Saratoga County Landfill - Interim Decision, July 14, 1995
Interim Decision, July 14, 1995
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter
- of -
the Application for a permit to construct and to operate a solid waste management facility pursuant to Environmental Conservation Law (ECL) Article 27, Title 6 of the Official Compilation of Codes Rules and Regulations of the State of New York (6 NYCRR), Parts 360
- by -
SARATOGA COUNTY LANDFILL
(on expedited appeal)
July 14, 1995
DEC Project No. 5-4146-00018/00002-1
INTERIM DECISION OF THE COMMISSIONER
This Interim Decision is issued in relation to expedited appeals filed in response to Administrative Law Judge (ALJ) Edward Buhrmaster's May 18, 1995 bench ruling. The ALJ issued his ruling determining (a) that there was an issue for adjudication with respect to whether the Applicant has satisfied former 6 NYCRR 360-1.7(c) for a variance from the minimum separation of five feet between the base of the constructed liner system and the seasonal high groundwater table [former 6 NYCRR 360-2.13(d)]; (b) that the Town was entitled to full party status; and (c) to grant the Town's request for access to the proposed project site to excavate test pits and conduct pump tests, pursuant to 6 NYCRR 624.7(c)(4).
Appeals were filed by Saratoga County (Applicant or County) and the Department's Region 5 Staff (Staff) in opposition to the ruling and by the Town of Northumberland (Town) and Farms First in support of the ruling.
In his ruling, the ALJ addressed the Town's claims regarding the composition of the soils and their homogeneity; the extent to which they could include silt and sand lenses, varves and seams; the degree of horizontal permeability; and the potential for contaminant to reach the Snook Kill Aquifer. The Town claims the Applicant's soil characterization in its hydrogeologic report is not accurate and the report does not accurately represent site conditions. Based upon its analysis, the Town contends that the site conditions do not conform with the requirements of former 6 NYCRR 360-2.13(d).
The Applicant and Staff both respond that the contrary offer of proof is speculative and/or unreliable. They advance a number of criticisms to support their view that the conclusions reached by the Town's expert should be rejected in the first instance and no issue joined.
The ALJ also ruled that the Applicant has the ability to access the project site, which is owned by two paper companies, neither of which is a party to this proceeding, under Section 404 of the Eminent Domain Procedures Law (EDPL). Further, the ALJ determined that he had authority to grant permission to the Town for additional discovery for the purpose of excavating test pits and conducting pump tests [6 NYCRR 624.7(c)(4)]. He directed the County to provide access to the Town for the purpose of testing.
Upon review of the parties' briefs and submissions, I find that a substantive and significant issue was raised by the Town. However, my review of the information leads me to conclude that it is not necessary to adjudicate all components of the topical issue of separation to groundwater. Instead, adjudication should focus on the permeability measurements of the Applicant.
The Town has raised a doubt about the reliability of the Applicant's permeability measurements. As the permeability measurements are directly linked to the engineering design of the pore pressure relief system that will be appropriate for this site, it is critical to verify the permeability data to ensure the Applicant is aware of any potential redesign or re-engineering that may need to take place prior to final approval. Adjudication of the permeability issue may result in the Applicant recalculating the potential flow into the pore pressure relief system and supplementing its application, as necessary, to ensure the proper functioning of such system. This design must be supported with engineering calculations and underlying data for review at the hearing.
The Town's expert, Dr. Zimmie, has offered his comments and supportive information for review. See, Applicant's Brief on Expedited Appeal, Exhibit E., referencing September 1 and 9, 1993 letters from Dr. Zimmie to Department Staff. The September 1 letter specifically references the availability of such information. Neither the Staff's or Applicant's briefs and supporting documents specifically references any investigation or review of this information, and instead only rejects Dr. Zimmie's conclusions. Since the permeability of the soil is an issue that is linked to the appropriate design of the pore pressure relief system, the permeability information of both Dr. Zimmie and the County should be evaluated in the hearing.
Further site access by the Town is not necessary. The sampling information already gathered by the Town raises a substantive and significant issue regarding permeability. My instruction that the existing information be re-evaluated in the hearing provides a forum to examine conflicting information and a safety net to ensure proper engineering design. However, should the County be required to gather additional site information to ensure an acceptable design, or if Staff require such information pursuant to 6 NYCRR 621.15(b), the Town, as well as Staff, should be provided the opportunity to observe the gathering of such information and the opportunity to evaluate it.
Examination of the permeability issue will require both the County and the Staff to evaluate Dr. Zimmie's science and, further, such review will require the Town to evaluate the County's data and calculations. This decision places all parties on notice of the potential that the design of the pore pressure relief system is an important element of the design of this landfill. It will allow the County to determine whether redesign or re-engineering will be necessary and whether it could impact the cost of the project.
This matter is remanded to ALJ Buhrmaster in accordance with the foregoing.
IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Interim Decision to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York this day of July, 1995.