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Saratoga County Landfill - Decision, September 3, 1996

Decision, September 3, 1996

Decision of the Deputy Commissioner

The attached Hearing Report by Administrative Law Judge ("ALJ") Edward I. Buhrmaster in the Matter of the Application of Saratoga County for a permit to construct and operate a municipal solid waste landfill in the Town of Northumberland, Saratoga County, is hereby adopted as my Decision in this matter, subject to my findings and comments below. Responsibility for making this decision was delegated to me by the Commissioner because the Commissioner recused himself in this matter on June 22, 1995.

Summary

But for the airport separation matter, the ALJ finds the County's proposed landfill project to be permittable under our Part 360 regulations and to be susceptible to SEQRA findings being made by our Department as an involved agency. Because I conclude, as explained below, that the airport separation variance can be issued and because I concur with the ALJ's Report in other respects as discussed below, I am directing that a permit be issued for the landfill facility.

Background

Saratoga County ("County" or "Applicant") seeks a Part 360 permit to construct and operate a landfill to receive municipal solid waste. The proposed facility would be located at the eastern end of Kobor Road in the Town of Northumberland ("Town"). The County is the lead agency under the State Environmental Quality Review Act ("SEQRA"), and has issued a final environmental impact statement ("FEIS") with a findings statement. A complete application to DEC for a Part 360 permit having been received, DEC held public legislative hearings and an issues conference in May and June 1995. A draft permit prepared by Staff was acceptable to the County. However, objections were raised by the Town, Farms First, Howl of the Grey Wolf, and Mr. Arthur White. The ALJ concluded that there were six issues for adjudication and granted party status to the Town and to Farms First. Upon appeal to the Commissioner, Farms First's issue was eliminated. Five issues, raised by the Town, remained for adjudication. The Town was granted party status and participated at the hearing. The attached ALJ's Report presents his findings, conclusions and recommendations on those five issues.

Adjudicated Issues

The adjudicated issues were:

ALJ's Recommendations

The ALJ recommends issuance of the requested variances relating to noise and groundwater separation, and he finds that appropriate groundwater monitoring can be done. He recommends certain modifications to the proposed draft permit conditions concerning the noise variance and concerning groundwater monitorability. As to the northern harrier, he recommends imposition of permit conditions prohibiting active harassment measures (i.e., use of loud noises) at the active landfill face in order to deter flocking of seagulls. He concludes that use of such measures would cause or contribute to a taking of the northern harrier, and to the adverse modification of its critical habitat. He supports the County's proposed plan to mitigate for the loss of harrier habitat resulting from the landfill's construction, and recommends additions to the permit of a monitoring and reporting provision relating to the harrier mitigation plan. I concur with these recommendations, as discussed further below.

As to the airport separation variance, the ALJ recommends that I remand the proceedings to allow the County to explore options which might either allow a variance to be granted or eliminate the need for a variance. I conclude, however, that the airport separation variance can and should be granted, based on the factual findings of the ALJ's Report and based on the record of the hearing.

Airport Separation Variance

The Department's landfill siting regulations at 6 NYCRR .360-2.12(c)(3) provide that a landfill into which putrescible waste is to be disposed must be located at least 5,000 feet away from any airport runway used by piston-powered aircraft, and at least 10,000 feet away from any airport runway "used by turbojet aircraft." The rationale for this requirement is that putrescible wastes can attract birds, especially seagulls, which can pose a safety hazard to aircraft. The landfill siting restriction comes into play here because the County's proposed landfill footprint is located 8,750 feet from the runway of the Heber Airpark on Brownville Road in the Town of Northumberland. Heber is a small, rural, privately-owned airport, where eight single engine piston-powered, fixed wing aircraft are based. It is unmanned, meaning that aircraft fly in and out without the assistance of airpark personnel. It was classified as "public use" in 1991, meaning that landing privileges cannot be refused to any aircraft. The ALJ has found that the landfill site lies directly beneath the approach take-off pattern to the Heber Airpark's runway, as represented by a straight extension of the runway's center line. Therefore, the facts as found are that the Heber Airpark's runway is 1,250 feet nearer to the landfill than the 10,000 foot limit allowed by the siting regulations for turbojet aircraft. The landfill site satisfies the separation criteria for piston-powered aircraft, however.

In my Second Interim Decision of October 3, 1995, I concluded that the Applicant should apply for a variance from our airport separation rule. This was because the Heber Airpark, while not suitable for use by fixed wing turbojet aircraft, is used for landing and takeoff by New York Army National Guard turbine-powered helicopters based at Albany County Airport. I stated that this matter should be examined in a manner which deals squarely with aircraft safety. That was done at the hearing in the context of the variance request filed by the Applicant. My disagreement with the ALJ's Report relates to his evaluation of the significance of the potential safety risk, which I find is negligible under the facts as found.

The ALJ's report notes that to be entitled to a variance, the County needs to show both that the proposed activity will have no significant adverse impact on public safety and that compliance with the airport separation rule would impose an unreasonable economic burden. (See 6 NYCRR .360-1.7(c)). The ALJ concluded, based on the evidence at the hearing, that "the siting of the proposed landfill would have a significant adverse impact on public safety" (Report at p. 50). However, he further concluded that "bird strikes are rare, [and] that they result in, at most, only minor helicopter damage, and are unlikely to cause serious human injury or death. On the other hand, the evidence also suggests that opening a landfill so near the airpark would create a significant risk of collisions, given the large number of gulls that would be attracted." (Report at p. 57). Thus, the ALJ concluded that the County did not meet its burden of showing that granting the variance would have no significant adverse impact on public safety. However, he did find that relocating the proposed landfill site farther away from the runway would involve substantial economic costs.

The ALJ suggests that in order to satisfy the airport separation rule, the County has other options available. These include securing the Army National Guard's agreement not to use the Heber Airpark, or the County acquiring the Airpark, either by purchase or by eminent domain. He recommends that I hold the variance request in abeyance pending possible supplementation of the record, and that I remand the airport separation variance matter so that the County can explore options which will either allow a variance to be granted, or dispense with the need for a variance. If the matter is not remanded, he recommends that I deny the airport separation variance request.

In my judgment, the ALJ's ultimate conclusion that there would be a "significant adverse impact on public safety" is not supported by the facts as found in his Report. As I see it, the requested siting variance can be granted, because siting the landfill 8,750 feet away from the Heber Airpark poses an inconsequential public safety risk. My conclusion is based on the following:

Heber is a small, lightly-used rural airport, at which only eight single-engine piston-powered fixed wing airplanes are based. The siting criteria for piston-powered aircraft of 5,000 feet of separation is satisfied. The Federal Aviation Administration ("FAA") stated that Heber is not suited for turbine-powered fixed wing aircraft (Report at p. 52). The only question is whether New York Army National Guard turbine-powered helicopters that drop in some ten times per month on training exercises would be likely to collide with seagulls anticipated to flock at the landfill face after landfill operations commence, and therefore create a "significant adverse risk to public safety," including both the safety of the public at large and the safety of the crews of the helicopters. The ALJ finds that the seagulls impose a "significant risk of collisions." However, he also finds that bird strikes are rare, and are likely to cause only minor damage, and not serious personal injury. Not considered adequately by the ALJ, and what I find to be compelling, is the infrequent use of Heber by turbine-powered helicopters, coupled with the unlikely probability of collisions and serious damage. While the ALJ concludes that large numbers of gulls would be attracted, creating a "significant risk" that the helicopters and birds could collide, the area is rural, and there is no evidence to suggest that the general public would be put at significant risk. Moreover, I conclude that the record shows that the risk to the crew members of the helicopters appears to be both small, in fact negligible, and avoidable. The only use is by the New York Army National Guard some ten times per month. While the Report states that the Guard's use might increase to as much as 50 times per week, much of such presumed increased use would apparently be at night, when bird collision risk is minimal. The Guard's helicopters are not based at Heber.

The ALJ states that his recommendation is based on the testimony of Dr. Leminos, because he was the best qualified to testify on helicopter design and operation. Dr. Leminos testified that helicopters are vulnerable to bird strikes (Report p. 51 and p. 54). However, even accepting his opinion on that point, it is only tangentially relevant to the question at hand, which is the significance of the added risk posed by the proximity of Heber to the proposed landfill site.

When asked on direct examination for his opinion as to the safety hazard posed by siting of the Saratoga County Landfill within 9,000 feet of Heber Airpark, Dr. Leminos responded only in generalities. He said, in essence, that the risk of helicopter operation in areas of dense bird populations was greater than the risk to fixed-wing aircraft. Therefore he concluded that "landfills should not be located closer than 10,000 feet from any airport used by turbine-powered helicopters." Dr. Leminos merely reiterated the general 10,000 foot separation rule recommended by the FAA and adopted by DEC in its regulations. He did not address the specific question here: Whether, given the National Guard's rate of use of Heber as a point for turbine-powered helicopter landings and takeoffs during exercises would pose a significant public safety risk after landfill operations begin.

This is not to discredit the gist of Dr. Leminos' opinion that helicopters are vulnerable to bird strikes, and more so than fixed-wing aircraft. On the other hand, accepting that vulnerability, the likelihood of serious accidents and consequences thereof arising out of the National Guard's historic rate of use of Heber by siting the landfill 8,750 feet away seems to me to be remote. The ALJ's report gives virtually no weight to the testimony of witness Merritt, a biologist with considerable experience in evaluating bird strike hazards to aircraft, including lengthy service in the United States Air Force during which he specialized in bird strike hazard studies. Mr. Merritt opined that the proximity of Heber to the landfill site did not pose a meaningful risk. Dr. Leminos has little or no background in such evaluations. Mr. Merritt further testified that the 10,000-foot limit should not even apply to helicopters, a position apparently also taken by the FAA.

My evaluation that the risk posed by granting a variance from the airport separation rule in this case is remote is consistent with the FAA's correspondence in evidence concerning flight safety in relation to the proposed landfill site. The FAA's January 26, 1996 letter finds the landfill's separation from Heber to be compatible with its safety requirements, which include the FAA's conclusion that the 10,000-foot limit should not be applied to helicopters in any event.

Indeed, it appears that the FAA, Mr. Merritt, and the County prefer to take the position that the 10,000-foot rule should not be applied to helicopters. Thus they would site the landfill but not address the airport separation rule. However, it seems clear to me that the 10,000-foot limit does apply under our Part 360 rules, because the helicopters are a subset of turbine-powered aircraft. We cannot simply ignore our rule. The issue before DEC under its regulations therefore should be whether issuance of a variance is appropriate. Weighing the relative incremental risks under the facts as found, I believe we are fully justified in issuing a variance from the rule in this case.

Overall, I find that the aircraft safety risk is well within acceptable bounds, and that issuance of the siting variance is warranted by the record in this case, and by the ALJ's factual findings, as opposed to his interpretation of those findings. I further find that adherence to the airport separation requirement would pose an unreasonable economic burden on the County.

Finally, in the event that the National Guard (which failed to appear at the hearings even though it was aware of them) or others find that a significant bird hazard risk should develop, steps can be taken to avoid it. For example, the Guard can stop using Heber altogether. It could use a different approach pattern, or use Heber only at night when birds are not flying in the airspace. Other measures are also available.

I have considered the options recommended by the ALJ as to acquisition of Heber by the County. Those options remain available to the County, regardless of this decision. However, in light of my above determination to issue the variance, I will not remand the matter as recommended by the ALJ.

Noise Variance

The ALJ's report recommends granting the County's requested variance from 6 NYCRR .360-1.14(p). That regulation limits sound levels at the property line of lands zoned or otherwise authorized for residential purposes to 57 dBA during the day and 47 dBA at night. The lands in the vicinity of the proposed site are agricultural, but single family residences are permitted and in fact two residences exist in the area, but at distances of approximately 2,400 and 2,900 feet from the proposed site. (Another closer mobile home was purchased by the County.) So long as new residences are not built on the undeveloped lands nearer the site, it appears that noise from operation of the landfill would not impose a significant noise problem to residences in the general vicinity of the landfill.

However, there is the potential for new residences to be constructed. To account for this potentiality, the ALJ proposes that the variance include a condition which would require the County to mitigate noise impacts so that sound levels are maintained at or below the limit specified in .360-1.14(p) at any newly built residence and any associated area of frequent activity. In other words, the variance should state clearly that adherence to the regulatory sound level recommendations at actual residences, including new residences, will remain the County's obligation. The variance is not intended to burden the owner of the adjacent properties by authorizing excess sound levels at residences which are existing or which may subsequently be constructed. Of course this does not preclude the County, now or in the future, from acquiring appropriate noise easements, or the lands themselves as a means of satisfying the regulations and permit conditions. I concur with the ALJ's recommendation in this regard.

I also concur in the ALJ's recommendation that the noise variance include a condition that would limit traffic on the access road to ten trucks in any one hour period. I further concur in the ALJ's recommendation that the County be required to test actual noise levels north and west of the site during peak hours after operations commence. Based on the results of such testing, the County may be required by the Department to undertake corrective measures as may be indicated. On the other hand, based on such tests, the County may petition the Department for any appropriate relief from the ten trucks per hour condition as may be indicated.

Northern Harrier

As to the impact of the project on the northern harrier, a threatened bird species, I adopt the ALJ's recommendations that the permit be conditioned to prohibit the use of active harassment measures, such as the firing of pyrotechnic shells and the playing of bird distress calls. Such measures, if adopted, would also harass the northern harrier. I also adopt the recommendation that the permit condition identified as Exhibit No. 1-A be modified to impose monitoring and reporting requirements comparable to those of the harrier management plan for the Washington County solid waste management facility.

I accept these recommendations because the mitigation plan can be readily implemented, is consistent with mitigation requirements adopted at comparable projects in the area, and promotes conservation of a threatened bird species. However, I am not adopting the discussion in the ALJ's Report on how the term "critical habitat" should be addressed, or defined (See Report p. 71). While I agree that the area in the site vicinity is "habitat," and mitigation for the sake of harrier conservation is appropriate in this case, I do not believe that it is necessary or appropriate on this record to establish precedent or policy on how "critical habitat" should be addressed or defined in future cases. I prefer that such matters be reviewed on a case-by-case basis.

Groundwater Separation Variance

The variance from the groundwater separation requirement as proposed in Special Condition 16 of the Draft Permit should be granted as provided in the ALJ's Report. .Monitorability

I concur with the ALJ that the facility as proposed is monitorable, and that the County's proposal complies with 6 NYCRR .360-2.12(c)(5). I further accept the ALJ's Recommendation that Staff's proposed draft permit condition set forth in Exhibit 1(c) be supplemented, to clarify that Staff, upon review of a waste profile analysis of industrial sludges for disposal in the landfill, may disallow disposal of any industrial sludge which would compromise the County's ability to distinguish between the leachate from the County's landfill as compared to that from the adjacent landfill used to receive paper mill sludges.

SEQRA Findings and Conclusion

The ALJ's Report, taken in conjunction with the entire hearing record and the Final Environmental Impact Statement (FEIS), prepared by the County as lead agency, affords an adequate basis for my finding that the requirements of SEQRA contained in Environmental Conservation Law (ECL") Section 8-0109 and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 617 have been met and that pursuant to ECL Section 8-0109(8) and 6 NYCRR Section 617.9(c), consistent with social, economic and other essential considerations, including reasonable alternatives, the Applicant will minimize or avoid to the maximum extent practicable any significant adverse environmental impacts.

The Department Staff is directed to issue the permit to construct and operate the proposed solid waste management facility with the conditions contained in the draft permit with modifications as discussed above. The date of November 30, 1996 in Special Condition 3 of the draft permit should be revised as appropriate.

Dated: September , 1996

PROCEEDINGS

Background and Brief Project Description

Saratoga County ("the County" or "the Applicant") proposes to construct and operate a 23-acre, double-lined municipal solid waste landfill on part 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 and buffer areas, the proposed project would encompass about 130 acres when fully developed.

To move ahead with this project, the County requests a permit to construct and operate a solid waste management facility. A permit application has been made to the Department of Environmental Conservation ("the Department" or "DEC") and has been reviewed pursuant to Title 7 of Article 27 of the Environmental Conservation Law ("ECL") and Part 360 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR Part 360").

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, which was conducted pursuant to 6 NYCRR 624.4(a). There were 56 speakers, almost all of them opposed to the project. Many of the speakers were residents of Northumberland, where the landfill would be sited, or members of Farms First, a local citizens group that later appeared formally at an issues conference conducted pursuant to 6 NYCRR 624.4(b).

According to County officials, the landfill would provide County residents a reliable means of solid waste disposal at tipping fees controlled by their elected representatives. The County maintains that the disposal capacity afforded by the landfill is required to meet the County's long-term needs, and to prevent its being "held hostage" to out-of-county disposal facilities. However, the most common sentiment expressed at the legislative hearing was that Saratoga County does not need its own landfill because existing arrangements (under which waste is hauled out of the county) are satisfactory.

While the question of need was prominent at the legislative hearing, it was not raised directly at the issues conference, presumably because there is no statute or regulation that identifies need as a permitting criterion. As noted in my issues ruling, the decision whether County residents need a disposal facility of their own or whether existing arrangements are satisfactory properly belongs to County residents through their elected officials. The only questions before DEC concern whether the landfill as proposed meets the permitting requirements of Part 360 and, to the extent it does not, whether variances requested by the County should be granted.

Issues Conference

An issues conference was held on May 17, 18, 25, and 26, and June 1 and 2, 1995, at the Northumberland Town Hall. The conference was held 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.

Prior to the conference DEC Staff prepared and released for public review a draft permit with various conditions for the landfill's construction and operation. That permit has since been revised by directives of the ALJ and the Commissioner, and by other changes proposed by DEC Staff and accepted by the County.

A copy of the most recent draft permit is attached to this report as Appendix "A". It was marked as Exhibit 1 during the adjudicatory hearing, and includes three attachments (Exhibits 1-A, 1-B and 1-C), which represent various conditions proposed by DEC Staff and accepted by the County.

Prior to the issues conference, DEC Staff determined that the landfill would not have any significant adverse environmental impacts and would adequately comply with applicable laws and regulations. DEC Staff was prepared to issue its permit and the County had no objections to its terms. Therefore, as between the County and DEC Staff, there were no proposed issues for adjudication.

The proceedings at the issues conference are detailed in my rulings on party status and issues, dated August 1, 1995. As explained further in those rulings, I identified six issues for adjudication. Also, among the prospective intervenors, I granted party status to the Town of Northumberland and Farms First.

Deputy Commissioner's Interim Decisions

DEC Commissioner Michael Zagata recused himself from decision-making in this matter and delegated that power to Deputy Commissioner David Sterman. Deputy Commissioner Sterman issued two interim decisions, the first dated July 14, 1995, and the second dated October 3, 1995.

The first interim decision addressed appeals from rulings I made at the issues conference. Basically, the Deputy Commissioner affirmed my ruling that the hearing consider whether the County could secure a groundwater separation variance. However, he said it was not necessary to adjudicate all components of that issue, and that adjudication should focus instead on the soil permeability measurements of the County. The Deputy Commissioner also ruled that site access by the Town was not necessary, thereby reversing part of my rulings, which had authorized such access so the Town could dig test pits and conduct pump tests. I had authorized access pursuant to 6 NYCRR 624.7(c)(4), which provides that, with the permission of the ALJ, a party may access real property in the custody or control of another to conduct drilling or other sampling or testing.

Deputy Commissioner Sterman's second interim decision addressed appeals from the remainder of my rulings, as issued on August 1, 1995. That decision eliminated one of the six issues I had identified: whether the Kobor Road site is the most appropriate landfill location among the alternatives considered by the County. Because this was the only issue Farms First had raised, the Commissioner revoked the group's party status, leaving the Town as the only intervenor.

The second interim decision also eliminated part of the issue I had certified with regard to the groundwater separation variance. To secure a variance from a Part 360 requirement, an applicant must show that compliance with the requirement would tend to impose an unreasonable economic, technological or safety burden on the person or the public. I had ruled that the County's claim of unreasonable economic burden, as stated in its variance application, required adjudication. However, Deputy Commissioner Sterman said he was not persuaded that the issue was either substantive or significant, or that the Town had carried its burden of persuasion at the issues conference.

Issues for Adjudication

With the issuance of the second interim decision, five issues remained for adjudication:

The Adjudicatory Hearing

The adjudicatory hearing in this matter was held at the Northumberland Town Hall in Gansevoort, New York. Pursuant to a schedule negotiated and agreed to by the parties, the hearing began on January 30, 1996, and continued on January 31, February 1, 2, 13, 14, 15, 16, 21, 23, 27, and 28, March 5, 6, 7, 8, 12, 13, 14, 26, 27, and 28, April 2, 3, 18, 25, and 30, and May 2, 1996. With representatives of the parties, I visited the proposed landfill site as well as several nearby properties on April 12, 1996.

The permit applicant, Saratoga County ("the County") was represented at the adjudicatory hearing by Louis A. Alexander, Esq., and Kevin M. Bernstein, Esq., both of Bond, Schoeneck and King, LLP, in Albany.

DEC Staff was represented by Steven L. Brewer, Esq., of DEC's Region 5 office in Ray Brook, New York.

The Town of Northumberland ("the Town") was represented by Laura Zeisel, Esq., of New Paltz, special environmental counsel, and Edward Lindner, Esq., of Saratoga Springs, Town attorney.

The hearing was held using prefiled testimony for each party's direct case. Each witness for whom prefiled testimony was received into the record appeared at the hearing for cross-examination, as is provided for in 6 NYCRR 624.7(e).

Hearing dates were reserved by issue, and two hydrogeological issues (those bearing on site monitorability, and whether the applicant should receive the groundwater separation variance) were merged for the purpose of case presentation to accommodate witnesses who offered testimony on both.

The following witnesses testified on the noise control issue:

The following witnesses testified on the airport separation issue:

The following witnesses testified on the northern harrier issue:

The following witnesses testified on the hydrogeological issues:

Pursuant to a schedule negotiated and agreed to by the parties, corrections to the hearing transcripts were proposed by each party. No objections were made; therefore, the corrections were adopted. Corrections are noted in pen in the original of each day's transcript.

Also pursuant to the parties' stipulation, closing briefs were received on June 12, 1996, and reply briefs were received on July 3, 1996. By a memorandum of July 8, 1996, I notified the parties that as of July 3, 1996, the hearing record had officially closed.

SUMMARY POSITIONS OF THE PARTIES

Position of the County and DEC Staff

The County has met its burden of proof that the proposed landfill will comply with Part 360 requirements, and that to the extent it does not, the requested variances should be granted. Staff's draft permit should be issued as written.

Position of the Town

The Department must deny the County's permit application, as well as the three requested variances. In lieu of denying the groundwater separation variance, DEC should require the County to perform additional permeability testing.

ISSUE NO. 1 NOISE VARIANCE

Should the County receive a variance from the Part 360 operational requirement for noise control?

VARIANCE REQUIREMENTS

"Every application for a variance must 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; and demonstrate that the proposed activity will have no significant adverse impact on the public health, safety, or welfare, the environment or natural resources and will be consistent with the provisions of the ECL and the performance expected from application of this Part." [6 NYCRR 360-1.7(c)(2)(ii),(iii)]

Position of the County and Department Staff

The County should receive a variance from the requirement that operational noise be controlled to prevent sound levels beyond the property line in excess of 57 decibels. While operational noise would exceed 57 decibels along the north and west property lines, it would not have a significant adverse impact on the environment when measured at the nearest residence. The installation of noise barriers to comply with the noise requirement would impose an unreasonable economic burden.

Position of the Town

The County should not receive a variance from the operational requirement for noise control. Noise levels associated with the landfill would have a significant adverse environmental impact, considering three factors:

The County has not demonstrated that installing noise barriers would impose an unreasonable economic burden. Barriers made of mechanically stabilized earth could be constructed for much less money than the wooden barriers described by the County in its variance application, and would be as effective in mitigating noise impacts.

FINDINGS OF FACT

Site Location

Sound Measurement

Existing Noise Levels

Residences Nearest to Landfill Site

Nearby Farming Activities

Roberts' Residence

Anticipated Landfill Operations

Noise Attenuation Rates

Noise Barriers

Other Means of Noise Attenuation

DISCUSSION

DEC's Part 360 regulations require that noise levels at a landfill be controlled to prevent sound beyond the property line at locations zoned or otherwise authorized for residential purposes from exceeding certain "Leq" energy equivalent ambient sound levels. For communities with a rural character, the limit is 57 dBA between the hours of 7 a.m. and 10 p.m., and 47 dBA between 10 p.m. and 7 a.m. [6 NYCRR 360-1.14(p)]

In this case, the 57 dBA limit applies since the area surrounding the landfill site, while zoned for agriculture, is authorized for residential purposes, including single-family homes as of right. Also, landfill operations would be limited to the period between 7 a.m. to 6 p.m.; therefore, the 47 dBA limit is not applicable. Finally, background residual sound in the landfill vicinity does not exceed 57 dBA (as demonstrated by the County's draft EIS) and therefore no higher limit should apply pursuant to Section 360-1.14(p)(1).

Background

In my rulings issued August 1, 1995, I noted that the County's own analysis acknowledged that noise levels would exceed 57 dBA, at least along the north property line, which is only 100 feet from the edge of the landfill footprint. I therefore concluded there were issues concerning the extent of the exceedence and what mechanisms existed to address the problem. I said adjudication of these issues would have to address how noise would be generated at the site, whether there would be cumulative impacts from the trucks and landfill equipment operating together, and what sound decay rate would be appropriate, the 7.5 dBA per doubling of distance proposed by the County or the 6 dBA per doubling of distance proposed by the Town.

On September 5, 1995, after my rulings were issued, the County applied for a variance from the Part 360 noise requirement. In his interim decision of October 3, 1995, Deputy Commissioner Sterman basically remanded the application for hearing, finding that further inquiry was needed, that the issue of sound decay rate had to be addressed, and that the potential existed for noise control conditions in any permit that would be granted.

The County initially acknowledged that landfill noise would exceed the Part 360 limit, but only at the north property boundary, where the landfill borders on the Wells property. At the issues conference, the Town projected noise exceedences not only along the north property boundary, but also along the east and west boundaries. (The property to the south of the proposed County landfill is permitted for development as a separate landfill by the paper companies, and therefore is not noise-sensitive.)

Along the west property line, where the landfill meets the Baker property, the Town said the noise violations would be exacerbated by truck traffic along the landfill access road, which would be between the landfill footprint and the property line. Along the east property line, where the landfill meets the properties of Vera Wells and Joseph Killian, the Town said the noise violation would be exacerbated by construction of a screening berm to minimize visual impacts.

In his interim decision, Deputy Commissioner Sterman read Section 360-1.14(p)(1) as applying to operational noise only and not to construction noise. That decision focused the hearing's attention on noise impacts at properties north and west of the landfill site.

Positions of the Parties

Summarizing the parties' positions, the County and DEC Staff argue that a variance should be granted, while the Town argues that it should be denied.

Both the County and the Town presented testimony from noise experts with engineering backgrounds. The County's expert, Christopher Menge, and the Town's expert, Vincent D'Aprile, differed on issues of sound decay rate and reasonable values for truck and bulldozer noise. More generally, the County and the Town differed on the number of trucks that could be expected during the peak hour, 1-2 p.m., of the busiest landfill day, Monday.

The County also presented John Beaudoin, one of its consulting engineers, to explain why its estimate of 10 trucks during this peak hour is reasonable and conservative.

Finally, the Town presented three additional witnesses: Thomas Zimmie, one of its consulting engineers; Barbara Jean Roberts, who owns property near the site; and Clinton A. Barber, a local farmer.

Dr. Zimmie challenged Mr. Menge on the issue of costs for noise walls at the site property. Ms. Roberts testified about her family's use of and plans for their residential property. Mr. Barber testified about farming practices in the vicinity of the landfill site.

The testimony of Ms. Roberts and Mr. Barber was not substantially rebutted and basically has been adopted in full in my findings of fact.

Evaluation of Noise Impact

To secure a variance, the County has the burden of demonstrating that the landfill-generated noise would have no significant adverse impact on the environment [6 NYCRR 360-1.7(c)(2)(iii)]. The parties disagree about where and how adverse impacts should be measured, and when the hearing began, even about the appropriate Leq sound level to apply.

Part 360 establishes noise limits in terms of what it calls "Leq energy equivalent ambient sound levels." Leq is defined at Section 360-1.14(p)(1) as "the equivalent steady-state sound level which contains the same acoustic energy as the time varying sound level during a one-hour period exceeded no more than 10 percent of the time" (Emphasis added). As explained by Vincent D'Aprile, the Town's noise expert, the "time varying sound level" is the aggregate or total energy of all the sounds that occur within that one-hour period, and an "equivalent steady state sound" is one that is continuous at a constant level.

It is significant that the Department's regulation requires consideration of a one-hour Leq and not the average workday (or 10-hour) Leq considered in the noise analysis appended to the County's variance application. The use of a workday Leq tends to underestimate noise impact since it averages in the quieter hours with the noisier hours, whereas the one-hour Leq focuses attention on the noise generated during the loudest hour of the day, which is a more useful and realistic measure of actual impact.

Noise at the landfill would fluctuate according to the number of trucks at the site at any particular time, which in turn would affect the rate of use of the bulldozer and compactor. The County's noise expert, Christopher Menge, said that his firm's use of a workday Leq was appropriate since it has been used by federal agencies to measure community noise impacts of construction projects. However, DEC's Part 360 makes no reference to a workday (or 10-hour) Leq, while explicitly defining Leq in terms of a one-hour period. As a consequence, the County's determinations of workday Leq, as referenced in its pre-filed testimony, should be disregarded in considering the significance of noise impacts.

County's Initial Noise Analyses

At the hearing the County's noise expert, Mr. Menge, offered various analyses using a one-hour Leq for the loudest hour, 1 to 2 p.m., of the busiest workday, Monday. His initial analyses considered hourly Leq using both a 7.5 decibel per doubling of distance (dB/dd) decay rate (as shown in the spreadsheets received as Exhibit 13) and, in the alternative, a 6 dB/dd decay rate (spreadsheets received as Exhibit 14).

These analyses were flawed in several respects, which Mr. Menge acknowledged under cross-examination. For instance, they did not account for the noise impact associated with trucks climbing a grade on the landfill footprint, which would aggravate overall noise impacts. Also, they accounted only for the noise of trucks traveling one way to the landfill's working face, and not for the noise associated with the necessary return trip. Mr. Menge admitted that to account for trucks moving to and from the landfill, he would have to add three decibels to the sound value he attributed to the trucks.

The Town also challenged Mr. Menge's use of a 7.5 dB/dd decay rate, which the County initially maintained was applicable without qualification. Mr. D'Aprile contended that as the landfill rose to a great height above ground level, attenuation effects related to the surrounding topography would be reduced to zero and a decay rate of 6 dB/dd would be more appropriate. In his pre-filed testimony, he said that the appropriate decay rate would be 6 dB/dd at 30 feet above the ground, where ground interference would no longer have an additional attenuating effect.

Responding to this criticism, Mr. Menge retreated somewhat from the County's original contention, admitting that a 7.5 dB/dd decay rate would not apply at any landfill height greater than 20 feet above existing grade, and that a 6 dB/dd decay rate would apply at heights of 80 feet and higher, based upon a 1995 guidance manual of the Federal Transit Administration (FTA). (Between 20 and 80 feet, Mr. Menge said, the decay rate would steadily fall from 7.5 to 6 dB/dd.)

Because of the landfill's 3:1 design slope, 75 percent of its operations are expected to occur at landfill heights of less than 40 feet. Also, as the landfill gets higher, the distance from the working face to the off-site receivers would also grow, somewhat diminishing noise impacts.

In his final impact analysis, Mr. Menge allowed for a decay rate of 6 dB/dd at elevations of 40 feet and higher, with a higher decay rate of 7.5 dB/dd at ground elevation. I accept this as reasonably conservative in light of the decay rate Mr. Menge projected based upon the FTA guidance.

County's Revised Noise Analyses

Revised spreadsheets correcting flaws in his original analysis were prepared by Mr. Menge and received as Exhibits 32 and 292. These spreadsheets were prepared using the STAMINA computer program, which was developed by the Federal Highway Administration to model highway traffic noise. The spreadsheets address the cumulative noise of trucks and landfill equipment during operations in the Phase 1 area of the landfill footprint. The Phase 1 area, consisting of nine acres, is in the westernmost part of the 23-acre landfill footprint.

The STAMINA program accounts for moving trucks coming all the way in on the haul road for a length of 5,000 feet and then returning, which is documented in the spreadsheets as the "haul road contribution." The STAMINA model also incorporates a grade adjustment for the haul trucks, and in scenarios where the trucks would have to climb above the existing ground elevation, this adjustment was applied, accounting for the greater noise associated with that climb. Finally, STAMINA accounts for "pass-by" noise associated with vehicles passing each other along the haul road.

However, STAMINA does not account for the noise associated with trucks positioning themselves on the landfill face and waiting for other trucks to leave. Mr. Menge said that this is because idling trucks would have a negligible effect on the total Leq since the noise from them is much lower than the noise from trucks at full throttle.

The STAMINA program by itself is unreliable when applied to the landfill site, since it automatically adjusts all speeds less than thirty miles per hour (mph) to 30 mph, and therefore cannot account for the anticipated speed of haul trucks on the access road, which would be 10 mph. To account for vehicles moving at 10 mph that would be heard for basically three times as long as if they were going at 30 mph, Mr. Menge had to calculate (outside the STAMINA program) a speed adjustment and then add that to the program's computed haul road contribution.

Mr. Menge produced revised spreadsheets addressing noise impacts with the landfill at ground elevation, employing a 7.5 dB/dd decay rate (Exhibits 32-A and 292-A). Employing a 6 dB/dd decay rate, Mr. Menge produced spreadsheets addressing noise impacts with the landfill at an elevation of 40 feet (Exhibits 32-B and 292-B), and with the landfill at an elevation of 70 feet (Exhibits 32-C and 292-C). (Exhibits 292 A, B and C are basically redundant of Exhibits 32 A, B, and C, except that in the 292 series, noise impacts are specified for surveyed (rather than approximated) distances from the landfill extent to the nearest residences. These surveyed distances to the estate property recently purchased by the County, and to the Roberts and Clausen residences were not contested by the Town and are therefore adopted in my findings of fact.)

The Town's expert, Mr. D'Aprile, was unfamiliar with the STAMINA program, and the Town did not effectively discredit Mr. Menge's use of it or the adjustment he made for slower truck speeds. The Town notes that Mr. Menge admitted that STAMINA does not model accelerating and decelerating vehicles and therefore could not account for the stop-and-start activity at the scale house along the access road. However, Mr. Menge credibly testified that based upon his experience assessing noise impacts at toll plazas, such activity would have no significant impact on the total sound level, since the increased sound of accelerating vehicles would be offset by those slowing to a stop or idling at the scalehouse.

Reference Noise Levels

For his calculations, Mr. Menge used a reference level for truck noise of 81 dBA at a distance of 50 feet from the equipment, and a reference level for bulldozer noise of 75 dBA at 50 feet. (For compactor noise, he used a reference level of 80 dBA at 50 feet, consistent with 6 NYCRR 360-1.14(p)(4), which prescribes this as the sound level limit for all internal-combustion-powered equipment used at the facility.)

Mr. Menge took his source noise levels for the trucks and the bulldozer from comments Dr. Zimmie, one of the Town's engineering consultants, had made on the County's permit application. In those comments, Dr. Zimmie cited a noise study he had performed for the proposed 4-C's Development Corp. construction and demolition debris disposal facility in Rensselaer, New York. For that study, Dr. Zimmie did his own field work to calculate noise levels at 50 feet for a truck and a John Deere bulldozer. Mr. Menge basically adopted those levels as his own.

At the hearing, Mr. D'Aprile was substituted as the Town's noise expert, and Dr. Zimmie limited his testimony to the cost of erecting noise barriers. Mr. D'Aprile said the reference level for the trucks should be raised from 81 to 88 dBA at 50 feet, and for the bulldozer from 75 to the regulatory limit of 80 dBA. I reject these higher figures as inconsistent with those offered by the Town at the issues conference.

To narrow points of contention, it was appropriate for Mr. Menge to use Dr. Zimmie's figures in his own noise analyses. The Town's later introduction of new, higher numbers amounts to the improper impeachment of a witness it proffered at an earlier stage of this proceeding.

The Town attempts to reconcile Dr. Zimmie's and Mr. D'Aprile's assessments of truck and bulldozer noise by noting that Dr. Zimmie's sound readings were taken with equipment running at high idle, a fact Mr. Menge admitted he was not aware of when he adopted the readings as his own. Elsewhere in the hearing record, Mr. Menge said that noise from trucks idling at the working face while waiting to dump their loads would not be significant. He then said that the noise from an idling vehicle might be 10 to 20 decibels lower than from a vehicle at throttle (which he defined as when the engine is revved up to a high r.p.m. as if it were working or when it is working).

The Town argues that this testimony establishes that the truck and bulldozer noise emission levels in all of the County's analyses should be increased by at least ten decibels, according to Mr. Menge himself.

In its reply brief, the County dismisses this argument as one by Town counsel and not the Town's expert. I agree with the County. Mr. D'Aprile did not testify to this alleged adjustment factor, and Dr. Zimmie did not refer to it in his report.

The only basis for an upward decibel adjustment would be Mr. Menge's testimony. However, Mr. Menge did not explain how noise from a vehicle operated at throttle would differ from a vehicle at high idle. Asked if it mattered to his estimate of noise differential if a vehicle is at high idle or low idle as opposed to being at throttle, Mr. Menge responded, "I can't answer that. I don't have the knowledge to tell you. I don't know." Therefore, Mr. Menge's testimony cannot support the adjustment proposed by the Town.

Mr. Menge never recanted the 81 dBA reference level for truck noise, and defended it when challenged by the Town. Mr. Menge showed that the reference level is consistent with one deemed appropriate for traffic noise predictions according to Federal Highway Administration regulations (received as Exhibit No. 17).

Even though these regulations set reference emission levels for heavy trucks traveling at 30 miles per hour, trucks traveling at lower speeds produce about the same noise emissions as vehicles at 30 mph, according to Mr. Menge. During his testimony, Mr. D'Aprile acknowledged that federal regulations list the emission level of a heavy truck (one with three or more axles) traveling at about 30 miles per hour as 80 decibels, a level actually lower than that used by Mr. Menge in his calculations.

Finally, to impeach Mr. Menge, the Town introduced parts of a 1995 transit noise and vibration impact assessment his firm had produced for the Federal Transit Administration. Significantly, that assessment (Exhibit No. 41) indicates that a typical noise emission level for a truck at a construction site would be 88 dBA at 50 feet, 7 dBA higher than the value Mr. Menge used in his analyses. For a dozer at a construction site, the assigned noise emission level is 85 dBA at 50 feet, 10 dBA higher than Mr. Menge's value.

Mr. Menge challenged the Town's equating the landfill to a construction site, adding that many such sites use very large off-road vehicles for hauling fill, and that these vehicles were included when calculating the truck emission level for the federal report. Mr. D'Aprile responded that he had seen off-road trucks at other landfills distributing cover material drawn from the same or an adjacent parcel. However, there is nothing to demonstrate that this same activity would occur here. Also, Mr. D'Aprile's equation of the waste-hauling trucks to construction vehicles since, in effect, they are used to make the landfill larger, is basically a strained semantic argument, and therefore I accord it no weight.

In summary, I accept the County's figures for noise generation by trucks and bulldozers. They were offered originally by Dr. Zimmie, the Town's consultant, presumably because he considered them reliable. Also, the value for truck noise is corroborated by an independent source that the Town has not challenged in its briefs, and which was acknowledged by the Town's expert.

I accept the fact that the bulldozer the County would use at the active face might make more noise than the one Dr. Zimmie measured. Even so, the bulldozer's sound level could not exceed 80 dBA at 50 feet, according to DEC regulation. Granting the Town's point, this would result in a 5 dBA increase in sound for only one of potentially a dozen pieces of equipment operating during the loudest hour, an insignificant difference when gauging cumulative effects.

Number of Trucks During Peak Hour

The one remaining area of disagreement between the County and the Town concerns the number of trucks that would be expected at the site during the peak hour, 1 to 2 p.m. on Monday. For each of his analyses, Mr. Menge assumed 10 trucks accessing the site during this period, whereas Mr. D'Aprile raised the number to 12.

Mr. Menge did not himself calculate the number of trucks used in his analyses, but relied on information provided by Smith & Mahoney, the engineering firm that developed the County's application, which in turn relied on a traffic impact study, which is Appendix "D" to the draft EIS.

That study (received as Exhibit 11), by a firm called Transportation Concepts, concluded that a total of 268 trucks would service the site per week: 50 transfer trailers, 176 packer trucks, 18 leachate trucks, and 24 cover material trucks. This estimate was based upon a 1992 analysis of the County's waste disposal practices. Mr. Menge was also told to expect 15 percent of the trucks (40) on Monday, and 25 percent of the trucks arriving on Monday (10) between the hours of 1 and 2 p.m.

On cross-examination, Mr. Menge conceded that the landfill would be open six days a week and therefore the average number of trucks per day would have to be about 45. As a result, the estimate of 40 trucks on Monday, as a peak day, was impossibly low, and all other assumptions remaining the same, the landfill would receive more than 10 trucks during the peak hour.

To address this problem, the County called as its witness John Beaudoin of Smith & Mahoney, who noted that the traffic impact study was based upon an understanding that the landfill would handle 142,925 tons per year. In fact, Staff's draft permit now limits the receipt of waste to 106,000 tons per year.

Mr. Beaudoin explained how with 25.8 percent less waste received, the landfill would be expected to generate less truck traffic, as shown in an analysis he performed. According to that analysis (received as Exhibit 49), a 25.8 percent reduction of waste translates to a comparable reduction in packer trucks (from 176 to 131) and transfer trailers (from 50 to 37), but no adjustment for leachate and cover trucks. This reduces the total trucks per week to 210. Assuming no truck deliveries on Saturday except for leachate and cover (which would account for 7 trucks), the total number of trucks on Monday to Friday would be 203.

Mr. Beaudoin's analysis notes that since the traffic study was completed in August, 1992, three new transfer stations have opened in the county. Also, he notes how trailers used at transfer stations have a capacity of 20 tons, while packer trucks have an average payload size of 9 tons. Accordingly, for the communities served by these new transfer stations, Mr. Beaudoin calculates 42 fewer waste-hauling trucks, bringing the Monday-to- Friday total down from 203 to 161.

Finally, Mr. Beaudoin apportions these 161 trucks according to a table in the traffic study, which anticipated daily variations in total vehicle traffic. Disregarding that table's figure for Saturday traffic and using the same ratios as stated in that table for the remaining days, Mr. Beaudoin expects 23 percent of the 161 trucks (or 37) on Monday. Again using the traffic study's assumption of a peak hour of operation comprising 25 percent of the total daily traffic volume, Mr. Beaudoin calculates 9.3 trucks during the peak 1 to 2 p.m. hour. This is less than the 10 trucks per peak hour assumed by Mr. Menge in his analyses, and therefore, the County argues, those analyses remain conservative in terms of predicting hourly Leq.

The Town offered various criticisms of Mr. Beaudoin's analysis, many of which have merit. For instance, Mr. Beaudoin apportioned the weekday truck traffic according to ratios offered in the traffic study as appropriate for total vehicle traffic. Of the total vehicle traffic calculated in the traffic study, trucks accounted for only 268 vehicles, while cars accounted for 2,480. Nothing in the traffic study gave any indication that the percentage of car and truck traffic would vary per day in the same manner, and Mr. Beaudoin offered no evidence to support this notion, saying only that he made a "simplifying assumption."

Beyond that, the traffic study itself is four years old, and much has changed since 1992 in terms of how county residents dispose of their waste. Most important, town landfills have been closed, which has altered disposal options. The Town argues that due to changed conditions, a 25.8 percent reduction in waste throughput due to Staff's permit condition does not necessarily mean a 25.8 percent reduction of the packer truck number calculated in the 1992 study.

Mr. Beaudoin conceded that it was possible residents who used to drive their trash to local landfills in residential vehicles now use private trash haulers because those landfills are closed. Mr. Beaudoin said it was possible (though not probable) that packer trucks could have increased in number if more people who had been used to driving a mile or two to their local landfill were now using a private hauling service. He also could provide no information on the number of private trash haulers operating in Saratoga County in 1992 or 1996.

Mr. Beaudoin speculated that even if more people were using private haulers, those haulers at the perimeter of the county might not use the county landfill, but would continue to take trash outside the county to facilities in Fulton and Washington counties and the Town of Colonie. This cannot be determined in advance of the landfill's opening. Nor, for that matter, can we determine what waste from outside the County might be drawn to the county landfill, and away from these other facilities.

Even the conversion factor for packer truck and transfer trailer capacity is subject to question, since Mr. Beaudoin did not consider the size of the trailers actually used at the county's transfer stations. Also, Mr. Beaudoin conceded that transfer trailers do not always travel with a full load, particularly at the end of the day. Finally, he did not verify the volume of waste handled at the transfer stations that have opened since 1992.

Mr. Beaudoin noted that the County's projections of truck traffic did not account for what he described as an aggressive recycling program that, if it continues as it has, would generate a waste stream less than the 106,000-ton per year throughput limit. However, even with a shortfall of its own waste, the County could still import waste from other sources, and might have an economic incentive to do so. It is difficult to know where this waste would come from, the manner in which it would be carried to the site, or the days and hours when its arrival would be concentrated, all of which affect noise generation.

Summing up, while I accept Mr. Beaudoin's analysis as a reasoned attempt to forecast truck volume, I find it lacking in predictive value if only because there are so many unknown and perhaps unknowable variables.

On the other hand, I also reject Mr. D'Aprile's basis for assuming 12 trucks per peak hour, in lieu of the 10 per peak hour assumed by Mr. Menge. Mr. D'Aprile derives his figure from the traffic study's estimate of 268 trucks accessing the site per week. However, as noted above, this figure is based upon a throughput much larger than what would now be authorized by permit.

Recommended Truck Traffic Restriction

Since I can draw no findings about the peak hour truck traffic that could be expected, I propose that if a variance is granted based upon off-site noise being no greater than Mr. Menge has calculated, then the number he assumed for peak hour truck traffic be memorialized in a permit restriction. In other words, the County would be prohibited by permit condition from having more than 10 trucks per one-hour period moving to and from the landfill footprint along the site's access road. This truck traffic could easily be monitored and documented at the scalehouse.

Such a condition would not impose a hardship on the County, assuming, as it argues, that no more than 10 trucks could be expected at any rate during the peak hour. Also, it would better ensure that actual off-site noise is consistent with levels projected by Mr. Menge.

Town's Noise Analysis

Mr. D'Aprile's noise analysis was based upon a landfill operation scenario basically identical to that assumed by Mr. Menge in his revised spreadsheets, but with several important distinctions. Mr. D'Aprile offered higher reference levels for truck and bulldozer noise. He assumed more trucks during the peak hour of operations. He differed with Mr. Menge on decay rates: Whereas Mr. Menge's analysis presents three scenarios using a 7.5 dB/dd decay rate at ground elevation and a 6 dB/dd rate at elevations of 40 and 70 feet, Mr. D'Aprile presents one analysis using a 6 dB/dd decay rate regardless of elevation.

Like Mr. Menge's revised analyses in Exhibits 32 and 292, Mr. D'Aprile's analysis accounts for trucks moving to and from the landfill footprint area; however, Mr. D'Aprile did not use the STAMINA program, claiming it was expensive and he was unfamiliar with it. Mr. D'Aprile's original analysis (Exhibit No. 302) contained a computation error and had to be revised while he was on the stand. His revised analysis was received as Exhibit No. 303.

Impacts to Nearest Residences

Both Mr. Menge and Mr. D'Aprile performed their analyses to estimate peak hourly Leq impacts at the nearest residences, based upon those residences' surveyed distances from the landfill footprint. Excluding the estate property recently purchased by the County, the nearest residences to the landfill footprint are the Clausen residence (west of the footprint on Kobor Road) and the Roberts residence (northwest of the footprint on Mott Road). At the Clausen residence (2,424 feet away) Mr. Menge calculated a peak hourly Leq of 49.7 dBA at landfill elevations of both 40 and 70 feet, and 43.1 dBA with the landfill at ground elevation. At the Roberts residence (2,941 feet away) he calculated a peak hourly Leq of 47.8 dBA at elevations of both 40 and 70 feet, and 39.5 dBA with the landfill at ground elevation. These calculations appropriately considered the increased distance to the residential receptors as the working face recedes from them at progressively higher landfill elevations.

Mr. D'Aprile's revised analysis resulted in an hourly Leq as high as 57 dBA at the Roberts residence, when the landfill is at ground elevation. Although he determined no Leq for the Clausen residence, it would clearly be higher than that (and therefore over the regulatory limit) since the Clausen residence is closer to the footprint. At the estate property, Mr. D'Aprile forecasted a 62.2 dBA hourly Leq. This would be reduced to 56.6 dBA using the 81 dBA reference level for truck noise at 50 feet assumed by Mr. Menge, instead of Mr. D'Aprile's higher reference level of 88 dBA.

Significance of Noise Impacts

The County and DEC Staff, which adopts the County's noise analysis, both argue that a variance should be granted because, at the nearest residences, the peak hourly Leq as calculated by the County would be below the 57 dBA limit established by regulation for the property line. To determine whether noise from the site would have a significant environmental impact, the County and DEC Staff would assess the impact at the nearest residences and the area immediately proximate to them, where human interaction is concentrated and where noise would interfere with conversation.

Staff's position is confirmed by a September 15, 1995, memorandum of Norman Nosenchuck, director of DEC's Division of Solid & Hazardous Materials. In that memorandum (Exhibit No. 8), Mr. Nosenchuck writes that conditions for a variance have been met, accepting the County's assessment that no "human receptors" will be impacted, and adding that "the spirit and intent of the noise level requirements in the regulations are to mitigate noise impacts on residences."

On the other hand, the Town argues that a significant environmental impact can be determined using any of three considerations:

The Town contends there would be a significant adverse impact according to each of these considerations, using evidence from the hearing record. The Town notes that at the north property line, 100 feet from the landfill footprint, even the County concludes that the noise level would be about 77 dBA during the loudest weekly work hour. Assuming a sound that is 10 decibels higher than another is actually twice as loud, this means that the noise level at the north property line would be four times the regulatory limit of 57 dBA.

Using Mr. D'Aprile's analysis, the Town also argues that the 57 dBA limit would be exceeded for a distance of 2,941 feet from the landfill footprint, past the Clausen residence and up to the Roberts residence. Even accepting Mr. Menge's revised spreadsheets, the Town argues, the 57 dBA noise level would extend approximately 1,000 feet from the landfill footprint at a minimum. At this distance, the Town argues, a substantial area of the Wells property along the north property line would be affected as well as portions of other properties to the north.

Finally, the Town estimates a substantial increase over background noise for an even larger area, assuming existing ambient noise of 44 or 45 dBA (as calculated by the County) and applying New York State Department of Transportation guidelines, which define a "substantial increase" as equal to or greater than 6 dBA. Applying these guidelines, the Town argues, an off-site noise impact would occur in any area where landfill noise exceeded 51 dBA. Mr. D'Aprile calculated that project noise would exceed that level at the farthest distance he considered, 3,151 feet away. Even Mr. Menge's analyses resulted in sound exceeding 51 dBA at about 2,000 feet when the landfill is well above ground elevation.

Relevant Commissioner's Decisions

Unfortunately, there are relatively few Commissioner's decisions that discuss the proper application of the Part 360 noise regulations, or suggest when a variance might be appropriate. However, I agree with the Town that those few that do exist emphasize noise impacts in relation to land and property lines, and not to residences. Most significantly, in the Matter of the Application of Blasdell Development Group, Inc. (Interim Decision, October 16, 1995), Commissioner Zagata said that Section 360-1.14(p) requires that the noise limit be applied at the nearest edge of the residential zone, adding that, "The regulation is intended to protect residential lands from undue noise. The rule should be understood and read in light of that purpose" (Emphasis added). I read this decision as emphasizing the protection of land authorized for residential development, not just existing residences.

Also as argued by the Town, Commissioner Zagata's analysis in Blasdell is consistent with the position taken by former Commissioner Jorling in previous cases. In the Matter of the Application of Hyland Facility Associates (June 21, 1993), the record established that Part 360 noise levels would be exceeded "several hundred feet into the neighboring property. The applicant resolved this issue by purchasing noise easements from the landowner adjacent to the northeast corner and from another landowner along the northern boundary." Focusing on the land rather than the location of the residence, the Commissioner ruled that "the boundary line for noise purposes would be moved by the easements." Similarly, in the Matter of the Application of Monroe County to construct the Mill Seat Solid Waste Landfill (July 2, 1991), Commissioner Jorling ruled that "if the applicant seeks to change the site boundaries, a modification to its permit would have to be sought and at that time a further analysis of noise levels at the new boundary would need to be performed."

Appropriate Noise Impact Considerations

I agree with the Town that, in reviewing a variance application, one must consider the size of the area authorized for residential development where noise levels would exceed 57 dBA during the loudest hour of landfill operations. This is the only conclusion consistent with the apparent intent of the regulation to protect property owners' lawful development interests. Along these lines, the extent by which noise levels would exceed the regulatory limit is also a relevant consideration, since the louder the noise at any particular location, the less habitable it becomes.

However, I do not agree that one need consider the area over which noise levels would increase substantially over existing ambient background noise, which, according to the County's application, averages about 44 or 45 dBA at locations away from roads. The apparent intent of the noise regulation is to preserve noise levels at 57 dBA or below on residential land. So long as this is accomplished, the relative increase in noise below the 57 dBA threshold is not DEC's concern.

Impacts to Area of Noise Level Exceedence

Under the scenario assumed by Mr. Menge in his revised analyses (Exhibits 32 and 292), the peak hourly Leq would exceed 57 dBA at a distance of about 1,000 feet from the landfill footprint, as the phase I area reaches elevations at and above 40 feet. (With the landfill at ground elevation, the exceedence would occur at a distance of about 600 feet.)

All land within 1,000 feet of the north and west perimeters of the landfill footprint is now uninhabited. There is nothing in the record to suggest that residential development anywhere on this land is anticipated. The land, while authorized for residences, is agricultural in zoning and usage.

The Wells property, to the north of the landfill, is mostly open fields used for haying. The Baker property, west of the landfill, is also open space used for haying and planting corn. Activities occurring in these areas typically involve heavy equipment (like tractors) which make sound comparable to the equipment that would be used on the landfill's active face.

The County has indicated it has an option to buy the easternmost 50 acres of the Baker property, which would have the effect of shifting the western site boundary. The County would use the Baker land as buffer area and habitat for the northern harrier, a threatened bird species found in the landfill vicinity. The record indicates that over time the harrier, like other wildlife, would become acclimated to a certain level of steady noise associated with truck traffic and heavy equipment used at the landfill. [Impacts to the northern harrier are considered in the next section of this report.]

The County has no similar option with regard to the Wells property. However, the identification of that part of the Wells property closest to the landfill site's northern boundary as a potential expansion area makes it unlikely that residential construction would occur there in any event. The agricultural activities on the Wells property would not be significantly affected by noise from the next-door operation of the county landfill.

The landfill's operation also would not affect the current and anticipated uses of the Roberts property northwest of the landfill site, according to Mr. Menge's analyses. Neither the Roberts nor the Clausen residence would be subject to a loudest-hour Leq of more than 57 dBA. Likewise, there would be no exceedence in the area planned by Ms. Roberts for a second home, which is about 2,250 feet from the northern boundary of the landfill footprint.

Even assuming some part of the Roberts property is subject to a noise exceedence, it would occur far from any current or anticipated dwelling, during a weekday period when Ms. Roberts and her husband are at work. Ms. Roberts said that for recreation, she and her family walk the extent of their property, even crossing the ravine to that area closest to the landfill site. However, these walks are concentrated on weekends, when waste-bearing trucks would not be accessing the footprint area.

No Significant Impact/Proposed Variance Conditions

Given all of these circumstances, I find that the noise exceedences projected by Mr. Menge would not have a significant (or meaningful) impact on the surrounding environment, such that a variance, in effect allowing these exceedences, should be denied.

In reaching this conclusion, I am mindful of property owners' interests in the lawful residential development of their land. I also recognize that the landfill, if permitted, would have a long life expectancy, and that the identity of nearby landowners, as well as their intended land uses, can change over time.

Therefore, if the Deputy Commissioner grants a variance, I propose that he do so while adding a condition that if the Department is presented with documentation sufficient to show a serious intent to build a residence in an area that would likely be subject to noise exceeding an hourly Leq of 57 dBA, then the County must take whatever action is necessary to mitigate noise impacts so that sound levels are maintained at or below that limit at the residence and any associated area of frequent activity. Accepting the noise analyses of Mr. Menge, I would now define that area of concern as any location within 1,000 feet north or west of the landfill footprint, recognizing that as the County moves out of the Phase I footprint area, for which noise was projected, there may be cause for DEC to redefine this area.

To help ensure that noise levels are actually consistent with Mr. Menge's projections, I would also limit traffic on the access road leading down to the landfill footprint to 10 trucks in any one-hour period. As noted above, the County considers this to be a conservative estimate of traffic at the busiest hour. Assuming this is true, such a condition would not hobble the landfill's operation.

Finally, I would require the County to sample actual noise levels north and west of the landfill property during a peak hour once operations formally begin. This information, provided to DEC Staff, would assist in defining the area where noise actually exceeds an hourly Leq of 57 dBA.

Unreasonable Economic Burden

The County and DEC Staff assert that compliance with the Part 360 noise level requirement would impose an unreasonable economic burden on the County and its taxpayers. [See, 6 NYCRR 360-1.7(c)(2)(ii)]. I agree with this because the noise exceedences would not have a significant environmental impact, and therefore preventing them would impose an unreasonable expense.

On the other hand, I agree with the Town that, if necessary to avert a significant impact, noise barriers could be erected for less money than estimated by the County.

Mr. Menge, the County's noise expert, testified that if the County were unable to obtain a noise variance, a noise barrier of some type would be the only feasible means of reducing noise levels at and beyond the north and west property lines of the landfill. Assuming a 6 dBA decay rate, Mr. Menge assumed that a barrier 17 feet high would be necessary for 2,000 feet along the northern property line, providing 17 decibels of noise reduction, and another barrier 8 feet high would be necessary for 1,100 feet along the western property line, providing 6 decibels of noise reduction.

Mr. Menge cited a Federal Highway Administration database from which he estimated as $16 per square foot the average cost for all types of noise barriers constructed in three upstate New York cities. He also noted a unit cost of $10 per square foot for wood barriers, citing a recent edition of a trade periodical called The Wall Journal. Employing a range of between $10 and $16 per square foot, Mr. Menge said noise barriers along the northern and western property boundaries would cost between $428,000 and $684,000.

Testifying for the Town, Dr. Zimmie said $10 per square foot was a reasonable cost approximation for a wooden wall. However, he also said such a wall was unreasonably expensive in light of cheaper alternatives. Dr. Zimmie proposed that, instead of using wood, the county could build earthen walls reinforced with geotextile cloth. These, he said, could be constructed for as little as $5 or $6 per square foot, and would serve as excellent noise barriers. In my findings I have basically adopted Dr. Zimmie's testimony on these points, since the County did not effectively refute them.

On the issue of noise attenuation, Mr. Menge said he was unfamiliar with mechanically stabilized earth systems as noise wall barriers, but added that he had no reason to think such systems would not adequately shield surrounding properties from noise. However, Mr. Menge did challenge Dr. Zimmie on his cost estimate, introducing a document from the Colorado Department of Transportation (DOT) (Exhibit 34), which purported to show that the average price of a mechanically stabilized earth wall is more than $18 per square foot. Dr. Zimmie then testified that he spoke to the head engineering geologist with that agency, who confirmed that the cost estimate addressed mostly retaining walls, which serve a function different from the ones proposed at this site.

Dr. Zimmie testified that his cost estimate for the Town's proposed walls was based on New York prices. He detailed each element of his cost estimate and explained how he verified the reasonableness of his estimate with the Colorado DOT and a contractor who builds mechanically stabilized earth walls, producing handwritten notes of his conversations.

Dr. Zimmie acknowledged being unfamiliar with the use of mechanically stabilized earth walls as noise barriers elsewhere in New York State. However, he said he was proposing to build a similar wall as a noise barrier for another local construction and demolition debris landfill and said he had discussed this type of wall with both DEC and the New York State DOT.

DEC's regulations do not define what is an "unreasonable" economic burden to comply with its Part 360 requirements. However, even accepting Dr. Zimmie's lower cost estimate for noise barriers, I find that to require their construction at this time would be "unreasonable" in light of the existing land uses north and west of the landfill site. For what it's worth, the County and Staff also object to the visual impact of noise walls, although this impact was not addressed by testimony. One concern I do have with noise walls, at least as proposed by the County, is that as the active face gets higher, they would become increasingly ineffectual, as Mr. D'Aprile argues.

Should the Department find now or in the future that there is or would likely be a significant noise impact at any property or residence, a better solution might be for the County to purchase part or all of the property or, at the least, secure a noise easement. As noted in the Hyland decision, cited above, the purchase of easements can eliminate noise issues altogether and avoid the need to consider whether or under what terms a variance would be appropriate.

CONCLUSIONS

RECOMMENDATION

1. The variance from the noise level requirement should be granted, subject to the conditions noted above.

ISSUE NO. 2 AIRPORT SEPARATION VARIANCE

Should the County receive a variance from the siting restriction for separation of putrescible-waste landfills from airports?

VARIANCE REQUIREMENTS

"Every application for a variance must 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; and demonstrate that the proposed activity will have no significant adverse impact on the public health, safety, or welfare, the environment or natural resources and will be consistent with the provisions of the ECL and the performance expected from application of this Part." [6 NYCRR 360-1.7(c)(2)(ii),(iii)]

Position of the County and Department Staff

The County should receive a variance from the siting restriction for separation of putrescible-waste landfills from airports. The proximity of the proposed landfill to the Heber Airpark will have no significant adverse impact on Army National Guard helicopters that use the airpark, and compliance with the siting restriction would tend to impose an unreasonable economic burden on the County.

Position of the Town

The County should not receive a variance from the siting restriction. The proximity of the proposed landfill to the Heber Airpark would have a significant adverse impact on public safety, and compliance with the siting restriction would not tend to impose an unreasonable economic burden on the County.

FINDINGS OF FACT

Heber Airpark

Use of Airpark by Army National Guard Helicopters

Landfill As Gull Attractant

Colonie Landfill

Redistribution of Gull Population

Gull Flight Behavior

Other Bird Species

"Passive" Bird Control Measures

"Active" Bird Control Measures

Active Gull Harassment at Colonie Landfill

Bird Hazard to Helicopters

39. Birds such as gulls pose a risk to helicopter flight and therefore to pilot and passengers. The risk from gulls is in part related to their size: A herring gull weighs between 2 and 2.5 pounds, and a great blackback gull, the largest among the local gull species, weighs 4 pounds. Because of the complex interrelated mechanisms that must work together to permit stable helicopter flight, a single bird strike to any one of these critical components could have very serious conse