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Onondaga County Resource Recovery Agency - Ruling, October 3, 1994

Ruling, October 3, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

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,

(Onondaga County)

Applicant

ISSUES RULING

Introduction

On August 31, 1994 a legislative hearing was held before Administrative Law Judge ("ALJ") Kevin J. Casutto, at the Baker High School 29 East Oneida Street, Baldwinsville, New York, with sessions convened at 2:00 p.m. and 7:00 p.m. An issues conference was held on September 1, 1994 at 10:00 a.m., at the Donald S. Ray Middle School, 7650 Van Buren Road, Baldwinsville, New York. The stenographic record of the proceedings was received by the ALJ by September 14, 1994. The issues conference record was closed with receipt of filings from intervenor Town of Van Buren dated September 13, 1994, received by this Office on September 14, 1994.

Onondaga County Resource Recovery Agency ("OCRRA", or "Applicant") appeared at both legislative hearing sessions, and at the issues conference held the following day, by James F. Dwyer, Esq., James F. Dwyer, Esq., Grossman, Kinney, Dwyer and Harrigan, P.C., 5720 Commons Park, East Syracuse, New York 13057. Appearing with counsel at the legislative hearing, was OCRRA Executive Director, Paul J. O'Connor; and at the issues conference, were Andrew Radin, OCRRA Landfill Director and representatives of the engineering firm of William P. Consulich Associates, P.C., including and John C. Ryan, P.E., and Gerald Gould, Certified Geologist.

Department Staff ("Staff") appeared at both legislative hearing sessions, and at the issues conference held the following day, by William Gallagher, Esq. Assistant Regional Attorney New York State Department of Environmental Conservation ("NYSDEC") Region 7, 615 Erie Boulevard West, Syracuse, New York 13204-2400. Appearing with counsel at the issues conference were technical Staff, Frank Trent, Geologist, Larry Gross, P.E. and Thomas Annal, P.E.

At the afternoon legislative hearing session, seven members of the public offered comments on the permit application. At the evening legislative hearing session, nineteen members of the public offered comments on the permit application. Among those who commented on the permit application were Hon. Nicholas Pirro, Onondaga County Executive, in support of the project and Hon. Robert Warner, Onondaga County Legislator, and Hon. Edward Hallenbeck, Town Supervisor, Town of Van Buren, in opposition to the project.

At the legislative hearing sessions, both written and oral comments were received. Additionally, the time period for submitting written comments was extended to September 14, 1994, and two additional written comments, in opposition to the project, were received during that extended time period.

The majority of the speakers during the legislative sessions were residents of the Town of Van Buren, and expressed their opposition to the site selection process and the project. More specifically, the concerns identified by various speakers included: (1) Statements that the site selection process resulting in the selection of site 31 was the result of improper political dealings, and the siting process should be reopened. (2) Further, that the principal of OCRRA's initial engineering consultant, the firm of Maniktala, P.E., has been indicted and convicted for fraud in connection with the firm's work on Onondaga County projects. Speakers expressed concern that siting data produced by the Maniktala firm has been relied upon by OCRRA's current engineering firm in completing the site assessment process that resulted in selection of site 31. (3) That the project has been downsized considerably since its inception, and the siting process should be reopened because sites previously rejected due to small size may now be considered. The ALJ explored these matters at the issues conference.

The deadline for receipt of petitions for party status was August 25, 1994. Petitions for full party status were received from Camillus Airport, Inc., Camillus, New York, People United for a Rural Environment ("PURE"), Syracuse, New York, and the Town of Van Buren (the "Town"). No petitions seeking amicus status were received.

Background

Applicant has applied to the New York State Department of Environmental Conservation ("the Department" or "DEC") for a Solid Waste Management Facility ("SWMF") permit pursuant to Environmental Conservation Law ("ECL") Article 27, Title 7 and Part 360 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"). Applicant proposes to construct and operate a 52 acre landfill and leachate storage facility located on a 487 acre site known as Site 31 located on North Brickyard Road in the Town of Van Buren, County of Onondaga, New York. The facility is designed for a 25 year capacity of approximately 500 tons per day of incinerator ash and bypass waste, and residues from construction and demolition waste processing, recycling and yard waste composting. The ash residue and bypass waste will be received from a permitted 990 tons per day resource recovery facility located on Rock Cut Road in the Town of Onondaga, County of Onondaga, New York.

Regional Staff, after review of the application, made a tentative determination to grant a permit for the project as proposed, and Staff prepared a draft permit which was available for public review since July 8, 1994. However, since receiving and reviewing the petitions for party status in this proceeding, on August 31, 1994 Staff revised permit condition 47 regarding monitoring well spacing. Applicant has accepted the revised permit.

An intervenor seeking full party status must demonstrate an environmental interest in the proceeding (6 NYCRR 624.5(b)(1)(ii)) and must demonstrate that a substantive and significant issue exists regarding the permit application (6 NYCRR 624.4(c)). Both Staff and Applicant assert that, although the intervenors have demonstrated adequate environmental interest in the project, no intervenor has identified a substantive and significant issue requiring adjudication.

At the issues conference, the Town was represented by the law firm of Davoli, McMahon and Kublick, P.C., 500 South Salina Street, Syracuse, New York 13202, Jan S. Kublick, Esq. of counsel. Appearing with Mr. Kublick were representatives of the Town's engineering consultant firm, Clough Harbour & Associates, including Richard M. Lowenstein, Jr., P.E., Partner, Frank La Vardera, Associate Principal, and Christopher Burns, Ph.D., P.G.

People United for a Rural Environment appeared by James Ruddock, Associate Professor of Architectural Technology, Onondaga Community College Syracuse, New York 13215. Camillus Airport, Inc. appeared by its President, Michael Rusyniak (a/k/a Russ), Camillus Airport, Inc., Box 55, Camillus, New York 13031.

The Petitions for Party Status

The Town of Van Buren

The Town opposes OCRRA's permit application. The Town's petition for party status identifies eight enumerated areas of concern, but proposes more than one issue for adjudication for some of the enumerated areas of concern. As explained below, the Town requested additional time to assess its position on a number of its proposed issues which have apparently been addressed by Staff or Applicant. Additionally, towards the conclusion of the September 1, 1994 issues conference session, the Town sought to raise additional issues for adjudication which were the subject of their comments on the Notice of Complete Permit Application, but which were not included in their petition for party status.

The issues conference record was held open to allow for the Town to provide the ALJ with clarification of its position on certain issues which apparently have been addressed by Staff and Applicant, and also to identify its additional proposed issues. The Town's submittal were filed, as required, by September 14, 1994. The ALJ's review of these filing, including additional proposed issues which the Town concedes constitute a late filing, is discussed below.

Proximity of Camillus Airport

The Town's fifth issue relates to Camillus Airport through a speculative, circuitous argument. The Town asserts that under the recent U.S. Supreme Court case of Carbone v. Clarkstown, ___ U.S. ___, 62 U.S. Law Week 4315 (May 16, 1994), waste flow control in the present matter is precluded, as violative of the commerce clause of the U.S. Constitution (Art I, Sec. 8). As a result, the Town asserts that if OCRRA's incinerator will not produce contemplated quantities of ash, the landfill will essentially be converted to a raw municipal solid waste landfill. If such conversion of the landfill use occurs, then OCRRA will require additional FAA approval to address additional bird mitigation in light of the proximity of Camillus Airport (or, in the alternative, a contingency plan to address disposal of raw municipal solid waste at another appropriate facility).

OCRRA distinguishes the present application from Carbone, because in Carbone local law mandated use of the regional facility whereas in the present matter there is no local law requiring municipalities to use OCRRA's resource recovery facility. Instead, OCRRA asserts, municipalities have voluntarily contracted with OCRRA to use its resource recovery facilities. Additionally, the parties indicated that the Town has sought judicial determination of this issue, by an action presently pending.

Ruling [1]:The Town has presented a speculative issue, which is not substantive, because it does not raise sufficient doubt about the Applicant's ability to meet statutory or regulatory criteria, such that a reasonable person would inquire further (6 NYCRR 624.4[c][2]). Further, the Carbone case is not applicable to the present application for reasons cited by OCRRA. Therefore, no adjudicable issue exists regarding interpretation and applicability of the Carbone decision or the speculation that the landfill will be converted to use primarily for raw municipal solid waste.

Impact on the Jordan-Warners Aquifer

The Town asserts as its first proposed issue, that OCRRA's Site Investigation Report (comprising one component of the permit application) fails to adequately describe and characterize a significant portion of the landfill footprint, contrary to the requirements of 6 NYCRR 360-2.11(b) The regulatory authority cited by the Town is primarily a reporting requirement, not a regulatory standard. In the event the Site Investigation Report were found to be inadequate, as the Town asserts, the remedy would be a supplemental report, not an adjudication.

The Town asserts it has identified a 19 acre deposit of silt and fine sand in the southeastern portion of the landfill footprint, located at an elevation such that the bottom of the landfill's liner system will be positioned within it. OCRRA has characterized this portion of the site as laminated clays. Existence of this 19 acre sand deposit will, according to the Town, violate siting requirements concerning groundwater contamination, resulting in the possibility of landfill contaminates reaching the Jordan-Warners aquifer.

For its second issue, the Town asserts that due to this new geologic information - - i.e., its purported identification of the 19 acre sand deposit - - the SEQRA process is flawed and a supplemental environmental impact statement ("EIS") is required. Underlying both these issues is the Town's concern that landfill contaminates may reach the Jordan-Warners aquifer.

- 6 NYCRR 360-2.11(b)

The Town has retained an engineering consultant which has performed an independent site investigation, and is prepared to present expert testimony on this issue. The Town asserts that the Jordan-Warners aquifer is connected to the site via an unnamed stream which flows to a wetland located approximately 3000 feet from the landfill footprint. The wetland is situated above the Jordan-Warners aquifer. In the Town's view, the 19 acre silt and fine sand deposit has the potential to carry landfill derived contaminates from the site to the Jordan-Warners aquifer, via the stream and wetland.

OCRRA and Staff deny the existence of a silt and fine sand geologic unit on the site, and have characterized this area of the site as a laminated silt and clay unit. The Draft Environmental Impact Statement ("DEIS") establishes that the Jordan-Warners aquifer is a confined aquifer, meaning that there is a clay deposit above the aquifer which separates it from the wetland.

At the issues conference, the Town did not dispute that the aquifer is a confined aquifer. The DEIS shows that 50 to 100 feet depth of clay and silt overlie the aquifer which is 3000 feet from the site. (DEIS Hydrogeologic Investigation Book 1, figure 5-B). Since the Jordan-Warners aquifer is a confined aquifer, even if landfill contaminates were to reach the wetland, the intervening clay deposits which confine the aquifer will prevent migration of contaminates to the aquifer.

- SEQRA

In light of the above discussion, no substantive issue exists regarding contamination of the Jordan-Warners aquifer. Therefore, no possible adverse impact exists for purposes of SEQRA analysis.

In any event, OCRRA in its capacity as lead agency, issued a Final EIS ("FEIS") and subsequently, in June, 1993, issued an Amended and Restated FEIS. When an agency other than the Department serves as the SEQRA lead agency and has required preparation of a Draft EIS, issues based solely upon SEQRA will not be considered issues for adjudication in the Department's permit hearing, except under circumstances identified in 6 NYCRR 624.4(c)(6)(ii)(b). Such circumstances do not exist in this case. During the issues conference, Applicant and the Town stated that it has petitioned OCRRA, as SEQRA lead agency, to consider re-opening the SEQR process in light of the new information identified in Town issue (1), existence of the sand deposit. OCRRA stated that its board of directors is considering the Town's findings and application for supplemental EIS, but has not yet made a determination on that matter. Further, the Town stated it has sought judicial relief requiring OCRRA as lead agency to re-open the SEQRA process and prepare a supplemental EIS..

Ruling [2]:No adjudicable issue has been raised by the Town under 6 NYCRR 360-2.11(b), regarding the purported existence of a 19 acre deposit of silt and fine sand in the southeastern portion of the landfill footprint, or the consequences of existence of such a geologic feature to the possibility of landfill contaminates reaching the Jordan-Warners aquifer. Therefore, no possible adverse impact exists for purposes of SEQRA analysis. In any event, pursuant to 6 NYCRR 624.4(c)(6)(ii)(b), the issue of whether a supplemental EIS is required, is not a matter within the Department's jurisdiction in this permit action.

Other Groundwater Impacts

The Town asserts as its third proposed issue, that OCRRA's permit application does not meet the requirements of 6 NYCRR 360-2.11(c) in three respects:

  1. Pursuant to 6 NYCRR 360-2.11(c)(1)(i)(b), monitoring well spacing is required not to exceed 500 feet, but that the spacing is 750 feet between wells MW-9 and MW-10.
  2. Pursuant to 6 NYCRR 360-2.11(c)(1)(i)(b), at least three downgradient wells are required for each water bearing unit of the critical stratigraphic section, but that the unsorted diamicton unit has only two downgradient monitoring wells (MW-8 and MW-10).
  3. OCRRA's Environmental Monitoring Plan ((comprising one component of the permit application; "EMP") indicates that sampling of the landfill underdrain system will be sampled at retention basins located adjacent to the landfill cell, but that sample collection at this point may lead to cross contamination, dilution of the sample by precipitation or the introduction of other contaminants to the retention basin. Instead, the Town asserts that sampling should occur at the point of actual discharge from the underdrain system.

On August 31, 1994, Staff revised condition #47 of the draft permit to address the Town's concern regarding spacing of wells MW-8 and MW-10. The Town has not addressed this issue further in its September 13, 1994 filing and therefore has apparently abandoned this issue.

Regarding the downgradient well requirement of 6 NYCRR 360-2.11(c)(1)(i)(b), Applicant and Staff assert that the regulation requires three downgradient wells within the first water bearing unit. Defined at 6 NYCRR 360-1.2(b)(65). of the critical stratigraphic section, and not within the geologic feature - - the unsorted diamicton unit - - to which the Town refers. Applicant asserts that there is only one water bearing unit identified in the critical stratigraphic section. The Applicant, Staff and the Town do not contest that more than three monitoring wells are required for the first water bearing unit, which is at issue here. I find that Applicant's and Staff's reading of the regulation is correct. Therefore, no issue for adjudication is presented regarding downgradient well requirements.

Lastly, regarding underdrain sampling, the Town apparently relied upon an earlier draft of the permit in proposing this issue. The draft permit available since July 8, 1994 indicates that underdrain samples will be collected from outfall of the underdrain pipe. The Town has not addressed this issue further in its September 13, 1994 filing and therefore has apparently abandoned this issue.

Ruling [3]: The three issues proposed by the Town within its third proposed issue, do not present any adjudicable issue.

Characterization of Ash

The Town asserts as its seventh issue that, pursuant to the recent U.S. Supreme Court ruling in City of Chicago v. Environmental Defense Fund (which held that municipal solid waste incinerator ash is not within the blanket exemption of RCRA Section 3001[i]), the draft landfill permit should be revised to require additional testing of ash; a contingency plan should be required to address disposal of ash, should it be characterized as hazardous; the Town should be provided with copies of all ash tests and advised if any ash that tested hazardous was placed at the landfill; and the Town should be allowed to obtain samples of the ash for the purposes of conducting independent tests.

At the issues conference, both Staff and Applicant stated their expectation that the incinerator ash will test non-hazardous. However, neither party could state with certainty that the ash will test non-hazardous, and therefore be appropriate for the contemplated landfill. Instead, Staff asserted that in the event the waste does test positive, the incinerator waste stream could be manipulated to produce a non-hazardous ash or the incinerator could be modified with additional equipment to produce a non-hazardous ash - - or, in the alternative, another disposal facility, authorized to receive hazardous waste, would be identified. Viewed in this context, much of what the Town seeks, assumes illegality (disposal of hazardous waste at the proposed landfill site) or a change in the nature of the project (to a raw municipal solid waste landfill). Although the resource recovery facility permit is not before me, in order to create a complete record on this issue, I direct OCRRA and Staff to identify what contingency plans exist, if any.

Previously, municipal solid waste incinerator ash was deemed exempt from hazardous waste management requirements. Under City of Chicago, management of such waste as solid waste or hazardous waste is dependent upon the characteristics of that waste. The proposed project is to receive wastes only from OCRRA's resource recovery facility which includes a municipal solid waste incinerator, presently under construction. The parties state that presently, testing at the incinerator is required twice annually. Under hazardous waste regulations, the burden is on the generator of any solid waste to determine whether the waste is hazardous, at the point of generation. (see 6 NYCRR 372.2). Therefore, the Town's request for a requirement of additional testing by OCRRA at the landfill is misplaced, and is appropriately addressed in the context of OCRRA's resource recovery facility permit.

The Town also seeks development of a contingency plan to address disposal of ash, should it be characterized as hazardous; a requirement that the Town be provided with copies of all ash tests and advised if any ash that tested hazardous was placed at the landfill; and a requirement that the Town be allowed to obtain samples of the ash for the purposes of conducting independent tests. These issues are a matter of law and policy, but do not present issues of fact for adjudication.

Regarding the Town's request for more frequent testing of ash, Staff stated that the Department is in the process of developing a revised regulation to address the City of Chicago interpretation of RCRA. Therefore, Staff asserts, no permit condition is necessary on testing because the regulation will be promulgated before the project is completed. The project to be reviewed is the project as proposed; not as it may be modified at some future time, or as it may be operated pursuant to some future regulation. Therefore, additional testing would appear to be necessary now, since the RCRA exemption for municipal solid waste incinerator ash no longer exists. Absent the exemption, the possibility exists that the ash may test positive as hazardous waste.

Ruling [4]: Issues proposed in the Town's seventh enumerated issue present matters of law and policy, but do not present issues of fact for adjudication. The Town's proposed permit revision seeking permit revision to require additional testing of ash, is rejected. However, the permit should be revised to require that OCRRA provide the Town with copies of all ash test results and notify the Town in writing if any ash that tested hazardous was placed at the landfill; and to provide that the Town be allowed access during all hours of landfill operation, to obtain ash samples for the purposes of conducting independent tests.

Ruling is reserved on the issue of whether a contingency plan should be required under the proposed project to address disposal of ash, should it be characterized as hazardous. Although the resource recovery facility permit is not before me for review, OCRRA and Staff are directed to identify what contingency plans exist, if any, for disposal of hazardous ash under that permit. Filings must be received by this Office by close of business, October 18, 1994.

The Agricultural Prohibition

The Town asserts as its fourth proposed issue that, pursuant to 6 NYCRR 360-1.7(a)(2)(i), siting of a new SWMF upon agricultural lands comprised predominately of agricultural soil groups 1 and 2, in a designated agricultural district is prohibited if lands are to be taken by eminent domain, as is the case here. OCRRA does not possess an option to purchase a parcel consisting of more than 100 acres of agricultural land comprising a portion of the proposed site. One element of the agricultural prohibition requires that land upon which the facility is to be located, is proposed to be taken by eminent domain. A second element is that land upon which the facility is to be located consists predominately of agricultural soil group (1) or (2). The land classification system certified by the Commissioner of Agriculture and Markets.. During the legislative hearing, landowner Leroy T. Peck, affirmed his refusal to sell his 183 acre property to OCRRA, and that the property has been farmed by the Peck family since 1813. At the issues conference, the Town also cited Mr. Peck's refusal to sell his property, concluding that OCRRA could only obtain that property by eminent domain.

OCRRA has not denied that it will be necessary to exercise eminent domain authority in order to acquire the Peck property. The Town intends to rely upon United States Conservation Soil Maps and testimony of its engineering consultant, to show that the Peck property is predominately composed of soil groups (1) and (2). OCRRA asserts that a soil assessment of the site performed by its engineering consultant shows that only 26% of the Peck property consists of soil groups (1) and (2). In the event the Town can demonstrate at hearing that the site is composed predominately of soil groups (1) and (2), then pursuant to 6 NYCRR 360-1.7(a)(2)(i), the Peck property may not be acquired by eminent domain. This would require major modification or denial of the project.

Ruling [5]:The Town has raised an adjudicable issue regarding applicability of the agricultural prohibition to this project; i.e., pursuant to 6 NYCRR 360-1.7(a)(2)(i), whether the Peck property consists predominately of soil groups (1) and (2). Additionally, I note that in the event OCRRA receives a favorable outcome on this issue, pursuant to 6 NYCRR 360-1.7(a)(2)(i), OCRRA must demonstrate compliance with Agriculture and Markets Law 305 as a prerequisite to permit issuance..

Incident Reports

The Town asserts in its sixth proposed issue that draft permit conditions (4) and (5), which require OCRRA to provide reports to the Department regarding incidents which may endanger human health or the environment, should be revised to require OCRRA to report such incidents directly to the Town, as well.

The Town thereby seeks to obtain directly from OCRRA copies of incident and operations reports required to be provided to Staff. At the issues conference, Applicant opposed such a permit condition but offered to execute a side letter agreement with the Town to address the Town's concern. Both Applicant and Staff asserted that no statutory or regulatory provision provides authority for such a permit condition. The Town provided the following citations in support of this issue, in its September 13, 1994 filing: 6 NYCRR 360-1.14(f)(3), (g), (h) and (i). Section 360-1.14 is entitled "Operational requirements for all solid waste management facilities". The cited provisions provide no authority which supports such a permit requirement. However, since OCRRA has agreed to execute a side letter with the Town on this issue, I direct OCRRA to do so. Additionally, as discussed at the issues conference, the Town may obtain this information via a Freedom of Information Law request (Public Officers Law, Article 6).

Ruling [6]:The Town's sixth proposed issue, does not present an issue for adjudication. OCRRA is directed to execute a side letter with the Town, agreeing to provide to the Town those documents required to be provided to Staff under draft permit conditions (4) and (5).

Traffic Safety

The Town asserts as its eighth proposed issue that improvements to North Brickyard Road, a road bordering the site, are insufficient. The Town seeks full depth roadbed reconstruction, and two lanes with heavy duty shoulders should be required, given the nature of traffic that will utilize the roadway, including truck traffic to the site. However, OCRRA indicated at the issues conference that the Town apparently relied upon a previous version of the permit application in proffering this issue. The present permit application, which has been available since July 8, 1994, its drivers will not be using North Brickyard as an access road to the site. The Town has not addressed this issue further in its September 13, 1994 filing and therefore has apparently abandoned this issue.

Ruling [7]:The issue identified by the Town in its eighth proposed issue, does not present an adjudicable issue.

The Town's Additional Proposed Issues

The Town has identified four additional proposed issues for adjudication, in its filing of September 13, 1994. The Town was directed to identify these issues to determine whether any issue presented is sufficiently important that the filing deadline for proposed issues should be extended and also,in part, for the purpose of creating a record for appeal. The Town was advised at the issues conference that they bear a heavy burden in attempting to go forward on these additional issues. The four proposed issues do not present new information and could have been addressed in the Town's petition for party status. These issues arise from the Town's fifty-two comments on the complete application. The four issues are those comments which the Town asserts were not satisfactorily addressed by Applicant, and therefore present adjudicable issues.

Since these proposed issues are not based upon new or unavailable information, the Town had ample opportunity to raise these issues in its petition. At this point, to address these additional issues would occasion further delay in the permit process, and therefore is unwarranted.

Ruling [8]:The Town's motion to consider its four additional proposed issues is denied. The issues conference record is closed.

Camillus Airport, Inc. and People United for a Rural Environment

The Airport's one-page filing did not identify specific issues for adjudication, but instead broadly opposed permit issuance because airport operation and safety would be adversely affected by the proposed landfill. Although the filing challenged the adequacy of OCRRA's Bird Mitigation Plan, the Airport did not specify in what manner the Plan is inadequate. At the issues conference, the Airport's representative stated that he intends to hire an ornithologist to testify, but had not yet done so. OCRRA's response to this broad challenge to the Bird Migration Plan was to point out that the FAA setback requirement is 5000 feet (from landfill footprint to runway), and the distance at issue here is approximately 8500 feet. Additionally, the FAA has reviewed and approved the project.

PURE essentially asserted as proposed issues, those issues asserted by the Town as issues 1,2,3,4 and 7, summarized below. However, PURE's identification of issues was not as explicit or described as thoroughly as was done by the Town. At the issues conference, PURE's representative explained that the group is entirely staffed by volunteers, and their funding is limited. PURE's petition indicates that it has among its members, two hydrogeologists who are available to review and respond to OCRRA's data. However, those members had not done so prior to the issues conference. Therefore, PURE was not able to add substantively to the Town's presentation of proposed issues.

Ruling [9]:Both Camillus Airport and PURE have demonstrated adequate environmental interest in this proceeding. Yet, PURE has not presented any substantive and significant issue for adjudication, other than those issues presented by the Town. During the issues conference, PURE was given the opportunity to elaborate on its proposed issues which were also issues proposed by the Town. PURE deferred to the Town's characterization of each issue, and did not meaningfully elaborate upon or add to issues identified by the Town. Camillus Airport failed to make even a facially adequate offer of proof in support of an adjudicable issue. Party status is therefore denied to PURE and Camillus Airport, Inc. Consideration was given to possibly consolidating PURE and the Town. I find that consolidation would not be appropriate in this instance, due to the unique interests particular to a governmental entity (including the fact that PURE is not represented by counsel, and consolidation would in effect subsidize PURE's efforts with public funds of the Town). However, it is recommended that PURE and Camillus Airport assist the Town to the extent possible, during the adjudicatory phase of the hearing process.

Summary of Rulings

An issue for adjudication has been raised, as set forth in Ruling [5]. Additionally, one aspect of issues raised in Ruling [4], has been reserved upon, pending review of additional filings. The Town of Van Buren has been granted party status; Camillus Airport, Inc. and PURE have been denied party status.

Ruling [1]: No adjudicable issue exists regarding interpretation and applicability of the Carbone decision or the speculation that the landfill will be converted to use primarily for raw municipal solid waste.

Ruling [2]: No adjudicable issue has been raised by the Town under 6 NYCRR 360-2.11(b), regarding the purported existence of a 19 acre deposit of silt and fine sand in the southeastern portion of the landfill footprint, or the consequences of existence of such a geologic feature to the possibility of landfill contaminates reaching the Jordan-Warners aquifer.

Therefore, no possible adverse impact exists for purposes of SEQRA analysis. In any event, pursuant to 6 NYCRR 624.4(c)(6)(ii)(b), the issue of whether a supplemental EIS is required, is not a matter within the Department's jurisdiction in this permit action.

Ruling [3]:No adjudicable issues are presented by the Town's third proposed issue.

Ruling [4]: Issues proposed in the Town's seventh enumerated issue present matters of law and policy, but do not present issues of fact for adjudication. The Town's proposed permit revision seeking to require additional testing of ash, is rejected. However, the permit should be revised to require that OCRRA provide the Town with copies of all ash test results and notify the Town in writing if any ash that tested hazardous was placed at the landfill; and to provide that the Town be allowed access during normal hours of landfill operation, to obtain ash samples for the purposes of conducting independent tests.

Ruling is reserved on the issue of whether a contingency plan should be required under the proposed project to address disposal of ash, should it be characterized as hazardous. Although the resource recovery facility permit is not before me for review, OCRRA and Staff are directed to identify what contingency plans exist, if any, for disposal of hazardous ash under that permit. Filings must be received by this Office by close of business, October 14, 1994.

Ruling [5]: The Town has raised an adjudicable issue regarding applicability of the agricultural prohibition to this project; i.e., pursuant to 6 NYCRR 360-1.7(a)(2)(i), whether the Peck property consists predominately of soil groups (1) and (2).

Ruling [6]: The Town's sixth proposed issue, does not present an issue for adjudication. OCRRA is directed to execute a side letter with the Town, agreeing to provide to the Town those documents required to be provided to Staff under draft permit conditions (4) and (5).

Ruling [7]: The issue identified by the Town in its eighth proposed issue, does not present an adjudicable issue.

Ruling [8]: The Town's motion to consider its four additional proposed issues is denied. The issues conference record is closed.

Ruling [9]: Party status is denied to PURE and Camillus Airport, Inc. Consolidation with the Town would not be appropriate in this instance, due to the unique interests particular to a governmental entity. However, it is recommended that PURE and Camillus Airport assist the Town to the extent possible, during the adjudicatory phase of the hearing process.

Appeals

Pursuant to 6 NYCRR 624.8(d), these Rulings on party status and issues may be appealed in writing to the Commissioner by October 12, 1994. Reply briefs to any such appeals must be filed by October 21, 1994. All appeals and replies must be addressed to the office of Commissioner Langdon Marsh, NYSDEC, Room 604, 50 Wolf Road, Albany, New York 12233-5500, and must be received by that office by the dates indicated herein. A copy of all such appeals, replies, briefs, and other related filings must also be sent to the ALJ's attention at the Department's Office of Hearings, and to all persons indicated on the September 2, 1994 Service List. Transmittal of documents must be made at substantially the same time and in the same manner to all persons.

_____________/s/_____________
Kevin J. Casutto
Administrative Law Judge

Dated: October 3, 1994
Albany, New York

TO: Service List
SERVICE LIST
Onondaga County Resource Recovery Agency
SWMF Landfill Permit Application
DEC Application No. 7-3156-00047/00003-3

Applicant:

James F. Dwyer, Esq.
Grossman, Kinney, Dwyer and
Harrigan, P.C.
5720 Commons Park
P.O. Box 339
East Syracuse, New York 13057
tel: (315) 449-2131
fax: (315) 449-2905

Kevin J. Casutto
Administrative Law Judge
NYSDEC - Office of Hearings
50 Wolf Road, Room 409
Albany, NY 12233-1550
tel: (518) 457-3468
fax: (518) 485-7714

Staff:
William Gallagher, Esq.
Assistant Regional Attorney
NYSDEC Region 7
615 Erie Boulevard West
Syracuse, New York 13204-2400
tel: (315) 426-7400
fax: (315) 426-7402

Town of Van Buren:
Jan S. Kublick, Esq.
Davoli, McMahon and Kublick, P.C.
500 South Salina Street
Syracuse, New York 13202
tel: (315) 424-1105
fax: (315) 424-9121 or
(315) 478-4843

Camillus Airport:
Mike Russ
Camillus Airport, Inc.
Box 55
Camillus, New York 13031
tel: (315) 488-0094
fax: (315) 673-1704

People United for a Rural Environment:
Jim Ruddock, R.A.
Associate Professor/Architectural Technology
Onondaga Community College
Syracuse, New York 13215
tel: (315) 469-2170 or
(315) 638-2250
fax: (315) 469-2593 [September 2, 1994]

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