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Onondaga County Resource Recovery Agency - Ruling 2, October 24, 1994

Ruling 2, October 24, 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.

SECOND RULING

Introduction

Following a September 1, 1994 issues conference, a Ruling on party status and proposed issues for adjudication ("Issues Ruling") was issued on October 3, 1994. Regarding the Town of Van Buren's first proposed issue, alleging that OCRRA's Site Investigation Report fails to adequately describe and characterize a significant portion of the landfill footprint, contrary to the requirements of 6 NYCRR 360-2.11(b), I ruled that no adjudicable issue was presented.

By letter dated October 5, 1994 the Town of Van Buren moves to reopen the record with respect to this proposed issue, for submittal into the issues conference record of the affidavit of Christopher Burns (dated September 30, 1994). That affidavit was initially prepared in furtherance of the Town's application for judicial relief, seeking to reopen the State Environmental Quality Review (SEQR) process to require a supplemental Environmental Impact Statement (EIS) on characterization of the southeastern portion of the landfill site.

By letter dated October 6, 1994 Applicant moves to respond to the Burns affidavit, in the event the record is reopened to accept that affidavit.

Separately, by letter dated October 12, 1994 the Town seeks rescheduling of filing dates for appeals, so that disposition of its motion to reopen the record may be addressed in a single appeals process.

Lastly, as directed by the Issues Rulings (Ruling 4), Applicant confirms that no written contingency plan exists for ash disposal should such ash be characterized as hazardous. Instead, Applicant asserts that in the event ash tests as hazardous, arrangements would be immediately made for shipment to an authorized hazardous waste disposal facility until the problem is corrected.

The Motion to Reopen

Procedurally, the Town has provided no indication why this affidavit is only presented at this late date. The affidavit was not prepared until almost a month after the issues conference was held, and then primarily in furtherance of the Town's judicial proceeding.

The Burns affidavit adds nothing new to the Town's proposed issue. At best, the affidavit may be characterized as a new analysis of information which has been available for a lengthy period of time. That information was at a minimum available to the Town for review upon completion of the draft EIS. Therefore, the Town's assertion that OCRRA first presented the notion that the aquifer is a confined aquifer at the issues conference, is erroneous and must be rejected. However, even considering the affidavit on the merits, it is not sufficiently substantive.

The Burns analysis asserts that a mechanism could exist by which landfill contaminates may reach an aquifer located some one-half mile from the site. On this basis, the Town and the Burns affidavit seek additional site characterization to determine whether its hypothesis is correct that landfill contaminates could possibly reach the aquifer, located some 3000 feet from the landfill site.

Although the Town has raised a substantial issue regarding characterization of the 19 acre deposit in the southeastern portion of the landfill site, it has not made an adequate offer of proof to show that contaminates could reach the Jordan-Warners aquifer. Therefore, the issue raised is not significant. See, 6 NYCRR 624.4(c)(3). Many assumptions underlie the Town's theory of aquifer contamination. One must assume that the monitoring system will fail; contaminates will travel a great distance off-site; the geology underlying the aquifer is not overlain by a clay deposit of 50 feet depth (or a substantial clay deposit) or that there is some mechanism by which landfill contaminates could reach the aquifer. The Town makes all these assumptions in concluding that landfill contaminates may reach the aquifer.

In support of its argument, the Town cites a reference in the Kantrowitz report which describes an area one mile east of the Jordan-Warners aquifer and refers to infiltration of stream flow at that location. From this reference, the Town draws an inadequately supported conclusion that it is possible such infiltration could occur for the stream segment leaving the landfill site. The Town makes no offer of proof to show that the two areas sought to be compared have similar geology. Nor does the Town even identify what the geology is, for the area one mile east of the aquifer. This is particularly important because OCRRA's permit application shows that the groundwater here is overlain by at least 50 feet of clay.

As stated in the October 3, 1994 Ruling, the final amended and restated EIS indicates that 50 to 100 feet depth of clay and silt overlie the Jordan-Warners aquifer which is 3000 feet from the site. (DEIS Hydrogeologic Investigation Book 1, figure 5-B). The Kantrowitz report characterizes the aquifer as overlain by a clay deposit of between 50 and 100 feet depth. The Kantrowitz report, and two other reports cited in the DEIS (Miller, 1988, and Pagano, 1986), were not prepared in aid of the present permit application. Neither of the two later reports challenge the adequacy of Kantrowitz' characterization; in fact they each adopt the Kantrowitz characterization of aquifer geology as overlain by at least a 50 foot deep clay deposit. While it may be true that additional site characterization will result in greater certainty or accuracy of characterization, the Town has not made any offer of proof to show that the Kantrowitz methodology was inadequate. The Town has not provided any explanation of its assertion that the Kantrowitz report is flawed in concluding that at least 50 feet of clay separate the aquifer from the wetland; nor has the Town provided any information to show what the geology is at the location one mile east of the aquifer, for which Kantrowitz makes reference to infiltration of stream flow.

Viewed as a whole, the many assumptions compounded one upon another, all essential to the Town's proposed issue, comprise an unduly attenuated argument. An adjudicable issue is one that is substantive and significant. A substantive issue is one that one that raises sufficient doubt about an applicant's ability to meet statutory or regulatory criteria applicable to a project, such that a reasonable person would inquire further. 6 NYCRR 624.4(c)(2). The Town's proposed issue, even in light of the Burns affidavit, fails to rise to the level that would reasonably require further inquiry.

As noted above, the Town has pending a judicial challenge to the final amended and restated EIS. Obviously, if the Town is successful in its judicial challenge of adequacy of the SEQR review, then the permitting process must necessarily be revisited in light of any EIS revision. However, for purposes of this action the amended and restated EIS is a final document. The Town's motion to reopen the record for receipt of the Burns affidavit, is denied. The October 3, 1994 Issues Ruling remains unmodified with respect to the Town's first proposed issue for adjudication.

Disposition of Hazardous Ash

The present permit application presents a new policy issue for the Department, in light of the recent U.S. Supreme Court ruling in City of Chicago v. Environmental Defense Fund ___ U.S. ___, 62 U.S. Law Week 4283 (May 2, 1994), which held that municipal solid waste incinerator ash is not within the blanket exemption of RCRA Section 3001(i). Applicant confirms by letter dated October 14, 1994 that no written contingency plan exists for ash disposal should such ash be characterized as hazardous. Instead, Applicant asserts that in the event ash tests as hazardous, arrangements would be immediately made for shipment to an authorized hazardous waste disposal facility until the problem is corrected. Staff states that the Department is engaged in rulemaking to address this matter, and asserts that the prospective rulemaking will adequately address disposition of ash characterized as hazardous.

In balancing the concerns of the Town and the parties, it is not unduly burdensome for OCRRA to have a contingency plan in place to address disposition of ash waste in the event it tests positive as hazardous waste. Therefore, Staff is directed to prepare a draft permit condition requiring OCRRA to develop a contingency plan for disposition of hazardous ash. At a minimum, the plan should identify an appropriate disposal facility which will accept such waste, an appropriate location and method for short term storage and appropriate transport to the identified disposal facility. Lastly, the permit condition should be drafted to expire upon the effective date of a Departmental rulemaking addressing these matters.

Extension of Time for Appeals

The schedule for filing of appeals is extended as follows: Rulings on party status and issues may be appealed in writing to the Commissioner by October 27, 1994. Reply briefs to any such appeals must be filed by November 4, 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 24, 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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