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Saratoga County Landfill - Ruling 5, February 4, 1998

Ruling 5, February 4, 1998

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
-of-
the Application of SARATOGA COUNTY for permits to construct and operate a solid waste landfill in Northumberland, Saratoga County.

RULINGS OF THE ADMINISTRATIVE LAW JUDGE

(DEC Project No. 5-4146-00018/00002-1)

Background

Saratoga County ("the County") proposes to construct and operate a 23-acre, double-lined municipal solid waste landfill in the Town of Northumberland ("the Town"), Saratoga County. In May of 1995, during the issues conference on the permit application, I defined as an issue for adjudication whether the County should receive a variance from a construction requirement 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. The issue concerned whether granting the variance would have a significant adverse impact on the environment, since the Town alleged there was a considerable risk of groundwater contamination.

In identifying the issue for adjudication, I granted the Town intervenor status and authorized it to conduct pump tests and dig test pits on the landfill site according to a work plan the Town was to furnish to the County. However, the plan was never developed - - and the testing never took place - - because my ruling was reversed by Deputy Commissioner David Sterman in an interim decision dated July 14, 1995. Acting on an appeal by the County, which was joined by Department Staff, Commissioner Sterman denied the Town site access on the basis that its recommended testing was not necessary to the issue's adjudication.

On September 3, 1996, Commissioner Sterman granted the variance as part of a decision approving a permit for the landfill. The Town challenged the decision in court. On January 8, 1998, the Commissioner's determination was annulled by the Appellate Division of State Supreme Court (Third Judicial Department) and the matter remitted to the Department for readjudication of the issue of soil permeability and its impact on the County's ability to demonstrate entitlement to the variance.

The Court directed that readjudication occur after the Town is afforded a "reasonable opportunity" to conduct on-site testing. According to the Court's decision, "Inasmuch as there was every indication that the proposed testing would have produced relevant, probative evidence bearing on an adjudicable issue, and the Commissioner posited no reasonable basis for denying the Town the brief site access it sought for that purpose, his determination cannot be said to have a sound basis in reason (see, Matter of County of Monroe v. Kaladjian, 83 NY2d 185, 189). Accordingly, it must be annulled, along with the decision granting the groundwater separation variance (and the permit, which depended thereon), and the matter remitted for redetermination of the groundwater safety issue after the Town is afforded access to the site to perform testing."

On January 15, 1998, the County submitted a letter requesting that the Department's Office of Hearings and Mediation Services establish a schedule relating to additional consideration of the soil permeability issue. The following day, I was assigned to handle the remand proceedings. On January 21, 1998, I had a telephone conference call with counsel for the parties. The County and Department Staff confirmed that they would not appeal from the Appellate Division decision. I explained my intent to establish a schedule under which the testing would be performed and the hearing record re-opened to take additional evidence. I led a general discussion on hearing timetables and provided the parties an opportunity to discuss hearing-related issues among themselves.

The parties' attorneys conducted a call among themselves on January 26, after which the County and the Town offered conflicting scheduling proposals. I then had another call with the parties' counsel on January 28, 1998. These rulings resolve the parties' scheduling disputes and establish the framework under which the testing will occur and the hearing will resume.

Test Identification

During our January 28 call, counsel for the Town agreed to indicate in writing on February 2 the types of tests that its expert, Dr. Thomas Zimmie, wants the Town to perform at the landfill site, recognizing that for various reasons including cost, some of the testing may not be reflected in the work plan that is later approved by the Town Board. Identification of the range of tests proposed by the Town is important so the County and Department Staff can secure the availability of observers and possible witnesses who have a background in the testing proposed. On February 2, I received a FAX from Town Attorney Edward Lindner identifying the field and lab tests the Town has now proposed. (Mr. Lindner's letter is attached as Appendix "A" to these rulings.)

Work Plan

The Town's work plan shall be received by me and the other parties no later than April 1, 1998, the date proposed by the Town in its January 28 correspondence. This is a reasonable date accounting for Dr. Zimmie's limited availability over the next two months while still providing adequate time for the other parties to comment on the plan after its submission and for me to resolve any issues concerning its implementation. In addition to identifying the types of tests proposed, the plan shall explain how and in what general order the activities will be performed and how the other parties can verify test results [for example, by split sampling or other means in keeping with 6 NYCRR 624.7(c)(4)].

The testing protocol shall identify the equipment the Town intends to use on-site and how the Town will address the issues of equipment decontamination that have been raised by the County. The Town shall set a maximum number for each type of field test proposed, to ensure that the testing timeframe is reasonable. Sites for testing need not be precisely identified, allowing some flexibility based on the results of initial testing as performed on-site. However, the Town shall indicate to what extent the various tests will be on the landfill footprint, and for those tests to be performed off the footprint, the Town shall indicate in what general direction(s) from the footprint the Town will be concentrating its activities.

With regard to pump tests, the Town shall indicate the extent to which it will use the existing monitoring wells. The Town shall identify the lab(s) it will use for analysis of soil samples and confirm that the County and Department Staff will have access to the lab(s) to verify procedures, as was promised at the issues conference three years ago. The County wants assurances that on-site excavations will be undertaken in accordance with all OSHA and other applicable safety requirements, that any wells constructed by the Town will be abandoned in accordance with Part 360 requirements, and that the County will be held harmless for any damages or injury arising out of the Town's on-site testing. The Town shall address these issues with the County prior to submitting the plan, and the plan shall confirm all understandings that are reached.

The County and Department Staff shall raise any questions or concerns they have about the work plan to counsel for the Town, and to the extent they are not answered or resolved, they shall be brought to my attention in writing no later than April 8, 1998. If necessary, I will then make directives to ensure the plan is adequate prior to the commencement of on-site activities. The Town's plan is not subject to the other parties' approval, and by not commenting on it, the County and Department Staff would not be conceding that any testing proposed is relevant or necessary.

Testing Dates

Weather permitting and consistent with the general agreement of the parties, on-site testing shall commence on April 27, 1998, with the expectation that it will be completed by May 15, 1998. Dr. Zimmie is apparently concerned that testing occur when the water table is high, the frost has left the ground, and the ground is firm enough to support the heavy equipment he would be using. The selected dates should generally meet these requirements, and the parties have indicated that the people they would want to have on-site are available during this timeframe. To the extent the Town wants to install or develop its own on-site wells for pump testing, excavation for that purpose shall occur prior to April 27 to avoid unnecessary testing delays, subject to any arrangements the parties can make.

Lab Testing

Any lab tests shall be done promptly after samples are gathered and lab reports shall be disclosed upon receipt to other parties' counsel by overnight mail unless the parties agree to some other arrangement. The Town indicated that some lab results could take as long as 10 days to retrieve, although when it requested site access three years ago, the Town indicated a faster turnaround could be expected. At any rate, in selecting its testing lab(s), the Town shall ensure that lab analysis can be expedited and that results will not be unduly delayed by the press of other work. The County and Department Staff have indicated they are not interested in conducting field testing themselves; however, they may want to take and test split samples. In that event, they also shall ensure that their lab results are produced for the other parties when received.

Pre-Filed Testimony

The Town shall pre-file testimony of any witnesses it intends to present by June 17, 1998. The County and Department Staff think that pre-filed testimony is not necessary, since testing data and calculations can be circulated in pre-hearing discovery and because descriptions of the testing conducted and the conclusions reached by the Town can be presented in direct testimony. However, I think that pre-filed testimony will better focus the cross-examination and limit the number of hearing days that will be needed. Pre-filed testimony will only be required of the Town's witnesses, however. The Town's proposal that the County and Department Staff submit pre-filed testimony - - on the same date that the Town submits its own - - is unreasonable since it is possible, based on the Town's presentation, that the County and Department Staff may not call witnesses. Also, to the extent that the County or Department Staff present testimony, it would likely be only rebuttal in nature, since neither party is doing field work. These parties' direct testimony can be presented live at the hearing; to the extent it is necessary, the hearing can be recessed to allow the Town an opportunity to consult with its experts prior to cross-examination.

Hearing Dates

The hearing shall reconvene on June 22, 1998, and continue through July 2 as necessary. The County's proposal that we use the first two weeks in June would not allow adequate time for the Town to review test results, compare them to others already in the record, and assemble its case. On the other hand, I see no need to defer the hearing to the last two weeks of July, as is proposed by the Town. With the provision of pre-filed testimony from the Town's witnesses and the limited purpose for which the record is being re-opened, I do not foresee the need to schedule other hearing dates at this time. The hearing shall be at the Northumberland Town Hall; the Town shall notify the County promptly if the facility will not be available on any of the selected dates, in which case the County will propose another location. Before any witness is cross-examined, there will be an opportunity for a technical conference if requested by the cross-examining party. Counsel for the parties shall ensure that all witnesses are present with all relevant documentation, field notes, and calculations they performed to substantiate conclusions in their testimony.

As I indicated during our conference calls, the new evidence presented at the reconvened hearing could lead me to either affirm or reverse my prior recommendation that the variance from the groundwater separation requirement should be granted, or could lead me to conclude that even more information is reasonably necessary to make a determination on the variance, with the burden on the County to provide that information [see, ECL Section 70-0117.2 and 6 NYCRR 621.15(b)]. The parties should prepare their cases accordingly, also recognizing the standard against which variance applications are reviewed [6 NYCRR 360-1.7(c)(2)(iii)].

_____________/s/_____________
Edward Buhrmaster
Administrative Law Judge
Albany, New York

Dated: February 4, 1998

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