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Onondaga County Resource Recovery Agency - Interim Decision, December 30, 1994

Interim Decision, December 30, 1994

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

In the Matter

- of the -

Application for a permit to construct a solid waste management facility pursuant to
Environmental Conservation Law Article 27, Title 7 (Solid Waste Management and Resource Recovery Facilities), Article 17, Titles 7 and 8 (Water Pollution Control Permits and Certificates, and State Pollutant Discharge Elimination System) and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York Part 360 (Solid Waste Management Facilities), and Chapter X, Article 3 (State Pollutant Discharge Elimination System)

- by -

ONONDAGA COUNTY RESOURCE RECOVERY AGENCY

DEC No. 7-3156-00047-00003-0

INTERIM DECISION

December 30, 1994

Interim Decision of the Commissioner

Applicant Onondaga County Resource Recovery Agency ("OCRRA" or "Applicant") has applied for a permit to construct a facility in the Town of Van Buren to accept non-hazardous municipal incinerator ash from its municipal waste resource recovery facility.

This Interim Decision relates to the October 3, 1994, Issues Ruling and the October 24, 1994, Second Issues Ruling of Administrative Law Judge ("ALJ") Kevin J. Casutto in the above captioned proceeding. These rulings have been appealed by the Applicant, Department of Environmental Conservation Staff ("Staff"), the Town of Van Buren ("Town"), and People United for a Rural Environment ("PURE").

Since various parties have appealed aspects of the ALJ's rulings concerning the conditions that are needed to address the possibility that the ash generated at the Applicant's resource recovery facility may be a hazardous waste, those appeals are dealt with as a unit below. The Interim Decision organizes the review of the remainder of the appeals based on the party who filed the appeal.

Characterization of the Ash

In its filings, the Town contended that an issue was raised concerning the need for additional conditions occasioned by possibility that some of the ash which the facility is intended to handle will constitute a hazardous waste under state and federal law. ALJ Casutto found that this raised an issue of policy, not one of fact. Since there were no disputed facts, he resolved the issue by directing that the permit be amended (1) to require the Applicant to provide the Town with copies of ash testing results; (2) to allow the Town access to the landfill to take its own ash samples; and (3) to require that a contingency plan be submitted to specify disposal arrangements in the event that any of the ash generated at the resource recovery facility is found to be a hazardous waste. He declined to require the Applicant to test the ash at the landfill site.

Applicant's Appeal

The Applicant appeals the requirement that the Town be granted access to take samples. The hazardous waste management system established under both state and federal law requires that the determination of whether a solid waste is hazardous be performed by the generator at the site at which the waste is generated (6 NYCRR 372.2(a)(2); 40 CFR 262.11). There is no provision for other parties under this management system to duplicate this function.

While it would be appropriate for the Town to bring forward circumstances that are specific to this case that warrant different or more stringent regulation, it has failed to do so. Therefore, I find that there is no basis to impose a condition which gives the Town access to the ash wastes in order to perform its own tests.

Staff's Appeal

The Staff appeals the ALJ's direction that a contingency plan for ash disposal be submitted in the context of this proceeding. It argues the ALJ should only address issues of fact, and not those of law or policy. Staff also maintains that the ALJ's direction is beyond the scope of this proceeding and that, substantively, such a condition is unnecessary.

In the context of the issues conference, the ALJ does have the authority to rule on the merits on any legal issues that do not depend on the resolution of disputed facts [6 NYCRR 624.4(b)(5)(iii)]. However, the question raised is whether this authority should apply to issues of policy.

While distinctions can be made between legal and policy issues, it is sensible that, where controversies exist that do not rely on resolving factual disputes, those controversies be resolved at the earliest possible stage in the hearing. Although policy issues are not normally the province of ALJs, it is sensible to use the issues ruling at least as an opportunity for the ALJs to frame the issues for resolution by the Commissioner. In effect, this is what has happened here. So long as the parties have a chance to file an expedited appeal to the issues ruling, there is no meaningful distinction between the ALJ resolving the issue subject to appeal and merely framing the issue for the Commissioner. Therefore, I find the ALJ does have authority to make recommendations as to the resolution of policy matters and that he should make those recommendations in the context of the issues ruling if there are no disputed facts associated with the controversy.

With respect to the substance of the requirement that a contingency plan be submitted, I find that this question should be addressed, if at all, within the context of the permit for the facility generating the ash, the resource recovery facility. Under the hazardous waste regulatory program it is the waste generator's responsibility for determining whether the waste is hazardous and, if so, for providing on-site or off-site management and for making arrangements for appropriate off-site disposal.

Town's Appeal

The Town appeals the ALJ's decision not to require the Applicant to test the ash at the landfill site. The ALJ found that testing at the site of generation was sufficient. The Town argues on appeal that it is the characteristic of the materials deposited at the landfill, not their characteristic at the incinerator, that should determine whether they be treated as hazardous wastes.

As stated above, the hazardous waste management system established under both state and federal law requires that the determination of whether a solid waste is hazardous be performed by the generator at the site at which the waste is generated (6 NYCRR 372.2(a)(2); 40 CFR 262.11). Again, it would be appropriate for the Town to bring forward circumstances that are specific to this case that warrant different or more stringent regulation. However, no such circumstances have been raised here. Therefore, I find that there is no basis to impose a condition which requires the Applicant to test the ash wastes at the landfill site.

Applicant's Other Appeals

Agricultural Lands Siting Prohibition

The Applicant has appealed the ALJ's ruling that the Town has raised an adjudicable issue with regard to the characterization of the soils on the Peck property. Pursuant to 6 NYCRR 360-1.7(a)(2)(i), the Department may not issue a permit for the siting of a new solid waste management facility which is located upon lands in agricultural districts consisting predominantly of soil group 1 or 2 (based on a system certified by the Commissioner of the Department of Agriculture and Markets) if the land upon which the facility is located will be taken by eminent domain. The Applicant maintains that the Town's offer of proof is not substantive.

Before addressing the question of whether a substantive issue exists, I bring to the parties' attention the fact that the interpretation of the above-referenced siting prohibition has not been adequately established on the record. In particular, it is unclear as to whether the prohibition applies where only a portion of the site is acquired by eminent domain and, if so, whether the predominant nature of class 1 and 2 soils should be determined in relation only to those parcels that are being taken through eminent domain or in relation to the site as a whole.

Assuming the interpretation is as set forth in the ALJ's ruling (i.e., that the determination concerning the predominant nature of class 1 and 2 soils should be made in relation only to those parcels that are being taken by eminent domain), I find that there is a substantive issue of fact. Where the question is one of whether a factual dispute requires adjudication, substantial deference must be given to the ALJ's judgment (In the Matter of Hyland Facility Associates, Third Interim Decision of the Commissioner, August 20, 1992). On appeal, the Commissioner will only look to whether the ALJ applied the substantive and significant standard that the rules require. In this case, the ALJ did analyze this issue in the context of the substantive and significant standard and therefore, his ruling should be upheld.

Given the uncertainty about the interpretation of the rule, I find that this matter can most efficiently be resolved by remanding this issue to the ALJ to first hear argument and make determinations on the interpretation of regulation and then to take evidence on the fact questions that the legal determination gives rise to.

Agriculture and Markets ("A&M") Law 305

OCRRA takes issue with the ALJ's statement that it must demonstrate compliance with A&M Law 305(4) as a prerequisite to permit issuance (see footnote 5 to the October 3, 1994 ruling). That provision sets forth requirements for public notice and the submission of an agricultural impact statement to the Commissioner of Agriculture and Markets.

The new solid waste management facilities rules (6 NYCRR Part 360, effective October 9, 1993) contain transition provisions providing that components of applications which have been approved in writing before the effective date of those rules need not be subjected to the updated standards in the new rules for that component [6 NYCRR 360-1.7(a)(3)(vii)]. In this case, the Department had already granted written approval for the component of the application that addresses siting facilities in agricultural districts prior to the effective date of the new rules (see letter from Larry Gross, Regional Solid Waste Engineer, DEC Region 7 to Paul O'Connor, Executive Director, OCRRA, dated October 8, 1993). Hence, the procedural requirements with regard to siting on agricultural lands contained in the prior rules govern this application.

The effect of this conclusion does not exempt the Applicant from complying with A&M Law 305; it merely relieves the Applicant from doing so prior to the final decision on this application.

Town's Other Appeals

Site Hydrogeology

The Town argues that the Applicant has mischaracterized the soils on a portion of the site. The Town maintains that, given the correct characterization of the soils, there is a possibility that the Jordan-Warners aquifer could be contaminated by leachate that escapes the facility. It also states that the alleged mischaracterization violates the rules promulgated under the State Environmental Quality Review Act (ECL Article 8 and 6 NYCRR Part 617) and the rules that apply to applications for solid waste management facilities [see 6 NYCRR 360-2.11(b)].

The ALJ found that there was a substantive dispute concerning the characterization of the soils on the site. However, he found that the dispute was not significant because, even if the Town were correct, there is no realistic possibility that leachate could reach the Jordan-Warners aquifer or cause any other harmful effects. He based his conclusion on the fact that it is extremely unlikely that leachate could escape the site boundaries undetected, and that the Jordan-Warners aquifer is a confined aquifer, 3000 feet from the landfill site, overlain by 50 to 100 feet of clay and silt which seal the aquifer.

Where the question is one of whether a factual dispute requires adjudication, the ALJ's ruling will be upheld so long as he applied the substantive and significant standard (Hyland Facility Associates, supra). In this case, the ALJ did analyze this issue in the context of the substantive and significant standard and therefore, his ruling is upheld.

I also find that the failure to correct the environmental impact statement and the solid waste management facility application (assuming the Town is correct about the soil characterization) does not raise an adjudicable issue either. The purpose of adjudication is not to ensure that all documents associated with an application are correct in every respect. The correctness of such documents need only be adjudicated where it can be shown that possible errors could have some impact on the permitting decision. As set forth in the ALJ's Ruling, there is no such possibility here.

Proximity of Camillus Airport

The solid waste management facility rules contain limitations on the allowed proximity of landfills to airports, which depends on whether the landfilled wastes are putrescible [6 NYCRR 360-2.12(c)(3)]. As proposed, the facility would not receive putrescible wastes other than those contained in allowable by-pass waste. Nonetheless, the Town is concerned that the permit is not specific enough with regard to the amount of putrescible by-pass waste which could be deposited. Further, the Town is concerned that this might change based on a recent U.S. Supreme Court decision regarding the legality of ordinances which authorize localities to control the flow of solid wastes, C&A Carbone, Inc. vs. Town of Clarkstown, 114 S.Ct. 1677 (1994). It argues that without such authority the economic feasibility of operating OCRRA's resource recovery facility might be placed in jeopardy thus resulting in use of the Applicant's landfill for the disposal of untreated municipal solid waste.

The Town's concerns are based on the presumption that the permit conditions are not sufficiently clear to prevent OCRRA from converting the landfill into one that is principally servicing raw municipal waste. While the Town is correct that the draft permit is not as clear as desirable, the application documents themselves serve to define the Applicant's intent.

The Applicant's Operation Manual for the resource recovery facility states:

The landfill will accept bypass waste which consists of raw (putrescible) and mixed municipal waste only when one or more of the three burners at the Waste-to-Energy Facility (WTEF) are out of service for maintenance or repairs, or when waste quantities exceed plant capacity of three day storage...the WTEF will schedule down time during the non-migrating periods of the year...the landfill will accept putrescible waste for no more than 10 consecutive days.

Operation Manual at OP 5.0

The landfill permit should be modified to limit the receipt of by-pass wastes to those that are generated by OCRRA's resource recovery facility and which meet the limits set forth above in the Operation Manual.

This condition will ensure that by-pass wastes are limited to quantities contemplated and planned for in the application review process. If the Applicant seeks to dispose of by-pass wastes in excess of these amounts, it will have to seek a modification to its permit, at which time the impacts of such a change will need to be examined.

Failure to Allow Responsive Filing

Apart from disputes concerning the substance of any of the above issues, the Town maintains that the ALJ's failure to allow the Town to respond in writing to a submittal made by Applicant at the issues conference was inequitable and prejudicial to its case.

As a general proposition, it is within the ALJ's discretion to allow the parties to input on the issues proposed in the party status filings in any manner that is found to be fair and protective of their due process rights. A review of the record shows that most of the Applicant's written responses to the Town's party status filing were simply a reiteration of material already contained in the application documents. Moreover, the Town did have an opportunity to address any of these matters orally at the issues conference and again in its appeal of the ALJ's ruling. Therefore, I find that the Town has not been prejudiced in any way.

Four Additional Proposed Issues

In its filing on September 13, the Town seeks to raise four additional issues which it alleges arise from the Applicant's responses to the Town's comments on the application. Although these issues were among fifty-two enumerated comments the Town provided on the application, none of them were included in the Town's petition for party status, in its presentation at the public legislative hearing of August 31, 1994, or at the issues conference of September 1, 1994.

The issues the Town seeks to raise are not based upon new information and were before the public and the Town at earlier points in the permit review process. They could easily have been addressed had the Town felt they were of sufficient magnitude or importance. No satisfactory explanation has been offered by the Town as to why these issues are being proposed at such a late stage of the proceeding.

Nonetheless, if these issues were shown to have a realistic potential to create serious environmental or health concerns, they would need to be considered despite the Town's tardiness. However, both the ALJ's review and my own reveal that the areas of concern have no such potential.

PURE's Appeal

Party Status

PURE appeals the ALJ's denial of its party status. The ground for the denial was that PURE had not successfully raised any issues for adjudication or demonstrated that it could meaningfully contribute to any of the issues that were raised [6 NYCRR 624.5(d)(1)(ii)]. However, this Interim Decision identifies a legal question about the interpretation of the agricultural lands siting prohibition. At the issues conference, PURE did try to raise this issue and at this point it appears both fair and efficient to allow it to participate as a party in the adjudication of this issue.

Conclusion

This Interim Decision finds that there is only one issue that requires adjudication: whether the proposal violates the prohibition related to siting facilities on prime agricultural land [6 NYCRR 360-1.7(a)(2)(i)]. It finds that there is an associated legal issue concerning the interpretation of this rule as well. PURE will be allowed to participate as a full party in the resolution of this issue. On a related question, the Interim Decision finds that the Applicant need not comply with the provisions of A&M 305 as part of this Department's application review process.

The Applicant need not submit a contingency plan which addresses the disposition of any ash generated at its resource recovery facility which tests as hazardous waste. The need for such a plan will be addressed, if at all, in the context of the administering the permits for OCRRA's resource recovery facility.

Staff is directed to modify the draft permit to include specific language from the Operation Manual limiting the circumstances, amount and duration of allowable deposition of putrescible bypass waste from OCRRA's resource recovery facility.

In all other respects, the rulings of ALJ Casutto are sustained. This matter is remanded to him for further proceedings consistent with this Interim Decision.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Interim Decision to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York this 30th day of December, 1994

_____________/s/_____________
LANGDON MARSH, COMMISSIONER

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