Saratoga County Landfill - Ruling 2, August 1, 1995
Ruling 2, August 1, 1995
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter
the Application of SARATOGA COUNTY for permits to construct and operate a solid waste landfill in Northumberland, Saratoga County.
And Issues Rulings of the Administrative Law Judge on Party Status
(DEC Project No. 5-4146-00018/00002-1)
STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
BACKGROUND AND BRIEF PROJECT DESCRIPTION
Saratoga County ("the County" or "the Applicant") proposes to construct and operate a 23-acre, double-lined, county-wide municipal solid waste landfill on a portion of a 350-acre tract at the eastern end of Kobor Road in the Town of Northumberland, Saratoga County. The landfill would be constructed in three phases. The first phase would involve about nine acres of landfill area providing 467,000 cubic yards of capacity. Total landfill capacity for the three phases would be 1,900,000 cubic yards. Including the landfill footprint, access road, leachate storage tanks, an administration/maintenance building, a convenience facility and buffer areas, the proposed project would encompass about 130 acres when fully developed.
To move ahead with this project, the County is requesting a permit to construct and operate a solid waste management facility. Such permits are granted by the Department of Environmental Conservation ("the Department" or "DEC") pursuant to Title 7 of Article 27 of the Environmental Conservation Law ("ECL").
As lead agency under the State Environmental Quality Review Act ("SEQRA", ECL Article 8), the Saratoga County Board of Supervisors determined that the proposed project is a Type I action and issued a positive declaration on August 27, 1991. A draft Environmental Impact Statement ("EIS"), dated August 1992, was prepared for this project. The Board of Supervisors filed a final EIS on February 25, 1993, and issued a SEQRA findings statement on March 10, 1993.
LEGISLATIVE PUBLIC HEARING
A Notice of Public Hearing, dated April 11, 1995, was published in the Department's Environmental Notice Bulletin on April 19, 1995. It was published as a legal notice in The Saratogian and the Albany Times Union on April 18, 1995, and in the Glens Falls Post-Star on April 19, 1995.
As announced in the hearing notice, a legislative hearing for comments on the application was held during the afternoon and evening of May 15, 1995, at the Town of Northumberland Highway Garage in Gansevoort, New York. Several hundred people attended the hearing, and there were 56 speakers, almost all of them opposed to the project. Many were residents of Northumberland, where the landfill would be sited, or members of Farms First, a local citizens group which later appeared formally at the issues conference.
According to County officials, the landfill would assure residents a reliable means of solid waste disposal at tipping fees controlled by their elected officials. At the legislative hearing, representatives of Smith and Mahoney, P.C., the County's engineering consultant, and DEC's Region 5 Staff, which reviewed the application, said the landfill would employ a sophisticated liner system that would trap leachate and pipe it away for safe treatment.
Landfill opponents made the following arguments, among others:
- The landfill is not needed. With its landfills having closed, Saratoga sends its municipal solid waste out of the county, to an incinerator in Hudson Falls and landfills in Colonie and Fulton County. With interest by the incinerator's operator, Adirondack Resource Recovery Associates, in contracting for the county's waste, and another incinerator proposed in Green Island, Saratoga does not need a landfill of its own, especially as recycling reduces its waste stream.
- Sending the County's waste to the Hudson Falls incinerator ensures that facility's viability and promotes a sensible regional approach to solid waste disposal. Also, the Hudson Falls incinerator has the capacity to accept all of the municipal solid waste generated in Warren, Washington and Saratoga counties at a competitive and reasonable fee. Competition between the incinerator and a county-run landfill in Saratoga would damage both facilities economically.
- The landfill is too expensive and will become a burden to county taxpayers. It is unclear from the application how the landfill would be financed.
- The U.S. Supreme Court has ruled unconstitutional the policy of municipal flow control, by which haulers were prohibited from taking garbage outside of municipal boundaries in search of lower tipping fees. In the absence of flow control, the landfill will draw waste from as far as New York City, as the City's own landfill is near capacity.
- The project site is inappropriate for a landfill, due to its high groundwater table. Were the landfill to leak, groundwater could become contaminated.
- The landfill site is within a half-mile of the Hudson River, which could be polluted by runoff. Also, it is too close to the Snook Kill, a trout-fishing stream.
- The landfill site is within a potential landslide area.
- The landfill site should be preserved as farmland or as critical habitat for the northern harrier, a threatened bird species.
- The County has withheld data collected as part of its review of potential landfill sites. Therefore, it can't be determined whether it chose the most appropriate site among the many it has considered.
- The landfill will create a bird hazard for helicopters using the nearby Heber Airpark.
- The proximity of the county landfill to a recently-permitted paper sludge landfill, to be operated by Scott Paper Company and Finch, Pruyn & Company, Inc., will make it difficult to trace contaminants to either one. Also, the combined operation of the two facilities will have cumulative impacts on the surrounding community.
- Local roads will be damaged by truck traffic associated with the county landfill.
- The County has withheld host benefits from the Town of Northumberland as punishment for town officials' opposition to the landfill project.
To the extent these and other arguments were also advanced in the filings for party status, they are detailed below as proposed hearing issues.
An issues conference was held on May 17, 18, 25 and 26, and June 1 and 2, 1995, at the Northumberland Town Hall. The purpose of the conference was to determine what issues bearing on permit issuance would require adjudication and who, among the filers for party status, would participate in an adjudicatory hearing, should one be required. Participating at the issues conference were the County, DEC Staff, and various prospective intervenors.
The County was represented by Louis A. Alexander, Esq., of Bond, Schoeneck and King, LLP, of Albany. Mr. Alexander was assisted by Kevin Bernstein, Esq., also of this firm.
DEC Staff was represented by Steven L. Brewer, Esq., of the Department's Region 5 office, Ray Brook.
Timely filings for party status were received from the Town of Northumberland; Farms First, a local group dedicated to farmland preservation; HOWL of the Grey Wolf, a newsletter addressing Native American and environmental issues; and Arthur White, a landowner whose property is near the project site. Late filings for party status were also received from the Counties of Warren and Washington Industrial Development Agency, which owns the Hudson Falls incinerator; and Adirondack Resource Recovery Associates, which operates the incinerator. All filings received were against the landfill project.
The Town of Northumberland ("the Town") was represented by Laura Zeisel, Esq., of New Paltz. As special counsel to the Town, Ms. Zeisel was assisted by her associate, Rachelle Gura, Esq., and Edward Lindner, the town's attorney.
Farms First was represented by Barbara Weed, president, assisted by Robert L. Kenny, vice president.
HOWL of the Grey Wolf ("HOWL") was represented by R. Penelope Phillips, editor.
Arthur White represented himself and was assisted by Ms. Phillips.
The Counties of Warren and Washington Industrial Development Agency ("the IDA") was represented by Peter D. FitzGerald, Esq., of FitzGerald, Morris, Baker, Firth, P.C., of Glens Falls.
Adirondack Resource Recovery Associates ("ARRA") was represented by Benjamin R. Pratt, Jr., Esq., of Miller, Mannix & Pratt, P.C., also of Glens Falls.
Prior to the issues conference, DEC Staff determined that the landfill as proposed by the Applicant and conditioned by Staff's draft permit would not have any significant adverse environmental impacts and would adequately comply with applicable laws and regulations. Staff's draft permit (Conference Exhibit No. 7, attached as Appendix "A" to these rulings) is to construct and operate the landfill as a solid waste management facility. DEC Staff is prepared to issue the permit and the County has no objections to its terms. Therefore, as between the County and DEC Staff, there are no proposed issues for adjudication.
Various issues were proposed by the prospective intervenors in their filings for party status. Each issue was addressed in oral arguments, allowing a full opportunity for the County and DEC Staff to explain why adjudication was not warranted.
According to the Department's permit hearing regulations, an issue proposed by a prospective intervenor is adjudicable if it is substantive and significant.
An issue is substantive if there is sufficient doubt about the Applicant's ability to meet statutory or regulatory criteria applicable to a 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. [6 NYCRR 624.4(c)(2).]
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)(3).]
Because Staff has determined that the project as conditioned by the draft permit conforms to all applicable requirements of statute and regulations, the burden of persuasion is on prospective intervenors to demonstrate that their issues are substantive and significant. [6 NYCRR 624.4(c)(4).]
Proposed issues have been considered in light of the Department's Part 360 regulations for solid waste management facilities which took effect on December 31, 1988. These regulations were revised effective October 9, 1993. However, since the project application was noticed as complete on July 30, 1993, the revised regulations do not apply. This is consistent with 6 NYCRR 360-1.7(a)(3)(vi) of the revised regulations, which provides that if an application for a permit to construct or operate a solid waste management facility was complete pursuant to 6 NYCRR Part 621 on or before the effective date of the revised regulations (October 9, 1993), the Department will review the application for compliance with the regulations in effect on the day before the effective date of the revised Part 360.
ISSUES FOR ADJUDICATION
An issue exists whether the Applicant can secure a variance from the requirement that a minimum separation of five feet be maintained between the base of the constructed liner system and the seasonal high groundwater table [6 NYCRR 360-2.13(d)]. (Town issue No. 1.) To secure such a variance, the County must demonstrate that its landfill "will have no significant adverse impact on the public health, safety, or welfare, the environment or natural resources" [6 NYCRR 360-1.7(c)(2)(iii)].
In rulings made orally and read into the issues conference record of May 18, 1995 (T: 254-261), I said the issue concerned the make-up of the landfill site's soils; their homogeneity; the extent to which they include silt and sand lenses, varves and seams; their degree of horizontal permeability; and the potential for contaminants to reach the Snook Kill aquifer. Because the issue was raised by the Town, I gave it full party status for the issue's adjudication and granted the Town's request for site access to excavate test pits and conduct pump tests, pursuant to 6 NYCRR 624.7(c)(4). (A copy of my rulings is attached to this document as Appendix "B".)
The County and DEC Staff appealed these rulings to the Commissioner, who has since recused himself in this matter. On July 14, 1995, Deputy Commissioner David Sterman issued an Interim Decision finding that the Town's issue was substantive and significant, but also concluding that it is not necessary to adjudicate all of its components. Instead, he ruled that adjudication should focus on the permeability measurements of the County. Mr. Sterman also ruled that further site access by the Town was not necessary, thereby reversing part of my ruling.
One component of the variance issue as proposed by the Town, but not addressed by my prior ruling, is the requirement that an application for a variance "demonstrate that compliance with the identified provisions would, on the basis of conditions unique to the person's particular situation, tend to impose an unreasonable economic, technological, or safety burden on the person or the public" [6 NYCRR 360-1.7(c)(2)(ii)].
The County's variance application (appended to p. 1-5 of the permit application) acknowledges that disapproval of the variance would require significant redesign to place the landfill liner system a minimum of five feet above the seasonal high groundwater table. This, the County argues, would have several negative economic impacts on the County and its residents: (1) A substantial amount of fill would have to be imported to construct the subgrade for the landfill liner system. (2) The clay soils on-site would essentially be lost as a valuable resource to construct the low permeability soil layers for the landfill baseliner and final cover system. (3) The period during which County residents would be dependent on out-of-county disposal locations for non-recyclable municipal solid waste would be prolonged.
On the other hand, granting the variance would allow the County to effectively and efficiently use the below-grade capacity of the landfill for waste disposal, allowing for the disposal of a greater volume of solid waste per acre, according to the County.
I find an issue to exist whether compliance with the groundwater separation requirement at 6 NYCRR 360-2.13(d) would, on the basis of conditions unique to this situation, tend to impose an unreasonable economic burden on the County or its residents. While the Town has proposed no witness of its own, this issue may still be adjudicated by cross-examining the County's engineering consultants. The County's demonstration relies on various stated assumptions, the bases for which have not been confirmed. Also, it does not address the construction cost for the pore pressure relief system, whose purpose is to protect the liner system from the presence of groundwater should the variance be granted. This must be weighed against the costs of denying the variance, to determine what burden the County would incur.
The Commissioner has determined that additional construction costs may be adequate to demonstrate hardship sufficient to grant a variance from the groundwater separation requirement. [In the Matter of the Application of Scott Paper Company and Finch, Pruyn & Company, Inc., Interim Decision, December 22, 1994, pages 4-5]. However, to determine whether these costs impose an "unreasonable" burden, they would have to be considered in light of the total costs of construction.
In summary, adjudication of the variance issue must include determining the "economic burden" to the County if the variance is not granted.
An issue exists concerning whether the County's application meets the monitorability requirements set forth in 6 NYCRR 360-2.12(c)(5). (Town issue No. 2.) This regulation provides that "[n]ew landfills must not be located in areas where environmental monitoring and site remediation cannot be conducted. Identification of these areas must be based upon ability to sufficiently characterize groundwater and surface water flow to locate upgradient and downgradient directions; ability to place environmental monitoring points which will detect releases from the landfill; ability to characterize and define a release from the landfill and determine what corrective actions are necessary; and ability to carry out those corrective actions."
In his Scott Paper/Finch Pruyn interim decision, the Commissioner deferred review of this matter to the Saratoga County Landfill permit proceeding, dependent on an adequate offer of proof being made. I now find that the Town has made such an offer and therefore that an issue has been raised.
The Town contends that the County's selection of a landfill site which is adjacent to the recently-permitted but not yet constructed Scott Paper/Finch Pruyn paper sludge landfill violates Part 360's monitorability requirement. While the parties appear to agree about how landfills are generally monitored, the Town's experts contend that due to the complexity of the adjacent landfills, both with pore pressure relief systems, these methods would not be sufficient to detect contamination routes.
The Town says that it would be impossible to ensure that all possible leaks in the corridor between the two landfills could be easily traced to their sources. The Town bases this contention on its belief, supported by the analyses of its two experts, Dr. Thomas Zimmie and Dr. Kevin Brewer, that the two pore pressure relief systems and the two excavations are likely to alter groundwater flows so that it will be difficult to identify the source of any contamination.
The Town also objects to the County's potential inclusion of industrial sludge as part of the proposed landfill's waste stream, on the basis that it would further complicate the ability to separately monitor contamination. The Town says that in the event the landfill accepts industrial sludges, the leachate from the County's landfill and the paper companies' site would share similar attributes. For the same reason, the Town is also objecting to the County's potential use of paper sludge as daily cover.
In addition to its analysis of monitorability in the County's permit application, Smith & Mahoney also performed a supplemental study using modelling technology. (See, conference exhibit 101, Modeling of Groundwater Elevation During Operation of the Proposed County Landfill and the Adjacent Paper Company Landfill, May 1995.) This report supports the County's conclusions that (1) there is a prominent groundwater divide that exists between the two landfill sites so that groundwater will flow away from the landfills during operation of the pore pressure relief systems, and that (2) these systems create inward gradient and additional divides between the landfill and stream ravines. The County concludes further that each landfill's flow will be discrete from the other and each facility can be individually and successfully monitored.
Dr. Brewer says that the County's model addressed one scenario only, while the site presents many complex possibilities. He says the model was incomplete and was based upon wrong assumptions. Dr. Brewer claims that the County erred by not modelling changes in groundwater levels and by not modelling transport of contamination, based upon the Town's position that contamination plumes do not always follow groundwater flow. Dr. Brewer also says that the transport of contaminants is a complex process due to dispersion and diffusion mechanisms, and therefore the presence of a groundwater divide is not sufficient to ensure the landfills can be monitored separately.
In addition, the Town's experts say that the County's estimates of leachate travel time to the Snook Hill aquifer and adjacent drainage ravines are incorrect because the County determined these periods based upon the mean or center of the plume rather than by the leading edge of the contamination.
Dr. Zimmie contends that while the two landfills were designed as inward gradient systems, these systems will not always work. Dr. Zimmie also stresses that even if groundwater is coming into the landfill, contaminants may go outwards under a dispersion analysis. According to Zimmie, there is greater permeability in the in situ soils than the County concludes, and this could potentially provide more avenues for a plume to travel.
The Town also argues that because the County has not foreclosed the possibility of accepting industrial sludges or using paper sludge as daily cover, the respective identities of each landfill's leachate will be blurred.
Consistent with his argument regarding the variability of groundwater flow, Dr. Zimmie also contends that due to the complexity of the two landfill systems, a contamination plume may not necessarily be detected by the monitoring system that is proposed by the County. Finally, Dr. Zimmie states that geophysical techniques, while usually reliable for homogenous sites, will not be useful here because of the lenses and varves that he contends pervade the area.
The County's expert, Mr. John Kucewicz emphasizes that the landfill is designed redundantly to ensure that there will be a minimum of leakage. (See, Application, Fig 2-11, indicating baseliner detail.) He also explains that the pore pressure relief system will relieve pore water pressures that exist under the site to create a depression of the groundwater table along the proposed landfill footprint. According to Mr. Kucewicz, this system will act as a drain of this water.
Mr. Kucewicz says that the County will have to measure groundwater levels at its monitoring points on a monthly basis, and that this will assure that any changes in the groundwater are identified. The County's expert claims that the soils beneath the landfill are not very permeable and therefore any changes in the groundwater will develop very slowly.
Mr. Kucewicz describes the modelling study done as "icing on the cake" to "reconfirm" the analysis provided in the application. In response to Dr. Brewer's critique, he explains that the modelling work that Dr. Brewer suggested is beyond the scope of what is required by the regulations and that limited time factors prevented such an in-depth analysis. In line with the County's understanding regarding the low permeability of the soils, Mr. Kucewicz states that for the type of conditions existing on site - - homogenous, glaciolacrustine sediments - - the modelling done was adequate. He reiterated the County's position that the two landfills would be separately contained groundwater systems and that the predominant method of contaminant transport would be groundwater flow, thus ensuring against a major problem.
Mr. Kucewicz does not disagree with the Town's experts' analysis regarding diffusion and dispersion, but says that the leachate from the paper companies will have unique characteristics. In response to the Town's concerns regarding the County's acceptance of industrial sludge, Mr. Alexander advises that in the event the County were to accept such waste, it would first require a waste characterization. Mr. Kucewicz further explains that through this characterization, the County would know what the leachate from this material would likely be. However, he posited that because this waste would be a small fraction of the volume of the waste coming into the County facility, it would not change the landfill's general leachate character.
The Department Staff agrees with the County regarding monitorability and stresses the design of the landfill as the primary method of preventing the possibility of an undetected contamination plume. Dale Becker, the Staff hydrogeologist, contends that the Town's expert analysis regarding the permeability issue is speculative and that in any event, it is doubtful that both the landfill liner and leachate collection designs would fail simultaneously to create the problems the Town has described. He further states that although the Department Staff acknowledges that groundwater flow will be altered by the pore pressure relief system, the County's obligation to update the potentiometric surface map or the groundwater contour map will ensure the effectiveness of the monitoring network. In the event of a problem, the Department would require the enhancement of the monitoring network.
Mr. Becker also says that the modelling work performed by Smith & Mahoney was satisfactory. With respect to leachate characterization, Mr. Becker concludes that it is not critical to monitorability as there are both similarities and differences between the leachate generated by municipal solid waste and paper sludge landfills. He states that the use of geophysics to track a contamination plume would be appropriate.
In summary, it is apparent that the positions of the Town and Staff and the County are based on expert opinions that are at variance with respect to the nature of the underlying soils, the applicability of the analysis done by the County, the effects of the pore pressure relief system and the viability of standard plume detection methods at this site.
The Staff's argument that the redundant design of the landfill should provide sufficient assurance that a contamination plume is unlikely and thus, monitorability is not an issue is not persuasive. In promulgating the regulations, the Department surely considered that these were "state of the art" landfills that would be subject to the monitorability requirements. In addition, the acknowledgements by the County and the Staff regarding, among other factors, diffusion and dispersion, the effects of the pore pressure relief system on groundwater flow and the limitations of the modelling methods described by the Town's experts indicate the need to probe further into these issues to ensure that the monitorability requirements can be met.
The positions put forward at the issues conference on monitorability combined with the Deputy Commissioner's Interim Decision of July 14, 1995, which found that "[t]he Town has raised a doubt about the reliability of the Applicant's permeability measurements," leads me to conclude that the hearing is the appropriate place to elicit the facts on monitorability. This issue is substantive because there is sufficient doubt whether the County will meet the requirements of 360-2.12(c)(5). The matter is significant because a determination that the site cannot be monitored or that monitorability is greatly impaired may lead to permit denial, project modification or the imposition of significant permit conditions.
An issue exists concerning the mitigation of noise from the landfill site. (Town Issue No. 3.) Noise limits are established pursuant to 6 NYCRR 360-1.14(p). This section states that noise levels at the facility must be controlled to prevent sound levels beyond the property line at locations zoned or otherwise authorized for residential purposes to exceed certain Leq energy equivalent ambient sound levels. For communities with a rural character, the sound levels are 57 decibels for the period between 7 a.m. and 10 p.m., and 47 decibels between 10 p.m. and 7 a.m. These sound levels apply since there is no dispute about the community's rural character or that the area around the site is zoned or otherwise authorized for residential purposes. Also, background residual sound in this area does not exceed 57 decibels (as demonstrated by the County's draft EIS, p. 91) and therefore no higher limits should apply based on 360-1.14(p)(1).
The County concludes in its draft EIS that the operation of its landfill would be in compliance with Part 360 noise standards (draft EIS, p. 92). However, in light of comments by the Town's noise expert, Dr. Thomas Zimmie (attached as Exhibit "A" to the Town's filing for party status), the County had a supplemental noise analysis performed. This analysis, dated May 1995, was performed by Harris, Miller, Miller & Hanson, Inc., and is documented in conference exhibit No. 107. (The resume of Christopher Menge, who performed the analysis, is conference exhibit No. 112.)
For the purpose of its analysis, the County assumed noise levels deemed appropriate by the Town for a John Deere dozer and a haul truck, as well as the maximum allowable noise level for a compactor. Typical operations would include haulers moving to and from the landfill's working face, a dozer spreading the unloaded waste, and a vehicle compactor compressing the waste.
Given this scenario, the loudest workday Leq projected by the County is 72 decibels at a distance of 100 feet from the landfill's operations, and 57 decibels, the maximum allowed by 360-1.14(p), at 400 feet. This is based on a sound level decay (or noise attenuation) rate of 7.5 decibels for every doubling of distance over soft ground.
The nearest property line is 100 feet to the north of the landfill's extent, where the workday Leq is expected to be up to 72 decibels on the busiest day of the week. However, the County does not consider this to be an impact, since the land immediately to the north is farm land. According to the County, the New York State Department of Transportation and the Federal Highway Administration only consider noise impacts on developed lands or lands with approved development plans, not undeveloped lands, farm land or vacant land. However, I find it is clear from its own plain language that 360-1.14(p) considers impacts at the property line, regardless of what is on the other side.
Therefore, the County's own analysis demonstrates that noise levels will exceed Part 360 requirements, at least along the north boundary. To address this, the County's noise analysis includes several options: obtaining a noise easement or purchasing a portion or all of the adjoining property to the north, or noise mitigation by means of a barrier which, due to space limitations, would likely include some combination of a low earth berm with a noise wall on top.
The County and DEC Staff have proposed that a condition be added to the draft permit stating that "prior to construction, the permittee shall provide to the Department evidence that it has obtained noise easements or acquired a portion or all of the property to the North as necessary to meet the 57 dBA criteria contained in 6 NYCRR 360-1.14(p) at the property line. If the permittee does not obtain a noise easement, acquire a portion or all of the adjoining property to the North, or obtain a variance, the permittee shall, prior to construction, provide to the Department a plan describing the noise mitigation measures which will be implemented to ensure the criteria contained in 6 NYCRR 360-1.14(p) are satisfied."
The County and DEC Staff assert that the addition of this condition to any final permit eliminates the need to adjudicate noise issues. They reason that since some form of mitigation can be successful, this matter can be addressed outside of the hearing process.
I disagree and find that, based on Dr. Zimmie's offer of testimony, the Town has raised a factual issue which needs to be adjudicated. This issue concerns the extent to which noise will exceed the regulatory limits outside the landfill site's borders.
As noted above, the County has employed a sound level decay rate of 7.5 decibels for every doubling of distance. Dr. Zimmie has reviewed the County's analysis and provided a letter (conf. ex. 108) which summarizes his proposed testimony. In that letter he states that the County's 7.5 decibel rate is "rather high, certainly optimistic, and cannot be considered a conservative design or analysis."
Dr. Zimmie proposes a 6 decibel rate over soft ground, and the County's own draft EIS, prepared by Smith & Mahoney, says a dropoff rate of between 3 and 6 decibels per doubling of distance is an accepted estimate in noise reduction calculations (draft EIS, p. 87).
Rulings of a Department ALJ in another matter also suggest that the 7.5 decibel rate may be too high and that a 6 decibel rate may be more appropriate. In rulings addressing the application of Waste Management of New York to operate a surface clay mine, ALJ Daniel O'Connell found that "noise levels abate at a rate of 6 decibels per doubling of the distance under general conditions. The latter concept is known as the Noise Reduction Formula, and is a widely accepted scientific principle." [In the Matter of the Application of Waste Management of New York, ALJ Issues Rulings, January 31, 1995.] While not controlling here, these rulings, along with Dr. Zimmie's offer of proof and the County's own draft EIS for this project, raise such doubts about the dropoff rate employed in the County's supplemental noise analysis, that adjudication of this point is required.
As noted by Dr. Zimmie, the assumed decay rate affects the noise impact distance. The county's supplemental noise analysis concludes that the 57-decibel requirement can be met at a distance of 400 feet from a source, whereas Dr. Zimmie concludes that the distance is about 800 feet. Calculating the proper distance is key to ensuring that easements, property purchases, or noise mitigation efforts are adequate to satisfy the regulation.
Dr. Zimmie projects noise exceedences not only along the north property boundary (which is the only one addressed by the permit condition) but also along the east and west boundaries. Along the west property line, where the landfill meets the Baker property, Zimmie says the noise violation would be exacerbated by truck traffic moving along the landfill access road, which is between the property line and the landfill footprint. Along the east property line, where the landfill meets the Wells and Killian properties, he says the noise violation would be exacerbated by construction of a screening berm that is planned to minimize visual impacts.
DEC Staff contends that 360-1.14(p) does not apply to construction noise because 360-1.14 is identified in Part 360 as listing "operational" requirements for all solid waste management facilities, and "operation" is defined in the case of a landfill as "operation of the facility after initial receipt of solid waste" [6 NYCRR 360-1.2(b)(111) in the current regulations; formerly 360-1.2(b)(102)]. However, I find that the noise limits apply to construction as well as operation noise because 360-1.14(a) provides explicitly that except as otherwise provided in that Part, "any person who designs, constructs, maintains or operates any solid waste management facility subject to this Part must do so in conformance with the requirements of this section," which includes those for noise levels. While a variance might be appropriate to address the noise attendant to berm construction, no variance has been sought.
Adjudication of the noise issue must address how noise would be generated at the site, whether there would be cumulative impacts from many trucks and pieces of equipment operating together, and what sound decay rate is appropriate. Apart from determining the extent to which noise violations would occur outside the site, the hearing must also consider what mechanisms exist either to purchase or secure easements on noise-impacted properties, or to mitigate off-site impacts. In one landfill application, noise easements obtained by the Applicant resolved a noise issue, since the easements were considered to have effectively moved the site boundary for noise purposes. [In the Matter of the Application of Hyland Associates, page 61 of Hearing Report of ALJ Susan DuBois, attached to a Decision of the Commissioner, June 21, 1993.]
The noise issue is substantive since there is conflict of expert opinion concerning the extent to which the project would violate 6 NYCRR 360-1.14(p). The issue is significant since it is basically conceded these violations will occur, at least along the north property line, and they must be addressed in some manner. The appropriate forum for addressing these violations is the adjudicatory hearing, not discussions between DEC Staff and the County after any permit is issued.
At the least, the hearing must determine the scope of the noise problem, so it can be assured that any remedial efforts are adequate to address it.
Separation from Airports
An issue exists whether the proposed county landfill meets the regulatory requirement for separation from airports. (Town issue No. 8.) This requirement states that "a landfill or landfill cell into which putrescible solid waste is proposed to be disposed must be located no closer than 5,000 feet from any airport runway used by piston-type aircraft and no closer than 10,000 feet from any airport runway used by turbojet aircraft" [6 NYCRR 360-2.12(c)(3)] (emphasis added).
The parties agree that putrescible solid waste would be disposed at the County landfill, and that the Heber Airpark, as a public-use facility, meets the definition of "airport" in 6 NYCRR 360-1.2(b)(5). The parties also agree that the airpark, which is southwest of the project site, is within 10,000 feet of the proposed landfill. In fact, the County concedes in its application that it is 8,950 feet from the end of the airpark runway to the nearest limit of waste at the proposed landfill.
The Town has provided an affidavit from James Heber, the owner of the airpark. Mr. Heber writes that the airpark is used on a regular basis as a training facility for the Army National Guard, and that Army National Guard pilots have been flying AH-1, UH-1 and OH-6 turbine-powered helicopters into the airpark since at least February of 1993. According to Mr. Heber, the helicopters are currently landing at a rate of about 10 times per month.
Whether these helicopters meet the classification of "turbojet aircraft" is a matter of dispute between the Town (which argues that they do) and the Applicant and DEC Staff (both of whom argue they do not). "Turbojet" is not defined in Part 360 or in the Federal Aviation Administration ("FAA") order (No. 5200.5, "FAA Guidance Concerning Sanitary Landfills On Or Near Airports," October 16, 1974) on which 6 NYCRR 360-2.12(c)(3) is based. The restriction against siting landfills within 10,000 feet of an airport runway used by turbojet aircraft was first added to the Department's solid waste regulations in 1981 [former 6 NYCRR 360.8(b)(1)(xix), effective May 5, 1981] and continued as 6 NYCRR 360-2.12(c)(3)(i) when Part 360 was recodified effective December 31, 1988.
When DEC first incorporated the restriction to its solid waste management facility regulations in 1981, its apparent intent was to conform with FAA guidance, prevent bird/aircraft collisions, minimize interference with aircraft operations, and protect human life, according to documents attached as Exhibits G-J to a cover letter of Steven Brewer, DEC attorney, dated June 7, 1993. (These documents include a notice of proposed agency action in the New York State Register (April 30, 1980, pgs. 3 and 4): the Department's Draft Environmental Impact Statement on the 1981 Part 360 revisions; a March 12, 1980 internal Department memorandum addressing the revisions; and a hearing report of Administrative Law Judge Sidney Schwartz, dated November 8, 1990, summarizing the revisions.) DEC has no aviation experts of its own and therefore has relied on FAA advice when interpreting and applying the restriction.
Whether the Army National Guard's AH-1, UH-1 and OH-6 helicopters are "turbojet" aircraft was previously addressed in the final decision of the Commissioner, dated April 28, 1995, for Scott Paper/Finch Pruyn. In that decision the Commissioner granted permits to construct and operate a paper sludge landfill adjacent to the proposed county landfill and also within 10,000 feet of the airpark. Mr. Heber, but not the Town, had intervened in that hearing on the issue of aircraft safety. In his hearing report, the Administrative Law Judge concluded that the AH-1, UH-1 and OH-6 helicopters are "turboshaft" rather than "turbojet" aircraft. The ALJ distinguished the two as follows:
A turbojet engine is the simplest form of a gas turbine consisting of a compressor, combustion chamber, turbine and a propulsive nozzle. The turbojet is a reaction engine which obtains its power by thrusting backwards a large mass of air. A turboshaft engine is a gas turbine in which as much energy as possible is taken from the gas jet and used to drive a high-speed shaft which in turn drives an external load such as a helicopter transmission. (Hearing Report of ALJ William Dickerson, page 4.)
The Commissioner adopted the ALJ's hearing report as his own, concluded that helicopters are not turbojet aircraft, and found that the landfill complied with 6 NYCRR 360-2.12(c)(3)(i).
The Applicant and DEC Staff now argue that collateral estoppel precludes the Town from reviving issues that were decided in the Scott Paper/Finch Pruyn decision because the Town did not attempt to raise the siting restriction in that proceeding. I disagree. Administrative collateral estoppel acts as a bar only as between parties or their privies, and the Town is not in privity with the Heber Airpark.
Also, these are two different landfill applications, each with their own separate facts. The Town chose not to raise the siting restriction in the Scott Paper/Finch Pruyn matter since it did not consider paper sludge to be a bird attractant - - a point on which the Commissioner, in his decision, agreed. The Town is concerned with the bird hazard associated with municipal solid waste, not with paper sludge, and therefore appropriately reserved its arguments for the county landfill matter.
In its offer of proof the Town basically concedes the ordinary meanings of "turbojet" and "turboshaft" aircraft as expressed in the Scott Paper/Finch Pruyn decision, and the differences between them. As acknowledged by the Town, turbojet and turboshaft are two of four separate types of turbine-powered aircraft, the others being turboprop and turbofan. The Town states that gas turbine engines derive their power by mixing fuel with compressed air and then combusting it. The Town argues that in turbojet engines, propulsion is achieved by hot gases blown out of the engine's back, whereas in turboshaft, turboprop and turbofan engines, the energy that comes from the combustion of the fuel and air mixture is transferred to some other mechanism which provides the propulsion. The Town states that in turboshaft engines, the energy turns a shaft which moves rotor blades.
The Town does not refute that, from an engineering perspective, "turbojet" is an engine which obtains its power by thrusting backwards a large amount of air. In that sense, the Town's own offer is consistent with the Scott Paper/Finch Pruyn decision. However, the Town argues that whatever meaning the term "turbojet" has in general aviation, it cannot be construed narrowly in the context of the Part 360 siting restriction for separation from airports, because to do so would be irrational and defeat the restriction's public safety intent.
At the issues conference, the Town presented Dr. Andrew Z. Lemnios, the director of Rensselaer Polytechnic Institute's Rotorcraft Technology Center. Dr. Lemnios claims to have more than thirty years experience as a research engineer for private industry on issues related to helicopters. He spoke briefly on the record and a report he prepared, dated May 16, 1995, was admitted as conference exhibit No. 30.
Dr. Lemnios acknowledges that among the four types of gas turbine engines, the Army National Guard helicopters which use Heber Airpark are "turboshaft" in nature. He adds that turboshaft engines are identical in design and operation to turbojet engines, the only difference being the means by which power is extracted from the high energy hot exhaust gases. With regard to bird strikes, Dr. Lemnios argues that all turbine-powered aircraft - - including turbojets and turboshafts - - have the same operational concerns: large numbers of birds ingested by the gas turbine engine may cause "flameout," in which the engine stops operating, and as a separate concern, birds may crash through the aircraft windshield. Therefore, argues the Town, "turbojet" must be construed broadly for public safety purposes, and defined as all aircraft that are "turbine-powered" or "powered by a gas turbine engine." Otherwise, says the Town, turboshaft, turbofan and turboprop aircraft - - such as turbine-powered helicopters and a large percentage of commercial airliners like the Boeing 747 - - would not be addressed by any siting restriction.
Rules of statutory construction generally require that a statute be construed literally and in accordance with the ordinary meaning of its words. However, the ordinary or literal meaning of language employed may be restricted or expanded if a literal application would cause an anachronistic or absurd result, or if the literal language of the regulation fails to express the statute's intent. Also, if a statute is clear on its face, but makes no sense, a court is not bound to a mechanical application of the words, although departure from the literal language of the statute should be employed with extreme caution and only where the plain intent and purpose of the statute would otherwise be defeated. [Statutes, 97 NYJur 2d 108-110.]
Analogizing 6 NYCRR 360-2.12(c)(3)(i) to a statute, the Department should be able to afford the regulation a broad construction if not to do so would be irrational, create an absurd result, or defeat the regulation's clear intent. The situation here is complicated by the prior decision of the Commissioner in Scott Paper/Finch Pruyn which read "turbojet" in its ordinary sense, as aircraft which obtain their power by the backwards thrust of a large mass of air.
The Commissioner's prior decision in Scott Paper/Finch Pruyn does not preclude his revisiting the precedent established by that decision in a different matter, and based on a new evidence not previously available to him, or arguments not previously presented. According to the Town, financial constraints caused Mr. Heber to present his case pro se in the Scott Paper/Finch Pruyn matter, without the assistance of either a lawyer or an aviation expert. On the other hand, the Town has a lawyer as well as an aviation expert who would testify that the holding in Scott Paper/Finch Pruyn would create an absurd result, inconsistent with the purpose of the regulation to promote aircraft safety.
More important, the Town has included with its offer of proof a series of letters (marked collectively as conference exhibit No. 27) which suggests that DEC and FAA previously provided a broader interpretation to 6 NYCRR 360-2.12(c)(3)(i) than was afforded by the Commissioner in the Scott Paper/Finch Pruyn decision. The Town contends that, for reasons of mistake or inadvertence, DEC did not produce these records pursuant to Mr. Heber's discovery request in the Scott Paper/Finch Pruyn hearing, and that therefore they could not come into the record and be reviewed by the Commissioner.
One of the letters, dated December 19, 1989, is from William DeGraaff, manager of FAA's safety and standards branch, to Norman Nosenchuck, director of DEC's division of solid waste. In the letter Mr. DeGraaff construes "turbojet" as all aircraft "powered by a jet engine," including turboprop aircraft and helicopters. Another is a letter dated August 5, 1991, by Jonathan A. Cobb, the County's own project engineer, to Jim Sanford of DEC. This letter acknowledges that the word "turbojet" is not clearly defined and adds that "the most fundamental definition of turbojet aircraft would include helicopters with turbine-driven propellers." The letter then continues by confirming that this in fact is the definition Mr. Sanford had given Mr. Cobb.
FAA's interpretation of "turbojet aircraft" is relevant because 360-2.12(c)(3)(i) was modeled on FAA guidance and because DEC Staff has conceded that it has no aviation expertise and relies on FAA to interpret DEC's own siting restriction for separation from airports. According to DEC Staff, FAA has refined its position since the late 1980's and no longer deems landfills to pose a safety hazard to helicopters due to their unique flight characteristics. But even this is challenged by the Town, which says Dr. Lemnios would testify that turboshaft helicopters - - like those operated by the Air National Guard - - are at least as susceptible and probably more susceptible to bird strikes than fixed-wing aircraft, due to their exposed parts.
It even appears that following the Scott Paper/Finch Pruyn precedent - - and excluding the Army National Guard helicopters from the definition of "turbojet aircraft" - - could lead to inconsistent application of the airport separation restriction as a matter of landfill siting. The County's application states that one of nine preliminary siting areas, in the Town of Stillwater, was excluded from further consideration after "a determination was made in conjunction with a confirmation with DEC, FAA and the Air National Guard that a 10,000 foot setback would be appropriate for the Round Lake Airport based on the use of turbojet helicopters by this facility." (Application p. 6-20.) The Town would offer the testimony of Mr. Heber that the helicopters using Heber Airpark are the same type of aircraft which use the Round Lake Airport.
Finally, one should note that the current Part 360 regulations, which were effective October 9, 1993, revised 360-2.12(c)(3)(i) so that it provides a 5,000-foot separation from landfills for airports used by "piston-powered aircraft" and a 10,000-foot separation for airports used by "turbine-powered aircraft." DEC promulgated this change after FAA amended its order in 1990, similarly replacing "turbojet" with "turbine-powered." The Town contends that the language change in the FAA order, followed by the change in Part 360, was meant to clarify their intent and not to change their content.
In summary, the Town has raised an issue whether the Army National Guard helicopters which use the Heber Airpark should be construed as "turbojet aircraft" in applying the Part 360 siting restriction for separation from airports. The issue involves adjudicating whether there is a rational basis for applying the restriction as to aircraft which meet the ordinary definition of turbojet - - aircraft which obtain their power by the backwards thrust of a large mass of air - - while excluding others (such as turboshaft aircraft) which are also turbine-powered or powered by a jet engine.
Since DEC Staff and the Applicant are relying on the ordinary meaning of "turboshaft" as confirmed by the Scott Paper/Finch Pruyn proceeding, the burden of going forward shall be on the Town. The Town shall present Dr. Lemnios as its witness and he shall be made available for cross-examination.
The construction to be given to the words "turbojet aircraft" is a substantive issue because, until it is determined, there is sufficient doubt about the Applicant's ability to meet the regulatory criteria for separation from airports such that a reasonable person would inquire further. This is a significant issue because if the helicopters are determined to be turbojet aircraft, the Applicant may have to modify its landfill footprint or secure a variance from the siting restriction.
An issue exists whether the proposed landfill meets the requirement in 6 NYCRR 360-1.14(c)(3) which states that solid waste management facilities "must not be constructed or operated in a manner which causes or contributes to the taking of any endangered or threatened species of plants, fish or wildlife; or to the destruction or adverse modification of critical habitat." (Town issue No. 7.)
This requirement has been raised with regard to both the northern harrier and the upland sandpiper. According to the Town, the upland sandpiper is currently listed as species of special concern, but has been proposed to be reclassified as a threatened species, and can reasonably be expected to be added to the threatened species list prior to or during the proposed operation of the County landfill. As the regulations prohibit the siting of a landfill only in critical habitat of endangered or threatened species, I have already ruled that the status of the upland sandpiper with respect to the landfill is not an issue. (See, Tr. at 352. See also, In the Matter of the Application of Scott Paper Company/Finch Pruyn & Company, Inc., Commissioner's Interim Decision, December 22, 1994.)
The parties do not dispute that the northern harrier is a threatened species pursuant to ECL 11-0535. Nor is there a disagreement as to the northern harrier's use of the landfill site and adjacent area for hunting and possible nesting. The disagreement lies with whether the landfill site constitutes critical habitat for the bird such that the development of the area for a landfill would contravene the prohibitions of 360-1.14(c)(3) and whether the landfill construction would constitute a "taking" of the species.
In its offer of proof, the Town presents much material regarding the status of the northern harrier in New York, this bird's nesting, hunting and over-wintering patterns and observations of the harrier's existence in the area of the landfill. (See, Exhibits 39, 41, 43, 46 and Exs. F, G and H to the Town's petition.) Based upon the Town's submissions, it is apparent that this raptor requires a wide territory of varied habitat and that, in part, its decline can be attributed to the loss of such open space. (See, Exs. 39, 43.) In the County's own endangered/threatened species evaluation of the landfill by its consultant, Bagdon, it is noted that there were numerous sitings of the bird hunting on or adjacent to the site in 1991. Bagdon also concludes that its observation of a harrier in its first year of plumage may indicate the existence of a recently active nest on or near the site. (See, draft EIS, Appendix C, p. 7.)
The County and the Town reach different conclusions, with the County determining that the site is a "peripheral hunting territory" and is not to "be considered significant habitat for the northern harrier." In the report done by Smith & Mahoney for the County, the engineering firm concludes that because a large part of the site is used for grazing, alfalfa and hay production which is not suitable for the ground nests of the harriers, the area is used only for hunting by the harrier and is thus, not critical. (See, Suitability of the Proposed Saratoga County Landfill Site for Nesting Northern Harriers, draft EIS, App. C, pp. 3-4.)
As the parties have pointed out, the regulation does not define critical habitat. In the Scott Paper/Finch Pruyn decision, the Commissioner relied upon the definition in the Federal Endangered Species Act ("the Act or "ESA"), 16 USC 1531, et seq for guidance in this regard. The Act defines critical habitat as:
(i) the specific areas within the geographical area occupied by the species, at the times it is listed in accordance with the provision of section 1533 of this title, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management consideration or protection;
The ESA defines "conservation" as the "use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking."
Based upon these definitions, I cannot conclude that only specific areas where the threatened species actually nests are to be considered critical habitat. Rather, these definitions indicate that the habitat used by the species for its existence is what must be addressed. Even if nesting was the only criterion, based upon the submissions of both the Town and the County on this issue, it is far from apparent that the Harrier has not used or will not use the site as a nesting area. (See, Ex. H to petition, DEIS, App. C, Bagdon Evaluation, p. 7.)
In the Scott Paper/Finch Pruyn decision, the Commissioner ruled that in order to determine what constitutes an area of critical habitat without a specific designation, an analysis of facts is required. Because the ALJ did not find there had been a sufficient offer of proof regarding critical habitat, the Commissioner did not disturb that finding. Here, however, it is apparent that the Town has made a significant offer regarding the various uses of the site and the surrounding area by this threatened species. This offer includes three expert witnesses, Mr. Munoff, a biology teacher and raptor researcher, John DeLisle, a resident of Mott Road, and Dr. Kenneth Able, a biologist and ornithologist at the State University of New York. The offer raises significant and substantive issues with respect to the landfill's compatibility with this species.
While the Commissioner's decision, In the Matter of the Application of the City of Albany (February 13, 1990), was cited in the Scott Paper/Finch Pruyn decision as a basis for determining that the site was not essential for the conservation of the species, the facts in the Rapp Road permit proceeding were quite different. In the City of Albany matter, the Commissioner stressed the fact that the City had done a quantitative analysis as to the acreage the Karner Blue butterfly required and was setting aside land for that purpose. In fact, the Commissioner conditioned the granting of the landfill permit on the City's compliance with that condition.
Here, the County has not presented such an analysis, nor has it offered a mitigation plan with respect to the harrier's habitat. Accepting the offers of proof by the Town, the 45 acres set aside by the paper companies would not necessarily be sufficient. In addition, the Town offers 1990 correspondence from a Department wildlife biologist, Alan Koechlein, to Mr. McNeary of the County's Solid Waste Committee regarding his conclusions about the essential nature of a .6-square-mile area as habitat for the northern harriers observed by Munoff and DeLisle.
As to whether the landfill construction would constitute a "taking" of the Northern Harrier, in the Scott Paper/Finch Pruyn decision, the Commissioner relied on the City of Albany decision where Commissioner Jorling determined that because the possible loss of the Karner Blue was not the intention of the City in siting the landfill, there was no such taking. I find this conclusion somewhat narrow in light of the finding of the U.S. Supreme Court in its recent interpretation of the ESA in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, No. 94-859 (June 29, 1995). In Sweet Home, the High Court was asked to determine whether the Interior Department's interpretation of its "taking" regulation which makes it a crime "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect" was too broad in concluding that destruction of endangered species habitat was tantamount to "harm." The Court agreed that the "ordinary definition" of the word harm "naturally encompasses habitat modification that results in actual injury or death to members of an endangered or threatened species."
As the Commissioner ruled in City of Albany, the definition of "taking" contained in ECL 11-0103(13) is analogous to the Act's definition and therefore, it is appropriate to accept the Supreme Court's broader interpretation. "Taking" is defined in this section to "include pursuing, shooting, hunting, killing, capturing, trapping, snaring and netting fish, wildlife, game, shellfish, crustacea and protected insects, and all lesser acts such [as] disturbing, harrying or worrying, or placing, setting, drawing or using any net or other device commonly used to take any such animal." While the Legislature did not include the word "harming", certainly the word "disturbing" is comparable. In addition, the inclusion of a prohibition against taking of endangered and/or threatened species in 360-2.12(c)(3) would have little meaning if it were meant to only address intentional takings. Clearly, the Department's inclusion of this prohibition in Part 360 is to ensure that the siting of a landfill does not irreparably disturb necessary habitat. Otherwise, the taking prohibition in ECL 11-0535(2) would be sufficient.
Finally, as to the County's argument that the doctrine of collateral estoppel should bar the Town from pursuing this issue, I disagree. The County's landfill site is not the same as the paper companies' and in fact, the Town has offered proof that the former site is a more critical area because it is closer to the identified nesting site. Third, because this matter concerns not only private interests but the public's interest in the habitat of a threatened species, it would be improper to prevent this matter from being heard in this context.
Based upon the above, I conclude that the Town has raised issues whether the landfill site constitutes critical habitat for the northern harrier and whether the construction of the landfill will result in a "taking" of this threatened species.
An issue exists whether the Kobor Road site is the most appropriate landfill location among the alternatives considered by the County. This issue has several components and is shared by the Town and Farms First (Town issue No. 6, Farms First issue No. 5.)
According to the Department's regulations, applications for permits to construct and operate a new landfill must include a site selection study report [6 NYCRR 360-2.12(a)]. The report must describe the process used to select the proposed site, including evaluation criteria, deferral (elimination) criteria, assumptions, data sources, decisionmaking means (such as numerical ranking systems) and other factors used to make the siting decisions. Also, the report "must demonstrate that the range of alternative sites evaluated was reasonable considering the objectives and capabilities of the applicant, and that the selected site is the most appropriate alternative" [6 NYCRR 360-2.12(a)(1)] (emphasis added).
The Commissioner has said that since the requirements for siting studies are narrative rather than numerical, determining whether those requirements have been satisfied necessarily involves the exercise of judgment. [Scott Paper/Finch Pruyn, Interim Decision of the Commissioner, December 22, 1994, p.2.] The adequacy of this siting study has been considered in light of the filings made by the Town and Farms First, as supplemented by the issues conference record.
The County has no one document that constitutes its site selection study report. Instead, there are several documents which the County cites as fulfilling this requirement. The County's strategy for landfill siting is detailed in chapter 8 of its September, 1990, solid waste management plan. This chapter describes the siting process which the County developed to conform with 6 NYCRR 360-2.12. A landfill siting study interim report, dated November 1990, is intended to summarize the findings of the landfill siting study through the selection of three primary sites. (This report is conference exhibit 73 and includes as Appendix "A" chapter 8 of the 1990 solid waste management plan.) A hydrogeologic site investigation work plan for the Kobor Road site, dated May 1991, is intended to outline a hydrogeologic investigation of the Kobor Road site, which was done as part of the siting study. Finally, chapter 6 of the landfill application is defined as a "landfill siting report" meeting the requirement of 6 NYCRR 360-2.3(i). (This section states that complete applications for initial permits to construct and to operate a landfill must contain a landfill siting report prepared in accordance with Section 360-2.12.)
As explained in the project's SEQR findings statement, the County's siting analysis included a negative screening process that excluded lands from further consideration based on regulatory restrictions. The remaining lands were then evaluated to identify areas possessing the best combinations of desirable characteristics, with a high priority emphasis placed on areas with low permeability silts and clays. Eight preliminary sites were ultimately identified and a comparative analysis was performed to identify three primary sites. Two of these sites were in Northumberland and one was in the Town of Moreau.
The primary site evaluation included a preliminary hydrogeologic investigation, environmental assessment, and an engineering analysis of these three sites. In March of 1991, the County designated the Kobor Road site, encompassing about 350 acres, as the preferred site for the County landfill and directed the commencement of a site-specific evaluation of the environmental impacts of this use. That evaluation is incorporated in the revised permit application, dated February 1995, which is the subject of this hearing.
There are various required components of a siting study and a procedure to be followed in selecting a landfill location. However, the main substantive requirements are that the site selection study report demonstrate both (1) that the range of alternative sites evaluated was reasonable considering the objectives and capabilities of the applicant, and (2) that the selected site is the most appropriate alternative [6 NYCRR 360-2.12(a)(1)]. The Commissioner has held that if both demonstrations are not made, the Applicant could be directed to redo the siting study. [See, Scott Paper/Finch Pruyn, December 22, 1994, p.2.] I find that, at this juncture, the County has considered a reasonable range of alternative sites, but that there is some question whether the Kobor Road site is the most appropriate alternative. Some doubts are raised by the issues outlined above, which concern the site's compliance with relevant Part 360 requirements. Other issues for adjudication are stated below.
- - Reasonable Range of Alternatives
The Town contends that the County's insistence on a landfill site of at least 200 acres violates the requirement that the site selected be the most appropriate alternative [6 NYCRR 360-2.12(a)(1)]. Also, it alleges that the County's failure even to consider smaller sites violates the requirement that the site selection "must be comprehensive and it must identify and evaluate the complete range of alternative sites which are feasible considering the objectives and capabilities of the applicant" [6 NYCRR 360-2.12(a)(2)].
The County's application states that a minimum total site area of 200 acres was sought to provide sufficient operational area for landfill development and supporting activities and also to create adequate buffer area. This size restriction was reasonable and consistent with the County's objective of providing a long-term solution for its waste disposal needs. At 200 acres, the minimum site size considered is four times greater than the projected landfill footprint area of 50 acres. However, as noted by the County, this allows for the evaluation of different footprint configurations, based on environmental considerations.
Also, as noted by the County, the site should be sized adequately to allow for development and operation of all landfill-related facilities, such as a maintenance building, scales, access roads, leachate storage facility, drainage structures, landscaped areas, and buffer zones. Any anticipated solid waste activity such as a recyclables holding facility or composting facility should also be considered in sizing a landfill, provided that these facilities have siting criteria in common with the landfill. [See, County's Draft Solid Waste Management Plan Update 2, dated December 1994, at pages 7 and 8.]
The Town contends that were the County to maximize recycling, or even recycle at the level anticipated in its solid waste management plan, a landfill area much smaller than 200 acres would be required. However, it is difficult to project to what extent recycling will succeed, especially over the course of decades. At any rate, the effect of successful recycling is to make the landfill last longer, which is a legitimate objective of the County, given the costs of siting and permitting a new facility.
The Town also contends that haulers may not use the landfill if its tipping fees are too high, and if there are cheaper alternatives elsewhere. No tipping fee has been established for the landfill and, in the absence of municipal flow control, it is impossible to project how much of the County's waste would continue to be exported or, for that matter, how much waste from outside the County would be imported to the landfill. Again, the less waste that comes to the landfill, the slower it develops and the longer it lasts.
A sizing argument similar to the Town's was raised in relation to a solid waste management facility proposed by Washington County officials. In a hearing regarding that County's siting study, the Town of Hartford contended that the minimum size criterion of 400 acres was unnecessarily large for a facility which was intended to manage only the County's municipal solid waste. The Town argued that if a smaller minimum size of 200 or even 100 acres was applied, a far greater range of available sites would have been available for consideration. In his issues rulings, ALJ Andrew Pearlstein said that the DEC hearing to review the siting study was not an appropriate forum to question the County's decisions on the size of its proposed facility, and suggested that such decisions belonged to the County Board of Supervisors as an elected body representative of the County residents. [In the Matter of the Application of the Washington County Board of Supervisors, ALJ Rulings, October 22, 1992.]
Saratoga County's objective in building a landfill is not to provide waste disposal services for a set period of years, but over the long term generally. Considering this objective, the minimum site size criterion of 200 acres appears, at least at this point, reasonable in restricting the range of alterative sites that were evaluated. Should the County be unable to secure approval of a facility that meets its minimum site size criterion as well as all relevant Part 360 permitting requirements, it may have to consider smaller sites. But this cannot be known at least until the other issues identified in these rulings are adjudicated. For now, no issue exists to adjudicate.
- - Most Appropriate Alternative
An issue exists whether the Kobor Road site is the most appropriate location among the eight preliminary sites considered by the County. This issue has more than one component.
(a) Verification of Visual Inspections
The County did a comparative study of the eight preliminary sites to identify three primary sites that were then advanced for further, more detailed investigation. As noted in the permit application (p. 6-24, 6.3) this was accomplished through the application of a numerical ranking system outlined in Section 188.8.131.52 of the County's 1990 solid waste management plan whereby sites were compared to one another under 11 general scoring categories. Measurements were then made of each site for the list of criteria or sub-categories included in the preliminary site evaluation matrix illustrated on Table 8-1 of the plan (which also appears as Table 6-1 of the permit application).
According to the County, information used to conduct these measurements was obtained through a detailed literature search, consultation with appropriate agencies and technical experts, drive-by surveys, and visual inspections of each of the eight preliminary sites. However, the siting study contains no record of these visual inspections and it is unclear what land parcels were inspected, when the inspections occurred, or how the inspections were conducted.
The County has produced an affidavit of Jonathan Cobb, a former project engineer with Smith & Mahoney, who was primarily responsible for the implementing the siting study. In this affidavit (conf. ex. 88), he says that he was responsible for coordinating efforts regarding the evaluation of potential sites including, but not limited to, contacting property owners, conducting site walk-throughs and visual inspections, and evaluating and scoring the eight preliminary sites.
Mr. Cobb writes that Smith & Mahoney personnel observed the potential landfill footprint for each preliminary site. Typically, he writes, Smith & Mahoney obtained permission to access properties by contacting property owners by phone and, prior to going on the property, notification was given to the property owner. He adds that the property owners were also asked whether they would like Smith & Mahoney personnel to stop by their residences before going on their properties. On several occasions, he notes, the property owners themselves accompanied him and his personnel on walk-throughs.
Because the site inspections are not documented as part of the permit application, it is impossible to verify Mr. Cobb's assertion that the potential landfill footprints for the eight preliminary sites were observed by Smith & Mahoney personnel. In March, 1990, the County sent letters to property owners whose lands comprised the eight preliminary sites, seeking their consent for Smith & Mahoney to conduct "a physical walk-through" of their parcels and a "visual inspection" of their characteristics. (The standard letter is conf. ex. 80.) Farms First asserts that in April of this year it contacted by mail most of the landowners to whom letters were sent, inquiring whether these walk-throughs and inspections occurred. Farms First presented (as conf. ex. 84) responses it alleges to have received indicating that walk-throughs and inspections did not occur on certain properties. While Farms First has not approached the respondents about testifying in this hearing, the Town, which is represented by counsel, has said it would seek to subpoena them if, as I conclude, there is an issue about the visual inspections.
The Department's regulations require that an applicant do "field reconnaissance" to confirm published information when identifying alternative sites that are suitable for landfill development. [6 NYCRR 360-2.12(a)(2)(ii).] Also, "preliminary field investigations" must be conducted at the highest ranking available site or sites, to identify any major obstacles to site development." [6 NYCRR 360-2.12(a)(2)(iv).]
Staff contends that when narrowing the eight preliminary sites to three primary sites, a walk-through of each land parcel was not required, and that field reconnaissance limited to drive-by viewings would be appropriate. On-site inspection, Staff maintains, would only be necessary at the three primary sites, for the purpose of testing and other measurements. And even then, Staff adds, one would not necessarily have to access each land parcel at a site owned by several different people.
Farms First's offer of proof raises sufficient doubt that, at the least, the County must be required to explain how each of the eight preliminary sites was visually inspected. It is important to know when the inspections occurred and how they were conducted in order to verify the scoring of the preliminary sites and to ensure the scoring is appropriate. This can be accomplished by the testimony of Mr. Cobb or some other Smith & Mahoney representative who has reviewed the firm's inspection records. While Farms First is not seeking full party status and has no counsel, the Town, which has expressed an interest in this issue, may cross-examine the County's witnesses and, if necessary, present any landowners who dispute the County's evidence.
As a matter of siting procedure, some reasonable level of field reconnaissance is necessary. If it has not been achieved, this could call into question the choice of the Kobor Road site - -one of eight preliminary sites identified by the County - - as the most appropriate landfill location.
(b) Site Evaluation Matrix
The County used a preliminary site evaluation matrix (shown as Table 6-2 of the application) to score the eight preliminary sites for their appropriateness as landfill locations, thereby coming up with three primary sites. The Kobor Road site (No. 6 in the scoring summary, which is application Table 6-3) received a score of 753 out of a possible 1,000 points, the highest score of the eight preliminary sites. The second-highest score, for another site in Northumberland (No. 4), was 682, and the third-highest score, for a site in the Town of Moreau (No. 3), was 662. The remaining sites received scores of 622, 581, 540, 512, and 486. Thus, as noted by the Town, had the County scored the sites differently by even 71 out of a possible 1,000 points, Kobor Road's determination as the "number one" site would have changed, and had it scored the site lower by 132 points or more, the site would not have been one of the three "primary sites" chosen by the County for further investigation.
The Department's regulations establish various criteria which must be considered when evaluating the environmental suitability of potential landfill sites [6 NYCRR 360-2.12(e)(1)-(9)]. These criteria need not be considered in any particular way; however, they must be considered in a rational manner. [In the Matter of the Application of Integrated Waste Systems, Inc., Interim Decision of the Commissioner, March 4, 1995, p.3.] Also, the manner in which they are considered must be documented and explained in the siting study, and any numerical ranking system cannot be arbitrary. [In the Matter of the Application of Tompkins County Board of Representatives, Interim Decision of the Commissioner, August 2, 1990, p.3.]
The Town contends that the siting study was skewed to justify a prior decision to select Kobor Road as the most appropriate landfill location. Two basic issues are asserted: use of an improper scoring matrix, and inaccurate scoring of the Kobor Road site.
- - Scoring Matrix
An issue exists about the site evaluation matrix used to score the eight preliminary sites. The issue is whether the matrix rationally and comprehensively considers the site evaluation criteria of 360-2.12(e).
The Town notes that the matrix assigns a total possible 180 points to current (120) and projected (60) residential proximities, and a total possible 130 points to agricultural factors. In this way, claims the Town, the matrix obliterates any real weight for agricultural factors in the siting process, as agricultural areas are, almost by definition, sparsely populated, causing even a "valuable" agricultural site, which would be assigned very few of the 130 possible points for agricultural factors, to be outweighed by the 180 points it would receive for residential proximity. The Kobor Road site was assigned 93 out of 130 points for agricultural factors, but this was outweighed by its assignment of 172 out of 180 points for current and projected residential proximity.
The Town adds that the siting report's base weighing scenario, by which weights are assigned to each matrix criterion (Application, Table 6-2), further skews the siting process in favor of rural, unpopulated areas by:
- giving a total of 18 percent weight to current and projected residential proximity;
- further increasing the weight of current and projected residential proximity by placing both of these categories in the first "tier" of category weights, with 50 percent of the total weight assigned to this tier;
- excluding completely any weight for proximity to open space, in violation of 6 NYCRR 360-2.12(e)(8);
- lumping together environmental resources with "cultural/historical/recreational" uses, and with public facilities as one category, with total weight of only 12 percent; and
- placing impacts on agriculture in the second rather than the first weighing "tier."
The Town claims that in violation of 6 NYCRR 360-2.12(e)(7), the matrix did not consider impacts to air quality due to the trucking of materials from the waste "centroid" (the population centers where most of the waste is produced) to the areas most removed from residences, which were favored as landfill sites. The Town also asserts that the County's assignment of a total possible 40 out of 1,000 points, or 4 percent, to whether each preliminary site is located in a state agricultural district relegates to statistical insignificance a factor which is due attention pursuant to 6 NYCRR 360-2.12(e)(9). The Town asserts that community planning and zoning factors were reduced to statistical insignificance, in violation of 6 NYCRR 360-2.12(e)(5). On the other hand, the Town asserts that population density was inexplicably elevated to the status of a negative screen, unlike the other 360-2.12(e) site evaluation criteria.
These points all require adjudication, which may be accomplished by the County's producing a witness who can explain why the matrix is weighted as it is, and how the matrix accounts for all of the criteria in 6 NYCRR 360-2.12(e). Until this is done, there can be no assurance that the these criteria were considered in a rational manner, and that none were excluded.
Finally, no issue exists about the employment of size factors as a matrix consideration, since the County could legitimately desire the largest site possible, not only to provide flexibility for footprint configurations, but to allow room for possible future expansion, to lengthen the landfill's life. However, the weighing given to size factors is a legitimate issue for inquiry.
- - Scoring of the Kobor Road site
An issue exists about the scores given to the Kobor Road site in the County's matrix. The issue is whether the Kobor Road site deserves its ranking as the most appropriate landfill location.
This issue shall include consideration of the following scores assigned to the Kobor Road site:
- 180 out of a possible 200 points for hydrogeologic conditions, given considerations of the site's soil permeability and estimated depth to the water table;
- 43 out of a possible 50 points for environmental resources, in light of the site's possibly being critical habitat for the northern harrier;
- 74 out of a possible 80 points for "Agricultural Factors, Active Use," in light of its current use for farming.
The County must explain the scores it gave for these considerations and how they would differ based on facts that might be established at the hearing.
The Town contends that if siting criteria had been properly defined, evaluated, and applied to the eight preliminary sites, the Kobor Road site would never have been chosen as one of the County's three primary sites for further consideration, or as the preferred landfill site.
Neither the Town nor Farms First is proposing that one of the other eight sites, or another not yet identified, is appropriate for a landfill. They properly contend that to raise an issue for adjudication, it is enough for them to show that the siting study is flawed. The burden of finding an appropriate site belongs to the County, and not to the intervenors, who lack the resources and authority to conduct their own siting investigation.
- - Summary of Issue
In summary, the relevant requirement is that the siting report demonstrate that the selected site is the most appropriate alternative. If, as the Town contends, the scoring matrix is irrational, or the site was improperly scored, the study's conclusion favoring the Kobor Road site may be incorrect. To the extent the scores of the other eight sites have not been challenged, those scores may be accepted as valid. But if the Kobor Road site was scored improperly (even if at the time the scores were assigned, the County was relying on the best available data), the score must be corrected based on information that is now or may yet become available during the hearing. The score must then be compared to those for the other eight sites, to see if Kobor Road retains its "Number 1" ranking.
Issues concerning the siting study are significant since the County has the burden of demonstrating that its chosen site is the most appropriate of its available alternatives. If the County cannot make this demonstration, its requested permit could be denied, and it could be required to do another study. These issues are also substantive since there is sufficient doubt whether the County has made the required demonstration, that a reasonable person would require further inquiry.
NO ISSUE FOR ADJUDICATION
The Town, the IDA, ARRA and Farms First all assert that the proposed county landfill would create unfair competition between the County and the IDA and ARRA as owner and operator respectively of the Hudson Falls incinerator, a 450 ton per day waste-to-energy facility which is less than 10 miles from the landfill site. (Town issue No. 5, Farms First issue No. 2.)
This issue is proposed pursuant to ECL 27-0707(2)(c)(3), which states that a permit for a new solid waste management facility "will be issued only if a determination has been made that the proposed facility will not result in unfair competition between municipalities and scrap dealers, processors and consumers." According to the Town, the IDA and ARRA, Saratoga County is a "municipality," the IDA is both a "municipality" (since it is a municipal corporation) and a "processor" (since it owns the incinerator), and ARRA is a "processor" (since it operates the incinerator).
The statute's plain meaning is to proscribe unfair competition between municipalities on the one hand and, on the other, scrap dealers, processors and consumers. The statute is clearly not intended to proscribe competition between one municipality and another. Therefore, the question is whether the landfill will result in "unfair competition" between Saratoga County (as a "municipality") and the IDA and ARRA (as "processors" due to their interests in the incinerator).
- - Meaning of "Processor"
Whether an issue exists concerning ECL 27-0707(2)(c)(3) depends, as a threshold matter, on whether the Hudson Falls incinerator - - and the IDA and ARRA as its owners and operators - - is a "processor" protected by that statute. The word "processor" is not defined in the statute or elsewhere in the ECL, and is interpreted differently by the issues conference participants. It is construed broadly by the Town, the IDA and ARRA, based on how other words are defined in the ECL and Part 360.
For instance, "treatment facility" is defined at ECL 27-0704(1)(g) as "resource recovery, incineration, composting, or other process as approved by the commissioner through which solid waste is put in order to reduce volume and toxicity" (emphasis added). According to the Town, the IDA and ARRA, this indicates that incineration is a "process" and therefore that incinerators are "processors."
Also noted is the definition of "resource recovery facility" as "a combination of structures, machinery, or devices, utilized to separate, process, modify, convert, treat, or prepare collected solid waste so that component materials or substances or recoverable resources may be recovered or used as a raw material or energy source" [6 NYCRR 360-1.2(b)(130)] (emphasis added). According to the Town, the IDA and ARRA, this also indicates that an incinerator - - as a "resource recovery facility" - - "processes" solid waste, as does the term "solid waste incinerator process train," which is defined at 6 NYCRR 360-1.2(b)(146) as everything from the feed chute to the stack equipment.
A narrower construction of "processor" is provided by DEC Staff, also citing Part 360. More particularly, Staff cites the definition of "processing facility" as "a combination of structures, machinery, or devices, other than collection and transfer vehicles, utilized to reduce or alter the volume or the chemical or physical characteristics of solid waste through processes such as, but not limited to, separating, baling or shredding before its delivery to a landfill, composting facility, or solid waste incinerator" [6 NYCRR 360-1.2(b)(110)] (emphasis added). According to this definition, "processing" is what occurs to waste before its delivery to an incinerator, and not what occurs at the incinerator. Even if this definition is relevant, the Town notes that a certain amount of processing occurs at the incinerator due to the separation of metals from the incoming waste, although I find that this is clearly incidental to the facility's main function, which is to burn the waste that comes into it.
Finally, the County agrees with Staff that an incinerator does not qualify as a processor. However, unlike Staff, the County reasons directly from the language of 27-0707(c)(3) that the legislative concern was to protect junk yards and similar types of activities with long standing in the solid waste community.
No evidence has been produced by the County or, for that matter, any other party about this provision's legislative history. Also, I have not been able to locate any supporting memorandum which would explain its drafters' intent.
However, I read the provision by its own terms as protecting dealers in scrap, processors of scrap, and consumers of scrap. This construction is necessary to give the statute any clear meaning, since "processors" and "consumers" only exist in relation to things which are "processed" or "consumed." Also, it is logical according to the principle of noscitur a sociis, by which a word is known by the company it keeps.
Applying a dictionary meaning, "scrap" consists of "manufactured articles or parts rejected or discarded and useful only as material for reprocessing, especially waste and discarded metal" [Merriam-Webster's Collegiate Dictionary (Tenth Edition, 1995), p.1048] (emphasis added). Therefore, I read this section generally as the Applicant does, as protecting activities akin to junk yards, where discarded items are stored sometimes for the resale of component parts, to be reprocessed or reused.
In making this construction, I am not influenced by other ECL or Part 360 definitions. These definitions apply in contexts different from the one at hand, and there is no reason to think they influenced the development of this provision.
- - Meaning of "Unfair Competition"
Even if the statute were read to protect the Hudson Falls incinerator, one would still have to find that the operation of the County's landfill would result in "unfair competition." Based on the arguments presented at the issues conference, I cannot conclude that the landfill would result in competition "unfair" to the IDA and ARRA, and for that reason too, adjudication is unwarranted.
To prove unfair competition, the Town, the IDA and ARRA would present as their witness Stephen Blakeslee, coordinator of Warren and Washington Counties' Intercounty Solid Waste Coordinating Committee. Mr. Blakeslee represents Warren and Washington Counties (as financial backers) and the IDA (as owners) in matters dealing with the incinerator, finding sources of waste and developing pricing strategies.
Mr. Blakeslee would testify that the incinerator now gets between 65,000 and 75,000 tons of municipal solid waste per year from Saratoga County, which is 40 percent of the total waste received by the facility. He would say that under existing arrangements, the incinerator is self-sufficient and operating at capacity.
No tipping fee has been set for the proposed county landfill, and it is unclear to what extent it would also be supported by tax dollars, which would allow for a tipping fee less than the cost of disposal. While the landfill is proposed for Saratoga County residents, private haulers within Saratoga County will be able to dispose of waste elsewhere, because there is no municipal flow control.
Since its last landfill closed in April of 1994, Saratoga County has been exporting its municipal solid waste to the incinerator and to other out-of-county facilities, including landfills in Colonie and Fulton County. The waste is carried by private haulers who are presumably influenced by the tipping fees they must pay for waste disposal.
Mr. Blakeslee would say that to draw waste to its landfill, Saratoga County would have to set a tipping fee less than the $75 per ton now charged by the incinerator. In turn, he would add, the incinerator would then have to lower its tipping fee, setting off a destructive cycle of competition with the landfill. The result, according to Blakeslee, would be that the incinerator, now self-sustaining, would have to be supported by tax revenues. To operate at capacity, it might also have to draw waste from outside the region, as far away as New York City, Blakeslee would add.
There is no question that if this landfill is built, it will compete with the incinerator for available municipal solid waste. But would this competition be "unfair" to the incinerator? The Town, the IDA and ARRA all argue that it would be unfair because the landfill would likely be subsidized by taxpayer dollars. This would allow the landfill to charge a tipping fee less than the actual cost of disposal, thereby drawing customers from the incinerator.
In this context, the Town defines unfair competition as the subsidizing of a commodity's actual price so that the price charged is below the actual cost of providing or producing the commodity. The Town analogizes the competition created by the proposed landfill to situations in international trade where a government subsidizes electronic and agricultural exports so its products can compete in foreign markets.
"Unfair competition" is not defined by the ECL or the Part 360 regulations. The parties have not presented and I have not found any case which would indicate how these words should be applied in this context. "Unfair competition" is subject to many different interpretations, and the Town has cited nothing to support its claim that it has a generally accepted meaning, let alone the meaning the Town has provided.
Applying a plain meaning to the statute, any competition engendered by the proposed county landfill would not be "unfair" to the incinerator's owners and operators since they have no entitlement to Saratoga County's municipal solid waste. Ensuring that the county can provide for its own waste disposal is a legitimate interest of Saratoga County as its own distinct planning unit, as designated by DEC under the state's Solid Waste Management Planning Act. Similarly, Warren and Washington counties built their incinerator to meet their own waste disposal needs, as noted in the facility's 1989 bonding report (conf. ex. No. 52), which has been produced by the County.
This bonding report clearly indicates that when the incinerator was built, it was intended to provide waste disposal services only for Warren and Washington counties, which were anticipated to provide enough waste to maintain the facility at between 82 and 104 percent capacity. There was no understanding that Saratoga County's waste would be available to the incinerator except possibly during its first years of operation, while Saratoga developed its own landfill plans.
The IDA and ARRA have no entitlement to the continued receipt of Saratoga County's waste, and the incinerator was not constructed with the expectation that it would receive this waste over the long term. Therefore, it cannot be considered unfair for Saratoga County - - as its own planning unit - - to provide an avenue for its own waste disposal within county borders.
- - Conclusion
Because the landfill will not result in competition "unfair" to the IDA and ARRA, and because at any rate the incinerator should not be construed as a "processor" under ECL 27-0707(2)(c)(3), no issue of unfair competition exists for adjudication.
Compliance with State Solid Waste Management Policy
The Town, the IDA and ARRA all contend that the proposed landfill is inconsistent with the state's solid waste management policy identified under ECL 27-0106. (Town issue No. 4.) Among other things, that policy sets four solid waste management priorities in the state:
- First, to reduce the amount of solid waste generated;
- Second, to reuse material for the purpose for which it was originally intended or to recycle material that cannot be reused;
- Third, to recover, in an environmentally acceptable manner, energy from the solid waste that can not be economically and technically reused or recycled; and
- Fourth, to dispose of solid waste that is not being reused, recycled or from which energy is not being recovered, by land burial or other methods approved by the department. [ECL 27-0106(1).]
ECL 27-0707(2)(a) provides that an application for a permit to construct a solid waste management facility shall not be complete unless the application includes a description of how the facility is consistent with the state's solid waste management policy articulated under 27-0106. This description is to be included in the project's engineering report, according to 6 NYCRR 360-1.9(e)(4)(ii). Part 360 also provides that the Department may issue a permit to construct a new solid waste management facility only if the application describes how the proposed facility is consistent with the state's solid waste management policy. [6 NYCRR 360-1.10(a).]
These statutes and regulations do not require a demonstration or substantiation that a project is consistent with the state policy, only a description of how it is consistent. The apparent intent is to ensure that the policy is discussed and, therefore, considered during the application process.
This application's engineering report incorporates by reference the County's solid waste management plan which was approved by DEC in October, 1990. That plan includes the County's rationale for the selection of landfilling as the appropriate waste disposal method.
The Department's regulations require that a solid waste management plan take into account the objectives of the state's solid waste management policy set forth in ECL 27-0106 [6 NYCRR 360-15.9]. In approving the plan, the Department must assure that this requirement has been met in a satisfactory manner [6 NYCRR 360-15.10(a),(c)].
DEC approved the solid waste management plan in October, 1990. The Town challenged this approval in court, arguing, among other things, that the plan failed to evaluate the alternative of Saratoga County disposing of its waste at the Hudson Falls incinerator, which had then been approved by the Department and was under construction. However, the Town's challenge was rejected in Seymour v. Dept. of Env. Conservation, 184 A.D.2d 101, 591 N.Y.S.2d 593 (3d Dept., 1992), which held that DEC's approval of the plan was neither arbitrary nor capricious.
Now the Town, the IDA and ARRA all claim that the landfill application is inconsistent with ECL 27-0106 because state policy prefers incineration to landfilling, and because approval of the landfill would divert waste that is now going to the Hudson Falls waste-to-energy facility. This issue was laid to rest by DEC's approval of the solid waste management plan and the subsequent court decision affirming DEC's determination.
Beyond that, ECL 27-0106 does not require that solid waste be disposed of through a waste-to-energy facility before it is disposed of by land burial, contrary to the Town's assertion. The Commissioner has said that municipalities "are not required to select resource recovery as a disposal option. Although resource recovery results in volume reduction of solid waste and allows for the recovery of an energy biproduct, there may be instances where countervailing considerations which would allow for the selection of landfill (sic) as the principal disposal option consistent with the solid waste hierarchy" of ECL 27-0106." [In the Matter of the Application of Monroe County to construct and operate the Mill Seat Solid Waste Landfill, Interim Decision, July 2, 1991.]
Saratoga County has rejected building its own waste-to-energy facility for economic reasons which are explained in its 1990 solid waste management plan (10.3.2., p. 234-237). This plan also said that the County remained open to and would consider a waste-to-energy option at a regional level in conjunction with neighboring municipalities or jurisdictions, provided it could be accomplished "in an economically and environmentally sound manner." (10.2.3, p.231.) This option has not since been pursued, despite overtures by the owners and operators of the Hudson Falls incinerator. On the other hand, the Department has no apparent authority to impose this option either.
The Department's approval of Saratoga County's 1990 solid waste management plan - - which is, in essence, a plan to construct and operate a county-wide landfill - - confirmed the Department's acceptance of a landfilling solution for the County's municipal solid waste, subject to the selection of an approvable site and the submission of an application satisfying permit issuance requirements. The Department's approval of the plan also confirmed that the County had satisfactorily considered the policy of ECL 27-0106.
Given these circumstances, it was unnecessary for the County to repeat its analysis in the permit application, or for this issue to be revisited in the application review. For these reasons, no issue exists for adjudication.
The Town and Farms First contend that approval of the landfill application would violate ECL 27-0703(1), pursuant to which the Department is obligated to carry out the laws governing solid waste management "so as to promote cooperation among neighboring localities in the planning and implementation of solid waste management programs and facilities." (Town issue No. 5, Farms First issue No. 2.)
In 1992, the Department did launch what became known as the Tri-County Solid Waste Initiative, according to records produced at the issues conference. This initiative - - involving Saratoga, Washington and Warren counties - - was designed to explore the possibility of Saratoga County disposing of its municipal solid waste at the Hudson Falls incinerator, rather than building a landfill of its own.
The Department's action was motivated by two concerns: (1) that the use of existing permitted facilities be optimized so as to minimize the construction of new facilities; and (2) that, contrary to initial expectations, the waste generated solely by Warren and Washington counties was insufficient to keep their incinerator operating at capacity.
While meetings occurred with the affected counties, the initiative fizzled out due to lack of interest by Saratoga County. According to the County's attorney, Mr. Alexander, the initiative was rejected due to uncertainties about the incinerator's long-term economic viability, the County's lack of leverage to control tipping fees, and county officials' desire to provide "a repository of last resort" for their residents.
More recently, incinerator officials have launched their own initiative, as detailed in the Town's offer of proof. The Town's petition contains a letter of April 6, 1995, from Stephen Blakeslee, the incinerator's waste coordinator, to Michael Sullivan, chairman of the Saratoga County Board of Supervisors. In the letter Blakeslee proposes guaranteeing Saratoga County available capacity at the incinerator for 10 years at a tipping fee of $65-70 per ton. The proposal would involve an annual payment for air space, which Saratoga could recoup by selling to any acceptable disposal customer. (See, letter of Blakeslee, Exhibit C to Town petition.)
Richard Weber, chairman of Saratoga County's solid waste committee, rejected this offer in a letter to Blakeslee dated April 12, 1995. (See, Exhibit D to Town petition.) Weber said it was essential that county residents have a landfill of their own, with a tipping fee controlled by their officials, rather than be "held hostage" to other facilities. He noted that when Saratoga County's last landfills were closed, the incinerator's tipping fee nearly doubled, and added that the County would not pay for the incinerator's financial problems. Finally, he said that Blakeslee's offer that Saratoga abandon its own project, buy space at the incinerator, and sell that space to its private haulers was a form of "price fixing," and suggested that Blakeslee deal with the haulers directly if he wants the County's waste.
The Town contends that the proposed Saratoga County landfill poses a detriment to the realization of a regional solid waste management solution, and that the Department must renew its efforts to promote cooperation between the County's board of supervisors and incinerator officials. I disagree, since these efforts were undertaken previously, without success. As noted by DEC Staff, ECL 27-0703 requires DEC only to promote cooperation among neighboring localities, not to compel such cooperation. Also, DEC must promote cooperation only "to the maximum extent feasible." Where parties cannot agree to negotiate, further efforts would not be productive.
The Department has already fulfilled its duties under ECL 27-0703(1). Therefore, no further action is required, and no issue is raised for adjudication.
Need for Landfill
Parenthetically, the most common sentiment expressed at the legislative hearing was that Saratoga County does not need its own landfill, since existing arrangements (by which waste is hauled out of the county) are satisfactory. On the other hand, the County maintains in its SEQR findings statement that additional disposal capacity is required to meet the County's long-term needs. As noted above, County officials do not want their residents "held hostage" to out-of-county disposal facilities.
No intervenor directly raised the matter of "need" at the issues conference, presumably because there is no statute or regulation that lists this as a permitting criterion. The decision whether they need a disposal facility of their own - - or whether they are satisfied with existing arrangements - - properly belongs to County residents through their elected officials. Even the state's solid waste management policy notes that "the basic responsibility for the planning and operation of solid waste management facilities remains with local governments," with the state providing guidance and assistance. [ECL 27-0106(2).]
Consistency With County Solid Waste Management Plan
The Town contends that the County has not demonstrated that the proposed landfill is consistent with the applicable goals and objectives of its own solid waste management plan, in violation of 6 NYCRR 360-1.9(e)(4)(ii). [Town issue No. 4.] The 1990 plan was updated by the County in 1992 to add a comprehensive recycling analysis (CRA), which sets goals and objectives for the County's recycling program through the year 2010. This update, including the CRA, was subsequently approved by the Department.
The project application notes that the size of the proposed County landfill was calculated based on a reasonable estimate of the amount of waste requiring disposal within the County for the life of the facility. (See, Application, p.2-22). Table 2-2 of the application presents the anticipated disposal quantities for three possible scenarios: (1) no recycling; (2) attainment of the county's recycling goals; and (3) recycling achieved at 15 percent less than the County goals. Capacity requirements for phase I of the landfill has been developed for projected disposal quantities ranging between the second and third scenarios, recognizing it is difficult to predict whether long-term recycling goals throughout the life of the landfill will be attainable or economical.
The Town notes correctly that the representation of recycling goals in Table 2-2 of the application is inconsistent with the recycling goals of the 1992 update of the solid waste management plan as well as a subsequent 1994 update which is still in draft form and under review by DEC Staff. In fact, the table sets forth less ambitious recycling goals than the County's own approved CRA.
However, this does not raise an issue for adjudication since the County must comply with its approved CRA according to Staff's draft special permit condition No. 13. This is not affected by the discrepancy between the recycling goals as stated in the CRA and in Table 2-2. This discrepancy suggests, if anything, that over the course of the landfill's projected life, less waste may come to it than the County had anticipated. The main effect of this would be to extend the landfill's use.
Even if one found that the landfill was oversized for the County's purposes, this itself would not discourage recycling so long as the County is bound to implement a recyclables recovery program detailed in an approved CRA. Such a requirement is part of Staff's draft permit.
Farms First asserts issues growing out of the restriction against siting landfills in unstable areas [6 NYCRR 360-2.12(c)(4)]. (Farms First issue No. 6.) The restriction states that "a landfill must not be located in unstable areas where inadequate support for the structural components of the landfill exist or where changes in the substrate below or adjacent to the landfill may result in the failure of the facility."
No issue exists as to whether this siting restriction would be violated. As part of its application, the County had Smith & Mahoney, its engineering consultants, perform a seismic impact analysis (Appendix B-7 to the application) which included slope stability analyses for the waste mass, liner system components, and final cover system, and an evaluation of the strength of the soils that underlie the site. One of the County's experts, Dr. Gregory Richardson, a geotechnical engineer, reviewed this analysis and, speaking at the issues conference, said it showed there are no slope stability considerations or potential for slope failures in the facility as designed. The County's application (at page 6-10) also indicates that compliance with this siting restriction was confirmed during a comprehensive subsurface investigation of the site.
Farms First admitted it has no experts on slope instability or the potential for landslides. In light of this, and because Staff has accepted the analysis offered by the County, no issue exists as to the site's compliance with the siting restriction.
As a separate issue, Farms First contends that the County did not perform a comprehensive search for pertinent and reliable existing information concerning regional and site specific hydrogeologic conditions, as required by 6 NYCRR 360-2.11(a)(2). As an offer of proof, the Town presented various documents which it had retrieved from government agencies but which had not been cited by the County's consultants. The most significant is a map addressing landslide susceptibility within the lake clays of the Hudson Valley (conf. ex. 20-B). This map indicates that areas at or at least very close to the site have the potential for landslides due to the occurrence of "lake clay" having a slope greater than 12 degrees and a minimum relief of 40 feet. However, the map contains a caution that it should not be considered a substitute for a competent engineering geologic site investigation, "which should be undertaken before any engineering design or construction project is begun."
Farms First contends that if the County had consulted this map when it was selecting potential sites, the Kobor Road site would have been excluded. However, this site should be excluded only if it actually does lie in an unstable area. As noted above, the County has considered this issue and its conclusions have been accepted by its own reviewing engineer and by DEC Staff.
The Department acknowledges it might be very difficult to determine whether a site will have a stability problem until preliminary site investigations have taken place to evaluate site-specific soil stability conditions. Therefore, in the initial steps of a landfill siting study, applicants are encouraged to exclude only those areas that can be specifically identified as prohibited, and where insufficient information is available, to postpone making the exclusions until a later stage when site-specific information is available. [Solid Waste Management Facility Siting, DEC Technical Assistance Guidance Document, April 1990, p. 30.]
Whether a literature search was comprehensive, or whether it overlooked easily accessible documents, should not be addressed by adjudication unless it shown to be a significant issue - - one that has the potential to result in the denial of the permit, a major modification to the project, or the imposition of significant permit conditions. Farms First has not made this demonstration and, for that reason, no issue is raised.
Potential Drinking Water Impoundment
Farms First asserts that the location of the Kobor Road site at the edge of a watershed for a potential drinking water impoundment precludes its consideration as a landfill site. (Farms First issue No. 6.) Farms First says the site should have been eliminated from consideration during the negative screening that led to the selection of eight preliminary sites.
Exhibits produced at the conference indicate that in the 1960's, a proposal was considered and finally rejected to dam the Snook Kill in Moreau to create a reservoir impoundment. Such an impoundment was eliminated as a possible source of water because of its distance from major population centers and the location of more promising water supply sources.
The County's 1990 solid waste management plan includes in its discussion of siting methodology a statement that, while not specifically identified as a prohibited site area, surface water bodies - - including existing and potential drinking water impoundments - - cannot be used for a landfill and therefore can be screened out (p. 189, 184.108.40.206.) The failure to screen out the Snook Kill impoundment was appropriate since the impoundment does not exist and, for that matter, is not proposed to occur. Beyond that, the site is not within the impoundment, but at the edge of its watershed.
Farms First notes that Saratoga County has recently created a water authority and that the impoundment could be a major source of water for the county's growing population. However, Farms First alleges no current governmental interest in creating the impoundment, which is essential to its being realized.
For these reasons, no issue exists for adjudication.
Farms First asserts that the County failed to pinpoint the location of a "pre-glacial channel" which is alleged to run through or near the northwestern portion of the project site. (Farms First issue No. 6.) Farms First described this channel as a place where water had eroded the subsurface rock, creating a "valley" through which groundwater flows.
According to Farms First, the channel was identified in the literature search but discounted improperly, since the western part of the site was never delineated with bedrock contour maps. Farms First has gathered water well data from site neighbors which state that the wells are dug to gravel and have substantial yields, which Farms First suggests may indicate the presence of this channel.
DEC Staff contends that the channel is actually to the west of the site. According to the County's final EIS for the landfill project, none of the many test borings conducted at the site by the county or the paper companies - - several of which penetrated unconsolidated materials and reached bedrock - - encountered coarse-grained formations which might indicate the presence of a buried glacial channel or other potential aquifer.
Farms First offered no expert evidence that this so-called channel is actually on the project site. It also failed to show how the County's hydrogeologic investigation was deficient. For these reasons, no issue is raised.
The Town and Farms First assert that the application does not adequately identify sources of daily cover. (Town issue No. 9, Farms First issue No. 1.) The Department's regulations require that the engineering plan include the location and identification of the sources of cover materials [6 NYCRR 360-2.4(c)], and that the operation and maintenance report include a cover material management plan, "specifying the types of cover material (daily, intermediate, and final), identifying the quantities required and sources for each cover material by type including the method of cover material placement, compaction, and the anticipated density" [6 NYCRR 360-2.9(g)].
The cover materials intended for the landfill and the source of these materials are not specified in the permit application. However, some clarification of the County's plans is provided by a July 28, 1993, letter to DEC Staff from John McKeon, deputy commissioner of the County's Department of Public Works. The lack of specificity of the permit application does not lend itself to adjudication but can be remedied by a permit condition which identifies cover materials and their intended sources, consistent with Mr. McKeon's letter, with an understanding that the use of materials not authorized by the condition will require a permit amendment.
The Town is especially concerned about the use of paper sludge as daily cover. This concern is addressed by special permit condition No. 11, which grants the County a waiver from the requirement to analyze groundwater samples for dioxins and furans [6 NYCRR 360-2.11(d)(6)] contingent upon its exclusion of paper sludge and other known sources of dioxins and furans from the landfill. Thus, in the event the County opts later to use paper sludge as daily cover, it will first have to sample a representative number of monitoring wells as approved by DEC Staff.
In conclusion, I hereby direct that Staff, in conjunction with the County, prepare and circulate prior to the adjudicatory hearing a draft permit condition that expressly sets forth the County's plan for daily cover.
The Town, Farms First and HOWL assert that the project application does not comply with 6 NYCRR 360-2.3 because it lacks either a legal document (contract, local permit, etc.) certifying acceptance of leachate by the operator of a wastewater treatment facility for the discharge of leachate to that facility, or an application for a State Pollutant Discharge Elimination System (SPDES) permit pursuant to Article 17 of the ECL. (Town issue No. 10, Farms First issue No. 1, HOWL issue No. 1.) One or the other is required for a complete application for initial permits to construct and operate a landfill subject to Part 360, according to 6 NYCRR 360-2.3(k).
The application states that on a routine basis, leachate will be removed from on-site storage tanks and hauled by tanker truck to an approved wastewater treatment plant. The County anticipates that the leachate will be disposed of at the Saratoga County Sewer District No. 1 treatment plant in the Town of Halfmoon. The County's engineering consultant, Smith & Mahoney, P.C., has prepared a "Leachate Treatment Feasibility Report" dated April 1993. That report recommends this option instead of on-site treatment at the landfill coupled with the discharge of effluent to a surface water course.
The County's application also includes a letter of August 12, 1992, from the sewer district operator, John O'Brien, stating that his office "has no objection to accepting the leachate." DEC Staff has accepted this as a "letter of intent" and, therefore, as a binding contract between the County and the sewer district. [Staff cites Lo Cascio v. Aquavella [619 NYS2d 430, 432 (4th Dept., 1994)], which states that the fact some matters are left open in a letter of intent does not defeat it as an otherwise binding contract.] But I find the letter too vague and noncommittal to satisfy the requirement of 6 NYCRR 360-2.3(k).
However, DEC Staff has addressed this deficiency with a special permit condition [No. 7(c)] accepted by the County stating that "prior to operation, the permittee must provide a copy of a signed contractual agreement with the owner/operator of an off-site wastewater treatment facility that guarantees treatment of leachate for at least one year. Permittee must also provide a signed letter of intent or contractual agreement with the owner/operator of an alternative off-site wastewater treatment facility that provides for backup treatment of leachate in the event leachate cannot be treated by the primary wastewater treatment facility."
The Town asserts that to allow the Applicant to submit the legal document required by 360-2.3(k) "prior to operation" violates the regulation's clear provisions, and that it would make no sense to permit the landfill's construction if there is no facility at which the leachate generated can be disposed.
I agree that the application does not comply with 360-2.3(k). However, the Commissioner has previously determined that Staff can defer compliance with this requirement by inserting a permit condition that prohibits the acceptance of waste at a landfill until the permittee provides the Department with a copy of a contract with a treatment facility acceptable to the Department certifying acceptance of leachate for disposal and treatment [In the Matter of the Application of the Town of Smithtown, Decision of the Commissioner, September 21, 1989, p.26]. The Commissioner found that such a condition would maintain environmental protection by preventing the landfill from operating without the required contract. Therefore, the present absence of a contract or other fixed arrangement between the County and the sewer district does not itself require further attention.
As a separate point, the Town and HOWL assert that the treatment plant in Halfmoon does not have available capacity and is under a moratorium. These issues have been resolved in a letter of May 23, 1995, from Raymond Beaudoin, executive director of sewer district No. 1, to Mr. Alexander, the County's attorney. This letter (which is part of conference exhibit No. 115) indicates that the Halfmoon treatment plant has a 13.1 million gallon per day ("mgd") capacity and that current usage is typically about 11.5 mgd. Mr. Beaudoin writes that the sewer district can more than handle the estimated leachate that is projected in the permit application, and that no moratorium applies to the operation of the sewer district. Also, DEC Staff is unaware of any circumstances that would warrant imposing a moratorium on sewer connections in Saratoga County.
No issue is raised because of the sewer district's assurances that capacity is now available. Also, Staff's permit condition requires that arrangements be made with a backup treatment facility in the event that leachate cannot be treated at the Halfmoon plant. Since mid-April, the County has been negotiating for backup use of the Glens Falls sewage treatment plant, according to Mr. Alexander.
The County argues that Saratoga's Sewer District #1 is subsumed within county government and, therefore, the County does not need to contract with the sewer district for leachate treatment. The Town considers the sewer district to be legally separate from the county and says a contract is required. To support its argument, the Town has not cited any particular statute, and Staff has not taken a position on this issue.
The clear intent of 360-2.3(k) is that before a landfill starts operating, DEC must be satisfied that adequate arrangements have been made for leachate disposal. Therefore, Staff's permit condition must be amended to state that regardless of what arrangements are made, they be confirmed in writing with DEC Staff, and that the landfill not be allowed to operate until Staff is satisfied, at the time operations would begin, that the quantity and type of leachate that Staff expects to be generated during the first year can be successfully handled at either of the designated treatment facilities.
Staff's current draft condition is flawed because it does not anticipate the likelihood that the county will not submit a contract for use of the Halfmoon facility, should that arrangement be confirmed. Also, it is flawed because it does not require explicitly that the primary and backup treatment facilities be acceptable to the Department, whereas that language was part of the approved condition in Smithtown. Staff says that it is up to the treatment plant operators to determine that their facilities have adequate capacity for the leachate. But I conclude that, consistent with Smithtown, Staff must verify this information just before landfill operations begin.
Since modifying the permit condition will cure its deficiencies, adjudication of leachate issues is not required.
Water Well Survey
Farms First and Arthur White assert that an adequate survey of water wells in the vicinity of the project site has not been conducted, in violation of 6 NYCRR 360-2.11(a)(5). (Farms First issue No. 1, Arthur White filing at p.1-2.) This section states that "a survey of public and private water wells within one mile downgradient and one-quarter mile upgradient of the proposed site must be conducted." Downgradient wells are those that would receive groundwater flow from the landfill site, whereas the flow from upgradient wells is towards the site.
The County conducted a water well survey which is documented in Table 7-3 of the landfill application. The County's survey incorporates information that Scott Paper/Finch Pruyn received as part of their own survey, which was done in support of their application for a paper sludge dump adjacent to the proposed county landfill.
Farms First has presented four water well logs for residences on Jewell Road (conf. ex. No. 116). Farms First says the County never contacted the landowners or asked for the logs or other information about the wells. Farms First claims to have obtained the well logs from the landowners and submitted them to the County as part of their comments on this project's draft EIS.
According to Farms First, these wells are within one mile downgradient of the landfill site, based on its interpretation of Figure 7-2 in the landfill application, which is an existing topography and drainage map depicting the direction of surface water flow. According to DEC Staff, this map depicts surface water drainage patterns but not the flow of groundwater. According to the County's depiction of the area downgradient of its landfill site (as shown in conf. ex. No. 117) and the area where the wells are located (as marked in red ink on Figure 2-5 of the permit application), the wells are outside of the downgradient zone.
No issue exists in the absence of an expert offer showing that the wells are actually within one mile downgradient of the site. This ruling is consistent with the Commissioner's December 22, 1994 decision in the Scott Paper/Finch Pruyn matter. In that hearing too, Farms First pointed to several wells within a mile radius of the proposed paper sludge landfill - - presumably the same ones referred to here - - to demonstrate that the Applicant had not adequately assessed downgradient wells. The Commissioner found that the application documents showed that these wells were not downgradient of the site and that there was "no substantial offer of proof to the contrary" (Scott Paper/Finch Pruyn, p. 7). Therefore, no issue was raised.
Primary and Principal Aquifers
Mr. White asserts that without a more thorough well survey, there is no way of knowing whether there is a principal or primary aquifer within one mile of the landfill site.
DEC does not prohibit landfills within one mile of an aquifer. Pursuant to 6 NYCRR 360-2.12(c)(1)(i), DEC prohibits the construction of a landfill over primary water supply aquifers [as defined at 6 NYCRR 360-1.2(b)(10)(i)], principal aquifers [as defined at 6 NYCRR 360-1.2(b)(10)(ii)], or within public water supply well head areas [as defined at 6 NYCRR 360-1.2(b)(114)]. No one - - not the County, DEC Staff, or the Town's hydrogeological expert, Dr. Zimmie - - is contending that the landfill would not comply with this siting restriction. Therefore, no supplementation of the water well survey is ordered.
Use of Paper Companies' Well Survey Data
Mr. White objects to the use of data from the Scott Paper/Finch Pruyn well survey as part of the County's well survey, and argues that these studies should be separate. Actually, the County would have been remiss not to include this data for wells that are within the required survey zone for the proposed County landfill. Therefore, no issue is raised.
HOWL asserts that the well survey is inadequate because the wells were not tested for existing contamination. Because this testing was not done, HOWL claims, residents will not be able to establish that any future contamination was caused by the landfill.
The requirement of a water well survey in Part 360 does not mandate that an applicant test offsite wells for water quality. In fact, it is sufficient to distribute surveys to neighboring landowners and to report the information they provide, as was done here. The regulation intends that "perceived" water quality be reported, not that contaminant tests be run and documented. Therefore, no further action is directed.
Other Required Permits
Farms First asserts that the County has not applied for all permits that are reported in the project's SEQRA findings statement as requiring DEC approval. (Farms First issue No. 1.) The findings statement mentions that in addition to a Part 360 permit, the County requires a Part 364 waste transporter permit, a DEC SPDES permit, and a DEC water quality certification.
Department regulation [6 NYCRR 621.3(a)(4), formerly 621.3(a)(3)] states that if a project requires more than one DEC permit, the Applicant must simultaneously submit all the necessary applications or demonstrate to the Department's satisfaction that there is "good cause" not to do so.
The County has good cause not to submit the other applications at this time.
- The Part 364 permit is required to haul leachate to a treatment facility. As part of the application, the County must designate the trucks it would use as well as the facilities where the leachate would be hauled. [6 NYCRR 364.3(a)(2).] Since these facilities have not yet been formally designated and the haul trucks have not yet been purchased, it would be impossible to complete the application at this time. Also, as noted above, the Commissioner in the Smithtown matter allowed that the designation of treatment facilities be deferred until operations are ready to begin. Presumably, this Part 364 application will be made at that time.
- A SPDES permit will be required only if the County intends to discharge pollutants to the waters of the state from any outlet or point source. [ECL 17-0803.] The County does not now anticipate needing a SPDES permit since its leachate will be hauled off-site for disposal, and since the pore pressure relief system is expected to discharge only uncontaminated groundwater. Special condition No. 9(a) of Staff's draft permit provides that the outfall of the pore pressure relief system will be treated by DEC as a conventional groundwater monitoring point, to be sampled and analyzed at the same frequency and for the same parameters as the monitoring wells. In the event that the groundwater is found to be contaminated, there is a contingency plan to pump it to a holding tank so it is not discharged to the surrounding environment.
- A water quality certification could be required only if federally regulated wetlands are located onsite. [See, In the Matter of the Application of Monroe County/Mill Seat Landfill, Interim Decision of the Commissioner, July 2, 1991, p.10.] No such wetlands have been identified to date by the Applicant or any other issues conference participant. Therefore, there is no issue regarding the need for an application.
Farms First objects that the permit application does not contain one vicinity plan or map including all the elements required in 6 NYCRR 360-2.4(b). (Farms First Issue No. 1.) Admittedly, there is no one plan or map with all of this information. However, the information is part of the permit application. Figure 2-2 (the site location map) shows the property boundaries of the landfill. Figure 2-4 shows existing zoning; Figure 2-5, existing land uses; Figure 2-6, surface waters; Figure 2-7, airports; Figure 2-8, transportation infrastructure, including roads and railroads; Figure 2-9, access roads; and Figure 7-8, aquifers. Figure 18 at page 86 of the draft EIS locates nearby historic sites which are described at page 2-11 of the application.
Including all this information on one plan or map would make the document hard to read, as the County has indicated. As the information required for the vicinity plan or map is scattered throughout the application, and absent a claim that information required to make a permitting decision is missing from the application as a whole, no issue is raised.
Farms First objects that the application does not have construction plans and specifications for a convenience facility that the notice of complete application indicates is part of the project. (Farms First issue No. 1.) This is alleged to be a violation of 6 NYCRR 360-2.4(c) and (d). Section 360-2.4(c) provides that site plans must show the location of onsite buildings and appurtenances. Building floor plans are required pursuant to 360-2.4(d).
According to the permit application, a convenience facility is designed for the "self-hauler" or residents who deliver waste for disposal themselves rather than contract with a private firm. Specific design options for the convenience facility are currently being evaluated by the County. However, the County expects the facility would be developed and operated in the same manner as the County's recycling centers, with roll-off containers available for both waste and recyclables. [See, application p.4-8, 220.127.116.11]
The outline of the convenience facility is drawn on the proposed site layout plan (which is sheet No. 5 of the application's engineering drawings) and on the conceptual development map (which is Figure No. 4 in the draft EIS).
At the issues conference the County said it had not yet been determined whether there will be a convenience facility, but added that even if there isn't one, there will be some procedure for residents to bring their waste to the site. This addresses the concern of Farms First that the site would be open only to private haulers.
While the convenience facility is part of the project description, such a facility is not required by Department regulation, according to Department Staff. Farms First made no offer to the contrary. Therefore, it is not necessary that the County produce facility floor plans for review at this time.
Safe Drinking Water
Farms First claims that the County has failed to indicate what it will use as a drinking supply at the landfill. (Farms First issue No. 1.) This is alleged to be a violation of 6 NYCRR 360-1.14(t), which states that a safe drinking water supply must be provided for operating personnel at the facility.
The County says drinking water will be provided either in bottles or by drilling a well upgradient of the site. The regulations do not require that the application spell out how drinking water will be provided. They only require that it be provided. Therefore, the absence of definite plans is not a flaw in the application.
Farms First claims that the County has failed to indicate how sanitary toilet facilities will be provided. According to 6 NYCRR 360-1.14(t), such facilities must be provided for operating personnel.
The County says an upgradient well would likely be dug to furnish toilet water. Otherwise, the county could install port-a-johns.
Again, the regulations require only that sanitary toilet facilities be provided, not that this be addressed in the application. Therefore, the application is not deficient.
Furan and Dioxin Testing
Farms First and HOWL object to the County's receipt of a waiver of the requirement to analyze groundwater samples for polychlorinated dibenzo-p-dioxins (dioxins) and polychlorinated dibenzofurans (furans). [360-2.11(d)(6); effective October 9, 1993.] (Farms First issue No. 4, HOWL issue No. 4.)
This waiver is granted in special condition No. 11 of Staff's draft permit. According to the permit condition, the waiver is conditioned upon the permittee's statement that paper sludge and other known sources of dioxins and furans will not be accepted at the landfill. The condition states that if the permittee elects to accept wastes of these types subsequent to permit issuance, a representative number of monitoring wells (as approved by the Department) must be sampled and analyzed for dioxins and furans prior to commencement of facility operation.
The permit application states that with the exception of paper sludge, solid wastes that are generated by commercial and industrial operations and are not hazardous will be accepted at the landfill. At the conference the Applicant agreed to an amendment of the permit requiring that the County provide a waste profile to the Department for any industrial sludge which would be landfilled (T: 1308). The permit must state that Department approval would be required for the dumping of industrial sludge, based on its review of the profile.
Farms First and HOWL object to granting the waiver because the request for it was not authorized by the Saratoga County Board of Supervisors or the County's solid waste committee. The County responds that the waiver would not involve a fiscal cost (unlike the waiver of the groundwater separation requirement, which required development of a pore pressure relief system). Therefore, the County argues, it was appropriate for the County's engineering consultants, Smith & Mahoney, to request the waiver without seeking the board's approval. [See request for waiver, appended to page 1-6 of the application.] This issue of authority is not a hearing concern since Smith & Mahoney, as the county's consultant, clearly has apparent authority to make the waiver request. Also, there is no indication that the waiver is not desired by the board of supervisors or the solid waste committee.
Farms First and HOWL also argue that DEC has no legal or policy authorization to waive the testing requirement. However, current 6 NYCRR 360-2.11(d)(6) allows the Department to adjust the water quality monitoring plan, and the Department has authority under 6 NYCRR 360-1.7(c) to grant variances from the solid waste management regulations if an adequate showing is made.
Farms First alleges that the site is already contaminated, based on a reported interview with its former owners, the Clausens, who said that run-off from a prior dump had flowed across their property, and that raw sewage from a neighbor's septic hauling business also had drained onto their land. However, DEC Staff said that 16 monitoring wells at the site had already been tested for dioxins and furans, with no evidence that either were present. This eliminates any concern that Farms First has, in the absence of conflicting data.
HOWL maintains that the application violates 6 NYCRR 360-2.17(p)(3), which states that "asbestos waste material may be placed into a predug trench in the existing refuse, provided that a five-feet groundwater separation at existing landfills, is adhered to." (HOWL issue No. 2.) The County intends to accept asbestos waste, but only in accordance with special handling and disposal procedures which are outlined at page 4-14 (18.104.22.168) of the application.
The County's procedures do not violate 360-2.17(p)(3). The five-feet groundwater separation applies only to existing landfills and not to new ones, since new landfills require liners. Beyond that, Staff contends that the pore pressure relief system would depress the groundwater table, maintaining the five-feet separation between groundwater and asbestos waste. For these reasons, no issue is raised.
Arthur White maintains the application is not complete since it fails to adequately address a new access road which would be used by both the County and the paper companies for their respective landfills.
This access road, connecting the landfills to Peters Road, was apparently realigned due to its proximity to wetlands and ponds. The newly-aligned road is being built by the paper companies using easements they have on the lands of neighboring property owners. The County's application does not contain a map of this new access road; however, the permit application (at page 2-6) states that the access road developed by the paper companies will also be used by the County. The access road is part of the paper companies' development plan and was considered in the recently concluded hearing that resulted in approval of their landfill application.
Because the access road is part of a proposal that has already been approved by the Department, and will be built by the paper companies and not by the County, it is untimely and inappropriate to address it in this proceeding. Therefore, no issue exists about the completeness of the County's application.
All other proposed issues not explicitly addressed by these rulings have been considered and found not to raise matters for adjudication or to require the provision of additional information at this time.
SUMMARY OF ISSUES RULINGS
The following issues are identified for adjudication:
- Whether the County can secure a variance from the requirement of 6 NYCRR 360-2.13(d) that a minimum separation of five feet be maintained between the base of the landfill's constructed liner system and the seasonal high groundwater table;
- Whether the Kobor Road landfill site meets the monitorability requirement of 6 NYCRR 360-2.12(c)(5);
- The extent to which noise outside the site boundaries would exceed the limits of 6 NYCRR 360-1.14(p), and what mechanisms exist to address this problem;
- Whether the Kobor Road site meets the regulatory requirement for separation from airports [6 NYCRR 360-2.12(c)(3)];
- Whether the Kobor Road site is critical habitat for the northern harrier, and whether construction of the landfill would cause or contribute to the taking of this threatened species [6 NYCRR 360-1.14(c)(3)]; and
- Whether the Kobor Road site is the most appropriate landfill location among the alternatives considered by the County [6 NYCRR 360-2.12(a)(1)].
RULINGS ON PARTY STATUS
Adjudication of the issues summarized above is necessary prior to a permit determination. Deputy Commissioner David Sterman has already confirmed that the first of these issues, pertaining to the groundwater separation variance, will require adjudication based on the Town's offer of proof. My ruling granting full party status to the Town was appealed unsuccessfully by the County and DEC Staff. Therefore, the Town's party status has already been secured, and no further ruling is necessary.
HOWL, the IDA and ARRA all seek full party status for the adjudication of issues they have proposed. The regulations [6 NYCRR 624.5(d)] state that the ALJ's ruling of entitlement to full party status will be based upon:
- A finding that the petitioner has filed an acceptable petition for party status pursuant to 6 NYCRR 624.5(b)(1) and (2);
- A finding that the petitioner has raised a substantive and significant issue or that the petitioner can make a meaningful contribution to the record regarding a substantive and significant issue raised by another party; and
- a demonstration of adequate environmental interest.
HOWL has demonstrated an adequate environmental interest, and has submitted an adequate petition, although it required some clarification at the conference. However, it did not raise an issue for adjudication. While one of its proposed issues (No. 3), concerning the siting study, was raised for adjudication by the Town and Farms First, HOWL did not demonstrate that it could make a unique contribution if granted full party status. HOWL's only proposed witness on any issue is Ms. Phillips, the newsletter's editor. While she echoed the claims of the Town and Farms First, it appeared that her efforts at a formal adjudication would be redundant of theirs. For this reason, HOWL is denied full party status.
The IDA and ARRA submitted adequate petitions. However, they have not demonstrated adequate environmental interests. Their mutual interest is the competition that might occur between this landfill and the Hudson Falls incinerator. As the Commissioner has noted, competitive injury is not sufficient, in and of itself, to confer standing in a DEC hearing. [In the Matter of the Hearing Request of Jack Gray Transport, Inc., Interim Decision of the Commissioner, November 20, 1985, p.1.] The concerns of IDA and ARRA fall outside the zones of interest protected by the ECL provisions they have cited in their filings. As noted above, the prohibition on unfair competition appears to protect scrap processors only.
Not only have the IDA and ARRA not met the interest test, their petitions also have not raised any substantive and significant issue. Furthermore, their petitions were submitted after the filing deadline in the notice of hearing. The Department's regulations allow for late filings, but a petition filed late must demonstrate the following in order to receive any consideration:
- that there is good cause for the late filing;
- that participation by the petitioner will not significantly delay the proceeding or unreasonably prejudice the other parties; and
- that participation will materially assist in the determination of issues raised in the proceeding. [6 NYCRR 624.5(c)(2).]
By filing late, the IDA and ARRA did not delay the proceeding because their proposed issues had not already been considered at the issues conference. Also, their late filing did not prejudice the other parties since the claims they made were virtually identical to some of the Town's proposed issues. Finally, the IDA and ARRA did demonstrate that their participation would materially assist in the adjudication of these issues, because the Town would otherwise be relying on them for its evidence. However, I find that the issues proposed by the IDA and ARRA do not warrant adjudication, as explained above in these rulings.
More important, the IDA and ARRA did not demonstrate any good cause for their late filings, which is necessary for such filings to be excused. They said their filing late was due to confusion about which of them - - the IDA or ARRA - - would represent the interests of the Hudson Falls incinerator. There was no indication they were not aware of the filing deadline, which was publicized well in advance of the hearing. Because there is no good cause for the late filings by the IDA and ARRA, these filings should not be considered, and if the Commissioner reverses my rulings and decides to entertain their issues, he should do so by having the Town proceed on them alone.
Farms First and Arthur White are seeking amicus status, which allows one to file a brief and, at the discretion of the ALJ, present oral argument on issues identified in the ALJ's ruling. To grant amicus status, the ALJ must make findings:
- that the petitioner has filed an acceptable petition pursuant to 6 NYCRR 624.5(b)(1) and (3);
- that the petitioner has identified a legal or policy issue which needs to be resolved by the hearing;
- that the petitioner has a sufficient interest in the resolution of such issue and through expertise, special knowledge or unique perspective may contribute materially to the record on such issue.[6 NYCRR 624.5(d)(2).]
Farms First is granted amicus status on the issue whether the Kobor Road site is the most appropriate landfill location among the alternatives considered by the County. This is not strictly a legal or policy issue, but does involve the application's compliance with a legal requirement for site selection. This issue also has a factual component (the extent to which the eight preliminary sites were visually inspected) about which Farms First has raised some question.
Farms First did file an acceptable petition on this issue and has demonstrated sufficient interest in the resolution of this issue to allow it amicus status. Farms First also has a unique perspective on the issue given its longstanding opposition to siting a landfill on farmland.
The Town, as a full party, will have the opportunity to develop an evidentiary record concerning Farms First's claim that the County's eight preliminary sites were not adequately inspected. With its amicus status, Farms First is authorized to make arguments and submit a closing statement based on the evidence that is presented.
Mr. White is denied amicus status since he has not identified a legal or policy issue which needs to be resolved, as noted above in these rulings.
In conclusion, the Town, having raised all the issues identified above, shall have full party status for the adjudication of each of them. Farms First shall have amicus status, limited to its own issue. HOWL, Mr. White, the IDA and ARRA are all denied party status.
A ruling of the ALJ to include or exclude any issue for adjudication, a ruling on the merits of any legal issue made as part of an issues ruling, or a ruling affecting party status may be appealed to the Commissioner on an expedited basis [6 NYCRR 624.8(d)(2)]. Ordinarily, expedited appeals must be filed to the commissioner in writing within five days of the disputed ruling [6 NYCRR 624.6(e)(1)]. The Commissioner has recused himself from decisions in this matter.
Allowing extra time due to the number and length of these rulings, any appeals must be sent to the attention of Deputy Commissioner David Sterman and received at the Office of the Commissioner (NYSDEC, 50 Wolf Road, Albany, New York, 12233-1010) before 2 p.m. on August 30, 1995. Any responses to any appeals must be received before 2 p.m. on September 15, 1995. The parties shall ensure that transmittal of all papers is made to the ALJ and all others on the service list at the same time and in the same manner as transmittal is made to the Commissioner. No submittals by telecopier will be allowed or accepted. Appeals should address the ALJ's rulings directly, rather than merely restate a party's contentions. To the extent practicable, appeals should also include citations to transcript pages and exhibit numbers.
CORRECTIONS TO TRANSCRIPT
Proposed corrections to the issues conference transcript were received from the County, the Town and DEC Staff. No objections to these corrections were made, and they are therefore adopted. I have hand-written the corrections in the originals of the transcripts, which are being maintained with my copies of the exhibits as part of the official conference record.
Administrative Law Judge
Albany, New York
Dated: August 1, 1995
TO: Attached Service List