made almost four years ago. Authority counsel says the issue is now barred from this proceeding on the grounds of estoppel, res judicata and statute of limitations. However, no supporting case law has been provided.

Res judicata and collateral estoppel would not appear to apply since the Objectors have not previously had their day in court. Staff's aquifer determination was based on its review of the Authority's submission and other available data, but it did not result from a proceeding comparable to this one, which provides avenues for third-party intervention. The determination, by itself, was not equivalent to an approval of the entire project, but merely one decision among many that Staff made in a long, multi-faceted review.

The Objectors reasonably point out that it would be wasteful to require that opponents launch an Article 78 proceeding over each step bringing a project closer to approval. They also refer to another landfill permitting case, Matter of the Application of Integrated Waste Systems, Inc. (Decision of the Commissioner, May 15, 1996), in which the Department adjudicated as a hearing issue whether a deposit underlying a landfill site met the criteria for a principal aquifer, despite Staff's contention that it did not.

I agree with the Objectors that this permit hearing is an appropriate forum to challenge Staff's aquifer determination, and that they were not obliged to file an Article 78 proceeding after the determination was made. While I appreciate the Applicant's concern for finality on this issue, I must also note that the issue could have been laid to rest prior to completion of the entire application had the Authority availed itself of the option of conceptual review under 6 NYCRR 621.11. Conceptual review allows project sponsors to receive binding decisions of the Department on particular compliance issues prior to the development of detailed plans, specifications and applications, so that these issues cannot arise later to defeat a projectafter developmentt expenses have been incurred.

The TOGS memorandum outlines various factors that are used to determine whether a geologic formation qualifies as a principal aquifer: groundwater productivity, natural water quality, aquifer vulnerability, whether the aquifer is confined or unconfined, and whether the aquifer is in bedrock or an unconsolidated deposit. On the issue of productivity, the area of the aquifer, the thickness of saturated deposits of highly permeable materials, and the obtainable well yields are relevant factors. According to the Objectors, Dr. Michalski is prepared to testify that:

Based on the site's geologic history, the aquifer meets the DEC guidance standard of being at least 5 to 10 square miles of contiguous area;
Based on well log data, the saturated deposits meet the DEC guidance standard of being on average 20 feet thick and in some locations as much as 50 feet thick; and
Based on information compiled during the Authority's well development, obtainable sustained well yields are significantly more than the DEC guidance standard of 50 gallons per minute.

Any doubts about the aquifer's productivity, Dr. Michalski contends, could be resolved by conducting pump tests (at a cost of about $50,000). Also, he says, geophysical testing (at a cost of about $10,000) would allow better mapping of the aquifer's contours. Until the parties' claims are adjudicated, it remains unclear whether this additional work is reasonably necessary to determine whether a principal aquifer exists, and therefore whether this work may be required of the Authority.

Dr. Michalski disagrees with Geraghty & Miller as to whether the deep sand/till formation is confined by the overlying gray till. According to Dr. Michalski, the gray till and the perched condition associated with it do not exist under the northern portion of the landfill footprint, which means the underlying principal aquifer is unconfined and vulnerable to contamination. Also, he says, a thick unsaturated zone above the water table, on top of the aquifer, means that the aquifer is unconfined. These points require further consideration in determining whether there is a principal aquifer beneath the site.

Characterization of Critical Stratigraphic Section

Issues exist with regard to the Authority's characterization of the critical stratigraphic section beneath the site. According to 6 NYCRR 360-1.2(b)(47), the critical stratigraphic section (CSS) is defined as "all stratigraphic units, both unconsolidated deposits and bedrock including but not limited to the unsaturated zone, uppermost aquifer and first water-bearing unit into which facility-derived contaminants that escape from a solid waste management facility might reasonably be expected to enter and cause contamination during the active life or within 30 years following closure of the facility." The CSS must be defined in the hydrogeologic report that accompanies the landfill application [6 NYCRR 360-2.11]. Also, a plan must be developed for groundwater monitoring wells capable of detecting landfill-derived groundwater contamination within the CSS. [6 NYCRR 360-2.11(c)(1)].

To aid in determining the CSS, the Authority used a groundwater model for the site to simulate flow during the period after landfill construction. According to the site investigation report prepared by Geraghty & Miller, the model results indicated that the groundwater suppression system would create an inward hydraulic gradient toward the landfill around the areas of subsurface excavation in all locations except the northwest corner of the footprint, where the landfill, and hence the groundwater suppression system, would be constructed above the water table. In this corner, Geraghty & Miller found, a release from the landfill would percolate downward through the unsaturated brown till to the water table, then travel laterally with the groundwater flow in a northeasterly direction, and finally downward into the bedrock before discharging into the unnamed tributary to Moose Creek, all over the course of 15 to 75 years after the release first reaches the water table. Therefore, Geraghty & Miller concluded, the CSS during the active life of the landfill (when the groundwater suppression system is operating) should be limited to the brown till and bedrock in the site's northwest corner, whereas after closure (when the system is shut off) the CSS should expand to include units in all areas beneath the footprint. (See, pages 56-60 of the site investigation report, Exhibit No. 9-T-11.)

Dr. Michalski objects to this characterization as underestimating the width and depth of the CSS. He says that groundwater flows in directions different from those predicted by Geraghty & Miller, and therefore contamination could escape detection in the monitoring wells planned for this project. (In its site investigation report (page 66), Geraghty & Miller claim that their proposed groundwater monitoring network is conservatively based on the CSS determined considering both the operational and 30-year post-closure periods.) Dr. Michalski says that any release of contaminants would travel farther and faster than the Authority anticipates.

Dr. Michalski takes particular issue with Geraghty & Miller's projection of groundwater flowing from the site's northwest corner through the brown till and bedrock and from there into the unnamed Moose Creek tributary. He claims that, instead of gaining or receiving groundwater flow, this tributary is actually losing water into its streambed, based on the Authority's own water level measurements. He also says that in the northwest portion of the footprint, groundwater in the bedrock flows relatively quickly to the southeast, away from the tributary and toward the so-called buried valley aquifer, as evidenced by water level data from bedrock wells. According to Dr. Michalski, the groundwater suppression system would not reverse this flow; in fact, it would only deepen the existing southeasterly horizontal gradient.

As the Objectors argue, issues as to whether the Authority's CSS is derived from an adequate model relate to the reliability of the monitoring plan, and raise an issue under 6 NYCRR 360-2.11(c)(1). Also, the possibility that bedrock could provide a rapid migration pathway for contaminants to an aquifer raises an issue under 6 NYCRR 360-2.12(b)(2)(i)(b)(2).

The Authority disputes Dr. Michalski on several of key points, including the conductivity of the bedrock and till units, the components of lateral and vertical flow through those units, and the relationship of the Moose Creek tributary to the local water table. These are key points that require development at the adjudicatory hearing.

The Authority also points out that DEC Staff has accepted its groundwater model and is satisfied with its monitoring well network. In fact, Staff opined during the discussion of this issue that the Authority's groundwater flow model is a reasonable representation of what happens at this site and adequately supports the Authority's environmental monitoring plan. Testimony supporting these opinions would beespeciallyy welcome at the hearing, given the sophistication of the issues presented and Staff's duty to independently and dispassionately review permit applications.

Adequacy and Potential Adverse Impacts of Groundwater Suppression System

Finally, issues exist with regard to the appropriateness of the groundwater suppression system, again based on Dr. Michalski's offer of proof. Dr. Michalski says that a perched water condition in the gray till portion of the site and a strong downward gradient adjacent to the Moose Creek tributary make the system untenable. He adds that creating a continuous high-permeability drainage layer under the footprint would only intensify the downward flow into the water-perching unit and higher-permeability sand stringers in the gray till, so that the groundwater suppression system would actually increase the speed with which any release from the liner would reach the so-called buried valley aquifer. As the Objectors argue, this raises an issue under 6 NYCRR 360-2.17(g), which requires, among other things, that the landfill be constructed and operated to prevent the migration of leachate into groundwater.

Addressing this point, the Authority claims that the permeability of the gray till is very low, that the gray till is thoroughly saturated, and that the water level of the brown till that overlies the site is the true water table and marks the top of the zone of saturation that continues downward through the brown and gray tills. Furthermore, it says there is no evidence of any high-permeability sand stringers in the gray till that could connect to the deep sand/till unit where the buried valley aquifer is alleged to be located. These assertions will require further development at hearing, so that the proper conclusions can be drawn.

NO ISSUE FOR ADJUDICATION

The follow matters are not suitable for adjudication, either because they involve inadequate offers of proof or are beyond the scope of DEC's review, since it is not the lead agency for SEQRA purposes.

SITE SELECTION

The Objectors seek to raise issues about the site selection study that was performed as part of the landfill application. The study is required pursuant to 6 NYCRR 360-2.12 because the landfill would be constructed and operated within the boundary of a DEC-regulated wetland [6 NYCRR 360-1.7(a)(2)(iv)]. Among the landfill project documents identified as part of Exhibit No. 9 ( and listed in Appendix "B" to these rulings) are a list of siting reports that were issued by the Authority between June 1992 (the release of the FEIS for the siting methodology) and January 1998 (the release of the DEIS for landfill development at site WLE-5 East). The Objectors contend that, in selecting WLE-5 East, the Authority violated several legal requirements:

It selected an area that under the DEC-approved siting methodology was absolutely prohibited from further consideration because it had designated state and federal wetlands.
It dropped its plan to intensively study three different areas, instead restricting its study to two (WLE-5 and another site on Tannery Road in the city of Rome).
It rendered itself legally incapable of satisfying the mandate of federal and state wetland laws that wetlands be filled only if there is no other practicable alternative. The Objectors do not advocate any particular site as a practicable alternative. Instead, they claim there are 77 practicable alternatives worth looking at, those being 77 other sites that were identified in the two-county area during the course of the siting study.

The Objectors claim that the Authority violated two particular provisions of the landfill regulations: Section 360-2.12(b)(2)(i), which requires that all of the criteria used to eliminate and evaluate the suitability of potential sites be "consistently applied," and Section 360-2.12(b)(2)(i)(a), which requires that an applicant "exclude inappropriate siting areas by avoiding the prohibited siting areas" identified in Section 360-1.7(a)(2), which include state-regulated wetlands.

According to the Objectors, the Authority abandoned its siting methodology when it yielded results it didn't like, and settled on WLE-5 East, despite its being within the boundary of a state-regulated wetland, while failing to intensively study four of its top ten identified sites (HER-6, MID-8, MID-9 and STR-11) which had no state-regulated wetlands in their preliminary footprints.

The Objectors also allege that the Authority violated SEQRA, which requires an expansive review of alternative sites by a public entity with condemnation powers.

The Objectors identified no witnesses they would call on site selection issues. According to their counsel, these issues could be adjudicated based on the existing documentary record of the Authority's siting methodology and siting reports. In addition, the Objectors argue, the Authority's board, staff members and consultants should be made available for live cross-examination on the procedures that they followed.

RULING: No issue exists for adjudication.

Background

The siting issues proposed by the Objectors must be viewed in the context of the process that the Authority used to select its site in Ava. The Authority initiated its current landfill siting effort in 1991 with the approval of a solid waste management system plan (Exhibit No. 9-KK) confirming its intent to identify a landfill site, and the formulation of a methodology to be used in site selection. In June of 1992, the Authority released the Landfill Siting Methodology FEIS (Exhibit No. 9-E), after 16 months during which the methodology was developed in view of state siting requirements as well as public comments and suggestions. A SEQRA findings statement on the landfill siting methodology (Exhibit No. 9-F) was adopted by the Authority on August 17, 1992, and forwarded to DEC, which approved the siting methodology in September of 1992.

The Authority's siting methodology represented a blueprint for how the Authority would identify and evaluate potential landfill sites in Oneida and Herkimer counties. Because DEC prefers that landfill sites be located over a thick sequence of low permeability (clay-like) soils, the first step in the methodology was to identify and map broad areas throughout the two-county region which were likely to be underlain by glacial till and lacustrine silt and clay deposits. Preliminary landfill footprints (areas where waste would be buried) were then located within these broad areas after consideration of siting restrictions in state and federal regulations. For instance, according to the methodology, DEC regulated wetlands, as shown on the agency's wetland maps, were not to be landfill footprints, though they could be included in other parts of a landfill site, such as in the buffer area.

After 78 potential landfill sites big enough to provide at least 20 years of active life were identified in the two-county region, the Authority used a DEC-approved numerical ranking system to pick the best candidates. The ranking system included 11 separate evaluation criteria based on Part 360 standards such as the presence or proximity of wetlands, as well as other considerations such as population density within a one-mile site radius, existing land use and ownership (whether public or private), potential useful life, and distance to incompatible structures (like schools and churches) and recorded historical and archeological sites.

Each criterion was assigned a weighting factor to reflect its relative importance, and during the evaluation of each site, that ranking factor was multiplied by a site rating ranging from one to three (with one representing the least favorable criterion conditions and three representing the most favorable) to calculate the site score. The top-ranked sites then underwent a nonnumerical evaluation consisting of 16 additional environmental, cultural, social and economic criteria.

In April of 1993, the Authority released an environmental report on its candidate landfill sites. The first volume (Exhibit No. 9-G-1) contained the numerical and nonnumerical evaluations of the top ten potential landfill sites. The second volume (Exhibit No. 9-G-2) contained the results of the numerical rankings for the sites which did not score within the top ten. (These sites were given no further consideration.) The third volume (Exhibit No. 9-G-3) contained evaluations of three potential sites near old landfills, reflecting a public desire to locate a new landfill in a previously impacted area. One of those sites was a 41-acre parcel, on Tannery Road, adjacent to the old City of Rome landfill and an ash landfill operated by the Authority.

After taking site tours and listening to public comments, the Authority board, in May of 1993, passed a resolution which said that on-site investigations would be conducted at site WLE-5 in the Town of Ava, as the primary site, and the Tannery Road site in the City of Rome, as the secondary site. The resolution provided that site MID-9 in the Towns of Fairfield and Newport would be held as a contingency site, to be tested later only if deemed necessary by the board.

The board's decision limiting its on-site investigations conflicted with a provision in its previously determined methodology, which said that initial on-site investigations would be conducted at a minimum of three available sites, as selected by the board. (Siting Methodology FEIS, Exhibit No. 9-E, page 62.) Therefore, in its resolution (attached to Exhibit No. 9-H, its July, 1993 landfill siting decision report), the board modified the methodology so that it and the resolution would be in accord.

The board made its testing selections with the idea that they would minimize disruptions for landowners and their families, and minimize the impacts of testing on farms, since the preliminary footprint areas on site WLE-5 and the Tannery Road site were identified as having the lowest acreage of active cropland of any of the top group of landfill sites. Also, the board reasoned, limiting the testing as it did would enable the testing activities and additional site investigations to focus on the two sites which the board considered to be most preferable for landfill development.

Contrary to published soils information, which indicated unfavorable soil conditions on the eastern portion of site WLE-5, subsurface investigations identified two potentially suitable footprint areas: one ( WLE-5 East) on the eastern side of the site, and the other (WLE-5 West) on the western side. The size and development potential for each of these footprints, and their separation by an extensive on-site mapped DEC wetland (WL-2) that was intended to be protected from development, resulted in consideration of each footprint as if it were a stand-alone landfill site. (See, Exhibit No. 9-K, pages 5 and 6.)

In September of 1994, the Authority board released a report (Exhibit No. 9-K) addressing site suitability and the investigations that were conducted during the previous year at sites WLE-5 East and West as well as Tannery Road. (Other investigatory reports identified for this record as Exhibits No. 9-L, 9-M, 9-N and 9-O were also released at this time.) Following a period for public comments, in November of 1994, the board passed a resolution designating WLE-5 East for further study and preparation of an environmental impact statement. The background to this decision, the reasons for it, and the resolution itself are included in a January, 1995 landfill siting decision report which is Exhibit No. 9-P.

Evaluation of Wetlands

Because the Objectors take particular issue with the Authority's treatment of wetland issues, it is worth considering how these issues were considered in selecting the WLE-5 East site.

As noted above, WLE-5 East is one of two sites that the Authority evaluated as WLE-5. When WLE-5 was initially looked at, it received a "1" (or least favorable ) ranking under the numerical rating criteria of "DEC or APA Regulated Wetlands" since it was acknowledged that DEC-regulated wetland WL-2 (a class II wetland, as mapped by the Department) was within the site boundary. (However, it was not within the footprint then proposed). Also, based on desktop data, it was acknowledged that an estimated 39.44 percent of WLE-5 consisted of potential federal wetlands, though virtually all of these wetlands were deemed to be outside the preliminary footprint. (See, pages 261, 262 and 279 of Exhibit No. 9-G-1.)

In the fall of 1993 and spring of 1994, TES conducted a field delineation of WLE-5's federal wetlands, concentrating on areas that would potentially be impacted by landfill development. A total of about 40.5 acres of federally regulated wetlands were found within the WLE-5 East footprint development area (which includes the footprint, perimeter berm/access road, leachate storage tanks, and detention ponds), about 18.2 acres of which (as well as 15.2 additional acres of adjacent area) were deemed subject to DEC regulation as well. For WLE-5 West, 21 acres of federally regulated wetlands were found, about 13.8 acres of which (as well as an additional 40.5 acres of adjacent area) were deemed regulated by DEC.

Of the 40.5 acres of federal wetlands that would be impacted in the WLE-5 East development area, the majority (35.3 acres) were found to consist of wet meadow, whereas in the WLE-5 West development area, the majority (19.9 acres) of the 21 acres of impacted federal wetlands were deemed to be of a "scrub-shrub" type.

According to the Authority's report addressing the WLE-5 and Tannery Road site investigations:

"The potential for avoiding wetlands in a landfill siting project is limited, due to the similarities that exist between the State landfill siting criteria and the formation of wetlands. The State requires landfills to be sited in low permeability soils, which, due to their inherent poor drainage, often have a prevalence of wetlands. Because suitable (in terms of hydrogeology) landfill sites are very likely to have a prevalence of wetlands, there will be unavoidable wetland impacts that will require some form of compensation.

On site WLE-5, both the eastern and western footprint development areas were located in areas outside of the large NYSDEC wetland (Wetland WL-2) that is shown on the existing NYSDEC regulated wetlands maps. Information gathered during the wetland delineations indicates that the fingers of wetlands, which extend out of the mapped NYSDEC wetlands and into the proposed development areas, are of lesser value than those in the main body of the DEC wetland. On the western development area, these wetland fingers have been significantly altered by logging activities. On the eastern development area, these wetland fingers consist of fairly low value wet meadow wetlands. The higher value open water and mixed evergreen and deciduous wetland complexes, which make up the main body of the DEC mapped wetland, have been avoided.

There are numerous areas on Site WLE-5 that appear to be suitable for wetlands mitigation (creation) projects. Many of these areas are presently open fields or shrub-scrub uplands; therefore, forested lands would not have to be cut in order to create new wetlands. In addition, many of the areas suitable for wetland creation are adjacent to mapped NYSDEC wetlands." (Exhibit No. 9-K, page 46.)

In selecting WLE-5 East as its proposed development site, the Authority noted that the wetlands at Tannery Road, as a whole, are of higher value than those within the proposed eastern and western footprints of site WLE-5, and that of the three footprints, the U.S. Army Corps of Engineers, in a letter to the Authority, gave preference to the development of a landfill at site WLE-5 East. The Authority also noted that due to the relatively small size of the Tannery Road site, there appeared to be limited available area for on-site wetlands creation mitigation projects. Finally, the Authority determined that while the largest acreage of wetlands impacts would potentially occur at WLE-5 East, the wetlands there are of much lower value and easier to replicate by wetlands mitigation projects than those found at either the Tannery Road site or WLE-5 West.

Objectors' Claims

The Objectors claim that the Authority's landfill siting process ran afoul of both the methodology under which it was to be conducted, as well as Part 360 site selection requirements. They also claim that, without further consideration of other sites, the Authority cannot demonstrate that there are no practicable alternative locations for the landfill. The Objectors call particular attention to the Department's freshwater wetland permitting regulations, which require that for activities deemed incompatible with wetlands, a permit may be issued only if the activity has "no practicable alternative" on a site that is not a freshwater wetland or adjacent area. [6 NYCRR 663.5(e)(2)]. The Objectors reason correctly that, to make this determination, other sites need to be evaluated through some form of study by a permit applicant.

As noted above, the Authority did perform a site selection study, looking at 78 different sites which appeared from desktop data to have favorable soil conditions for landfill development. The numerical ranking of these sites to determine the 10 most preferred sites included wetland considerations: whether the sites contained or were proximate to state-regulated wetlands, and how much of each site consisted of potential federal wetlands. All of the 78 identified potential landfill sites contained significant areas of potential federal wetlands, which, the Authority explained, is because water does not freely drain away from the low permeability soils favored by DEC for landfill siting. (Exhibit No. 9-G-1, page 39.)

Wetland considerations also played a part in determining which sites were chosen for on-site investigations, and ultimately which site was chosen for development. (For a discussion of this, see pages 4-6 to 4-9 of Volume A of the wetland report for site WLE-5 East, Exhibit No. 9-Z-1.)

The Objectors argue that the 77 other sites that the Authority located in the two-county area are practicable alternatives worthy of consideration. However, these sites have already been looked at, not only in relation to wetlands criteria, but a full range of factors that bear on suitability for landfill development. Of course, there are alternative sites that would not involve development in a state-regulated wetland or its adjacent area. However, avoiding wetlands does not by itself make a site a practicable (or feasible) alternative. One must also consider the Department's other solid waste management facility siting prohibitions [at 6 NYCRR 360-1.7(a)(2)], its landfill siting restrictions [at 6 NYCRR 360-2.12(c)], and other reasonable environmental, economic, social and cultural criteria, as the Authority did in its siting methodology. For instance, the Authority took into account factors such as population density (to meet public interest in siting at a remote location), potential useful life (the longer, the better), costs of development, agricultural impacts, and potential visual, air pollution and noise impacts at surrounding properties.

To create an issue for adjudication, the Objectors would have to lay out an offer of proof that another site provides a practicable (or feasible) alternative, taking into account all reasonable siting factors, not just those bearing on wetlands. This offer is lacking from their petition, despite the extensive amount of information provided by the Authority, particularly with regard to its top-rated sites.

At most, the Objectors point out that four of the Authority's top ten sites (HER-6, MID-8, MID-9, and STR-11) had no DEC-regulated wetlands in their preliminary footprints. However, these sites had other drawbacks to their development, according to the siting decision report dated July, 1993 (Exhibit 9-H). For one or more of them, these included small site size, short potential useful life, needs to repair or improve transportation routes, and relationships to aquifers and water supply wells. These and other factors also bear on whether these sites would provide practicable alternatives.

The Objectors argue that they lack the money and legal authority to conduct an investigation of alternative sites. No one reasonably could expect of them a site selection study comparable to the Applicant's. However, that does not absolve them of their duty to make an adequate offer of proof in order to raise an issue for adjudication. The burden on intervenors with regard to site alternative issues was addressed by the Commissioner in Matter of the Application of the Development Authority of the North Country (DANC), Interim Decision, July 24, 1990, in which a SEQRA-related landfill site selection issue identified by an ALJ was excluded from adjudication:

"While it is true that requiring the Intervenors to develop information on alternative sites might present a hardship for them, it is equally true that denying the Applicant a forum where it can obtain a binding decision on which site is the most acceptable represents at least an equivalent hardship. It is essential to avoid a repetitive decision-making process where site after site is held up to intense scrutiny against a theoretical ideal and a common forum to fully assess the relative merits of all competing sites is absent." (DANC, page. 4.)

The Objectors correctly point out that SEQRA requires an evaluation of alternative sites, and that the Authority, having the power of eminent domain, has a far broader range of potential sites available to it than a private applicant, whose evaluation of site alternatives may be limited to those which it owns or has under option. However, the project DEIS (Exhibit No. 9-T-1, at pages 255 to 261) contains an elaborate discussion of alternative landfill sites, which fulfills the Authority's SEQRA obligations.

Finally, the Objectors claim that the Authority basically abandoned its own methodology in arriving at WLE-5 East as its preferred development site. I disagree with this characterization.

As the Authority explained at the conference, its site selection process was iterative, meaning that candidate sites were evaluated again and again for the same criteria based on better and more refined information as the number of sites grew smaller. This process was consistent with 6 NYCRR 360-2.12(b)(2)(i), which calls for a "phased approach . . . in which a more detailed evaluation of sites occurs as the number of potential sites is reduced."

Once broad areas that appeared hydrogeologically suitable for landfill development were identified and mapped, the identification of potential landfill sites began with the elimination of selected DEC and EPA prohibited siting areas, including DEC regulated wetlands, the locations of which were established from DEC's wetland maps. The methodology required that DEC-regulated wetlands be eliminated from further consideration as landfill footprints, but not from buffer areas. For site WLE-5, this was accomplished by locating the proposed footprint in the western part of the site.

It was only after subsurface investigations were done at WLE-5 that it was determined that the eastern part of the site had favorable soil conditions for landfill development, and a proposed footprint was sited there as well. Like the western footprint, the eastern footprint avoided DEC wetland WL-2 as mapped by the Department, though information gathered during wetland delineations by the Authority's consultant indicated that fingers of the wetland, of lesser value than those in the wetland's main body, extended into areas of proposed development. (See, Exhibit No. 9-K, page 46.)

In their petition, the Objectors state that the eastern part of WLE-5 (the area of the Paluck farm) was eliminated from consideration as a landfill site, only to be restored after opponents challenged development in the western footprint on grounds that it contained county reforestation land and, therefore, its development would violate County Law Section 219. (A lawsuit on this issue was never resolved.) Actually, as the Authority points out, no part of site WLE-5 was ever ruled out conclusively for development. In fact, according to the siting methodology, all landfill site and footprint boundaries were to remain subject to change through all phases of the landfill evaluation process, as more detailed data were obtained and evaluated. (See, Exhibit No. 9-E, page 35.).

The abandonment of the western footprint did not preclude development in the eastern part of the site, or require refocusing on other sites among the Authority's top ten. When first promulgated, the siting methodology said an initial on-site investigation would be conducted on a minimum of three sites; however, that methodology was amended by the Authority board when it passed its resolution limiting investigations to WLE-5 and Tannery Road.

The Authority's methodology recognized that, as these investigations were conducted, information about site conditions might indicate problems in securing needed wetlands permits from the state and federal governments. In that event, the methodology states, the Authority was to use its judgment to determine whether testing of additional sites was warranted. (See, Exhibit No. 9-E, page 63.) Here, that judgment was exercised to proceed with permit applications, in the belief that permitting standards could be met. Also, the Authority is seeking a variance from the restriction [at 6 NYCRR 360-1.7(a)(2)(iv)] against the construction or operation of new solid waste management facilities within the boundary of a DEC-regulated wetland. As noted above, issues concerning the project's impact on wetland resources, which bear on the permit and variance requested of DEC, have been identified for adjudication. Should the Authority be unable to secure the permit and variance, it will, by necessity, be forced to look at other sites.

As DEC Staff argues, DEC's regulations put a major emphasis on keeping landfills out of wetlands, but there is no absolute prohibition in this regard, nor would it be reasonable to expect a siting methodology to contain such a prohibition when the regulations provide some flexibility through permits and variances. Because the avoidance of wetlands has been factored into decisions regarding WLE-5 East - - in fact, it has been a factor throughout the siting process - - there is no issue for adjudication under DEC regulations [at 6 NYCRR 360-2.12(b)(2)(i)] that concern the siting process.

WETLAND CLASSIFICATION

The Objectors seek to raise issues regarding the classification of wetland WL-2. DEC Staff have determined it to be a Class II wetland because it has three Class II characteristics: It is within a publicly owned recreation area, it is adjacent or contiguous to a stream classified C(t) or higher, and it is one of the three largest wetlands within the Town of Ava. [See, Attachment J to the Objectors' petition, Exhibit No. 6, a September 28, 1993 letter from John Page, a DEC wildlife biologist, to Alex Stempien, referencing standards found at 6 NYCRR 664.5(b)(5),(16), and (17).]

The Objectors want the hearing to consider whether WL-2 meets a fourth Class II characteristic: 25 percent coverage by each of two different structural groups: the herbaceous structural group and the woody structural group. [See, 6 NYCRR 664.5(b)(2) and 664.6(b)(1)(i) and (ii).] Assuming it does meet this characteristic, the wetland would contain four enumerated Class II characteristics and meet the standard for a Class I wetland. [See, 6 NYCRR 664.5(a)(7).]

This is significant because the permitting standards for regulated activities in Class I wetlands are the strictest available under the Freshwater Wetlands Act. Class I wetlands provide the most critical of the state's wetland benefits, reduction of which is acceptable only in the most unusual circumstances. A permit shall be issued for a regulated activity in Class I wetlands only if it is determined that the activity satisfies a compelling economic or social need that clearly and substantially outweighs the loss of or detriment to the benefit(s) of the Class I wetland. [See, 6 NYCRR 665.7(e)(2)].

RULING: No issue exists for adjudication. The Objectors' counsel indicated during the issues conference that his clients had done some aerial photography to see if the fourth Class II criterion (addressing coverage by woody and herbaceous structural groups) could be met, but that no conclusions had been reached. The Objectors' wetlands expert, Ms. Stevens, was allowed access to the site prior to the issues conference by the Authority, but her report makes no offer on this point either.

The Objectors point out that Alex Stempien, a former Ava zoning officer and owner of part of WL-2, wrote a letter to the Department in 1993 expressing interest in upgrading the wetland's classification (Exhibit K to the Objectors' petition). However, this letter did not set out reasons for believing the Class II classification was incorrect, so it did not oblige the Department to reconsider its determination.

A 1994 internal Department memorandum (attached to the Objectors' petition as Exhibit L) concedes that the possibility exists of having WL-2 upgraded from Class II to Class I, which "would involve a much more difficult wetland permit." However, nothing from the Department's files, as presented in the petition, suggests there is any reason to believe that such an upgrade is appropriate.

At the issues conference I ruled that the record would not be held open to receive aerial photographs or an analysis based on them, since there was an ample opportunity to present this information in the Objectors' petition or during the conference discussion of wetlands issues. Because no timely offer of proof was made, any further pursuit of this issue during the adjudicatory hearing would be untimely, as the Authority argues.

AIR QUALITY IMPACTS

The Objectors seek to raise issues concerning the air quality impacts of the landfill project. Broadly speaking, these issues concern the Authority's air quality dispersion modeling, control of hazardous air pollutants, and impacts of fugitive dust and particulates. These points are discussed at pages 35-38 of the Objectors' petition, and are based on an offer of proof by their air expert, Daniel Gutman, whose resume is Exhibit B of their petition. Mr. Gutman has an M.S. in physics and past consulting experience on air pollution issues related to various development projects.

On behalf of the Objectors, Mr. Gutman has reviewed the air quality assessments contained in the DEIS and FEIS, as well as the engineering report and the correspondence between DEC Staff and the U.S. Environmental Protection Agency. He wrote a letter to DEC Staff on January 11, 1999 (Petition Exhibit B), in which he addressed an air quality analysis that was done as part of the FEIS for this project. That letter is referenced in another letter of the same date from the Objectors' counsel to DEC Staff (Petition Exhibit AA).

The Objectors argue that the landfill would be a "chemical cookery" that may not be permitted if its air emissions would have an adverse impact on public health. As noted in the project engineering report (Exhibit 9-W-1, page 85), landfill gas is a naturally occurring byproduct resulting from the anaerobic decomposition of organic material in landfill wastes. Approximately 55 percent of the landfill gas produced is methane, and the remainder is primarily carbon dioxide. The Objectors are particularly concerned about emissions of the hazardous air pollutants acrylonitrile and vinyl chloride, which they say would exceed state guidelines according to modeling that was done as part of the FEIS. Also, they claim that the Authority has seriously underestimated the particulate emissions associated with truck traffic, as well as the amount of fugitive dust one might expect due to the site's silt-rich soils.

The Objectors seek to adjudicate air quality as an issue under SEQRA and the Department's regulations governing landfills and air resources, as cited below.

State law mandates that "owners or operators of all solid waste landfills must ensure that air emissions from the landfill will not violate any applicable requirements developed pursuant to section 111 of the Clean Air Act" [6 NYCRR 360-2.17(x)]. These requirements include new source performance standards for municipal solid waste landfills at 40 CFR. Part 60 Subpart WWW Section 60.752(a), governing air emissions. [See, Conference Exhibit No. 46, which is a copy of this regulation.] In order to operate a landfill with a design capacity of more than 2.5 million megagrams (2.75 million tons), the Authority must obtain - - and has applied for - - a Title V air permit, in which it must detail its emissions and methods of monitoring and control.

Gas control systems are required of every new landfill and must be premised on sound analysis of emissions. [See, 6 NYCRR Sections 360-2.13(p), addressing gas venting; 360-2.15(d)-(h), addressing gas control and collection; 360-2.16, addressing gas recovery facilities; and 360-2.17(f), requiring control of waste decomposition gases "to avoid hazards to health, safety, or property."]

Pursuant to 6 NYCRR 211.1, no person shall cause or allow emissions of air contaminants (including any gas or particulate) to the outdoor atmosphere of such quantity, characteristic or duration which are injurious to human, plant or animal life or to property, or which unreasonably interfere with the comfortable enjoyment of life or property.

Finally, 6 NYCRR 360-1.14(k) requires that owners or operators of solid waste management facilities undertake any and all measures as required by the Department to maintain and control dust at and emanating from the facility, and that the dust be effectively controlled so that it does not constitute a nuisance or hazard to health, safety or property.

The Objectors claim that landfill gas emissions are of special concern in light of a state Department of Health study (Exhibit No. 45) finding a significant increase in bladder cancer and leukemia among women living near landfills.

RULING: No issue exists for adjudication. Gas and particulate emissions have been adequately evaluated and, under terms of DEC's draft permit, can be adequately controlled to meet all applicable legal requirements. The Objectors have not uncovered any flaws in the methodology used by the Authority to model dispersion of air pollutants. The modeling incorporates conservative assumptions about the amount of expected hazardous air pollutant emissions and looks at impacts in the final year of operations (in other words, for the maximum amount of waste projected to be disposed of in the landfill).

With an assumed landfill gas capture efficiency of 80 percent, all modeled maximum pollutant concentrations are below their respective standard or guideline concentrations at the site boundary except for acrylonitrile and vinyl chloride. However, the modeled exceedences of DEC's annual guidelines for one or both of these two pollutants are restricted to five of the 65 receptors that were spread rather evenly around the property boundary, and the area of off-site impacts appears to be very limited, with no identified points of special concern such as homes and schools. Furthermore, assuming a 90 percent landfill gas capture efficiency, which the Authority says has been met or surpassed at newly designed landfills, all modeled concentrations are below applicable guideline concentrations and standards, with no exceptions.

Finally, Staff's draft air permit (Condition No. 97) requires testing for hazardous air pollutants once the landfill begins operating. This will test the accuracy of the Authority's emission rate predictions; if actual rates are higher than those predicted, additional modeling would be required, as would a risk assessment for possible health impacts, if an exceedence of a DEC guideline should be projected. As a result of the risk assessment, DEC could consider additional terms and conditions for the operation of the landfill to mitigate identified emissions of concern, as noted in air permit condition No. 97. Also, the permit could be amended to increase the frequency of emissions monitoring, to see if mitigation measures actually work. Finally, the Authority could acquire impacted off-site property as additional landfill buffer.

Given the number of variables that bear on air quality impacts, it would be impossible to gauge them precisely before the project goes forward. Nevertheless, the Authority appears to have analyzed these impacts in a reasonably conservative manner, so that, if anything, they are likely overstated. And whatever the actual impacts are, the permit imposes a duty to study and address them at an early stage of the project's life, before much waste is deposited.

To discuss the air quality issues proposed by the Objectors, one must place them in the context of the planned control measures and the work the Authority has done to assess the expected air quality impacts of the project.

Landfill Design

As noted in the DEIS (Exhibit 9-T-1, page 182), the Authority's design calls for the installation of horizontal gas collection trenches leading to riser pipes on the side slopes of the landfill. In accordance with the federal new source performance standards, the landfill would be required to estimate, or when practicable, test for the annual emission rate of non-methane organic compounds generated, and when that rate exceeds 50 megagrams (about 55 tons) per year, install a collection and control system. When that system is installed, the riser pipes at the end of the trenches would be tied to a vacuum system which would actively collect the gas and minimize off-site gas migration. The gas would then be either combusted in flares or used as an energy source (if the volume of gas produced is sufficient to warrant such use). Prior to the installation and operation of the landfill gas controls, the gas would be vented to the atmosphere and dissipate, which the Authority expects would have no significant impacts, given the effects of wind, air mixing, and the distance between the landfill and the nearest residences.

Based on modeling that has been performed, EPA expects that the 50-megagram threshold would be passed after two years of operation, triggering the need for gas control. The requirements for the collection and control system are discussed in Staff's draft air permit (Part "C" of Exhibit No. 8-A), particularly in conditions 52 and 53, and 86 to 88.

As noted in the engineering report (Exhibit 9-W-1, page 86), landfill gas emissions from the proposed landfill were estimated for the initial Title V air permit application. [See, Appendix A of the engineering report, Exhibit 9-W-2]. The generation of gas is an incremental process, whereby increasing quantities of gas are generated as more

Oneida-Herkimer Solid Waste Management Authority (Ava Landfill) - Ruling, January 30, 2001

Ruling, January 30, 2001

TABLE OF CONTENTS

BACKGROUND AND BRIEF PROJECT DESCRIPTION

LEGISLATIVE PUBLIC HEARING

ISSUES CONFERENCE

Conference Participants

Issues Conference Record

Intervenors' Environmental Interests

Issues for Adjudication

ISSUES FOR ADJUDICATION

WETLAND IMPACTS

Background

Legal Bases for Consideration of Wetland Impacts

Consideration of Mitigation Efforts

NEED

Proposed Permit Conditions

THREATENED BIRD SPECIES

HYDROGEOLOGY

Principal Aquifer

Characterization of Critical Stratigraphic Section

Adequacy and Potential Adverse Impacts of Groundwater Suppression System

NO ISSUE FOR ADJUDICATION

SITE SELECTION

Background

Evaluation of Wetlands

Objectors' Claims

WETLAND CLASSIFICATION

AIR QUALITY IMPACTS

Landfill Design