Oneida-Herkimer Solid Waste Management Authority (Ava Landfill) - Interim Decision, April 2, 2002
Interim Decision, April 2, 2002
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1010
In the Matter
- of -
Application for permits to construct and operate a solid waste management facility
in Ava, Oneida County (pursuant to Articles 15, 19, 24, and 27 of
the Environmental Conservation Law and Parts 201 et seq., 360 et seq., 364, 608, and 663 of
the Official Compilation of Codes, Rules and Regulations of the State of New York
- by -
Oneida-Herkimer Solid Waste Management Authority
Application No. 6-3024-00009/00007
April 2, 2002
Interim Decision of the Commissioner
This interim decision relates to appeals from the Rulings of the Administrative Law Judge ("ALJ")on Party Status and Issues ("Rulings") rendered January 30, 2001, by ALJ Edward Buhrmaster. The Rulings concern the permit application of the Oneida-Herkimer Solid Waste Management Authority (the "Authority" or "Applicant") to build and operate a solid waste landfill in the Town of Ava, Oneida County.
The Authority seeks a variety of permits from the New York State Department of Environmental Conservation ("DEC" or "Department") to construct and operate the proposed facility. 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. Of that acreage, 280 acres would remain in a natural state and serve as a buffer. The landfill has a proposed design capacity of 1000 tons per day and a planned useful life of 62 years.
Legislation enacted in 1988 established the Authority, and the Authority's landfill siting effort commenced in 1991. The Authority has determined that a new, locally-sited landfill is the best means to provide environmentally sound and economically reliable long-term disposal for all non-recyclable and non-hazardous waste generated in Oneida and Herkimer counties.
As lead agency, the Authority performed a coordinated review of the project pursuant to the State Environmental Quality Review Act ("SEQRA"), found at Article 8 of the Environmental Conservation Law ("ECL"), and Part 617 of Volume 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("NYCRR"). The Authority completed a Draft Environmental Impact Statement ("DEIS") on January 12, 1998, a Final Environmental Impact Statement ("FEIS") on August 24, 1998, and a SEQRA findings statement that was issued on September 16, 1998.
Following a legislative public hearing on August 10, 2000 and an issues conference on August 28-31, the ALJ found four issues for adjudication. Those issues concerned (1) the project's impact on wetland resources, (2) need for the landfill in light of export options, (3) possible impacts to habitat of four threatened bird species, and (4) 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. Rulings, pp. 10-28. The ALJ found over 11 proposed issues would not be adjudicated because of inadequate offers of proof, or because the proposed issues were beyond the Department's scope of review for SEQRA purposes. Rulings, pp. 29-60.
Appeals of the ALJ's Rulings were filed by the Authority and by Department Staff ("Staff"). The Town of Ava, the Town and Village of Boonville, the County and 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 the Veterans Defending Our Memorial Forest (collectively the "Objectors"), also appealed.
On appeal, the Authority seeks reversal of the ALJ's rulings regarding need for the landfill, impacts on the wetland, threatened species, and hydrogeological impacts. Authority Appeal, pp. i-iii. The Staff's appeal seeks reversal of the ALJ's issues regarding the extent of state regulated wetlands, need for the project, threatened species, definition of the critical stratigraphic section and aquifer determination. Staff also appeals the imposition of a permit condition limiting the waste accepted at the landfill to waste generated in Oneida and Herkimer Counties. Staff Appeal, p. 4. The Objectors assert on appeal that the ALJ erroneously rejected three of their proposed issues for adjudication, namely, the classification of the wetland, air quality impacts and truck traffic. Objectors' Appeal, pp. 1-3. Objectors do not appeal the remaining issues rejected by the ALJ.
On June 4, 2001, the US Army Corps of Engineers (the "Corps") issued a federal wetland permit, which the Authority asserts has bearing on the matters pending before the Commissioner. A further briefing schedule was established to address the extent to which the Department should be bound or influenced by the Corps' decision to issue a permit, and the findings the Corps made in coming to that decision. ALJ July 3, 2001 letter. The Authority submitted its letter brief regarding the Corps' federal wetland permit on July 12, 2001 ("Authority Corps brief"). Thereafter, the Objectors and the Staff filed their responses on July 19, 2001, ("Objectors' Corps Response" and "Staff Corps Response," respectively). Their respective arguments are summarized below.
The federally regulated wetlands are within a freshwater wetland regulated under the Department's wetlands program. Essentially, the Authority asserts that the Corps determination can be used to support a Department wetland decision. The Authority asserts that issuance of the Corps permit further supports its position that no adjudicable issues exist in that: the landfill-impacted wetlands are of a low quality; the wetlands do not provide substantial wildlife habitat areas; the wetlands have been disturbed by grazing; and the Corps reconfirmed the accuracy of the Authority's federal wetland delineation and thus rejected the landfill opponents' argument that additional wetland acreage exists. Moreover, the Authority asserts that its wetland mitigation plan makes it unnecessary to address whether wetlands in fact can be created (a point questioned by the ALJ), and by incorporating a process or procedure into the Corps permit that links the Corps analysis into the record, renders unnecessary the ALJ's § 621.15(b) demand to supplement the record on wetland acreage.
Staff asserts that no separate evaluation of state wetlands permitting and SEQRA standards is necessary if the Commissioner determines that the Corps finding statement satisfies the regulatory provisions of Part 360-1.7(c)(1) and 360-2.12(c)(8). These provisions prohibit issuance of a variance for construction standards less stringent than those governing federally regulated wetlands. See 40 CFR 258. Further, Staff maintains that the ALJ's Ruling to consider whether the inclusion of the preservation of acreage in the Rome sand plains may be considered as mitigation or compensation under the federal wetlands permitting standards, is obviated, and no further supplementation under § 621.15(b) is necessary. Rulings, p. 17.
The Objectors' argument, stated in its simplest terms, is that it is impermissible that the Department delegate its independent decision-making authority to the Corps, and that the Department is obligated to make an independent evaluation as to whether the Authority can meet the regulatory requirements for the permits for which it applied. Objectors' Corps Response, pp. 11-14. The Objectors also assert that there are factual errors in the Corps' determinations. Objectors' Corps Response, pp. 1-2, 4-9. In sum, the Objectors contend that the ALJ's Ruling to adjudicate all matters related to wetland issues should be upheld, and a sufficient factual record developed for the Commissioner's review and decision-making. According to the Objectors, an adjudicatory process should not be avoided by accepting the information presented in the Corps determination.
Standards for Adjudication
An issue is adjudicable if "it is raised by a potential party and is both substantive and significant." 6 NYCRR 624.4 (c)(iii). An issue is substantive if there is sufficient doubt about the applicant's ability to meet statutory or regulatory criteria applicable to the project, such that a reasonable person would require further inquiry. 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 any petitions filed for party status, the record of the issues conference and any subsequent written arguments authorized by the ALJ. An issue is significant if it has the potential to result in the denial of a permit, a major modification to the proposed project or the imposition of significant permit conditions in addition to those proposed in the draft permit. 6 NYCRR 624.4(c)(2),(3).
In situations where the department staff has reviewed an application and finds that a component of the applicant's project, as proposed or as conditioned by the draft permit, conforms to all applicable requirements of statute and regulation, the burden of persuasion is on the potential party proposing the issue related to such component to demonstrate that the issue is both substantive and significant. 6 NYCRR 624.4(c)(4).
Prior Department decisions establish that adjudication of issues occurs only where the ALJ has sufficient doubt about an applicant's ability to meet all statutory and regulatory criteria such that a reasonable person would inquire further (In the Matter of Hydra-Co. Generations, Inc., Interim Decision of the Commissioner, April 1, 1988) and where, in the ALJ's judgment, there is a reasonable likelihood that adjudication would result in amended permit conditions or project denial. In the Matter of Jay Giardina, Interim Decision of the Commissioner, September 21, 1990.
The burden on the intervening party in instances where Department staff and the applicant agree on the terms and conditions of the permit is not a superficial one. See, Matter of Citizens For Clean Air v. New York State Dep't of Envt'l Conservation, 135 A.D.2d 256, 260-261 (3d Dept. 1988)(court upheld burden imposed on potential intervenors and further upheld the Commissioner's determination to exclude certain issues from adjudication). Conducting an adjudicatory hearing where "offers of proof, at best, raise uncertainties," or where such a hearing would "dissolve into an academic debate" is not the intent of the Department's hearing process. Matter of Adirondack Fish Culture Station, Interim Decision of the Commissioner, August 19, 1999, p. 8, citing In the Matter of AKZO Nobel Salt Inc., Interim Decision of the Commissioner, January 31, 1996.
While the intervenor's offer of proof at the issues conference need not be so convincing as to prevail on the merits, its offer must amount to more than mere assertions or conclusions. See, id. "The purpose of adjudication is not simply to develop or refine information concerning the project but rather to aid in decision making." In the Matter of Sithe/ Independence Power Partners, Interim Decision of the Commissioner, November 9, 1992.
Judgments about the strength of the offer of proof must be made in the context of the application materials, the analysis by staff, draft permits and the issues conference record. Offers of proof submitted by a prospective intervenor may be completely rebutted by reference to any of the above, alone or in combination. In such a case, it would be a disservice to the applicant and the public at large to proceed any further with time-consuming and costly litigation. See, Matter of Bonded Concrete, Inc., Interim Decision of the Commissioner, June 4, 1990.
Where DEC staff and the applicant are not in disagreement over the terms and conditions of the proposed permit, the permit application and the draft permit prepared by DEC staff are prima facie evidence that a proposed project will meet all of the relevant statutory and regulatory criteria. See, In the Matter of Sithe/Independence Power Partners, L.P., Interim Decision of the Commissioner, November 9, 1992; see also, ECL § 70-0119(1) and 6 NYCRR 624.4(c)(4).
ALJ Rulings, Appeals and Discussion
Rulings by the ALJ as to Wetland Impacts
The ALJ found a number of wetland issues to be adjudicated, all of which are under appeal either to be adjudicated or eliminated as an adjudicable issue. The appeals and responses do not necessarily follow the sequence used by the ALJ in his rulings. For ease of review, each of the wetland issues in the Rulings will, with some exceptions, be addressed in sequence consistent with the ALJ's treatment of those issues, and will not follow the sequential treatment provided in the appeals or responses thereto.
The ALJ identified a number of issues for adjudication with respect to wetland impacts. First, the ALJ found that the proper size of the State and federal wetlands impacted by the project must be determined. Rulings, pp. 10-12. This issue is of primary importance since the appropriate application of the various SEQRA, permitting, wetlands mitigation and variance regulations in this matter is, in the first instance, dependent upon an accurate determination of the boundaries of the affected wetlands.
Second, the ALJ determined that the effect of the groundwater suppression system on the water table and the extent to which such effects are foreseeable must be adjudicated, since the system proposed could result in a lowering of the water table transforming the wetlands into an upland habitat and drying out streams. Rulings, p. 12. This ruling is discussed later in this decision, under the discussion of hydrogeological impacts.
Third, since the leachate collection system will allegedly divert millions of gallons of precipitation annually from the usual manner of impacting the site, the effect of this system on area hydrology must be determined. Rulings, p. 12.
Fourth, the ALJ found that the effect of the landfill site on area flood flows should be examined to see if flood control values will be lost, resulting in additional unmitigated adverse impacts to the wetlands. Rulings, p. 13.
Finally, the ALJ found that the adequacy of the proposed mitigation plan should be reviewed. In particular, the question of whether the proposed mitigation plan will provide adequate protection for species that rely on both wetland and upland habitats must be examined. Rulings, p. 13. The ALJ also found that issues existed for adjudication with respect to the viability of wetland creation, and the measures to be employed to deal with pest plant species at the site. Rulings, p. 13.
The ALJ did not identify the issue of upgrading the classification of wetland WL-2 from a Class II to a Class I wetland as one requiring adjudication. The Objectors appeal this portion of the ruling.
Size of Wetlands
The Authority asserts that the wetlands were accurately delineated in accordance with prescribed methods. Authority Appeal, p. 38. Additionally, the Authority proposes that the jurisdiction of the Department over the wetlands was modified by the Department in 1996, based upon a Department field review of the site designated as WL-2 on the official maps. Authority Appeal, p. 39. The boundaries of the wetlands were verified by the Department in July 1996, reviewed again in the field in 1999, and reconfirmed by DEC as an official boundary determination in March 2000. Authority Appeal, p. 39- 40. The Authority states that deference must be accorded to Department expertise and objectivity in determining such boundaries, particularly where the Department was aware of the position of the Objectors prior to rendering its determination. Authority Appeal, p. 40. The Authority contends that this official determination by the Department was never challenged, is neither arbitrary or capricious and should be regarded as valid and binding. Authority Appeal, pp. 40-43. Additionally, the Authority argues that it should be entitled to rely upon this official determination as set forth in the policies of the Department. Authority Appeal, pp. 40-41.
Observing that the Objectors propose to increase the size of the wetlands subject to the Authority's Article 24 permit to include land not designated as wetlands on the official State freshwater wetlands map, Staff argues that the Department lacks jurisdiction to impose permit conditions over such areas. Staff Appeal, pp. 5-6. Moreover, the only way for the Department to assert jurisdiction over these lands, as freshwater wetlands, would be through a map amendment proceeding brought pursuant to 6 NYCRR 664.7. A permit hearing such as this one is not the appropriate forum to consider a map amendment. Staff Appeal, pp. 6-8. Staff also argues that since the Objectors believed additional wetlands existed on the site as far back as 1994, they should have petitioned the Department to amend the wetlands map pursuant to 6 NYCRR 664.7. Staff Appeal, pp. 8-10. In addition, the confirmation of the delineation of the State wetlands in this matter was performed by the Department in July 1996. Staff points out that this was a final determination that the Objectors could have appealed, but did not. Had they chosen to appeal to the courts, the standard of review would have required the Objectors to show that the Department's delineation of the wetlands in map WL-2 was arbitrary and capricious, a burden they will not have to meet if they are allowed to adjudicate the wetlands boundaries in this proceeding. Staff Appeal, 10-11.
Contrary to the position taken by Staff, the Objectors argue that the Department can readjust a wetland map at any time, and has the authority to adjust the map to include the 22 acres identified by the Objectors as part of this permit proceeding. Objectors' Opposition Brief, pp. 17-18. Moreover, Objectors argue that they are not seeking a map amendment, but rather an adjustment of the boundaries of wetlands map WL-2. They claim that they only seek to add three small areas totaling approximately 22 acres that are contiguous to WL-2 and that should have been included in it. Objectors' Opposition Brief, p. 18. However, if an amendment proceeding is required, the Objectors claim that they are not precluded from commencement of the same at this juncture. Objectors' Opposition Brief, pp. 19-20.
In addition, they argue that they were not required to challenge the wetlands delineation at the site by bringing an action pursuant to ECL 24-1103 or by challenging the Authority's SEQRA findings on this issue. Objectors' Opposition Brief, p. 20. They argue further that DEC policy does not preclude adjustment of the delineation of wetlands when the original delineation is found to be incorrect as is the case here. Objectors' Opposition Brief, pp. 20-21.
Finally, although the Objectors claim that they were not required to show that the Department was arbitrary and capricious in making its determination with respect to the size of the wetlands, they could meet such a standard, if required. Objectors' Opposition Brief, pp. 22-23.
As is clear from a reading of the Freshwater Wetlands Act, as set forth in ECL Article 24, and particularly as provided in ECL 24-0301 and 6 NYCRR 664.7 of the implementing regulations, the Commissioner has the responsibility to determine whether it is appropriate to authorize a change to the boundaries of a wetland as set forth on the State's official freshwater wetlands maps. Generally, the boundaries may be either changed through a map amendment, in accordance with specified procedures, or the boundaries may be more precisely defined through a delineation. The regulations also authorize the Commissioner to make minor adjustments to the maps. The appropriateness of the process used to modify the boundaries of a wetland is dependent upon the extent of the change contemplated.
The official map at issue in this proceeding is Wetland WL-2 of the Official Freshwater Wetlands Map of Oneida County, covering approximately 170 acres. This map was duly promulgated and adopted pursuant to the procedures outlined in ECL 24-0301 and 6 NYCRR 664. No challenge to or review of the map as adopted was pursued in accordance with ECL 24-1101 et seq. or CPLR Article 78. However, the boundaries were more precisely defined by the Department based upon field evaluations in 1996 and 1999.
Thus, the designated wetlands boundaries on this official map, as further delineated and confirmed by the Department, are the boundaries which define the limits of the Department's wetlands jurisdiction in this matter.
The Objectors seek to have the Department exercise jurisdiction over certain areas contiguous to WL-2, amounting to approximately 22 acres. The Objectors base this request upon the proffered testimony of two expert witnesses, one who made two visits to the site, and the other based upon a review of certain documentation. The adequacy of this offer of proof needs to be evaluated in light of the convincing evidence of the boundaries of the wetlands, as confirmed by the Department, based upon their recent field visits. I find that the Objectors have failed to meet their burden of proof, and as such, reverse the determination of the ALJ.
Accordingly, I find that the landfill proposed by the Authority will impact 14.34 acres of State wetlands, as shown on the official State wetland map WL-2, and as further confirmed by the Department in 1996. The extent of the State wetlands, impacted by this project has been established to a reasonable certainty. No further inquiry is required. Accordingly, I reverse the decision of the ALJ with respect to this issue and find that a determination of the extent of the State wetlands impacted by this landfill project is not an issue for adjudication.
Adequacy of the Wetland Mitigation Plan
Initially it is noted that on June 4, 2001, the Corps issued its permit for the federally identified freshwater wetlands. To the extent the matter of Corps wetlands was tied into this proceeding as an issue under the Part 360 regulations, it is hereby eliminated by virtue of the Corps permit issuance. Accordingly, the following discussion centers on the State regulated freshwater wetlands mitigation plan offered by the Authority.
Position of the Parties
The Authority contends that its proposal to create 32.62 acres of freshwater wetland to mitigate the 14.34 acres of Class II freshwater wetlands to be impacted by the project fully satisfies the wetland requirements administered by the Department. The Authority's rationale for its position is based upon the fact that the Department has approved a detailed plan for creating wetlands on the site, the size of the acreage provided surpasses Department guidance suggesting a 1 to 1 ratio and is in accordance with a DEC requested 1.5 to 1 ratio, and an experimental on-site wetland was shown to successfully re-create the type of wetlands that largely comprise the site. Authority Appeal, pp. 43-54. The Authority further contends that all issues with respect to pest control were comprehensively dealt with by the Authority. Authority Appeal, pp. 43-46. Finally, the Authority contends that many of the issues with respect to adequacy of the plan involve mitigation efforts with respect to the federal wetlands, and that such issues should not be reviewed by the ALJ in the State proceeding. Authority Appeal, pp. 51-53. Staff concurs that the wetlands have been shown to be successfully recreated on the site and that the Authority has provided specific methods to protect the created wetlands from invasive species. Staff Appeal, pp. 12 -14.
The Objectors contend that the ALJ was correct in finding that they offered sufficient proof to raise an adjudicable issue with respect to the adequacy of the mitigation plan with respect to the difficulty in replacing wetlands on-site, the ability to control invasive pests, and the lack of specificity regarding where the mitigation would occur. Objector's Opposition Brief, pp. 23-28. The Objectors further argue that the ALJ had the authority to review the adequacy of all mitigation under federal standards, based upon the Part 360 landfill requirements.
In reviewing the Rulings of the ALJ on this matter, it is clear that the ALJ was primarily concerned with the vagueness of the mitigation proposed by the Authority as it related to the creation of wetlands in the Rome Sand Plains and the Black River drainage basin. Whether or not the mitigation contemplated in these areas was necessary to be examined to determine their adequacy pursuant to State law was, as the ALJ acknowledged, dependent upon whether the extent of the wetlands was larger than the 14.34 acres as maintained by the Department and the Authority. As set forth above, the size of the State regulated wetlands on-site has been determined to be 14.34 acres. Thus, as correctly stated by the ALJ, the creation of 32.62 acres of wetlands on the site and its buffer area provides satisfactory acreage, compensating the State for the lost State wetlands. There is no need under these facts, particularly in light of the granting of the permit by the Corps, to require additional information from the Authority with respect to contemplated mitigation at the Rome Sand Plains and the Black River drainage basin locations.
Additionally, I find that the Objectors have failed to meet their burden of proof to raise an adjudicable issue with respect to the adequacy of the proposed mitigation comprising the 32.62 acres. It is clear that, based upon the feasibility study undertaken by the Authority, the Department has confidence that wetlands of the type presently there, can be re-created on the site. Further, the specifics of the plan, particularly as it relates to the control of invasive species has not been seriously called into question by the comments of the Objectors' expert. Finally, the Objectors have offered nothing more than speculation with respect to the effect of the destruction of upland habitat on wetlands species. Accordingly, the ALJ's ruling on this point is reversed.
Other Wetland Impact Issues
The ALJ found that the following issues related to wetland impacts were adjudicable: (1) the effect of the groundwater suppression system on the water table and the extent to which such effects are foreseeable; (2) the impact of the leachate collection system on the precipitation normally received by the site; and (3) the effect of the landfill site on area flood flows should be examined to see if flood control values will be lost. Rulings, p. 12-13.
Based upon the record before me, I have determined that these ALJ's rulings should be sustained, and that each of these issues should be adjudicated. A further discussion on the groundwater suppression system is set forth in a subsequent section of this decision.
Classification of Wetland WL-2
Position of the Parties
The Objectors appeal the ALJ's ruling and assert that the issue of upgrading the wetland WL-2 from a Class II to a Class I wetland should be adjudicated.
DEC Staff opposes the appeal and asserts that the Objectors have not provided adequate evidence that reclassification is appropriate. DEC Staff contends that the Objectors have not made a formal request for reclassification and have failed to supply any factual evidence.
The Authority also argues that the ALJ's ruling should be sustained because the Objectors have failed to meet their burden of persuasion to show that this issue is substantive and significant. In addition, the Authority argues that WL-2 does not possess the requisite characteristics to be considered Class I and that site visits by DEC Staff have confirmed this. In addition, the Authority asserts that the Objectors have had seven years, during the time this landfill proposal has been under consideration, to develop evidence to support the reclassification of this wetland but have failed to do so.
The ALJ's ruling is affirmed. The ALJ's evaluation of the matter persuades me to conclude that the Objectors' offer of proof on this topic is insufficient.
ALJ Ruling on 'Need' for the Landfill
The ALJ found that there were two legal bases for reviewing the issue of need in this proceeding. First, since the construction of the proposed landfill requires a freshwater wetlands permit, the Authority must show that the construction of the landfill meets the standards for permit issuance set forth in 6 NYCRR 663.5(e). Rulings, p. 19. Second, the issue of need was a necessary part of the analysis required under SEQRA. The ALJ stated that DEC, as an involved agency, must make findings in this matter which include a consideration of a "no action alternative" as well as the need for the proposed landfill in light of social, economic and other essential considerations. 6 NYCRR 617.11(d)(2). Rulings, p. 19. The ALJ ruled that the issue of need should be adjudicated since, based upon a review of the evidence and testimony, the Authority had not met its burden. The ALJ based his position primarily on the reliance by the Authority of a 1997 study commissioned by the Authority to evaluate solid waste disposal options for the counties, which the ALJ viewed as dated.
The Authority argues that the ruling of the ALJ should be reversed for four reasons. First, the Authority contends that a showing of need pursuant to 6 NYCRR 663.5(e)is only appropriate where the impacts to the freshwater wetlands are not completely mitigated. Authority Appeal, pp. 15-20. In this case, the Authority points out that a mitigation plan is proposed in accordance with 6 NYCRR 663.5(g) that will result in the creation of 32.62 acres of State wetlands for the 14.34 acres of State wetlands that would be impacted by the project. This calculates to a ratio of 2.27 to 1, greatly in excess of the 1.5 to 1 ratio requested by Staff. Moreover, it is greater than the 1 to 1 ratio provided for in the Department's Freshwater Wetlands Regulations Guidelines. Authority Appeal, p. 17. Therefore, since the proposed mitigation provides complete mitigation, both qualitatively and quantitatively, the weighing standards of 6 NYCRR 663.5 do not apply and the issue of need is never reached. Authority Appeal, p. 17-20.
Second, the Authority points out that need was addressed in the SEQRA review of the proposed site. In particular, DEC, as an involved agency, fully participated in the extensive SEQRA process that led to the filing of the final environmental impact statement ("FEIS") in this matter. This included an assessment of the need for the project and considered such factors as a no action alternative, economic viability, environmental and economic security, local economic benefits and future conditions. Authority Appeal, pp. 20-22.
Third, the Authority argues that, in creating the Authority in 1988, the State legislature delegated to the Authority the responsibility to address solid waste issues in Oneida and Herkimer Counties, including the need for new facilities such as the project proposed. Authority Appeal, pp. 23-29.
Fourth, according to the Authority, it has thoroughly evaluated waste exportation and rejected it as an acceptable long-term solution. Authority Appeal, pp. 29-34.
Staff argues that the ruling of the ALJ should be reversed for three reasons. First, consistent with the argument put forth by the Authority, since the mitigation plan submitted by the Authority pursuant to 6 NYCRR 663.5(g) embraces all the freshwater wetlands impacted by the project, there are no unmitigated impacts that would require any weighing analysis under 6 NYCRR 663.5. Staff Appeal pp. 15-17.
Second, Staff maintains that the project has been the subject of a complete and thorough SEQRA review and the existing record provides an ample basis for the Department to make any additional findings pursuant to 6 NYCRR 617.11, without the need for an adjudicatory hearing. Staff Appeal, pp 17-20.
Third, Staff contends that additional information about the current condition of the waste export market with respect to the Counties' waste disposal needs will not meaningfully contribute to any determination to be made using the weighing analysis required by 6 NYCRR 663.5(e) or the SEQRA findings. Moreover, according to Staff, the Department should not substitute its judgment for that of the Authority with respect to the need for the landfill, particularly given the specific statutory authorization granted to the Authority to make such determinations. Staff Appeal, pp. 20-21.
Contrary to the positions of the Authority and Staff, the Objectors urge that the ALJ's ruling to adjudicate the issue of need be upheld. In support of their position, the Objectors advance several arguments. First, they argue that the ALJ properly found that the Authority was required to establish there was a need for the landfill, in light of the express provisions of 6 NYCRR 663.5(e). Furthermore, they argue that it is impossible for the Authority to avoid a need analysis by proposing a mitigation plan under 6 NYCRR 663.5(g), since the adequacy of the plan cannot be analyzed in light of the issues raised by the Objectors. Objectors' Opposition Brief, pp. 37-39.
Second, the Objectors contend that Staff is incorrect in its application of the SEQRA regulations. Relying upon 6 NYCRR 624.4(c)(6)(ii)(b), the Objectors maintain that issues raised and resolved in a SEQRA review can be revisited in an adjudicatory permit hearing so long as those issues involve more than compliance with SEQRA. This, they claim, is the case here, since the project involves the resolution of issues not only under SEQRA, but also the Freshwater Wetlands Act. Objectors' Opposition Brief pp. 40-41.
Third, Objectors assert that the no action alternative of continued waste exportation must be considered by Staff as part of its SEQRA review. Objectors' Opposition Brief P. 41. Fourth, they argue that the mere fact that the Authority is statutorily created does not exempt it from full compliance with applicable environmental laws, particularly SEQRA requirements and the standards for permit issuance set forth in 6 NYCRR 663.5(e). Objectors' Opposition Brief p. 43.
Fifth, Objectors assert that waste exportation is a viable alternative that should be examined through an adjudicatory hearing in view of DEC data showing excess capacity at existing landfills, declining tipping fees, and the lack of incoming waste at local incinerators. Moreover, the Objectors argue that because the courts have held that the Authority is not the exclusive handler of waste in the two counties, less waste may be handled by the Authority, resulting in increased costs for the waste it would handle.(1) Finally, the Objectors contend that the analysis of costs in the Authority's own study implies that the landfill should not be built, since the study shows that costs associated with the development and operation of a landfill were approximately the same as the costs associated with the export of waste when this comparison was made in 1997. Objectors' Opposition Brief, pp. 45-47.
In accordance with the regulations promulgated pursuant to the Freshwater Wetlands Act, the siting of a landfill in a wetland is deemed to be an activity incompatible with the functions and benefits of a State-regulated wetland. 6 NYCRR 663.4(d)(38). Since a permit is required for such an activity, it must be demonstrated that the impacts to the wetlands are unavoidable, any degradation to the wetlands is minimized, and there is a need for the proposed activity that outweighs the loss of the benefits of the wetlands to be impacted. 6 NYCRR 663.5(e)(2). Additionally, an applicant for a freshwater wetlands permit may propose a mitigation plan pursuant to 6 NYCRR 663.5(g)in order to improve the likelihood that a permit will be issued.
Additionally, project need is considered in accordance with SEQRA. SEQRA requires that need be examined in reviewing 'social economic and other essential considerations' against the project's possible adverse environmental impacts. 6 NYCRR 617.11(d). Thus, even where the need for the proposed project has been found to outweigh the unmitigated impacts to the wetlands, a record analyzing need must be established under SEQRA.
Based upon the record before me, I find that the issue of need should not be adjudicated, and therefore reverse the ruling of the ALJ. My decision is based upon the clear case of need demonstrated by the Authority and the failure of the Objectors to seriously challenge the Department's determination that the need for the project outweighed the loss of the wetlands to be impacted. Given the thorough analysis of need undertaken by the Authority and the appropriateness to give deference to the decision of the Authority, as a governmental entity, that such a project is necessary to fulfill an essential governmental function, the criticisms set forth in the Objectors' proposed documentary evidence, unsupported by any proposed testimony, fall short of raising a substantive and significant issue requiring adjudication.
With respect to the adequacy of the SEQRA review, the record indicates that the Department, as an involved agency, fully participated in the SEQRA reviews that have been conducted in this matter. In addition, the record provides an ample basis for the Department to make any required findings pursuant to 6 NYCRR 617.11, including an analysis of the no action alternative, as well as an evaluation of social, economic and other essential considerations. As such, further inquiry is not necessary and would constitute the kind of duplicative review that is precluded under 6 NYCRR 617.3(h).
Additionally, granting deference to the Authority in its decision with respect to project need is appropriate, given that the Authority's role and function as a governmental entity fulfilling its statutory mandate is supported by the record and the provisions of the statutes creating the Authority.
The Oneida-Herkimer Solid Waste Management Authority was established by an act of the Legislature in 1988, pursuant to Chapter 627 of the Laws of 1988. Even the most cursory perusal of the legislative findings contained in the first section of the act make clear that it was the Legislature's intention in creating the Authority to delegate to it the responsibility for the development and implementation of solid waste management strategies for the two counties. Indeed, the Act makes clear that in the execution of its duties, the Authority would be performing an essential governmental function. L. 1988, c. 627, sec. 1. This intention is explicitly underscored by the unequivocal language of the statute, which provides at Section 2049-ff:
"The counties, other municipalities within the area of operation and the authority, in carrying out their respective powers and duties under this title, shall be deemed to be acting in a governmental capacity. The construction, operation and maintenance of any project financed in whole or in part by the authority shall be deemed to be the performance of an essential governmental function by the authority acting in its governmental capacity, whether such project shall be owned or operated by the authority or by any person or other public corporation."
Moreover, in the express delegation of its powers, enumerated in Section 2049-ee, the Legislature gave the Authority broad power
"5. To plan, develop and construct projects and to pay the cost thereof and to have the right to contract in relation thereto with the counties, or other municipalities or persons within or without the area of operation and to own and operate, maintain, repair, improve, reconstruct, renovate, rehabilitate, replace, increase, enlarge, and extend, subject to the provisions of this title, and to enter into contracts for any and all such purposes and for the management and operation of a project, and to sell, lease, mortgage or otherwise dispose of any project or part thereof to any person or public corporation, municipality or the state, subject to such conditions and limitations as the authority may determine to be in the public interest."
It is reasonable to conclude that in the performance of its essential governmental function, the assessment of the 'need' for this landfill is within the purview of the Authority. Any conclusion to the contrary would effectively be a usurpation of the Legislature's intent in creating the Authority.
In the exercise of this statutory mandate, the Authority has conducted a thorough analysis of the waste disposal needs of Oneida and Herkimer Counties involving an evaluation of various economic, social and environmental factors which has included, inter alia, an examination of the waste export option. As the Authority has pointed out, this extensive evaluation concluded "that a new, locally-sited landfill is the best means to provide environmentally sound and economically reliable long-term disposal for all non-recyclable and non-hazardous waste generated in the Counties." Authority Appeal, p. 4. Accordingly, any further inquiry into the need for the landfill is unnecessary and, in light of the Authority's delegated responsibility, arguably inappropriate.
My decision does not mean that, in the course of reviewing applications for freshwater wetlands permits, the Department is precluded from reviewing the proposed need of governmental entities in the exercise of their essential government functions and weighing that need against the loss of the wetlands at issue. Rather, I find that such a need clearly meets the criteria established in 6 NYCRR 663.5 (e)(2). It is then incumbent upon an intervenor under such circumstances to offer sufficient proof demonstrating that the loss of benefits to the wetlands clearly outweighs such need. In the present case, no such showing was made by the Objectors. Accordingly, for the reasons set forth above I find the issue of 'need' is not appropriate for adjudication and reverse the ruling of the ALJ on this point.
ALJ Ruling on Impacts to Habitat of Four Threatened Bird Species
The ALJ, in his January 30, 2001 Rulings, held that 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 of concern are the Henslow's Sparrow, Least Bittern, Upland Sandpiper and Northern Harrier.
The administrative file in this proceeding indicates that subsequent to these appeals, on May 10, 2001, the ALJ set a schedule for a site investigation, with the consent of the Authority, Staff and Objectors, to complete a site survey on this topic which survey was conducted on multiple occasions over a two month period with both daytime and nighttime inspections. Hudsonia, Ltd., the Objectors' consultant, completed the study on July 20, 2001. According to the Objectors, "significant sightings" were made of the use of the site by the northern harrier. The Objectors provided a report on the survey to the parties on August 17, 2001. Responses were filed on August 31, 2001.
Since the entire issue concerning habitat of the four threatened bird species has further advanced since the ALJ issued his rulings, I believe that the resulting information should be evaluated by the ALJ in hearing, rather than requiring a separate process of another ALJ ruling and further appeals. Accordingly, the issue as joined by the ALJ in the first instance, and as further supplemented by the survey since the appeals were submitted, shall be reviewed before the ALJ in hearing. This issue is joined for adjudication.
ALJ Rulings on Hydrogeological Impacts
The ALJ identified three issues for adjudication regarding the hydrogeological impacts of the proposed landfill: (1) whether the landfill would be constructed over a principal aquifer; (2) whether the Authority accurately characterized the critical stratigraphic section (CSS) beneath the site; and (3)whether the groundwater suppression system will be adequate. The adjudication of these issues has been appealed and each appeal is discussed separately.
Principal Aquifer Determination
The ALJ held that a factual dispute exists regarding whether the landfill would be constructed over a principal aquifer in violation of 6 NYCRR 360-2.12(c)(1)(i). The ALJ based his finding on the proposed testimony of the Objectors' expert that the landfill is to be sited over a "buried valley aquifer", the presence of which could greatly increase the impact of any future release to groundwater from the landfill. Rulings, pp. 24-27.
Position of the Parties
Both the Authority and Staff appeal the ALJ's ruling that factual issues worthy of adjudication exist and challenge the ALJ's ruling on both substantive and procedural grounds. The Authority asserts that the offer of proof by the Objectors regarding this issue is inadequate and is based upon faulty conclusions. Authority Appeal, p. 69. Further, the Authority contends that the Objectors should have challenged the determination by DEC Staff that the site does not overlie a principal aquifer when it was made, more than four years ago. Since they did not, the Authority asserts that the Objectors are now barred from raising this claim by the statute of limitations. Authority Appeal, p. 70. In addition, the Authority argues that the information presented by the Objectors at the issues conference is similar if not identical to that submitted, reviewed and rejected by DEC Staff, at both the time of the aquifer determination and during the SEQRA process, for this landfill. Given this fact, the Authority maintains that legal doctrines and principles apply to prevent the adjudication of this issue. Authority Appeal, p. 71.
Staff asserts that the Objectors have failed in their offer of proof and that the testimony is unreliable, particularly in light of the Department's contrary determinations. Staff Appeal, pp. 31-34. Staff also asserts that the Objectors should have challenged the principal aquifer determination through an Article 78 proceeding, not through administrative adjudication, and that since the statute of limitations has run and much time has passed, legal doctrines should dictate that the ALJ's ruling on this issue be reversed. Staff Appeal, pp. 31-34. Finally, Staff also contends that it is inappropriate to require applicants to seek conceptual review of Departmental determinations. Staff Appeal, pp. 40-42.
The Objectors' reply argues that based upon its competent offers of proof, the ALJ correctly ruled that this issue should be adjudicated. Objectors' Opposition Brief, pp. 55-61.
The specificity of the offer of proof made by the Objectors with respect to the characterization of the site, raises issues requiring further inquiry to determine whether the landfill may be sited as proposed. For example, the Objectors' hydrogeology expert, in reviewing data on the geology and well information with respect to the site compiled by the Authority, has presented credible arguments based on these facts to demonstrate that the site could meet DEC Guidance standards with respect to the issue of productivity. As productivity is one of the factors necessary to determine whether a geologic formation would qualify as a principal aquifer, this factor alone provides sufficient proof to present an adjudicable issue. Therefore, the ruling by the ALJ on this matter will not be disturbed, and this issue is joined for adjudication.
Characterization of the Critical Stratigraphic Section (CSS)
The second hydrogeologic issues ruling under appeal is whether the Authority accurately characterized the CSS. The ALJ ruled that the Objectors had met the burden of proof on this issue through the statements of their expert contesting the underestimation of the CSS by the Authority. The Objectors' expert contends that the model used by the Authority could result in groundwater beneath the proposed landfill flowing differently than modeled, thereby escaping the monitoring wells planned. Additionally, the ALJ found this issue to be adjudicable based upon the possibility raised by the Objectors that the bedrock on the site could be a conduit for the release of contaminants to an aquifer and concerns with respect to water levels and their relationship to the Moose Creek tributary. Rulings, pp. 27-28.
Position of the Parties
Both the Authority and Staff appeal. The Authority argues that the information presented by the Objectors at the issues conference and relied upon by the ALJ in his ruling is inaccurate. Because of this inaccuracy, the conclusions drawn by the Objectors regarding the CSS and groundwater modeling are also flawed. DEC Staff appeals on similar grounds.
The Objectors reject the Authority's contention that the Objectors presented misleading information to the ALJ. The Objectors contend that ALJ Buhrmaster properly found an adjudicable issue regarding the CSS.
The ruling of the ALJ on this point will not be disturbed. Again the Objectors' hydrogeology expert presented proposed testimony based upon his review of the Authority's site investigation report that called into question the Authority's conclusions with respect to groundwater flow. The competing information presented, as well as the import of the accuracy of models used to predict groundwater flow for accurately developing a groundwater monitoring well plan to detect landfill-derived groundwater contamination within the CSS, convinces me that there is sufficient information on this record to require further inquiry.
Groundwater Suppression System Impacts on the Watertable
The third ruling regarding hydrogeologic issues under appeal is whether the groundwater suppression system will have the unintended effect of facilitating leachate migration from the landfill to the buried valley aquifer. Specifically, the ALJ found that the Objectors' offer of proof raised an adjudicable issue regarding the possibility that the proposed groundwater suppression system could increase the speed that a potential release of contaminants would travel through to the groundwater. Rulings, p. 28.
Position of the Parties
The Authority appeals this ruling. DEC Staff is silent on this issue. The Objectors argue that the ALJ's finding should not be disturbed.
There is sufficient competing information presented to inquire further. Accordingly, the ALJ's ruling will not be disturbed.
ALJ Rulings on Air Quality Impacts
The ALJ ruled that no issue exists for adjudication regarding the air quality impacts of the proposed facility, and that all emissions from the facility have been adequately evaluated and can be adequately controlled to meet all applicable requirements. Rulings, p. 39, p.47. The ALJ based his position, in part, upon the impossibility of precisely gauging the variables impacting air quality at this time, and his assertion that the draft air permit was sufficiently flexible to meet any unanticipated problems that might occur in the future. Rulings, p. 40.
The Objectors appeal and seek to adjudicate four sub-issues regarding air quality impacts. First, the Objectors seek to adjudicate whether the proposed facility will produce a predicted maximum total concentration of particulate matter 10 microns in diameter or less (PM10) that exceeds the National Ambient Air Quality Standard ("NAAQS"). Second, the Objectors wish to adjudicate whether the predicted maximum emissions of hazardous air pollutants ("HAPs") exceed the State guidelines. Third, they assert that the Authority underestimated the impacts of pollutants by improperly modeling wind conditions. And, fourth, the Objectors contend that the Authority underestimated the level of particulate concentrations possibly generated by the silt content in the soil.
Both DEC Staff and the Authority oppose the Objectors' appeal and argue that the ALJ should be sustained on each of the sub-issues raised. Each sub-issue is addressed separately, below.
PM10 Exceeds NAAQS
Position of the Parties
The Objectors assert that activities occurring at the landfill after it becomes operational will create concentrations of PM10 that will exceed NAAQS. They contend that the Authority's air pollution modeling is faulty because it failed to take into account background levels of PM10 when calculating the impacts of the landfill activities. The Objectors argue that the Commissioner's Decision in the Matter of American Marine Rail, LLC. (February 14, 2001) requires such an analysis. Objectors' Appeals Brief, pp. 8-10.
The Objectors state that, although this issue was raised late in the process, consideration of this issue at this point is justified by the sequence of events in this case. The Objectors first put forward the specifics of their argument in a letter dated January 9, 2001. This letter responded to a new air quality study conducted by the Authority which was completed and disclosed to the Objectors in December, 2000. The new study, the Objectors claim, was generated as a result of questions raised by the Objectors in their petition. The Objectors point out that since they could not have provided a detailed offer of proof with respect to this issue before the new study was completed, the ALJ erred by ruling that they should have developed this issue at the issues conference in August, 2000. Objectors' Appeals Brief, pp. 11-12.
Finally, the Objectors contend that the lack of a permit condition to monitor particulate matter makes the concerns with a NAAQS exceedence even more problematic, and they contest the ALJ's rejection of data from the Utica and Nick's Lake monitors as appropriate to estimate background concentrations at the site.
Objectors' Appeals Brief, p. 11, p. 13.
DEC Staff responds that the proposed permit conditions adequately protect against future air quality problems. Staff Reply Brief, pp. 7-9.
The Authority points out that the draft Title V permit contains language that will ensure that air quality standards are met, including requirements to control dust and thus limit particle emissions. Authority Reply Brief, p. 9-10. Moreover, according to the Authority, dust mitigation measures will reduce particulate emissions further than the conservative emission rates calculated through the modeling exercises. In addition, the Authority asserts that even if the air modeling predicts a violation of NAAQS, no violation will in fact occur because the model used conservative inputs. These inputs unrealistically increase the predicted concentrations of PM10. If realistic assumptions were used, no violation of NAAQS would occur. Authority Reply Brief, p. 10-12. The Authority also points out that it has purchased the land where the air model predicts the exceedence of NAAQS, so that any such exceedence cannot be considered an off-site impact. Authority Reply Brief, p. 13.
The results of the Authority's own study on projected PM10 concentrations when combined with the background concentrations as measured at the closest monitoring stations call into question whether the NAAQS would be violated. Since the Authority elected to utilize what it describes as "conservative" values in conducting its computer modeling and did not factor in the reduction of dust to be achieved through the implementation of permit conditions, it is impossible on this record to determine whether the use of less conservative values would be appropriate and the extent to which dust control measures will result in a reduction of particulate emissions.
Additionally,due to the timing of the completion of the new air pollution control study, the record on this issue is inadequate. As such, there is not enough information for me to decide this appeal in favor of Authority. Accordingly, the ruling of the ALJ rejecting this issue is reversed and the issue of whether the predicted totalmaximum concentrationss of PM 10 resulting from the operation of the landfill will exceed the NAAQS should be adjudicated.
HAPs emissions exceed state guidelines
Position of the Parties
The Objectors also appeal the ALJ's ruling that HAPs emissions from the proposed landfill will meet state guidelines. Specifically, the Objectors assert that the emissions predicted in the Authority's new air study will exceed state guidelines for vinyl chloride and acrylonitrile. They contend that only with a landfill gas capture efficiency of 90% or higher will emissions meet state guidelines and that the Authority's gas collection system is only intended to assure an 80% capture efficiency. Objectors' Appeals Brief, p. 14-16.
DEC Staff urges that the ALJ be upheld on this ruling and asserts that the proposed landfill will meet state guidelines. To assure compliance, regular monitoring (every two years) will be required. If exceedences are recorded, the Authority will be required to take steps to lower off-site emissions. Staff Reply Brief, p. 8.
The Authority also opposes this appeal and argues that the Objectors have placed undue emphasis on the reliance by the ALJ of a 90% gas collection efficiency number to ensure compliance with the HAPs. Authority Reply Brief, p. 14. The Authority contends that a condition in the draft permit, requiring testing every two years, will allow the Authority to identify any pollutants sufficiently in advance of any cause for concern, and allow appropriate mitigation measures to be implemented. Authority Reply Brief, p. 15.
The Objectors have raised sufficient doubt about adequately controlling the air emissions from the landfill. Since the Authority's new air pollution control study is again the source for the concerns raised by the Objectors, I find that the record with respect to this issue is also inadequate. As such, the ruling of the ALJ rejecting this issue is reversed and the issue of whether the maximum predicted emission of vinyl chloride and acrylonitrile from the proposed landfill will exceed State guidelines should be adjudicated.
Authority's modeling did not account for stagnant periods
Position of the Parties
The Objectors also appeal the ALJ's ruling that no issue for adjudication existed regarding whether the Authority properly accounted for calm hours in analyzing potential air pollution impacts of the proposed project. Specifically, the Objectors assert that because there are periods of stagnation in the air above the proposed facility, the Authority used the wrong air modeling protocol in its analysis. Objector's Appeals Brief, pp.17-19.
DEC Staff opposes this appeal but does not elaborate.
The Authority also opposes this appeal and states that it did properly account for wind conditions at the proposed landfill, as set forth in their permit application. Further, the Authority argues that it did use the correct modeling protocol and the model advocated by the Objectors is not the one presently required. Authority Reply Brief, p. 16.
The ALJ's Ruling is sustained and no issue exists for adjudication on this point. Even if the Authority utilized the wrong air modeling protocol, the Objectors have failed to establish how this could affect the projected environmental impacts of the facility. Simply put, the Objectors have failed to even allege in their appeal that this issue is substantive as that term is defined in Part 624.
High silt soils not considered in air modeling
Position of the Parties
The Objectors appeal the ALJ's ruling and assert that the failure of the Authority to take into account the local soil characteristics, underestimates particulate concentrations, creating an adjudicable issue. The Objectors contend that due to the high silt content of the soil, disturbances to the soil will generate dust. This dust will then create concentrations of PM10 that will exceed NAAQS. Objector's Appeals Brief, pp. 19-21.
DEC Staff opposes this appeal and argues that the ALJ should be sustained.
The Authority also opposes this appeal and asserts that it has adequately evaluated the environmental impacts of the silt content at the site of the proposed landfill. The Authority again points out that it used conservative assumptions in its modeling and did not include many mitigation measures. When realistic assumptions are used and the mitigation measures are factored in, the Authority concludes that this will ensure that dust generated from the soils will be effectively controlled and will not exceed NAAQS. Authority Reply Brief, p. 16-19.
The ALJ's ruling is affirmed for the reasons stated therein.
ALJ Ruling on Truck Traffic
The ALJ ruled that issues involving truck traffic to and from the landfill on local roads did not require adjudication. The ALJ based his ruling on three reasons. First, the Department does not have the authority to review transportation issues under 6 NYCRR Part 360. Second, because the Department was not the lead agency under SEQRA, Part 624 precludes the adjudication of issues arising from the EIS, since the Department did not inform the Authority the DEIS was inadequate with respect to these issues. Finally, the ALJ found that the Authority looked at traffic issues in completing the FEIS, and the Objectors did not offer anything to contradict the Authority's analysis. Rulings, pp. 53-55.
Position of the Parties
The Objectors appeal and assert that issues involving landfill-related truck traffic should be adjudicated pursuant to Part 360. Specifically, the Objectors cite three provisions within the regulations that authorize the Department to examine off-site traffic impacts. The Objectors contend that the traffic analysis conducted by the Authority was inadequate. Objectors' Appeals Brief, pp. 21-24.
DEC Staff argues that the ALJ's ruling not to adjudicate this issue should be sustained. Staff asserts that the three provisions within Part 360 cited by the Objectors have been misconstrued and do not grant Staff the authority or duty to examine off-site traffic impacts of a solid waste landfill. Additionally, Staff contends that the Objectors did not present any support for their contentions that the Authority's plan is inadequate. Staff Reply Brief, pp. 9-12.
The Authority asserts that the traffic impacts of the proposed facility have been adequately analyzed in the SEQRA process and that there is no legal authority to adjudicate the traffic impacts of the proposed facility. Authority's Reply Brief, pp. 19-25.
The ruling of the ALJ not to adjudicate the traffic impacts of the proposed facility is sustained and the Objectors' arguments are rejected. When the Department is not the lead agency, adjudication of SEQRA issues in the DEC administrative hearing process is only allowed when the lead agency fails to respond to DEC's comments on the proposed DEIS. In this case, Staff did not make comments regarding the traffic impacts, so this issue may not be adjudicated as a matter of law. 6 NYCRR 624.4(c)(6)(ii)(b)).
Objectors' argument that Part 360 requires an analysis of traffic impacts is also rejected. Part 360-2.10 requires applicants to develop a contingency plan to respond to emergencies and other special conditions, including unusual traffic conditions. This provision deals only with planning for responding to an emergency and does not require an analysis of the routine traffic going to and from the facility. This impact is considered and mitigated through the SEQRA process and the involvement of the appropriate experts on traffic matters.
Similarly, 6 NYCRR Part 360-1.9(h) also relates to contingency planning by the Authority and requires a description of arrangements made with emergency responders for any unusual occurrence that might occur at a facility. Part 360-2.7(b)(2) requires the Authority to supply a report on the transportation infrastructure, but does not require DEC to evaluate whether the transportation infrastructure is sufficient.
The holding in the Matter of the A-1 Recycling and Salvage, Interim Decision, March 19, 1992) still stands. Part 360, in and of itself, does not require DEC to examine the off-site traffic impacts of a proposed solid waste management facility.
ALJ Rulings on Additional Permit Conditions
Condition to Prohibit Importing Wastes
Position of the Parties
The ALJ's Ruling directed that the draft permit for the landfill be amended to include a permit condition that would guarantee that the landfill will accept no waste from outside Oneida and Herkimer counties. The Objectors had requested such a condition, and were particularly concerned that waste from the New York City metropolitan area might be disposed of at the landfill. Rulings, p. 20.
Staff appeals this portion of the Ruling, asserting that it lacks the authority to impose or enforce a permit condition arising out of the Public Authorities Law (PAL). Staff Appeal, pp. 22-24. Furthermore, the Authority's reply to the appeals asserts that the proposed condition is irrelevant, as the Objectors' concern has already been addressed by the language of the Authority's authorizing statute. The Authority cites to PAL Section 2049-ee(8), which provides that "no solid waste generated outside of the area of operation, other than recyclable materials, shall be received, collected, treated, or disposed of by the authority." The phrase "area of operation" is defined to mean either Oneida or Herkimer counties, or both. PAL Section 2049-bb(1). Authority Reply Brief, pp. 26-28.
In response, the Objectors assert that the permit condition is directly related to the issue of need for the landfill, as well as traffic impacts. Moreover, the Objectors maintain that DEC has the authority to require such a condition, and state that a similar permit condition, limiting the area from which waste would be accepted at a landfill, was imposed in Lewis County in the Rodman landfill's permit. The Objectors also state that the permit condition is particularly significant, since the ALJ declined to grant the Objectors' request for a permit condition that would prohibit the Authority from transferring the landfill to an entity that would not be bound by limitations on the geographic areas from which it could accept waste. Objectors Appeals Brief, pp. 47-50.
Although the draft permit does not contain a geographic limit on the service area, the Authority's authorizing legislation does provide such a limitation. In light of this provision, and the discussion above with respect to the issue of need, the ALJ's direction to include a permit condition limiting the service area should be reversed.
I have reviewed the remaining appeals to the ALJ's Rulings not specifically addressed here and find no reason to overturn the ALJ's findings on these other matters.
For the reasons stated above, I remand this matter to the ALJ for further proceedings consistent with this Interim Decision.
Erin M. Crotty, Commissioner
Dated: Albany, New York
April 2, 2002
1 The Objectors' argument on this point cited to the decision in United Haulers Ass'n, Inc. v. Oneida Herkimer Solid Waste Management Auth., No. 95-CV-516, 1995 WL 728622 (N.D.N.Y., Mar. 31, 2000). That decision has since been reversed by the United States Court of Appeals for the Second Circuit, which held that the Oneida and Herkimer County ordinances were not discriminatory under the dormant Commerce Clause. 2001 WL 849204 (2d Cir., July 27, 2001).