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Saratoga County Landfill - Decision, September 3, 1996

Decision, September 3, 1996

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
- of -
the Application for a permit to construct and to operate a solid waste management facility pursuant to Environmental Conservation Law (ECL) Article 27, Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR), Part 360

- by -

Saratoga County Landfill

Decision

September 3, 1996

Project Application No. 5-4146-00018/00002-1.

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:

  1. Noise and noise variance
  2. Airport separation variance
  3. Impact on the northern harrier, a threatened species
  4. Groundwater separation variance
  5. Groundwater monitorability.

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.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: David Sterman Deputy Commissioner
Albany, New York

Dated: September , 1996

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

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.

DEC No. 5-4146-00018/00002-1

HEARING REPORT

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:

  1. Whether the County should receive a variance from an operational requirement for noise control [6 NYCRR 360-1.14(p)];
  2. Whether the County should receive a variance from a siting restriction for separation of putrescible-waste landfills from airports [6 NYCRR 360-2.12(c)(3)];
  3. Whether construction or operation of the landfill would cause or contribute to a taking of the northern harrier, a threatened bird species, or to the destruction or adverse modification of its critical habitat [6 NYCRR 360-1.14(c)(3)];
  4. 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 [6 NYCRR 360-2.13(d)]; and
  5. Whether the project complies with a restriction against locating landfills in areas where environmental monitoring and site remediation cannot be conducted [6 NYCRR 360-2.12(c)(5)].

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:

For the County, John A. Beaudoin of Smith & Mahoney, P.C., in Albany, an engineer and manager of the landfill project; and Christopher W. Menge, an engineer and vice president of Harris, Miller, Miller & Hanson, Inc., of Burlington, Mass., a noise consulting firm; and

For the Town, Vincent D'Aprile, an engineer and noise consultant in Kingston, New York; Dr. Thomas F. Zimmie, an engineering consultant who is also a professor in the civil engineering department of Rensselaer Polytechnic Institute (R.P.I.) in Troy, New York; Clinton A. Barber, a Northumberland farmer; and Barbara Jean Roberts of Mott Road in Gansevoort, whose residential property is near the landfill site.

The following witnesses testified on the airport separation issue:

For the County, Ronald L. Merritt, a biologist with Geo-Marine, Inc., in Panama City Beach, Fla., and former chief of the Bird Aircraft Strike Hazard (BASH) team of the U.S. Air Force; and John P. McKeon, deputy commissioner of the Saratoga County Department of Public Works;

For the Town, Dr. Andrew Z. Lemnios, an engineer, research professor, and director of the Rotorcraft Technology Center at Rensselaer Polytechnic Institute in Troy, New York; James A. Heber, owner and operator of the Heber Airpark on Brownville Road in Gansevoort, which is used regularly by New York Army National Guard helicopters; and Dr. Kenneth P. Able, a Town consultant who is also a biology professor at the State University of New York at Albany.

The following witnesses testified on the northern harrier issue:

For the County, Dr. Robert Andrle, an environmental consultant and subcontractor for Beak Consultants, Inc., in Buffalo, New York;

For DEC Staff, Kenneth L. Kogut, a supervising fish and wildlife ecologist in DEC's Ray Brook office; and

For the Town, Dr. Kenneth P. Able, as noted above; Joseph A. Munoff, a retired biology teacher and Gansevoort resident; and John M. DeLisle, an outdoorsman and also a Gansevoort resident.

The following witnesses testified on the hydrogeological issues:

For the County, John C. Kucewicz, Jr., a hydrogeologist with Smith & Mahoney, P.C.; Dr. Gregory N. Richardson of G.N. Richardson and Associates of Raleigh, N.C., a geotechnical engineer; and Dr. Donald I. Siegel, an independent hydrogeological consultant who is also an earth sciences professor at Syracuse University;

For DEC Staff, Dale A. Becker, an engineering geologist in DEC's Ray Brook office; and

For the Town, Dr. Thomas Zimmie, as noted above; and Dr. Kevin Brewer, a Town consultant who is also a hydrogeology professor at Rensselaer Polytechnic Institute in Troy, New York.

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:

  1. the extent, in terms of decibels, by which the facility would exceed the 57-decibel noise control requirement at the property lines;
  2. the area of land over which noise levels would exceed the requirement; and
  3. the area over which sound levels would substantially increase over existing background noise.

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

1. Saratoga County proposes to construct a municipal solid waste landfill at the eastern terminus of Kobor Road in the Town of Northumberland. (A regional map and a more specific site location map, as included in the permit application, are attached to this report as Appendices "B" and "C" respectively.)

2. Including a 23-acre landfill footprint, an access road connecting to Peters Road south of the landfill, leachate storage tanks, support buildings and buffer areas, the proposed project would encompass about 130 acres when fully developed.

3. The landfill would be located on part of a 350-acre tract identified by the County in April, 1991, as its preferred location. This tract is comprised of three separate parcels: 233 acres belonging to a landfill partnership of Scott Paper Company and Finch, Pruyn & Company, Inc.; 46 acres belonging to Jamon Baker; and 71 acres belonging to Vera Wells. A map showing these three parcels is included as Figure 2-3 in the permit application.

4. Scott Paper/Finch Pruyn ("the paper companies") have received a DEC permit to develop a paper sludge landfill on their 233-acre parcel, and the County's landfill would be located on the northern portion of the paper companies' property.

5. The County has an option to purchase the 46 acres belonging to Mr. Baker. The County has made no efforts to obtain an option for the 71 acres belonging to Ms. Wells, although part of this property has been identified as a potential future expansion area.

6. A future expansion of the landfill would require separate Department approval. In the event of such expansion, the County would have to take appropriate measures to obtain the Wells acreage for development. Under the current design, the County would maintain a minimum setback of 100 feet from the limit of waste in the landfill footprint to the Wells property line.

7. In the vicinity of the County landfill site, the major land use is agriculture. There are several single-family dwellings along existing road frontages in the area, but no large subdivisions have been developed. The County landfill site is now made up of pastures, hay fields, and woodlands. The area owned by the paper companies was formerly a dairy farm, but has not been actively farmed in several years.

8. The proposed county landfill site and adjoining properties are currently zoned by the Town for agricultural use. Uses permitted as-of-right include single family residences; agricultural pursuits and any accessory buildings associated with the agricultural use, which may include no more than five residences for farm employees; and home occupations as part of a residence. There is a minimum lot size of ten acres.

9. Because the property to the south of the proposed county landfill is permitted for development as a paper sludge landfill, it is not noise-sensitive.

10. A planned 12-foot screening berm between the county landfill footprint and the east property line would attenuate noise in that direction.

11. The property to the east of the landfill is basically agricultural. The nearest residence from the northeast corner of the landfill footprint is about 4,100 feet away, on River Road. The nearest residence from the southeast corner of the landfill footprint is 3,150 feet away, at the end of Wells Lane.

12. To the north and west, the properties include large areas of open fields and some smaller wooded areas, including tree rows.

13. The average existing elevation of the landfill footprint is 215 feet. The final elevation of the finished landfill, including soil on top, is expected to be about 312 feet.

Sound Measurement

14. Sound energy is measured in units called decibels (dBs). Technically speaking, a decibel is the ratio of a given sound pressure level or sound energy relative to a reference source of sound pressure or sound energy. Because the range of sound that is audible to the human ear is so large, decibels are expressed on a logarithmic scale rather than a linear one. This means, for instance, that a sound which is only 10dB higher than another is actually twice as loud.

15. "A weighting" means that portions of the frequency spectrum of a sound have been increased or attenuated to correspond to the frequency response of the human ear. A typical noise source will generate sound made up of different frequencies. "Frequency" means the rate at which a sound source will cause the surrounding air to vibrate. Humans perceive the frequency of a sound as its "pitch."

16. A sound may have a frequency too high or low for people to hear. An "A weighted" sound measurement screens out these high and low frequency sounds so that the measurement will reflect the sound energy of only those sounds that the average human can hear.

17. Sound engineers denote the scale they are using by adding the appropriate letter to the decibel abbreviation. Whereas overall sound, without weighting, is expressed as dB, "A-weighted" sound levels are expressed as dBA.

Existing Noise Levels

18. The existing average daytime noise level to the west and north of the landfill site is about 44 or 45 dBA at locations set back from local roads, and 54 to 69 dBA near local through-roads such as Jewell, Peters, and River Road. Most ambient noise in the vicinity of the site is caused by farming activities and traffic on the local road network.

19. Farm noise stems from certain activities that are performed on an intermittent basis. Some equipment, like a manure spreader, is used on farms with milking herds, but only for about 15 minutes per day. Other heavy equipment that farmers operate is used only seasonally to plant or harvest corn or to cut hay. These operations usually take only a few weeks per year, and during those weeks the equipment does not operate all day.

Residences Nearest to Landfill Site

20. The nearest residence to the landfill is about 1,371 feet from what would be the southwest corner of the landfill footprint. This residence, at the eastern end of Kobor Road, includes a mobile home and a two-story garage.

21. Sitting on a triangular-shaped lot about one-acre in size, this residence has been unoccupied since the death of its prior owner and was offered for sale as part of an estate. On May 21, 1996, the Saratoga County Board of Supervisors approved a resolution to purchase the property for its listed price of $39,500. The purchase was completed and the property conveyed by deed in June, 1996. This purchase would add to the site's western buffer area, which would also include property of the Baker family north and south of Kobor Road.

22. The second nearest residence to the landfill is 2,424 feet from what would be the southwest corner of the landfill footprint. This is the Robert Clausen residence, south of Kobor Road.

23. The third nearest residence to the landfill is about 2,941 feet from what would the northwest corner of the landfill footprint. This is the Roberts residence, south of Mott Road. (A map indicating the locations of the three nearest residences, with surveyed distances from the landfill footprint, was received as Exhibit No. 291.)

Nearby Farming Activities

24. Immediately to the north of the landfill site is the property of Vera Wells. Ms. Wells raises heifers for resale, which involves buying calves and raising them to breeding age. She does not have a milking herd and does not harvest any crop other than hay.

25. Typically, Ms. Wells will get two cuttings of hay each year, one in June and the other six to eight weeks later. Haying involves use of a tractor pulling a haybine, rake, or baler. Haying is generally a three-day process involving one day to mow, one to rake, and one to bale. These pieces of equipment are operated two weeks or less each year to cut hay. On most of these days, the equipment operates for only a few hours.

26. Ms. Wells also uses a manure spreader once each year in the spring. Her farm is quiet in the winter, except for about 30 minutes a day when she might use a tractor to feed the heifers. On occasion Ms. Wells has sold some fill from her property, which is removed with heavy equipment.

27. Immediately to the west of the landfill site is the property of Jamon Baker. Mr. Baker raises heifers for resale and plants corn and hay. He uses a mower, rake, and baler. It takes him about one week to do a complete cutting, and he gets three cuttings per year. The corn is planted with a tractor and takes two weeks to harvest.

Roberts' Residence

28. Barbara and Thomas Roberts own and live in the house that is 2,941 feet from the northwest of the landfill footprint. Their house at 240 Mott Road is the nearest residence to the north of the landfill site. Mr. and Mrs. Roberts live there with two nephews and a daughter who is away at college. They work away from their home during the day, and return in the late afternoon or evening.

29. The Roberts property consists of 40 acres generally north and west of the landfill. A wooded ravine extends in an east-west direction through the center of the property, and the land undulates gently between the house and the ravine. The landfill site is not visible from the Roberts residence, and does not share a border with the Roberts property. The residence itself is at the property's north end, about 600 feet from Mott Road. The Roberts family has lived there for eight years.

30. The Roberts residence has a southern exposure. The house faces toward the back of the property, in the direction of the landfill site. A pool has been built at the back of the house, where it faces toward Mott Road. There is a deck eight feet wide between the back door and the pool.

31. The Roberts family enjoys outdoor activities including walking their property. Most of the walking occurs on weekends and in the area north of the ravine, to a point about 1,500 feet from the northern boundary of the landfill footprint. The Roberts property between the residence and the landfill is mostly open fields, which are hayed once in the summer.

32. At the time they purchased their house, Barbara and Thomas Roberts anticipated they would eventually subdivide the property, perhaps for use by family members. They have discussed selling lots along their property's road frontage. They have also considered selling their own house and moving farther from the road to a smaller house they would build at a location approximately 2,250 feet from the northern boundary of the landfill footprint.

33. Barbara and Thomas Roberts can set up three parcels on their property without need of rezoning. No specific plans have been made and no map has been drawn because their daughter is in college and not yet ready to settle down.

Anticipated Landfill Operations

34. Typical operations at the landfill would include trucks moving to and from the landfill footprint and unloading waste at the landfill's active face. Trucks moving to and from the working face would travel along an access road near the western edge of the landfill property. This access road would connect with Peters Road to the south.

35. Trucks moving along the access road would be traveling at 10 mph, and would stop at a scale house before proceeding to the landfill footprint. Each truck would require 6 minutes to unload, and would operate at full throttle the entire time it is unloading.

36. At the active face a bulldozer would spread the waste, and the waste would then be compressed by a vehicle compactor. The percentage of time that the bulldozer and compactor would actually be operating would depend on the number of trucks bringing in material. Each truckload of material would result in 5.5 minutes of activity each for the bulldozer and compactor. This usage factor is important to gauging the noise impact, as is the duty cycle, or percent of time in use that the equipment is at full throttle, when its noise impact is greatest.

37. The trucks carrying waste to the landfill would consist of packers belonging to private haulers and trailers associated with transfer stations. Typically, packer trucks have a 9-ton capacity, and transfer trailers have a 20-ton capacity.

38. The landfill would also expect additional truck traffic associated with leachate collection and the hauling of cover material to the site. The leachate storage tanks are at the end of the access road, near the northwest corner of the landfill footprint.

39. DEC Staff's draft permit [special condition No. 7(d)] provides that the County would bring soil and other clean fill from off-site for use as cover. However, an allowance is made for alternative materials provided they are approved by DEC. One such material is posishell, which is a combination of kiln dust, water and binder that can be applied in layers as thin as one inch, as opposed to the six-inch depth required for soil cover under DEC's regulation. The application of posishell in one-inch layers on a daily basis, if approved by DEC Staff, would reduce the truck traffic otherwise required for the hauling of cover material.

Noise Attenuation Rates

40. Noise from the landfill operations would attenuate (or decay) in relation to distance from the landfill footprint. The decay rate or geometrical divergence accounts for the spherical spreading of acoustic energy from its source.

41. Decay rates are expressed in terms of decibels per doubling of distances greater than 50 feet. For example, assume a noise source which has a sound level of 80 dBA at 50 feet and a decay rate of 6 dBA per doubling of distance. At each time the distance from the source is doubled, the decibel rate will drop by 6 dBA. At 100 feet, the sound level will be 74 dBA. At 200 feet, another doubling of distance, the sound level will be 68 dBA.

42. There are several factors that determine the appropriate decay rate to be used in a given situation. By far the most important is divergence, or the tendency of the sound energy to spread out as it gets farther away from the source. If the sound source is a single point, the sound will drop off at a rate of 6 dBA for every doubling of distance.

43. A second factor relates to the effect that the ground will have on sound decay. When both the source of the noise and the receiver are close to the ground, some portion of the sound will be reflected or attenuated by the ground surface and interfere with the sound waves traveling through the air.

44. If the ground is "soft" (unpaved) and flat and both the source of the noise and the receiver are close to the ground, this effect can increase the decay rate by as much as 1.5 dBA for every doubling of distance. The decay rate may also be increased by sound attenuation from buildings and vegetation, including bushes and scattered trees.

45. In some cases a decay rate higher than 6 dBA per doubling of distance may be justified by air absorption of sound. Air absorption can attenuate high-frequency sound when the distance between the source and the receiver is 1,000 feet or more. However, the noise levels at the landfill would be mainly in the low to middle frequency range, except for the high frequencies of equipment back-up alarms. Therefore, any sound attenuation from air absorption would be minimal.

46. Wind may also attenuate sound. However, its effect is diminished in hilly terrain, and wind patterns change daily. Therefore, wind attenuation should not be assumed in projecting noise impacts.

47. The landfill footprint is designed to rise to about 100 feet above the existing ground elevation, with a three to one slope along its sides. For example, at a height of 40 feet, activities would be concentrated about 120 feet inside the footprint perimeter.

48. As the landfill grows in height, its noise sources at the active face will correspondingly become higher than the surrounding land, and any sound attenuation effect from ground interference will gradually be reduced to zero. When this happens, the basic decay rate based upon divergence (6 dBA per doubling of distance) will be applicable.

49. A final factor influencing decay rate is how the pieces of noise-making equipment are spread out over the landfill site. This affects whether these pieces are treated as point or line sources of noise. A point source exists where noise emanates from a single point. A line source exists where noise comes from a number of different points all at once.

50. The decay rate for a line source is generally much lower than for a point source. At the landfill, the compactor and bulldozer may be considered point sources since the distances they travel would be small compared to the distances between them and sensitive off-site receptors. On the other hand, trucks moving to and from the landfill footprint are appropriately considered line sources.

Noise Barriers

51. About 100 feet separate the Wells property from the northern extent of the landfill footprint, and about 400 feet separate the Baker property from the western extent of the landfill footprint. In the absence of a variance, a noise wall or barrier just inside the north and west boundaries of the landfill property would help to attenuate noise reaching the Wells and Baker properties.

52. This attenuation effect would be greatest when the active landfill face is at low elevations. Noise barriers would become increasingly ineffectual as the active face rises above them. A noise barrier would have its greatest effect reducing noise from the traffic along the access road to the active face. This access road would extend along the western boundary of the site property.

53. Possible materials for noise barriers include wood, concrete, and mechanically stabilized earth. An earth wall can be constructed using regular soil, which is built up and reinforced using geotextile cloth, a sturdy covering fabric. The sides of the wall can be left bare or covered with any of a number of facing materials.

54. Among facing materials, concrete is the most expensive, followed by wood and then mechanically stabilized earth. Wood is readily available as a material and is commonly used for noise barriers, especially in conjunction with earth berms.

55. To ensure stability, a wall made of mechanically stabilized earth would have to be wider than a wall made of wood. For instance, such a wall would have to be at least five to six feet wide to maintain a stable height of 17 feet.

56. Even so, a wall made of mechanically stabilized earth can be constructed for much less than a wall of comparable height made of wood or concrete. A mechanically stabilized earth wall can be built for as little as $5 or $6 per square foot, whereas the average unit cost for concrete noise barriers is $17 per square foot, and for wood barriers is $14 per square foot.

57. The simplest type of mechanically stabilized earth wall is constructed using only geotextile cloth and soil. A layer of this cloth is placed on the ground and then a layer of soil about one foot thick and as wide and long as the section of wall being built is placed on top of the cloth. Then the fabric is folded over, completely enclosing the earth. Subsequent layers of soil and geotextile are placed on top, with the end of the fabric from each layer overlapped into the next layer to provide stability.

58. A similar wall can be built with a facing of recycled tires. The cost of recycled tires is very low, probably only the cost of transportation, and if the landfill were to accept tires at a typical fee of $1 or $2 per tire, the cost of the wall could be even cheaper than geotextile alone.

59. Also, this type of wall has the advantage of greater longevity compared to a wall with cloth facing. This is because geotextile cloth disintegrates with prolonged exposure to sunlight. A wall with this cloth facing would last only a year or two.

60. Cloth and tire facings are not as sturdy, durable, or pleasing to look at as facings made of cinder block, timber ties, or rock-filled gabions. A wall made of earth, geotextile fabric, and cinder block facing could be built at a total cost of $5 to $6 per square foot, assuming the following components: $2 per square foot for cinder block, $1.50 per square foot for soil, 75 cents per square foot for fabric, and 75 cents to $1.75 per square foot for labor.

61. Mechanically stabilized earth walls are used in Colorado for rock fall protection and soil retention. While not customarily used there or in New York State as noise barriers, they would provide good sound attenuation at a reasonable cost.

Other Means of Noise Attenuation

62. Other than building a noise wall, the County could attenuate noise at the property lines by scaling back the project. For instance, a smaller landfill footprint would allow more space between the active face and the site boundaries. However, this would decrease the amount of waste the landfill could receive.

63. Some noise attenuation could also be achieved by using the waste itself as a noise barrier on the working face. In other words, waste could be placed in such a manner that it would form a barrier between the equipment on the working face and a particularly sensitive off-site receptor.

64. In lieu of attenuating noise, the County has options other than building noise barriers at its property lines. These options include noise easements or the outright purchase of all or parts of noise-impacted properties.

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:

  1. The extent, in terms of decibels, by which the facility would exceed Part 360 standards at the property line;
  2. The area of land over which noise levels would exceed Part 360 limits; or
  3. The area over which sound levels would "substantially increase" over existing background noise, given New York State Department of Transportation interpretation of Federal Highway Administration regulations.

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

  1. Noise from the landfill operations would not have a significant adverse impact on the surrounding environment.
  2. Compliance with the Part 360 noise level requirement would impose an unreasonable economic burden on the County and its taxpayers.

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

1. The southwest corner of the proposed county landfill footprint is 8,750 feet from the runway of the Heber Airpark on Brownville Road in the Town of Northumberland.

2. Owned and operated by James A. Heber, the airpark opened in 1989 and has been approved by the Federal Aviation Administration (FAA) as a "public use" airport since August 29, 1991. As a public use airport, it is open for use by the general public without prior permission, and cannot refuse landing privileges to any aircraft. No one is at the airport on a full-time basis, and aircraft fly in and out without the assistance of airpark personnel.

3. Eight single-engine piston-powered airplanes are based in a hangar at the Heber Airpark. The airpark is used by the aircraft based there and by similar small general aviation aircraft.

4. The airpark has a single asphalt strip, which is 2,200-feet long. This runway includes a 700-foot extension that was approved by FAA in or about August, 1994. The extension has been constructed since the issues conference in June, 1995. The extension is two hundred feet towards the landfill site, and another 500 feet at the other end, away from the site.

5. The landfill site lies directly beneath the approach pattern to the Heber Airpark runway. This approach and departure path for aircraft, including helicopters, is represented by a straight extension of the runway's center line beyond the airpark perimeter.

Use of Airpark by Army National Guard Helicopters

6. Heber Airpark is used for military operations that consist of takeoffs and landings by New York Army National Guard turbine-powered helicopters. These helicopters are based not at the airpark, but at Albany County Airport in Colonie. In addition to Heber Airpark, the Army National Guard flies into nearby airports in Glens Falls, Round Lake, Argyle, and Saratoga.

7. The Army National Guard began using Heber Airpark in or about 1992. Up until the spring of 1995, it flew principally UH-1 Iroquois and AH-1 Cobra turbine-powered helicopters into the airpark. These helicopters flew in at a rate of about 10 times per month.

8. In the summer of 1995, the Army National Guard began flying UH-60 Blackhawk helicopters into the airpark. These helicopters replaced the AH-1 Cobras, and the number of helicopter landings dropped dramatically during the summer and fall as pilots learned to operate the Blackhawks. During the first several months of 1996, the number of landings steadily increased and is now back to about 10 landings per month by UH-60 Blackhawks and UH-1 Iroquois helicopters.

9. Future use of the Heber Airpark by Army National Guard helicopters is expected to increase, with up to 50 flights into the airpark each week. As pilots become more familiar with the Blackhawk helicopters, the Army National Guard's use of the airpark will emphasize nighttime operations, whereas recent operations have been concentrated during the day. This shift will allow the pilots to train using night vision goggles. There is no indication how long this emphasis on nighttime operations will continue.

Landfill As Gull Attractant

10. The proposed county landfill site includes a 23-acre landfill footprint to be developed in three phases. The municipal solid waste stream to be received at the landfill is projected to be about 340 tons per day.

11. The proposed county landfill would accept municipal solid waste, which includes rotting organic matter. Landfills receiving such putrescible waste attract various birds, particularly gulls, which feed on the waste after it is dumped and before it is covered.

12. A landfill's attractiveness to gulls depends on factors such as the amount of available waste and the presence of nearby water bodies and large open areas with little or no vegetative cover where birds can loaf and digest their meals.

13. Gulls tend to move in flocks between communal roosts and foraging areas. They may fly up to 60 miles each way between a roosting area and a feeding area.

14. A large number of gulls roost at the Tomhannock Reservoir, about 24 miles southeast of the proposed Saratoga County landfill site. There are also a significant number of gulls at Saratoga Lake, about 15 miles southwest of the site. There are roosting colonies of gulls at Round Lake in Saratoga County and Summit Lake in Washington County, but their numbers diminish in winter due to snow and ice.

15. The Saratoga County landfill site is about 3,000 feet west of the Hudson River. Although gulls prefer not to roost on moving water, a dam along the river at the end of Peters Road in Gansevoort produces an impoundment attractive to gulls for bathing and loafing. The landfill site is also surrounded by open fields with little or no cover, which provides other attractive gull loafing habitat.

Colonie Landfill

16. The largest regional gull attractant is the Town of Colonie landfill on NYS Route 9. This landfill draws gulls from Saratoga Lake, about 15 miles away, and also from the Tomhannock Reservoir. As other area landfills closed in recent years, gulls have concentrated in greater numbers at the Colonie landfill. As many as 10,000 gulls and 5,000 starlings have been reported there.

17. The Colonie landfill is particularly attractive to gulls because it is on a peninsula surrounded on three sides by the Mohawk River. The river contains herring, which gulls also feed on, and is partially unfrozen even in winter, which makes it even more attractive for feeding and resting.

Redistribution of Gull Population

18. Gulls at the Colonie landfill are part of a regional population that is also within traveling range of the proposed Saratoga County landfill site. The opening of the Saratoga County landfill would somewhat redistribute the gull population by opening a new area for daily feeding.

19. Of the two landfills, the one in Colonie would remain the more powerful bird attractant, because it would receive more waste on a daily basis, and because it is closer to broad areas of open water. However, gulls now roosting at Saratoga Lake and the Tomhannock Reservoir would also feed at the Saratoga County landfill in proportion to the amount of waste going into it.

Gull Flight Behavior

20. Gulls traveling from the landfill to roosting and loafing areas would tend to fly at altitudes at or below 500 feet from the ground. To conserve energy, gulls tend to travel close to the ground surface, but high enough to clear trees and other obstructions. However, given a favorable wind, they will fly higher, and on warm, sunny days, gulls are inclined to soar over landfills in groups, as high as 1,000 and even 2,000 feet, loafing on the wing if the landfill is creating a thermal lift.

21. During days when waste is being received, one could expect a considerable amount of movement back and forth between the landfill and loafing areas on the Hudson River and nearby fields, especially those with short grass.

Other Bird Species

22. Apart from gulls, the Saratoga County landfill would also likely attract large numbers of starlings and crows, as well as some turkey buzzards and red-tailed hawks.

23. The red-tailed hawks hunt by perching on fence posts or other low areas, whereas the northern harrier, which is not attracted to landfills, hunts on the wing and then dives down to capture its prey.

"Passive" Bird Control Measures

24. To ensure that the operation of the Saratoga County landfill minimizes any attractiveness to birds, the County commits to various "passive" bird control measures as part of its landfill operating procedures.

25. The most important of these measures is covering all putrescible waste as soon as practicable, since good cover would preclude foraging. The County also commits itself to seeding closed areas as soon as practical, maintaining as small a working face as possible, and eliminating standing water where gulls might bathe.

26. Even with these useful measures, the Saratoga County landfill could draw as many as 5,000 gulls on a daily basis due to the projected amount of available waste and the size of the regional gull population.

27. Gulls would be expected in large numbers during the period of the day when waste is exposed (in other words, from when dumping begins to when the daily cover is fully established).

28. Gulls would be concentrated at or near the landfill's active face, and also between the landfill and attractive loafing areas along the Hudson River and in nearby open fields.

"Active" Bird Control Measures

29. Should the landfill become a gull attractant despite the "passive" control measures, the County has committed itself to active harassment using pyrotechnic pistols and, if necessary, tape-recorded bird distress calls, also referred to as bioacoustics.

30. The FAA has already told the County that if more than 500 birds are observed in the landfill area, it would expect appropriate measures to disperse them. The County indicates it might use active harassment of even a smaller number of birds to prevent them from getting accustomed to the site, as happened at the Colonie landfill.

31. Pyrotechnic pistols would be used as a first form of active harassment. The 22-caliber pistols would use "screamer" and "banger" rounds that sound at a level of about 115 to 120 decibels.

32. A "banger" is a firecracker device that issues a single report some 150 to 200 feet away from where it is fired. A "screamer" makes a whistling-type screech from the moment it leaves the gun barrel.

33. The "screamer" and "banger" rounds would be fired by a landfill employee requiring special training and devices for hearing and eye protection. The rounds might have to be fired as often as three times per hour to disperse flocking gulls.

34. To augment pyrotechnics, the County proposes to use bird distress calls as a back-up measure. The calls would be played through a cassette player mounted on the back of a truck. The tape would be played for 10 to 15 seconds, stopped, and then repeated as necessary.

35. Gulls are migratory birds; as some leave an area, others enter. Because the landfill's gull population would be constantly turning over, new gulls unaccustomed to active harassment would be expected to replace those that had previously been dispersed. Therefore, active harassment, if necessary, would likely be required over the entire period when the landfill is receiving waste.

Active Gull Harassment at Colonie Landfill

36. While it is unclear how effective active harassment would be at the Saratoga County landfill site, such measures have reduced the gull and starling population at the Colonie landfill since being inaugurated there in December, 1995. The gull population fell from 4,500 when the measures first began to 1,200 at the end of February, 1996; the starling population fell from 5,000 to 1,200. The birds' populations vary not only due to the harassment measures, but in relation to migration patterns.

37. Gulls at the Colonie landfill have longstanding feeding behaviors, which create an added fidelity to the site and thereby work against the harassment measures' success.

38. The Colonie landfill uses fireworks, propane cannons, and loudspeakers airing bird distress calls as active harassment devices. Leaders among the gulls have also been killed by shotgun to make their flocks easier to intimidate.

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 consequences.

Mechanics of Helicopter Flight

40. Helicopter flight depends on a number of factors related to proper operation of the main rotor, tail rotor and engine. Helicopters generate both their propulsive and lifting forces by rotary wings (also called "blades"). The main rotor system consists of a matched and carefully balanced set of slender blades that rotate around a common axis. These are the large rotor blades usually located above and just behind the aircraft cockpit.

41. The attitude (or angle) of helicopter blades is controlled by linkages that are attached to a bearing (called a swashplate) mounted on the rotor drive shaft. The rotor blades turn at about 300 revolutions per minute (5 revolutions per second) and are controlled by linkages so that they oscillate with each revolution.

42. The most common helicopter design uses a single large main rotor system. If the main rotor were the only rotor system on the aircraft, the torque applied to the rotor drive shaft from the transmission would cause the frame of the helicopter to rotate in a direction opposite to the blades.

43. To correct this imbalance, a smaller rotor (commonly referred to as the tail rotor) is mounted vertically at the tail of the helicopter to generate enough thrust to balance out the main rotor torque. The tail rotor is driven by a separate shaft that emanates from the transmission and the attitude of its rotor blades is also controlled by linkages located at its center of rotation.

44. All military helicopters and the majority of civil helicopters are powered by gas turbine engines. These turboshaft engines are nearly identical in design to the turbojet, turboprop and turbofan engines that power fixed-wing aircraft.

45. All of these engine types contain an air compressor, combustion chambers to mix fuel with the compressed air followed by burning of that mixture within the chambers, and turbines at the back end to extract power from the combusted mixture. In rotorcraft engines, the turbines are used to power a drive shaft. The drive shaft is the prime mover for the helicopter transmission.

46. A helicopter's main rotor typically operates at speeds of about 700 to 800 feet per second. The tip speed of the UH-1 Iroquois is 812 feet per second; for the UH-60 Blackhawk, it is 710 feet per second.

Impact of Bird Strikes on Rotor System

47. The impact of a bird to the rotor system could damage or destroy the tip of the rotor blade, which on the UH-60 is particularly fragile. This in turn could upset the balance of the main rotor system, causing severe vibrations in the helicopter. In the event of such vibrations, the helicopter would have to be landed immediately since not to do so could result in fatigue failures in some of the helicopter parts, and potentially a crash.

48. Data from the U.S. Army (Exhibit No. 275) and the FAA (Exhibit No. 277) illustrate what can happen when helicopters are subject to in-flight bird strikes. In one example (Exhibit No. 275, Case No. 890709051), the tip cap of a UH-60 Blackhawk's main rotor blade was severed by a bird strike, resulting in severe vertical and horizontal vibrations, forcing a landing, although no additional damage and no injury were reported.

49. A helicopter's tail rotor also operates at tip speeds of 700 to 800 feet per second. A bird strike to the tail rotor can be even more serious than a strike on the main rotor. Because of its smaller size, the tail rotor does not have the structural strength of the main rotor and cannot withstand impacts as well as the main rotor.

50. Cases of tail rotor separation following bird strikes, documented by the FAA, indicate resultant hard landings and substantial helicopter damage, but no reported injuries. Also, the Army data illustrate bird strikes to the tail rotors of helicopters, including one instance (Exhibit No. 275, Case No. 860913021) where a bird strike caused a separation on the leading edge between the tail rotor hub and the retaining nut, resulting in a severe airframe vibration that required an immediate landing.

Impact of Bird Strikes on Control Linkages

51. As mentioned above, the blades of the main rotor and the tail rotor are both controlled by exposed linkages that rotate with the rotor blades. Because the linkages are exposed, the potential exists for birds to get jammed between the control linkages and the drive shaft, locking the linkages in place.

52. Birds can also become entangled within the control linkages, thereby jamming the blade controls and causing uncontrolled commands to the rotor blades. These uncontrolled commands can lead to extreme or extraneous motions of the affected rotor, causing the helicopter to veer off its normal flight pattern or even nose over.

53. The FAA data (Exhibit No. 277, incident date 2/2/73) include an example where a buzzard jammed between a helicopter's transmission and the swash plate, the bearing that surrounds the drive shaft. The cyclic control tube was broken and the helicopter was substantially damaged.

54. In another instance, the Army reports that a suspected bird strike to a helicopter's rotor system threw the main rotor blade out of phase temporarily, forcing a landing in an open field. This incident (Ex. 275, No. 850628071) occurred in close proximity to a sanitary landfill during a period of reduced visibility caused by bad weather.

Impact of Bird Strikes on Helicopter Engines

55. A helicopter's turboshaft engine is also vulnerable to bird hazards since it has the same operational concerns regarding bird ingestion as the turbojet engine. For either engine configuration, large quantities of birds ingested by the engine can cause "flameout."

56. "Flameout" occurs when a foreign object, such as a bird, is ingested and thereby alters the mix of fuel and air in the engine. This causes the engine to stop combusting fuel and results in a loss of power. When the helicopter loses power, it must go into "auto-rotation," landing by windmilling down and extracting energy from the air.

57. The Army data include an example (Ex. 275, No. 910223061) where birds were ingested into both engines of a UH-60 Blackhawk on a combat mission, resulting in the aircraft's grounding and the engines' replacement.

Impact of Bird Strikes on Helicopter Windshields

58. Finally, bird strikes may also occur to the windshields of helicopters. Because of the helicopter's greater maneuverability compared to fixed-wing aircraft, helicopter cockpits are designed to provide more visibility and therefore have significantly more glass. The glass is shatter-resistant and very few bird strikes to the windshield result in actual penetration. However, large birds have been reported to have crashed through helicopter windshields, creating a serious safety hazard for pilots.

59. For instance, the Army data include one incident where a seagull striking the main rotor blade of a UH-60 Blackhawk helicopter was deflected downward and then through the co-pilot's windshield. The windshield failed, causing a 9.5-inch-by-15.5-inch hole and strewing bird remains and glass into the crew compartment, causing minor injury to the co-pilot.

60. In an example from the FAA data (page 2 of Exhibit No. 277, incident date 1/29/83), a bird collided with a helicopter pilot on an unauthorized low-level flight. The bird came through the open door of the helicopter and struck the pilot's temple. The impact dazed the pilot and the helicopter crashed.

Other Risk Considerations

61. Helicopters typically do not fly as fast as jet aircraft; typically, they do not fly faster than 150 knots. The UH-1 has a maximum forward speed of 120 knots; the UH-60, 160 knots; and the OH-58, 130 to 140 knots. Cruise speeds for these helicopters would be about 10 knots less than the maximum speeds. Typical flight speeds on the descent to or ascent from an airport would be 40 to 60 knots.

62. The impact of a bird strike to a helicopter frame at these speeds would be less consequential than the impact of a bird strike to a jet flying at 400 knots. However, the tip speeds of the UH-1 and UH-60 helicopter rotors translate to 480 and 420 knots, even when the helicopter is not moving forward at all. If you superimpose the helicopters' forward speed onto these tip speeds, the rotor tip is moving at about 600 knots. Therefore, the consequence of bird impact on a helicopter rotor would be much greater than it would be for a fixed-wing aircraft flying at 400 knots.

63. Also, the UH-60 has fiberglass rotor blades, the outboard five percent of which have a hollow shell on the blade tip which is very susceptible to bird impact damage. (The UH-1 blade, on the other hand, has a very thick aluminum structure, and would not be affected as readily.)

64. The potential for bird strikes is related somewhat to the amount of exposed frontal surface of the aircraft. The frontal surface of the rotor in flight is between 50 and 100 square feet, and in cruise flight, when the helicopter is flying nose down, the rotor wing represents the majority of the helicopter's frontal area.

65. The turning of the helicopter's rotor creates "downwash," a flow of air downward through the rotor that makes the helicopter fly. This "downwash" could force birds in a helicopter's vicinity down and away from the aircraft, but only if the birds are below the rotor. If the birds are above the rotor, the downwash will tend to suck them into the rotor.

66. Helicopters are more maneuverable than fixed-wing aircraft and can bank and hover; therefore, they are better able to avoid flocks of flying birds. However, avoidance depends on the pilot's ability to see the birds, which is affected by weather conditions. Where a bird strikes the side or tail of a helicopter or where visibility is low, the helicopter's superior agility does not provide a benefit. Many collisions occur because pilots do not see birds in time to correct their course.

67. Even when pilots do see the birds, evasive action may not work. The Army data include an example (Exhibit No. 277, Case No. 900212141) in which a buzzard was spotted about 200 meters off the nose of a UH-1 helicopter, directly in its flight path. As the bird continued flying toward the helicopter's intended flight path, the pilot altered his course to the left, and the bird also turned toward the helicopter, intercepting this new flight path. At about 50 meters, the pilot initiated a climb to avoid a probable strike, but the bird turned again toward the helicopter and struck the cockpit's side between the chin bubble and the windscreen.

68. In general, helicopters produce a lower frequency noise than fixed-wing aircraft, and their "chopper" sound is often felt or heard long before they are visible. The high tip speeds of UH-1 helicopters make them particularly noisy. Helicopters tend to frighten wildlife more than fixed-wing aircraft. Their noise tends to disperse birds ahead of them.

Helicopter Flight Patterns

69. Helicopters can climb vertically during take-off to high altitudes and land vertically from high altitudes, although their accepted flight pattern for take-off and landing closely resembles that of fixed-wing aircraft. Typically during take-off the helicopter will lift off vertically to a height of between 20 and 50 feet above the ground. It will then transition from its hover mode to a forward flight mode while climbing simultaneously.

70. The angle of departure for a helicopter moving away from an airport is typically on the order of 5 to 10 degrees. However, it could be more or less, and the pilot does not have to climb at all except to avoid obstructions. To conserve fuel, some pilots lift off to just 20 feet above ground and then move forward with no climb angle since this minimizes power requirements and fuel consumption.

71. Landing a helicopter follows a pattern similar to take-off, except in reverse. During final approach, the pilot usually positions the helicopter to descend along a gentle glide slope (typically about three degrees) until the aircraft hovers, approximately 20 to 30 feet above the landing site. The helicopter then descends vertically from the hover position to the touchdown.

72. The Heber Airpark has no FAA-established ingress/egress flight traffic pattern that aircraft must adhere to when approaching or departing from its landing strip. The Army National Guard helicopters generally follow the same flight path as the fixed-wing aircraft.

73. Following typical patterns and not accounting for those particular ones used by the Army National Guard, which are unknown, helicopters passing over the Saratoga County landfill site would be expected to be at or about 500 feet above ground. Gulls would likely be flying at lower altitudes, but could be at the same height or even considerably higher if loafing on the thermal lift generated on warm, sunny days.

FAA Order 5200.5A

74. Guidance on the siting of landfills in proximity to airports is provided by FAA. In an order (5200.5A) issued by its Office of Airport Safety and Standards in Washington, D.C., FAA considers landfill sites to be incompatible with public use airports if they are within certain distances of each other. Incompatibility is established if the waste disposal site is located either within 10,000 feet of any runway end used or planned to be used by turbine-powered aircraft, or within 5,000 feet of any runway end used by piston-powered aircraft.

75. FAA's order 5200.5A notes that landfills attract birds and thereby erode the safety of the airport environment. The order states that while the chance of an unforeseeable, random bird strike in flight will always exist, high-risk conditions exist in the approach and departure patterns and landing areas on and in the vicinity of airports.

76. The order is provided to airport owners as guidance in determining compatibility, recognizing that where airports are not under the jurisdiction of the local governing body controlling land use in the airport's vicinity, the airport owner must use its resources and exert its best efforts to close or control waste disposal operations within the airport's general vicinity.

77. FAA's Office of Airport Safety and Standards is currently working on a new advisory circular and revision to Order 5200.5A that would specifically identify fixed-wing aircraft in the airport/landfill separation criteria, and consequently exclude helicopter operations from consideration. This revision is in draft form and has not been formally adopted by FAA. It is not clear from the current order whether or not it applies to helicopters. FAA has no official policy on this point, and FAA representatives have acknowledged the order's ambiguity.

FAA Assessments of Safety Risk

78. FAA has made a series of determinations whether the location of the proposed Saratoga County landfill would pose a safety hazard to aircraft. These determinations have been made by FAA's eastern region office in New York City, which, like other FAA regional offices, implements guidelines that are developed and formally promulgated by FAA's Office of Airport Safety and Standards.

79. By notice dated April 12, 1991, FAA's eastern region reported that after study, it had determined that the proposed construction would not be a hazard to air navigation. However, this determination was made before Heber Airpark became a public use facility, and an attachment to the determination states that the airport nearest to the landfill is the Warren County Airport, which is 10 miles away. Therefore, risks to aircraft using the Heber Airpark apparently were not considered when this notice was issued.

80. In a letter dated November, 1991, FAA's eastern region determined that the Heber Airpark runway was not incompatible with landfill operations. However, this analysis was based on the runway being 1500 feet long, with a gravel surface. Because of the length of the airstrip and its surface composition, FAA determined that it was unlikely to be used by turbine-powered aircraft, and noted that it met the required 5,000-foot separation for piston-powered aircraft.

81. Since this determination was made, the runway has been lengthened to 2,200 feet and covered with asphalt. The determination was also made before the Army National Guard helicopters began using the airpark.

82. On May 15, 1995, FAA's eastern region indicated by letter that it agreed with the County's representation that its landfill would not be a hazard to air navigation and would not be incompatible with Heber Airpark operations, including landing and takeoff patterns. The letter interpreted the 5,000- and 10,000- foot separations in FAA order 5200.5A as not ordinarily applying to rotorcraft (helicopter) operations unless there is a specific ingress/egress flight traffic pattern established by FAA, which Heber Airpark lacks.

83. However, FAA did recommend mitigation measures at the landfill if more than 500 birds were observed in the landfill area and Mr. Heber's airpark continued to operate. Pursuant to this letter, the County committed to undertake measures to disperse or otherwise remove birds if the population exceeded 500. In its letter, FAA retained the right to reconsider its position on aircraft safety in the event a wildlife hazard developed as a result of the landfill's construction and operation.

84. In a letter dated November 27, 1995, FAA's eastern region advised the County that the determinations in its May 15, 1995, letter had not changed. FAA again retained the right to reconsider its opinion on aircraft safety if a wildlife hazard developed, but added that no evidence had been brought to its attention that such a hazard would develop.

85. Most recently, in a letter dated January 26, 1996, FAA's eastern region found that the landfill's location near the Heber Airpark met the compatibility requirements of FAA Order 5200.5A. FAA applied the 5,000-foot separation criterion for airports used only by piston-powered aircraft, and did not apply the 10,000-foot separation criterion for airports used or planned to be used by turbine-powered aircraft. FAA said it did not consider the operation of rotorcraft or helicopter operations in making its determination since their operating characteristics and maneuverability make them less vulnerable to bird hazards than fixed-wing aircraft. FAA also said that the Heber Airpark is not suitable for fixed-wing aircraft that are turbine-powered.

FAA's Rotorcraft Directorate

86. FAA has a Rotorcraft Directorate headquartered in its southwestern regional office in Fort Worth, Texas. The directorate has primary responsibility for design standards, approval, continued airworthiness and operational safety of civilian helicopters.

87. The Rotorcraft Directorate does not review military helicopters such as those that fly in and out of the Heber Airpark; this is done by the U.S. Army and the U.S. Department of Defense. Also, it does not provide input to or officially interpret FAA's orders.

88. However, Eric Bries, the directorate's assistant manager, has written a letter, dated February 26, 1996, addressing the potential hazard of bird strikes to helicopter flight generally. His letter (Exhibit No. 279) states that birds are indeed a serious threat to rotorcraft whether piston- or turbine-powered.

89. Bries reports that he was the pilot of a military helicopter that ingested a bird into the compressor section of its turbine engine, resulting in severe compressor blade damage and a subsequent loss of power. In another personal experience, Bries reports that a large sea gull smashed through a copilot's windscreen, incapacitating him.

90. According to Bries, helicopter jet turbine engines, tail rotor blades, main rotor blades, and wind screens are all susceptible to dangerous bird impact damage at surprisingly low airspeeds. He writes that helicopter pilots take the same evasive action (sometimes dangerous in itself) as their fixed-wing counterparts to avoid bird strikes.

Burden of Landfill Site Relocation

91. Should the County be unable to receive a variance from DEC's airport separation requirement, its options would include selecting a new proposed landfill site. Virtually all of the landfill footprint is within 10,000 feet of the end of the Heber Airpark runway, and therefore shifting it slightly is not an available option.

92. The County has spent in excess of $2 million on the proposed landfill to date, which includes costs for siting and designing the facility, as well as fighting various legal battles with the Town and other landfill opponents. It is impossible to predict what additional costs would be incurred by shifting the landfill to another site entirely, although they would certainly be substantial.

93. Including all construction and development costs, the total costs of disposal at the landfill, assuming full use and projected waste flow, are over $100 million. An additional $2 million in expense amortized over the life of the landfill would raise the cost for waste disposal by about $1.70 per ton.

DISCUSSION

Background

DEC's regulations require that "a landfill or landfill cell into which putrescible solid waste is proposed to be disposed must be located no closer than 5,000 feet from any airport runway used by piston-type aircraft and no closer than 10,000 feet from any airport runway used by turbojet aircraft" [6 NYCRR Section 360-2.12(c)(3)].

Because the landfill footprint at its closest is still 8,750 feet from the nearest extent of the Heber Airpark runway, the 5,000-foot separation standard for the piston-type aircraft based at and flying into Heber Airpark is met. With regard to the 10,000-foot separation standard, the Deputy Commissioner has indicated that a variance is required due to the use of Heber Airpark by Army National Guard helicopters.

To receive a variance, the County must demonstrate both that the proposed landfill will have no significant adverse impact on public safety, and that compliance with the 10,000-foot airport separation requirement would, on the basis of conditions unique to its particular situation, tend to impose an unreasonable economic burden. [6 NYCRR Section 360-1.7(c)(2)(ii), (iii)].

Impact on Public Safety

Given the existing record, the siting of the proposed landfill would have a significant adverse impact on public safety. This concern for public safety (or, more particularly, aircraft safety, as defined by the Commissioner's interim decision) was at the heart of the hearing on this variance application. This was intended by the Deputy Commissioner, who, in certifying the issue, said the airport separation question should be examined "in a manner which deals squarely with the aircraft safety issue." [See, Second Interim Decision, October 3, 1995, p.10.]

The Deputy Commissioner said that if the County submitted a variance request and met its burden of showing with record evidence that no significant air safety threat exists, the County should be entitled to a variance from the 10,000-foot siting restriction.

My conclusion that a significant air safety threat exists is made despite the language in the interim decision that a variance is a likely outcome. At the time of the issues conference, no variance request had even been filed and the question posed by my issues ruling was whether a variance was required (in effect, whether the helicopters should be considered turbojet aircraft) and not whether a variance should be granted.

The Commissioner basically decided the issue raised in my issues ruling by saying that the situation "cried out" for a variance. He added that while materials presented in connection with the issues conference suggested strongly that a variance was a likely outcome, a variance could not be granted on these papers alone, and that the matter should be considered as part of the adjudicatory hearing.

In accordance with the Commissioner's decision, the County submitted a variance application (Exhibit No. 257) on December 13, 1995. DEC Staff then issued a memorandum recommending that the variance be granted.

Evaluation of Expert Testimony

My recommendation that the variance be denied is based largely upon the testimony of the Town's chief witness, Dr. Andrew Lemnios, director of the Rotorcraft Technology Center at Rennselaer Polytechnic Institute. Of the witnesses for the County and the Town, Dr. Lemnios was the only one qualified and able to address this issue from the standpoint of helicopter design and operation. (Ronald Merritt, the County's expert, is a biologist by training, not an aviation expert, despite his years with the Air Force assessing bird strike hazards at airports and landfills.)

Dr. Lemnios explained in detail how the helicopters now using Heber Airpark are designed and operated, as well as their vulnerability to bird strike. This demonstration was backed up by examples from bird strike data maintained by the U.S. Army (for military helicopters) and the FAA (for civilian helicopters).

In addition to Dr. Lemnios, the Town presented as its witness Dr. Kenneth Able, a SUNY-Albany professor who, through his own observations and studies, demonstrated a familiarity with the regional gull population, its movements and behavior. Dr. Able is well qualified to discuss gull behavior in and around landfills, having censused the gull population at the Colonie landfill. His knowledge in this area proved deeper than Mr. Merritt's, since Mr. Merritt lives outside the state, and conducted only a cursory examination of local gull habitat.

Mr. Merritt was largely unfamiliar with the Colonie landfill, the largest nearby gull attractant, and even mistakenly referred to it as the "Crescent" landfill in his prefiled testimony. He was also unaware of a low dam on the Hudson River, near the site, which creates an expanse of open water that Dr. Able said would provide an attractive place for landfill-foraging gulls to sit, bathe and loaf in all seasons.

Overall, the Town demonstrated convincingly that the landfill would present a significant (or meaningful) threat to helicopter safety, a threat sufficient to warrant adherence to the airport separation standard. Also, in general, the Town demonstrated the safety hazard in a manner consistent with the sensible approach advanced by the County's expert, Mr. Merritt.

As former chief of the Air Force's bird-aircraft strike hazard team, Mr. Merritt provided on-site technical assistance to major commands and bases worldwide in reducing bird strike hazards on airfields and weapons ranges. While Mr. Merritt concluded that the proposed Saratoga County landfill would not create a hazard to aviation at Heber Airpark, he said that, in making such a determination, he would consider such things as the nature of operations at the airport, what types of aircraft are flying there, how potentially fragile those aircraft are, the distance to the proposed landfill, the size of the landfill, nearby habitat and how it is managed, aircraft traffic patterns, and the types of bird species and the altitudes at which they would fly to and from the landfill. These considerations were addressed in testimony and relevant findings are noted above.

Helicopters at Heber Airpark

Basically, the findings demonstrate that the only turbine-powered aircraft that use Heber Airpark are the Army National Guard helicopters. (According to the FAA correspondence, the airpark is not suited for turbine-powered aircraft that are fixed-wing.)

The number and type of helicopters using the airpark have varied over the four or so years it has been used by the Army National Guard, and presumably this would continue in the future. Over the near-term, there will apparently be a shift in emphasis from daytime to nighttime operations, and an increase in flights into the airpark from 10 per month to as many as 50 per week, according to a hearsay statement from a National Guard representative. (No Guard official or member testified at the hearing, and the Town reluctantly withdrew its prefiled testimony from a Guard pilot when he reconsidered appearing.)

Airpark Proximity to Landfill Site

The Heber Airpark runway is 8750 feet from the nearest part of the landfill footprint, close to the 10,000 feet required for separation. Therefore, a relatively small variance is required. Also, the distance between the landfill and the runway suggests that at normal flight patterns, helicopters would likely be about 500 feet from the ground when passing over or near the landfill, higher than birds normally fly.

On the other hand, the fact that the landfill stands directly in the path of the runway's extended center line presents a problem in granting the variance, as does the substantial size of the landfill operation. The landfill would be receiving a considerable amount of waste on a daily basis, and would be a powerful bird attractant, drawing as many as 5,000 gulls in the absence of active harassment measures, according to Dr. Able.

The use of these measures, while helpful in curbing the gull population, would adversely affect the northern harrier, a threatened species whose needs were also addressed at the hearing. Because these measures would amount to a taking of the harrier, as discussed in the next section of this report, I do not recommend them.

Control of Bird Population

Without active harassment measures, the County would be left with the passive controls it has committed to and which are outlined above. These measures are largely redundant of Part 360 regulations governing landfill operation, which require that:

  • A minimum of six inches of compacted cover material must be applied on all exposed surfaces of solid waste at the close of each operating day [6 NYCRR 360-2.17(c)];
  • A minimum of 12 inches of compacted cover material must be applied and maintained on all landfill surfaces where no solid waste has been or will be deposited within 30 calendar days [6 NYCRR 360-2.17(d)];
  • A vegetative cover must be established and maintained on all exposed final cover material within four months after placement [6 NYCRR 360-2.15(k)(6)]; and
  • The working face must be restricted to the smallest area practicable, based on peak usage traffic conditions at the landfill [6 NYCRR 360-2.17(b)(1)].

Gull Population Estimate

DEC Staff considers Dr. Able's projection of the landfill gull population to be at best an educated guess. Certainly the number cannot be estimated with any precision; however, to be careful, I think it is best to assume a credible worst-case scenario. Dr. Able's figure of up to 5,000 gulls was certainly reasonable, considering both that 10,000 gulls (plus 5,000 starlings) were known to have frequented the Colonie landfill before active harassment measures began, and that the County expects its landfill to receive about half as much waste on a daily basis as the Colonie landfill.

While all parties concede that, of the two, the Colonie landfill would be the better bird attractant, Dr. Able testified credibly that gulls tend to redistribute themselves like people in check-out lines when new scavenging sources develop.

In its variance application, the County notes that the Town of Northumberland operated its own landfill within several hundred feet of the proposed County landfill, and that during its last three years of operation (1987-1990), none of the landfill's supervisors mentioned "excessive" gull visitation problems, as noted in a vector investigation submitted as part of the landfill's closure plan.

However, there are no counts of actual numbers of gulls, nor does the record reflect how much waste was received at the town landfill on a daily basis. Presumably it was relatively little, because of the Town's small population. A larger, county-wide landfill would certainly draw much more waste than the Town's facility did, and therefore be much more of a gull attractant.

Not only would the County landfill offer a large, reliable food supply for gulls, there is plentiful nearby habitat (in open fields and along the Hudson River) for loafing during the day. As Dr. Able noted, there would be considerable gull traffic back and forth between the landfill and these areas, apart from the traffic to and from roosting sites.

The County and DEC Staff note correctly that most of this traffic would be below elevations at which helicopters would normally be expected to fly when passing over and near the site. However, we know little about the actual elevations at which these helicopters fly, since the Army National Guard did not appear at the hearing.

Also, depending on factors like wind currents, the birds could also be at the same elevation as, or higher than, the helicopters. Both Dr. Able and Mr. Merritt acknowledged that on warm, sunny days, gulls could be soaring over the landfill, riding the thermal uplift. Helicopters are noisy and tend to disperse birds ahead of them. However, bird behavior is somewhat unpredictable, and bird strikes, while uncommon, do occur to helicopters as well as to fixed-wing aircraft.

Dr. Lemnios effectively conveyed the risks that birds (especially gulls) pose to a helicopter due to the exposure of sensitive parts critical to its flight. In particular, his testimony demonstrated risk to the main and tail rotor, the linkages that control the rotors, the engine, and the windshield. He showed how certain characteristics of helicopters such as their slower speed and greater maneuverability when compared to fixed-wing aircraft do not eliminate bird strike concerns.

Consideration of FAA Correspondence

To buttress Mr. Merritt's testimony, the County offered a long string of correspondence from FAA officials suggesting there is no significant safety hazard. The Deputy Commissioner himself said that FAA's views would be an important consideration in deciding this matter, especially since DEC has no independent expertise in this area.

Careful review of the FAA letters indicates that the earliest ones are based upon outdated information (about the location of the nearest airport, or about the length and surfacing of the Heber Airpark runway). Letters from 1995 finding no hazard to air navigation appear to have been premised on expectations that the landfill would not draw more than 500 birds, and FAA reserved its right to review the matter again if a wildlife hazard developed. Again, Dr. Able suggested that in the absence of active harassment, which I do not recommend, as many as 5,000 gulls could be expected.

In its most recent letter, dated January 26, 1996, FAA's eastern region found the landfill compatible with the airpark by not applying the 10,000-foot separation criterion in the FAA order. On the other hand, Deputy Commissioner Sterman, using the comparable DEC regulation, which is derived from the FAA order, has invoked this criterion by requiring a variance be submitted.

In its January 26, 1996, letter, FAA did not invoke the 10,000-foot separation criterion because it did not consider the risk to helicopters significant. However, at the time the County was considering nine preliminary siting areas, one of the sites, in Stillwater, was excluded from consideration after "a determination was made in conjunction with a confirmation with DEC, FAA and the Air National Guard that a 10,000 foot setback would be appropriate for the Round Lake Airport based on the use of turbojet helicopters at this facility" (Permit Application p.6-20).

FAA's January 26, 1996, letter also suggests that helicopters are less vulnerable to bird strike than fixed-wing aircraft, a contention of Mr. Merritt as well. However, the point of the hearing is not whether helicopters are at more or less risk than fixed-wing aircraft, but whether the risk to helicopters, standing alone, is significant.

A letter of FAA's Rotorcraft Directorate, offered by the Town, indicates that helicopter components are susceptible to dangerous bird strike damage at surprisingly low speeds, which confirms testimony of Dr. Lemnios and suggests some difference of opinion within FAA about the safety issue.

Also disturbing is testimony from Mr. Heber, the airpark owner, that FAA evaluated the safety hazard with incorrect information about the landfill's offset from his runway's center line, which he said represents the approach and departure path for aircraft, including helicopters, entering and leaving the airpark. Mr. Heber obtained this information (Exhibit No. 287) from FAA's eastern region and it indicates that the landfill would be 2,855 feet to the right of the extended center line. However, the extended center line actually crosses the landfill, as demonstrated in Exhibit No. 288.

According to Mr. Heber, Vincent Cimino of FAA's eastern region said that he used the information in Exhibit 287 to determine whether a safety hazard could be expected. When Mr. Heber asked him how he could say there would be no hazard when the center line basically runs through the landfill, Mr. Cimino reportedly responded, "That's not my understanding," and said the landfill's proponents provide him the relevant coordinates and he uses them to make his determination.

In its closing brief, DEC Staff argues that FAA's positions should be given significant weight and that it would be misguided and arrogant to independently determine, without sufficient expertise, that the FAA is wrong on the aircraft safety issue. While it is understandable that the Department would want to rely on FAA's expertise, it is hard to in this case when there are serious questions about what information it used to make its determinations, when FAA's different offices appear to be sending mixed messages, and when certain presumptions FAA makes to evaluate safety risk (for example, that the landfill will not attract more than 500 birds) are rebutted by credible evidence at the hearing. This is complicated by FAA's failure to appear at the hearing, despite requests by both the County and the Town.

The County's attorney, Mr. Alexander, said he contacted the FAA about testifying and was told that agency officials would not accept a subpoena, and that it was FAA policy not to appear at this type of hearing unless it had a concern regarding safety impacts.

The Town went so far as to actually subpoena both Mr. Cimino and A.H. DeGraw, another official from FAA's eastern region, to cross-examine them about the determinations they made in letters that are part of this record. However, an attorney for FAA's eastern region likewise told the Town's attorneys that FAA officials are not subject to subpoena and would not appear. A letter of FAA counsel to the Town attorney (Exhibit No. 281) indicates that state and local authorities do not have jurisdiction to issue subpoenas against a U.S. government agency, citing McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), and Hancock v. Train, 426 U.S. 167 (1975). Accordingly, neither I nor the Deputy Commissioner could compel FAA's appearance, if that were deemed necessary upon review of this report.

Because the Town was unable to cross-examine the authors of FAA correspondence, it objected to my receiving that correspondence as part of the record, saying it was unreliable. However, as the Deputy Commissioner said FAA's views were an important consideration, I received it regardless, noting also that this is an administrative hearing and hearsay is admissible.

On the other hand, I agree with the Town's argument that FAA's views should not be given the same weight as those of experts like Dr. Lemnios and Mr. Merritt who actually appeared at the hearing and who, under often rigorous cross-examination, were forced to explain and defend their opinions.

Incidence of Bird Strikes to Helicopters

Testifying for the County, Mr. Merritt emphasized not the design of helicopters, but the relatively low incidence of bird strikes to them. He said that these strikes, when they occur, usually result in only minor damage. Also, he noted the absence of documentary evidence that bird strikes result in serious pilot or passenger injury or death.

Mr. Merritt said the Air Force bird-aircraft strike hazard team is generally not concerned about the potential for damage or loss of helicopters due to bird strikes because, of 24,448 bird strikes reported to the Air Force between 1985 and 1993, only 72 involved helicopters. However, under cross-examination, he admitted not knowing how many helicopters the Air Force has among its total aircraft. Dr. Lemnios then testified that the Air Force owns only 88 helicopters out of 8,100 under the Department of Defense.

Similarly, Mr. Merritt said that strikes to helicopters accounted for only 1 percent of strikes reported to Canadian aircraft in 1994. However, he admitted not knowing what percent of Canadian aircraft are helicopters.

Mr. Merritt said a query of an FAA database of bird strikes between July 1991 and June 1995 turned up only 47 strikes to helicopters or less than 1 per month. But unlike for the military, there is no duty for civilian aircraft to report bird strikes. Mr. Merritt also did not know how many civilian helicopters were flying in this period, or how many flight hours they logged.

Dr. Lemnios's review of available data indicated that helicopters are involved in more bird strikes per flight hour than fixed-wing aircraft. This is probably related to their flying generally at lower altitudes than fixed-wing aircraft, where birds are more likely to be present. Dr. Lemnios's review of Army data for bird strikes to helicopters revealed 2.9 strikes per 1,000 flight hours.

Safety Considerations

There is no question that bird strikes are rare, or that they normally 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. Also, while damage to a helicopter might be minor, that minor damage to a key component (like the rotor or engine) places pilot and crew at significant risk and often results in forced landings.

Finally, if the safety standard is to be measured only in terms of serious human injury or death, there would be little point in maintaining any kind of airport separation requirement, or in distinguishing between fixed-wing aircraft and helicopters, since bird strikes to fixed-wing aircraft likewise tend not to have such serious consequences.

In cross-examining Mr. Merritt, the Town produced a report he wrote in 1992 on bird/aircraft safety hazards. The report (Exhibit No. 268) contains statements that tend to validate the safety concerns Mr. Merritt's pre-filed testimony seeks to refute. For instance, he confirms in the report that landfills are the most significant man-made bird attractant, and that landfills have long been identified as incompatible land uses near airports. He notes that since 93 percent of all reported bird strikes occur at or below 2,000 feet above ground, significant bird attractions should be restricted at distances away from the runway where aircraft would be at 2,000 feet or less. (Helicopters passing over the landfill would be at or about 500 feet above the ground, following typical patterns.)

Mr. Merritt also says that greater concern must be placed in areas beneath the approach and departure corridors for airports, and therefore to landfills that would be directly under aircraft flight paths. (The Saratoga County landfill would be directly in the flight path of aircraft entering and leaving the Heber Airpark, represented by an extension of the runway's center line.)

In his report, Mr. Merritt said claims that new state-of-the-art management practices can result in a bird-free facility are blatantly false. At the hearing, Mr. Merritt said he would not speculate about the number of birds the Saratoga County landfill would attract, but it was clear from the Colonie landfill's experience that even active harassment does not eliminate bird infestations, but merely reduces them so long as the harassment continues. Even if active harassment were allowed, it is not clear that gull populations would be reduced to such a degree that the safety threat would not be significant.

Future Use of the Heber Airpark

Looking ahead, it appears there will soon be, if it has not occurred already, a shift in emphasis to nighttime operations by the Army National Guard at Heber Airpark. It is not clear how long this will last and the only information we have on this is hearsay.

Nighttime operations would present a much reduced hazard since the landfill would be receiving waste only during daylight hours, and the waste would be covered each afternoon before the landfill closes. Also, according to Mr. Merritt, birds that present a hazard to aviation tend not to be active at night.

It is unclear what use the Army National Guard will make of Heber Airpark over the projected life of the landfill. The County's own cost projections suggest the landfill would not reach capacity until the end of 2014 or the beginning of 2015, and changes in waste tonnages actually received could lengthen the landfill's life.

Because the Army National Guard's use of Heber Airpark appears to vary in terms of type and number of helicopters, and the timing of operations, it is sensible and prudent to presume this variation will continue in the absence of any contrary indication.

Economic Burden

To secure a variance, the County must also demonstrate that adherence to the airport separation requirement would tend to impose an unreasonable economic burden [6 NYCRR 360-1.7(c)(2)(ii)]. I appreciate the considerable expense the County has already incurred in siting, designing and seeking permits for this landfill. On the other hand, I consider the relevant burden to be the additional expense the County would have to incur to meet the separation requirement, not the $2 million or so it has spent so far.

At worst, the County would have to re-site at another location identified in its landfill siting study. The costs of re-siting are impossible to quantify despite the County's attempt to do so at the hearing through testimony from John McKeon, a deputy commissioner of the county's Department of Public Works. Needless to say, however, the costs would be substantial.

On the other hand, the County appears to have other options including a purchase of the airpark, which was not discussed at the hearing but has been mentioned in subsequent press accounts. The County could take and then close the airpark using its powers of eminent domain. While either of these options would be costly to the County, they would probably be less expensive than re-siting. At any rate, it cannot be determined from the existing record what these costs are and therefore how great a burden they would impose on the County and its taxpayers.

Other County Options

Short of in effect eradicating the airpark, the County might be able to negotiate an agreement with the Army National Guard restricting its use of the airpark in a manner that would eliminate the safety hazard. Apparently, the Army National Guard helicopters are the only turbine-powered aircraft that use the Heber Airpark.

While the Guard did not testify, Mr. Merritt, the County's witness, said the Heber Airpark is not a necessary destination for the Army National Guard helicopters, and that its maneuvers can take place at other airports. In fact, the Guard already uses other airports in the vicinity of Heber Airpark and, for all we know, would want to change or even abandon its use of the airpark if the landfill is permitted, due to a perceived safety risk to its pilots.

It appears that as a public use facility, the airpark cannot refuse landing privileges to any aircraft. On the other hand, the FAA indicates that the airpark is not suitable for fixed-wing turbine-powered aircraft, and no witness disputed this contention. If the Army National Guard ceased to use Heber Airpark, it would eliminate the need for a variance, since the Guard's helicopters are the only turbine-powered aircraft actually using the facility. Also, if the Guard restricted its airpark operations to nighttime for the life of the landfill, it would eliminate any significant safety hazard, allowing a variance to be issued.

DEC has no apparent authority to regulate use of the Heber Airpark. It can only apply and enforce its own regulations. However, I see no reason why the County and the Army National Guard could not reach their own understanding about the Guard's use of the airpark, which could then form a basis for either granting a variance or ensuring compliance with the separation requirement. I or another administrative law judge from the Office of Hearings and Mediation Services could even facilitate this discussion, if the County thinks it would be helpful.

County of Fulton Case

As a final point, the County notes that only after it designated the Kobor Road site as its preferred location did Mr. Heber seek to change his airpark from private to public use. The County argues that "after the fact" efforts to impede the siting process and, in effect, require it to start over at substantial additional costs, have been rejected by the courts, citing In the Matter of the Acquisition of Real Property by the County of Fulton, 136 AD2d 115 (3d Dep't 1988).

The County of Fulton case involved that county's acquisition by eminent domain of land previously purchased by the Village of Canajoharie for its waterworks system. The court found that since there could be little doubt that the village purchased the property in order to prevent its use as a landfill, the village's purchase was not for a valid public purpose. Therefore, Fulton county's acquisition of the land was confirmed.

The County of Fulton decision indicates that the land in question was purchased by the village while the county was seeking approvals for its landfill pursuant to the State Environmental Quality Review Act and 6 NYCRR Part 360. In a similar vein, Saratoga County argues that the Heber Airpark became a public use facility in August, 1991, four months after the County announced the Kobor Road site was its preferred landfill location. According to Staff's brief, this puts the County in a unique position with regard to its compliance burden.

At the hearing, Mr. Heber said that at FAA's recommendation, he applied to that agency to change the airpark's status from public to private. He said that FAA made this recommendation to protect him against the landfill, since if the airpark became a public facility, FAA could do a safety study and, depending on its results, oppose the landfill siting.

There is no doubt that Mr. Heber sought the change to stop the landfill, most likely to protect his private interest in the airpark as much as to protect public safety. However, Mr. Heber is not a party to this proceeding, and his motivation does not bear upon the issue of aircraft safety.

Also, for what it's worth, Mr. Heber appears to have acted consistently with FAA order 5200.5A, which provides that where airports are not under the jurisdiction of local governments who can control surrounding land uses, airport owners must use their own resources and exert their best efforts to close or control waste disposal operations within their vicinity. Even Mr. Merritt, the County's witness, once wrote that "if you don't have a landfill near your airport, work hard to keep it that way," although he now says he disagrees with that statement, and says it does not apply in this situation.

As for the Town, it likewise has other interests, apart from aircraft safety, for pursuing this issue. However, the Town did not create this issue, which distinguishes this matter from County of Fulton. Also, the Town's exploiting this issue does not bear upon the safety issue that is central to this hearing.

Finally, even should the Deputy Commissioner find some relevance to the manner in which this issue came about, he must deny the variance if the County cannot demonstrate that the landfill's siting would have no significant adverse impact on public safety, regardless of how unreasonable the burden of compliance would be on the County. This is because, to secure the variance, the County must meet both tests under 6 NYCRR 360-1.7(c)(2).

CONCLUSIONS

  1. The siting of the County's landfill footprint 8,750 feet from the Heber Airpark runway, at the location now proposed, would have a significant adverse impact on public safety.
  2. The County has not demonstrated that compliance with the airport separation requirement would necessarily impose an unreasonable economic burden, given the availability of alternatives to landfill re-siting.

RECOMMENDATIONS

  1. The Deputy Commissioner should remand the matter to provide an opportunity for the County to explore options, including those raised in this report, which might either allow a variance to be granted or dispense with the need for a variance by ensuring compliance with the airport separation requirement.
  2. In the meantime, the variance request should be held in abeyance, pending its possible supplementation. If the matter is not remanded, the variance should be denied.

ISSUE NO. 3 NORTHERN HARRIER

Would the construction or operation of the landfill cause or contribute to a taking of the northern harrier or to the destruction or adverse modification of its critical habitat?

REGULATORY STANDARD

"Solid waste management facilities must not be constructed or operated in a manner which causes or contributes to the taking of any endangered or threatened species of plants, fish or wildlife; or to the destruction or adverse modification of their critical habitat." [6 NYCRR 360-1.14(c)(3)]

Position of the County and Department Staff

The County and Department Staff argue that the county landfill site is not critical habitat for the northern harrier. They contend that any harrier habitat at the site is of low to medium quality, and that extensive habitat of better quality exists in areas outside the site. In particular, they claim that the site habitat is not critical to the harrier's breeding or foraging. They contend that the site habitat is potentially lethal for the harrier as a ground-nesting species due to agricultural practices such as haying.

The County and Department Staff also argue that the construction and operation of the landfill would not cause a "taking" of the northern harrier because these activities would not cause the destruction or adverse modification of the northern harrier's critical habitat and would not impair the harrier's essential behavioral patterns. The County argues that it has no intent or objective to cause a taking, and even if any taking actually occurred, such an event would be speculative and accidental.

According to the County and Department Staff, mitigation of any landfill-related impacts on the northern harrier is not necessary. However, they note that the County has proposed a plan, now incorporated to the project, that would preserve 30.2 acres adjacent to the site as enhanced harrier habitat. As part of this plan, the County would also preserve parts of the landfill footprint not in active use. The County and Department Staff maintain that the mitigation plan, while not required, provides an environmental benefit by improving nesting and foraging habitat for the harrier.

Position of the Town

The Town argues that the landfill area constitutes critical habitat for the northern harrier because it uses the site and the area around it for foraging, resting, roosting, and possibly breeding. Because the landfill would alter areas that this species has used for these activities, the Town argues that the project cannot be permitted.

The Town also asserts that the construction and operation of the landfill would result in a taking of the harrier, both by indirect harm from habitat modification, and by direct harm due to the potential for active harassment of gulls feeding at the landfill face. The Town contends that for a taking to occur, it is not necessary that the County intend to kill or injure a member of the harrier species.

The Town contends that the County's harrier mitigation plan, while well-intentioned, would not accomplish its goals because it would not create any new habitat; it would merely attempt to improve habitat that is already available and used by the harrier. Moreover, the Town notes, the mitigation plan is not based upon any study about how much habitat is needed for the northern harrier.

FINDINGS OF FACT

Harrier Habitat and Behavior

1. The northern harrier (Circus cyaneus), also known as the marsh hawk, is a medium-sized, slender-bodied hawk that DEC has listed as a threatened species. [6 NYCRR 182.6(b)(4)(iii)]

2. This raptor or bird of prey declined in population in New York in the 1950's and 1960's due to a number of factors including loss of habitat from development, draining and filling of wetlands, changes in agricultural practices such as the use of a corn monoculture, reforestation of open fields, and reproductive inhibitors associated with the use of pesticides.

3. The northern harrier prefers to build its ground nest in marshes and wetlands, but will use upland fields when this habitat is limited. The harrier makes one attempt to nest annually, during late April through late June. The incubation period is 36 days and the young stay on the nest for 37 days.

4. The northern harrier hunts a few meters off the ground over large areas of open fields where its prey of small mammals, birds and snakes is abundant. In New York, the prey of choice is the field mouse.

5. Northern harriers breed in North America, and winter from southern Canada to northern South America. In the U.S. Northeast, the harrier winters largely in the salt marshes of the Atlantic coast. However, it will also range inland where suitable habitat is available. Harriers abandon their roosts when weather becomes too harsh and prey is depleted.

6. Harriers are usually seen singly or in groups of two or three birds. Because they build their nests on the ground, their breeding success is limited due to vulnerability to predators and disturbance by human activities such as haying. Although harriers do not return to the same nest in successive years, they tend to nest in the same area as previously. They may nest in an area subject to disturbance, resulting in a failed nest. Because the harrier makes only one nesting attempt each year, this phenomenon creates what is known as a population sink.

Harrier Use of Landfill Site

7. Northern harriers hunt frequently on and in the vicinity of the proposed site for the Saratoga County Landfill during all seasons of the year.

8. In 1990, a harrier nest containing eggs was discovered about 2,500 feet from the boundary of the landfill. It is unknown whether this nest produced live young that fledged successfully.

9. At other times, observations have been made of immature harriers and harriers displaying courtship behavior, indicating the possible presence of a nest in the area of the landfill. However, no other nest has been documented.

Site Habitat

10. The proposed landfill site consists primarily of active agricultural land planted in hay crops. The northeast and southwest portions of the site contain abandoned agricultural land. Emergent wetland occurs in drainage swells and depressions in both the active and inactive farm fields. In the fields that have been abandoned for more than several years, there is scrub and shrub wetland vegetation. In addition, upland forest consisting of mixed deciduous and coniferous trees is present in the northwest, southeast and southwest corners of the site. A forested wetland occurs in the southwest in conjunction with upland forest.

11. In a two-mile radius surrounding the landfill, there is a range of similar land uses, including large areas of land cultivated with alfalfa and grass, and significant areas of pasture, scrub and abandoned fields.

12. Based upon the dietary and nesting requirements of the harrier, various factors are involved in suitability of habitat. In order to support viable harrier habitat, suitable prey habitat must also be available. Prey will be available where there is sufficient cover for them to survive, such as in an undisturbed field.

13. A recently-plowed corn field may provide excellent hunting for the harrier due to the exposure of field mice and other suitable prey, but shortly the prey population will be depleted until sufficient cover is reestablished. Late-season cutting of fields will result in poor prey habitat for the winter months, limiting those areas' usefulness for harrier overwintering.

14. Because the harrier must build its nest on the ground, fields that are plowed during nesting season may become population sinks for this species due to the likelihood of nest disturbance, resulting in injury or mortality. Pasture lands pose similar risks to nest viability due to the possibility of nest destruction by grazing animals or exposure to predation due to cropping of grass around a nest.

15. Hay and pasture cover types at the landfill site, providing 31 acres of suitable foraging habitat, would be lost due to the landfill's construction and operation. These cover types account for less than one percent of the available acreage for harrier breeding and foraging within a two-mile radius of the site.

16. Studies performed regarding the harrier's use of the proposed landfill site and surrounding areas did not include any quantitative study of the prey availability in this area.

17. A harrier habitat evaluation prepared for the County documents a loss of harrier nesting habitat in the vicinity of the landfill site between 1968 and 1992 due to an increase in forest lands based upon natural succession, loss of cultivated lands, and residential development.

18. A part of the land that would be used for the county landfill consists of the former Clausen dairy farm. As part of that operation, corn, oats, and hay were grown as rotational crops. Two hay cuttings were typically obtained, the first before July 4 and the second in mid-August. After the final hay was cut, the dairy herd grazed on the land.

19. The other owner of land to be converted for landfill use, Mr. Baker, used that land for corn and hay production on a rotational basis.

20. Based upon the historic use of the Clausen and Baker lands for pasture and for crop and hay production, these lands would continue to afford suitable harrier habitat at times but could also result in unsuccessful nesting and poor foraging due to trampling of nests in the pasture lands, low prey population after hay cuttings, and destruction of harrier nests and young by farm machinery.

Harrier Mitigation Plan

21. The stated goal of a harrier mitigation plan proposed by Saratoga County is to replace foraging and nesting habitat affected by the landfill project with similar or improved harrier habitat. The harrier mitigation plan (Exhibit No. 72) is referenced in a permit condition (Exhibit 1-A, attached to this report as part of Appendix "A") prepared by DEC Staff and accepted by the County. (A map depicting the lands affected by the plan is also attached to this report as Appendix "D".)

22. According to the mitigation plan, the County would acquire and manage as harrier habitat an area of 30.2 acres located south of Kobor Road and directly southwest of the project site, now part of the Baker property. On a temporary basis, the County would also manage part of the phase 2 and 3 areas of the landfill footprint, formerly part of the Clausen property, and restore and manage the landfill cells after they are filled and closed. The area of the landfill footprint was formerly part of the Clausen farm.

23. To create the 30.2 acres of harrier mitigation area on the Baker property, the County would convert 12.1 acres of agricultural land historically used for corn to an abandoned field, in effect generating good foraging and nesting habitat. In addition, the County would convert another 18.1 acres of active hay fields to abandoned field, changing a potential population sink habitat into an area available to the harrier for undisturbed nesting.

24. The entire 30.2-acre mitigation area would be fenced off to restrict access by humans, vehicles, and domestic animals such as dogs. The area would also be maintained on a scheduled fall mowing on a two- or three-year basis. This maintenance would also enhance the habitat for other ground-nesting birds including some species that are listed by the Department as being of special concern.

25. The 30.2-acre mitigation area to be created by the County would border to the north another larger, similar mitigation area already identified for maintenance as northern harrier habitat as part of the recently-permitted Scott Paper/Finch Pruyn landfill project.

26. On a short-term basis during the operation of the landfill's first phase, the County would convert to abandoned field habitat 17.1 acres of agricultural land in the phase 2 and 3 areas east of the Phase 1 cell. This area would include the proposed screening berm at the eastern end of the site, which would be constructed at the start of Phase 1 and quickly and permanently seeded with a grass cover crop. This area would be fenced off to restrict access.

27. As various parts of the landfill are closed, the cover would be seeded with a grass mixture suitable for providing good habitat for the small mammal prey species of the harrier such as the meadow vole. Mowing of this area wold be restricted to late August, and all clippings would be left in place.

28. Once the third and final phase of the landfill was no longer active, a total of 72.3 acres would be expected to be available as good harrier habitat. This would include the 30.2-acre mitigation area on the Baker property and 48.1 acres of the landfill itself minus 6 acres used for permanent landfill facilities.

29. Department Staff's draft permit condition (Exhibit No. 1-A) provides that the harrier mitigation plan may be modified upon application of the County to DEC or upon request of DEC based upon changed conditions or the determination that other areas of the site are more suitable for habitat. Any changes or revisions to the plan would have to be approved by the Department.

30. The County has agreed not to use rodenticides as part of its revised vector control plan (Exhibit No. 290), thereby eliminating the associated risk of accidental poisoning of wildlife, including the northern harrier.

Noise-Related Harrier "Taking"

31. Harriers are intensive, aggressive predators that hunt along roads and even next to farm equipment. While the noise of trucks might disturb them at first, over time it is likely that they would become acclimated to a certain level of steady noise associated with truck traffic and heavy equipment used at the landfill.

32. The County anticipates that if large numbers of seagulls and other flocking birds become a nuisance at the landfill, it may have to use active harassment measures such as the use of pyrotechnic shells fired from .22-caliber pistols and bird distress calls played through a tape recorder.

33. The firing of pyrotechnic shells from a .22-caliber pistol makes a sound of about 115 to 120 decibels. A program of this type or the use of amplified bird distress calls would tend to scare away harriers hunting at and in the vicinity of the landfill, and reduce the likelihood that they would return. This would offset the benefit of establishing a harrier mitigation area adjacent to the landfill property and on portions of the landfill footprint not in active use.

DISCUSSION

Introduction

Department regulation prohibits the construction or operation of solid waste management facilities in a manner which causes or contributes to the taking of an endangered or threatened species or to the destruction or adverse modification of that species' critical habitat. [6 NYCRR 360-1.14(c)(3)]

The parties agree that the northern harrier is a threatened species pursuant to ECL Section 11-0535 and 6 NYCRR 182.6(b)(4)(iii), and that harriers frequently have been observed hunting in the vicinity of the landfill site. They agree that a harrier nest existed 2,500 feet north of the landfill boundary in 1990, and that it is possible that the harrier still uses or at least might attempt to use the general area for nesting. However, they disagree whether the landfill site is critical harrier habitat, and whether landfill-related activities would cause or contribute to a taking of the species.

The County's witness on this issue was Dr. Robert Andrle, a bird expert who has observed and studied breeding and foraging behavior of six harrier species, including the northern harrier, in North America as well as three other continents. As a subcontractor for Beak Consultants, Inc., he performed two field studies, one in 1991, which documented harrier observations at and around the landfill site, and another in 1992, which considered land uses and habitat in these areas. The Staff presented as its witness Kenneth Kogut, a DEC wildlife ecologist who has done a statewide harrier survey.

The County and Staff generally disparaged the quality of the habitat that exists at the landfill site based upon the potential for a population sink due to mowing and grazing. They argued that the site represents only a negligible portion of the available harrier habitat in the immediate vicinity, and that preferred foraging and nesting habitat exists in areas outside the site.

Responding for the Town were three witnesses, chief among them Dr. Kenneth P. Able, an ornithologist and biology professor at the State University of New York at Albany. Dr. Able made his own site observations in 1991. Dr. Able's testimony was coupled with testimony from two local residents: Joseph Munoff, a former biology teacher, and John DeLisle, an outdoorsman, who found the 1990 harrier nest, with four eggs in it, and whose observations of harriers near the landfill site have been documented in a journal and videotape, which were both received as exhibits during the hearing.

Overall, the Town's position, as explained by Dr. Able, is that the landfill site provides extensive hunting, resting and roosting habitat and some nesting habitat in close proximity to the former nest site documented by Mr. DeLisle, that the site is a favored one used throughout the year by northern harriers, and that adequate hunting habitat within reasonable proximity of a nest site is necessary for the successful reproduction and maintenance of a sustained presence of the species.

Critical Habitat

The key legal concept in this discussion, "critical habitat", is not defined in DEC's Part 360 regulations or the protected species regulations, 6 NYCRR Part 182. It is, however, defined under the federal Endangered Species Act [16 USC Section 1531, et seq], and the Commissioner has relied on this definition in other decisions such as In the Matter of Scott Paper Company and Finch, Pruyn & Company, Inc. (Interim Decision, December 22, 1994). Under the Act, critical habitat is habitat that is essential to the conservation of the species [16 USC Section 1532(5)(A)], as noted in the Scott Paper/Finch Pruyn interim decision.

The Town's brief discusses how the phrase "essential to the conservation of the species" relates back to the Act's earlier definition of "conservation" as meaning ". . . the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary" that is, to bring species to the point where they are no longer required to be considered endangered or threatened. [16 USC 1532.(3).] These methods and procedures are defined by the Act as including all activities associated with scientific resources management, such as habitat acquisition and maintenance, among others.

Based upon these ESA provisions, I concluded in my issues ruling of August 1, 1995, that critical habitat must be considered more than just the specific areas where a threatened species nests, but must also address the habitat used by the species for its existence. This is in line with federal regulation, which suggests that potential critical habitat should be analyzed in terms of the function it plays in relation to the species' life cycle. Federal regulation states that there are five separate components one must consider to determine if a particular location is critical habitat:

  1. Space for individual and population growth, and for normal behavior;
  2. Food, water, air, light, minerals, or other nutritional or physiological requirements;
  3. Cover or shelter;
  4. Sites for breeding, reproduction, rearing of offspring, germination, or seed dispersal; and generally
  5. Habitats that are protected from disturbance or are representative of the historic geographical and ecological distribution of a species. [50 CFR 424.12(b)]

In addition, when several habitats, each satisfying the requirements for critical habitat, are located in proximity to one another, federal regulation provides that an inclusive area may be designated as critical habitat. [50 CFR 424.12(d)]

The federal regulation explaining critical habitat designation directs the Secretary to focus on "principal elements" that are essential to the conservation of a species in a particular geographic setting. These elements include such things as roost sites, nesting grounds, and feeding sites. 50 CFR 424.14(b).

Both the County's and the Town's respective experts, Dr. Andrle and Dr. Able, addressed "critical habitat" with reference to the ESA definition, but as noted in the Town's closing brief, diverged markedly in their application of the term, with Dr. Andrle addressing the species as a whole, and Dr. Able addressing the species as a collection of individuals, each of which need protection. Of these two approaches, I adopt Dr. Able's because it is consistent with the methodology for determining critical habitat in the Endangered Species Act and because it is consistent with the purpose of the Act to reverse the trends that make species endangered and threatened in the first instance.

Consideration of Site Habitat

Dr. Andrle said the landfill site is not "critical habitat" because it is not "essential to the conservation" of the northern harrier in New York State. He reasoned that since the harrier is a widespread breeding bird in the state, the site habitat, being just a small percentage of breeding and foraging habitat throughout New York, cannot be considered indispensable or of utmost importance for the species' preservation and protection.

As noted by the Town, Dr. Andrle's construction of "critical habitat" was flawed in two important respects. First, it improperly discounted the harrier's documented use of the landfill site and vicinity on the basis that harriers may also be found elsewhere in the state. Second, it did not adequately address the criteria for critical habitat as identified in the federal regulations.

According to Dr. Andrle, there is no critical habitat for northern harriers in New York, and none could be established unless the species became restricted to a very small part of the state and its population became so low that it might be affected by the loss of a single nest. Employing this construction, harriers would have to come close to eradication before "critical habitat" could be established even at a nesting site. Such a result would appear to be inconsistent with threatened species protections, which are meant to revive populations by safeguarding them where they occur.

Finally, Dr. Andrle's depiction of the harrier as a widespread, adaptable species with no particular area essential to its conservation, seems to contradict the literature which indicates that the decline of the harrier is due to loss of habitat. While the harrier is widespread in the sense that it can use a variety of habitats, including wetlands and fields, the bird is still threatened in New York State, due largely to habitat shrinkage. Because of this, it would seem the key to its recovery is the preservation of areas that the bird actually uses on a sustained basis.

Addressing the harriers at and around the landfill site, Dr. Able testified convincingly that the site does constitute critical habitat because it provides extensive hunting, resting and roosting habitat as well as some nesting habitat near a documented nest location, and is used frequently and regularly by harriers throughout the year. Dr. Able said that for the harrier, as a threatened species, habitat must be considered critical to the extent it is necessary for the population to recover to former levels. He stressed that a bird such as the harrier must have access to sufficient food, water and other nutritional requirements, cover or shelter, sites for nesting and rearing of young, and protection from predators. He added that sufficient hunting habitat near a nest site is extremely important because, if it is lost, nesting success can be jeopardized and harriers will leave the area.

Staff's witness, Mr. Kogut, said the site is not critical habitat because it contains cover types like mowed hay land and grazed pasture that would be expected to produce less prey for the harrier than better foraging areas of abandoned farm fields and wet meadow. On the other hand, he did not deny the site's use by hunting harriers, which is well-documented, including in the Bagdon report prepared for the County (Exhibit No. 69), which reported numerous sightings of hunting harriers on and adjacent to the site from January to August of 1991. Nor could he explain the actual prey density at and around the landfill site, since no one, including the County, has measured this.

Mr. Kogut also said the site is not critical habitat because there is sufficient nesting and feeding habitat in the general vicinity. Again, this could not be verified in any quantitative manner, and there was no dispute that the site provides actual feeding habitat, and could be used for nesting, although the probability of nesting success is diminished due to its agricultural uses.

Finally, Mr. Kogut said the site is not critical habitat because no harrier nests have ever been found there. As noted above, critical habitat must be more than just the area where a species nests. For the species to survive, it requires areas not only to nest, but to hunt as well. The parties were not able to determine whether the harriers seen during the colder months are the same harriers seen during the summer. But whether or not they are, the site still provides harriers important feeding and roosting habitat year-round.

Mitigation of Habitat Loss

Accepting that the site provides critical habitat, one then must consider whether the County's mitigation plan adequately addresses the loss of habitat associated with the landfill's construction and operation. I find that it does, particularly by ensuring better availability of areas for undisturbed nesting.

As noted in my findings, the County's plan would involve converting 30.2 acres of the Baker property immediately southwest of the landfill footprint to abandoned field habitat, in effect improving that area for foraging and nesting. Fencing the area, as planned, would improve the chances of nest survival, as would restricting mowing of the acreage. The location of this mitigation area near one already established in relation to the Scott Paper/Finch Pruyn project would encourage the use of both areas, since it would make each of them more attractive than if they were isolated from each other.

Also as noted in the findings, the County would convert inactive parts of the landfill footprint to improved harrier habitat, by use of fencing, seeding, and restricted mowing. This would also provide a benefit in compensation for the unavoidable habitat loss due to the landfill's construction.

The Town concedes that, at least in theory, it would be possible to mitigate the adverse impact of the project upon the critical habitat of the northern harrier, noting that in other cases, mitigation measures have been accepted by the courts when considering adverse impacts upon endangered bird species. Sierra Club v. Marsh, 816 F.2d 1376 (9th Cir. 1987). However, the Town also argues that the County's plan provides no genuine mitigation because the harrier already uses the area where the mitigation would occur.

While it is true no new habitat would be created, the County's plan would enhance the area already used so that prey density would likely increase and breeding efforts, which are crucial to the species' revival, would more likely be successful. Beyond this, the County would be committed to its plan pursuant to a special condition included in Staff's draft permit. This provides assurance that areas set aside for the harrier would remain undisturbed, whereas at present these areas are unprotected from development.

The Town also argues that, unlike the plan approved by the Commissioner for the Karner Blue butterfly in the Matter of the Application of the City of Albany (Commissioner's Decision, February 13, 1990), the County's proposed mitigation plan is not based upon any study of how much habitat is needed by the northern harrier. This also is true. However, where a mitigation plan results in a net benefit compared to existing conditions, this concern is rendered irrelevant.

Harrier "Taking"

Finally, one must consider whether the construction or operation of the landfill would cause or contribute to a taking of the harrier. The Part 360 regulations state that "taking of endangered or threatened species" means "harassing, harming, pursuing, hunting, wounding, killing, trapping, capturing or collecting of [such] species, or attempting to engage in such conduct" [6 NYCRR 360-1.2(b)(154)]. All these activities are also included in the definition of "take" as used in the Endangered Species Act [16 USC 1532 (19)].

The use of rodenticides at the landfill would cause or contribute to a "taking" of the harrier since, as noted by Dr. Able, northern harriers will eat carrion, such as dead mice. However, as noted in my findings, the County has now abandoned use of rodenticides for vector control, thereby eliminating the associated risk of harrier poisoning.

Acting on an FAA recommendation, the County has committed to use active harassment measures if more than 500 gulls or other flocking birds enter the landfill vicinity. These measures which include the firing of pyrotechnic shells and the playing of bird distress calls would cause or contribute to the taking of harriers given their anticipated effect of driving birds from the landfill vicinity.

The County and DEC Staff downplay this issue by saying these measures would not be necessary since the landfill would not pose a safety hazard to military helicopters using the Heber Airpark. I do not agree with this safety assessment; in the prior section of this report, I find that siting the landfill so close to the airpark would have a significant safety impact.

Furthermore, the Town's witness, Dr. Able, testified credibly that the landfill could attract as many as 5,000 gulls, due to a shifting of the regional gull population in the wake of the landfill's opening. Even if the landfill attracted only one-tenth as many gulls, the FAA has said it would expect appropriate measures to disperse them. Beyond that, the County has said that it might use active harassment measures against fewer than 500 gulls so as to prevent them from getting accustomed to the site.

The Staff's brief says that even if harassment measures become necessary, there is no credible evidence that harriers cannot acclimate to the sporadic noise from a .22-caliber-type pistol or to other measures which might be used to frighten gulls. However, Dr. Able testified credibly that the gull harassment measures proposed at the hearing would also tend to scare off harriers hunting in the area, and make it less likely that they would return.

Dr. Able distinguished between harriers and red-tailed hawks, which he said apparently can become habituated to active harassment measures and are not particularly put off by them. Compared to red-tailed hawks, said Dr. Able, harriers are much more sensitive to disturbance and the type of control measures proposed by the County. He added that harriers tend to respond negatively to sharp, short-duration sounds like those used in firing explosives.

Even Mr. Kogut, Staff's witness, conceded that the level of noise may be a factor in whether wildlife will acclimate to it. His depiction of sounds like dropping bombs and firing at artillery ranges suggested a distinction, confirmed by Dr. Able, between the impacts of steady, regular noise (such as from trucks and landfill equipment) to which harriers can adjust and the sudden, loud bursts associated, for instance, with pyrotechnic devices, which would scare them away.

The active gull harassment measures would cause or contribute to the taking of harriers because of their harassing and harmful effects. As noted above, harassing and harming threatened species like the harrier constitutes a "taking" according to DEC's Part 360 definition of that word. The harassing (or annoying) nature of these measures is actually intended by the County, and while these measures are not directed at the harrier, they do not discriminate in terms of their effect.

The County and DEC Staff argue that any landfill-related taking would be speculative and accidental rather than intended. This argument is tied to the February 13, 1990, Commissioner's decision In the Matter of the City of Albany, which addressed the effect construction of the city's landfill would have on the Karner Blue butterfly. That decision determined that the unintended and speculative possibility of the loss of a member of an endangered or threatened species should not be construed as a taking of the species but only as a taking of habitat. The City of Albany decision was cited approvingly in the Commissioner's December 22, 1994, interim decision In the Matter of Scott Paper/Finch, Pruyn & Co., Inc., addressing the effect construction of the paper companies' landfill would have on the northern harrier.

As noted in my August 1, 1995, issues rulings, I found the Commissioner's determination in Scott Paper/Finch Pruyn to be somewhat narrow in light of the more recent U.S. Supreme Court decision, Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, et al., -- U.S. --, 115 S.Ct. 2407, 132 L.Ed. 2d 597 (1995). In Sweet Home, the High Court was asked to determine whether the Interior Department's regulation addressing "taking" of endangered or threatened species was too broad by construing "harm" as including "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering." 50 C.F.R. 17.3. The Court upheld the regulation as reasonable, finding that given the broad legislative purposes of the Endangered Species Act, it was clear that Congress had intended the definition of "take" under the Act to cover indirect as well as deliberate and purposeful harm. 115 S.Ct. at 2412-2414.

This intent of Congress that the word "take" address indirect harm due to alteration of habitat must logically carry over to DEC's Part 360 prohibition, given the similarity between how takings are defined under Part 360 and the Endangered Species Act. Here, it has been demonstrated that active gull harassment would tend to deprive the harrier of habitat it now uses and habitat which is intended for its use under the county's mitigation plan.

The areas intended for the harrier's use include inactive parts of the landfill footprint and an area directly southwest of the phase I area where filling would initially occur. These areas are close to the active face where gull harassment measures would be employed. Because of the noise these measures would generate, harriers would be scared from the very places reserved for their use, in effect defeating the purpose of establishing these mitigation areas. This injury is not speculative, but is demonstrated by the hearing record.

Both the County and DEC Staff acknowledge that, consistent with the federal definition, a taking may result from significant habitat modification or degradation which significantly impairs essential behavioral patterns, including breeding, feeding and sheltering. However, Mr. Kogut said there is no reason to believe that landfill activities would significantly impair essential behavioral patterns and thereby result in actual death or injury to harriers. Mr. Kogut's opinion was based upon a characterization of the pasture lands and hayfields at the site as low to medium quality sites for hunting and foraging which should not be considered "critical" for northern harriers.

Mr. Kogut's characterization of the site as not "critical" for northern harriers confuses the two elements of the Part 360 prohibition by suggesting that if the landfill is not critical habitat, there cannot be a taking. However, even if one accepts this characterization, the federal "taking" definition does not require that habitat modified or degraded by a project be "critical" to a species. Furthermore, the mitigation would undoubtedly enhance the habitat, creating abandoned fields where harriers would likely have better nesting success. The benefits of this plan would be lost if, due to the noise from gull harassment measures, harriers were deterred from using the areas dedicated for them.

Finally, as argued by the Town, the harriers' decline has been linked to a decline in its habitat. Although the habitat that would be affected by landfill activities does not constitute a large percentage of the habitat occupied by the harrier in New York State or, as noted by Dr. Andrle, even within a two-mile radius of the site, the harriers' frequent use of the landfill site and its immediate vicinity is well-established. As noted by the Town, the single most important threat to the northern harrier population is habitat loss and degradation; conversely, protection of suitable habitat is the species' biggest need. Therefore, any degradation of existing habitat would be significant.

Overall, as noted above, the County's mitigation plan is a net plus for the harrier. While it does not add habitat, it enhances what is already available. However, the success of the plan is dependent on the harrier's actual use of the mitigation areas. Therefore, bird harassment measures, as described at the hearing, should be precluded so as not to cause or contribute to a taking of the harrier, or to the adverse modification of its critical habitat.

CONCLUSIONS

  1. The landfill site is critical habitat for the northern harrier. However, the County's mitigation plan, by overall improving habitat quality, adequately addresses the loss of habitat associated with the landfill's construction and operation.
  2. Active harassment measures directed at gulls and flocking birds, as proposed for the active landfill face, would cause or contribute to a taking of the harrier, and to the adverse modification of its critical habitat, offsetting benefits of the mitigation plan.

RECOMMENDATIONS

  1. Any permit should be conditioned to prohibit the active harassment measures proposed by the County, including the firing of pyrotechnic shells and the playing of bird distress calls.
  2. The permit condition identified as Exhibit No. 1-A, requiring implementation of the harrier mitigation plan, should be modified to impose monitoring and reporting requirements similar to those on pages 13 and 14 of the harrier management plan for the Washington County solid waste management facility in Hartford (Exhibit No. 98). That plan requires that northern harrier hunting habitat at the facility be monitored and reported to DEC each year for several purposes, including (1) recording available hunting habitat by vegetative cover type, (2) documenting observed harrier activity, (3) documenting vegetative management planning for the upcoming growing season, and (4) documenting vegetative maintenance activities.

Comparable requirements in any permit for the Saratoga County landfill would assist regional staff in developing requests for modification of the county's mitigation plan, which are anticipated by Staff's permit condition. The information provided could also generally assist the state's efforts to protect the harrier so that it eventually is removed from the threatened species category.

ISSUE NO. 4 GROUNDWATER SEPARATION VARIANCE

Should the County receive a variance from a requirement [at 6 NYCRR 360-2.13(d)] that a minimum separation of five feet be maintained between the base of the landfill's constructed liner system and the seasonal high groundwater table?

VARIANCE REQUIREMENT

"Every application for a variance must 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 6 NYCRR Part 360." [6 NYCRR 360-1.7(c)(2)(iii)].

Position of the County and Department Staff

The County should receive a variance from the groundwater separation requirement. Its landfill design meets or exceeds the minimum design requirements of Part 360. The textural and permeability characteristics of the site are consistent with the intent of the regulations to locate landfills in low permeability, clay and silt-rich soils. Although the landfill has an "in-gradient" design, meaning it would extend below the groundwater table, it has adequate engineering features, including a pore pressure relief system, to ensure effective environmental protection. Therefore, the landfill would not have a significant adverse impact on the environment.

Position of the Town

The County has failed to demonstrate that its landfill would not have a significant adverse impact on the environment. The soils at and near the site are too permeable to make a landfill built below the water table safe for the environment, natural resources, or the public health, safety or welfare, given the risk of groundwater contamination. The horizontal permeability of the soils underneath the landfill footprint is not known because the landfill application contains insufficient data. The County's own test data establish that significant silt seams extend from the site into nearby ravines. These seams could act as conduits for the rapid transport of contaminants from the site. The design of the pore pressure relief system would not prevent groundwater contamination. Given the substantial deficiencies identified in the County's hydrogeological data, the variance should be denied or the County required to conduct additional permeability testing.

ISSUE NO. 5 MONITORABILITY

Does the County comply with the restriction against locating landfills in areas where environmental monitoring and site remediation cannot be conducted?

REGULATORY STANDARD

"New landfills must not be located in areas where environmental monitoring and site remediation cannot be conducted. Identification of these areas must be based upon ability to sufficiently characterize groundwater and surface water flow to locate upgradient and downgradient directions; ability to place environmental monitoring points which will detect releases from the landfill; ability to characterize and define a release from the landfill and determine what corrective actions are necessary; and ability to carry out those corrective actions." [6 NYCRR 360-2.12(c)(5)]

Position of the County and Department Staff

The County landfill's close proximity to the permitted Scott Paper/Finch Pruyn paper sludge landfill does not present a problem in terms of determining the source of any groundwater contamination that occurs. In relation to the paper companies' landfill, the County landfill would be independently monitorable in light of both landfills' engineered design, plans for the close placement of monitoring wells at strategic locations, and techniques such as chemical fingerprinting of the landfills' different waste streams and electromagnetic induction to assist in defining and tracking any contaminant plume. Special conditions in Staff's draft permit (No. 10, 11, and Hearing Exhibit No. 1-C) would enhance monitorability protections.

Position of the Town

With only 250 feet between the County's landfill and the paper sludge landfill operated by Scott Paper/Finch Pruyn, the County's landfill would not be independently monitorable in all circumstances. In a significant number of cases, it would be impossible to determine the source of a leak in a timely fashion such that it could be effectively remediated. This is because groundwater flow patterns would change due to the excavations of the two landfills, and would change repeatedly after the landfills are operational, due to the two separate pore pressure relief systems. A groundwater divide now existing between the two landfill footprints would shift in unpredictable ways and might even disappear. Finally, the County's other methods for detecting and identifying the source of leaks are inadequate.

FINDINGS OF FACT

Site Conditions

1. The site of the proposed Saratoga County landfill is underlain by 20 to 50 feet of low-permeability glaciolacustrine clay, which is the only unconsolidated deposit exposed at the site's surface.

2. This clay was deposited in a lake that formed when the glaciers were leaving the Hudson Valley thousands of years ago. The glacial lake deposits extend in a band two to four miles wide along the Hudson River and all along the eastern side of Saratoga County, and form the only area within the county of extensive and thick clayey materials.

3. The site's clay deposits are banded in varves, which are alternating layers of clay and silt or fine sand. These varves were caused by seasonal differences in how much sediment was carried to the ancient lake formed by the glacier's retreat. In the summer, when the lake was not frozen over, there was an influx of sediment. The coarse material settled out rapidly and resulted in the formation of silt and sand layers. When the surface of the lake was frozen during winter, no new sediment was introduced, and fine-grained, suspended material settled out, forming clay layers.

4. Compared to other unconsolidated materials such as sand, silt, gravel and glacial till, varved lake clays are the most impermeable. This low permeability restricts the downward flow of groundwater and, at the proposed landfill site, has resulted in a relatively shallow water table.

5. The depth to seasonal high groundwater ranges between 0.5 and 11.5 feet below grade across the landfill site and averages about 3 feet below existing grade in the vicinity of the proposed landfill footprint. This limits the County's ability to meet Part 360's requirement of a minimum five-foot separation between the base of the liner system and seasonal high groundwater.

Landfill Liner System

6. The landfill baseliner system is proposed to consist of a double-composite liner, which would include the following components:

(1) A primary leachate collection and removal system;

(2) A primary geosynthetic liner and low permeability soil layer (also known as the primary composite liner);

(3) A secondary leachate collection and removal system; and

(4) A secondary geosynthetic liner and low permeability soil layer (also known as the secondary composite liner).

(See Figure 2-11 of the application, a copy of which is attached to this report as Appendix "E".)

7. The primary leachate collection and removal system, labeled as the "primary soil drainage layer" on Appendix "E", would consist of a 24-inch-thick granular soil layer with a leachate collection pipe network. This system would allow for leachate to be removed from the landfill cell and transported to the leachate tanks for eventual treatment. It is also designed to operate with less than one foot of leachate head on the upper liner, meaning that the driving force to push leachate through the upper liner would be very small.

8. The primary composite liner would consist of a 60-mil-thick high density polyethylene (HDPE) geomembrane overlying an 18-inch-thick low-permeability soil layer. The geomembrane is designed to be virtually impermeable. Properly constructed, the liner would be expected to have a 99 percent efficiency, meaning that only one percent of the leachate generated would pass through it.

9. The secondary leachate and collection removal system (shown as the secondary soil drainage layer in Appendix "E") would consist of a leachate collection pipe network with a 12-inch-thick granular soil layer. Underlying the primary composite liner, it would serve a dual purpose. First, it would collect any leachate that passed through the upper liner, and move that leachate to the collection tanks. Second, it would serve as a detection system. Both the volume and quality of fluid within the system would be monitored: the flow on a daily basis and the fluid quality on at least a semiannual basis. Consequently, a containment failure of the primary liner would be readily apparent and remedial actions could be initiated in accordance with the facility contingency plan (Section 5.0 of the application) and 6 NYCRR Section 360-2.10.

10. A secondary composite liner would be located below the secondary leachate and collection removal system. This liner would be comprised of a 60-mil-thick HDPE geomembrane over a 24-inch-thick low-permeability soil layer.

Pore Pressure Relief System

11. To ensure that the construction and performance of the landfill liner system is not adversely affected by groundwater, a subsurface drainage system referred to as a pore pressure relief system, as shown in Appendix "E", would be constructed beneath the landfill baseliner.

12. The pore pressure relief system would consist of a 24-inch granular soil layer consisting of coarse sand displaying a coefficient of permeability equal to, or greater than, 1.0 x 10-2 centimeters per second. This high-permeability soil layer would be interlain with a pipe network and would drain via gravity to manhole pump stations, flow at which could either be released to nearby drainages or pumped back to the leachate storage tanks.

13. The primary purpose of the pore pressure relief system would be to suppress groundwater and thereby prevent hydrostatic pressure from "floating" the liner system. In addition to relieving this pressure, the pore pressure relief system would act as a horizontal monitoring well under the entire landfill footprint. Water quality from the system's discharge points would be sampled on a quarterly basis during normal operation, and more frequently if the action leakage rate in the liner's secondary drainage layer is exceeded. In other words, the pore pressure relief system would monitor that layer's performance.

14. The liner system for the proposed Saratoga County landfill is essentially the same as the one proposed for the Scott Paper/Finch Pruyn landfill. The only significant difference is that the upper liner of the paper companies' landfill is a single geomembrane, not a composite liner, and the pore pressure relief system has a minimum permeability of 1.0 x 10-1 centimeters per second.

15. The operation of the pore pressure relief systems at both the County landfill and the paper companies' landfill would permanently lower the groundwater table by removing groundwater from the soil in time frames several orders of magnitude faster than happens naturally. The groundwater table would also be lowered due to the landfills' construction, which would eliminate recharge area at the surface of the sites.

16. Once the county landfill is operating, groundwater on the perimeter of the landfill site would tend to flow from the low-permeability clay soils into the highly permeable pore pressure relief system. This system has a collection capacity of 325 gallons per minute, well in excess of the 17 gallons per minute calculated as a worst-case scenario for the influx of groundwater into the system.

17. The flow of groundwater into the pore pressure relief system would act as a barrier to the escape of leachate from the site. Leachate that passed through the lower liner would be contained in the pore pressure relief system, from which it would be transported to the leachate collection tanks.

Contaminant Migration

18. As long as groundwater is in contact with the pore pressure relief system, flow would be into the system and the only way contaminants could migrate away from the landfill (and against the groundwater flow) is through the process of diffusion.

19. Diffusion is the movement of a solution across a concentration gradient. As a method of contaminant transport, diffusion can predominate in low-permeability soils where there is very little groundwater movement. In these conditions, however, it is still a very slow process. Also, because it occurs so slowly, most organic contaminants would be expected to break down over the long distance from the landfill footprint to nearby ravines and the Snook Kill aquifer.

20. During certain periods the groundwater elevation could be expected to fall below the pore pressure relief system. In such a circumstance, the landfill would no longer be an in-gradient system and would function in a manner no less protective than a conventional design in which a five-foot separation is maintained and a variance is not required.

21. For contaminants to migrate away from the site when the groundwater elevation is below the pore pressure relief system, they would first have to migrate downward from the base of the system through the clay soil underneath the landfill, and then find a continuous silt or sand seam. The soil's very low vertical permeability (on the order of 0.3 feet per year) would make this an extremely slow process.

22. Once the contaminants reached a silt or sand seam, they could move horizontally through the seam. By virtue of dispersion, the leading edge of the contaminants would move much faster through the groundwater than the average flow representing the bulk of the contaminant plume. However, the leading edge contains such a small concentration of contaminants that it would not likely contravene any of DEC's water quality standards.

23. Dispersion is a spreading phenomenon that occurs as contaminants are transported through groundwater. It is proportional to the velocity of groundwater movement and is more significant in high-permeability soils, where groundwater moves most quickly. The highest rates of dispersion occur in sand and gravel; smaller rates are associated with silt, and even smaller rates with clay. Dispersion would not figure significantly in contaminant transport unless the contaminants were moving through a zone of permeable material (sand or, to a lesser degree, silt) that is laterally extensive.

24. Sand in the site's varved lake clays tends to appear in thin lenses that pinch out over short distances. In the vicinity of the landfill footprint, these lenses tend to be less than a half-inch thick, and generally as small as one-sixteenth of an inch. These lenses are too thin to carry a large amount of contamination and are likely too discontinuous to carry contaminants very far. Contaminants reaching the end of a lens would have to move downward to find other relatively permeable layers to continue their horizontal migration. The very low vertical permeability of the varved clays would tend to impede the contaminants' progress.

25. Layers of silt are also part of the varved sediments beneath the site. These layers are thicker than the sand features, varying from one to three inches. In some cases, they may also be quite extensive, although there is no way to verify this based upon existing hydrogeological data. One silt layer may exist within several feet of the bottom of the landfill liner, extending in the direction of the ravines generally north and west of the site.

26. An extensive silt layer could act as a conduit for the horizontal movement of contamination beneath the site. However, silt is much less permeable than sand, and therefore much less of a concern in terms of contaminant transport. Also, silt layers are a normal feature in glaciolacustrine deposits, and do not compromise the ability to monitor the landfill or remediate contaminants in the event of a liner failure.

27. Some sand and silt deposits occur at the interface between the glaciolacustrine clay and the underlying bedrock. Up to several inches thick, these deposits of coarse-grained material are typical along the top of bedrock that has been weathered and glaciated. They represent the first material left in the wake of a retreating glacier, before the lake clays are deposited.

28. Given the depth of the glaciolacustrine clay, these deposits are at least 20 feet below the landfill footprint. Their continuity across the bottom of the site is unknown. They are not a significant threat in terms of contaminant transport because of the low vertical permeability of the varved clay above them. Given anticipated vertical seepage velocities, it would take decades for contaminants to reach these deposits.

Monitorability

29. Neither the County's nor the paper companies' landfill is expected to leak because they are both designed with double liners, leachate collection and removal systems, and a pore pressure relief system. However, various mechanisms exist to determine the source of any groundwater contamination resulting from the operation of either landfill.

Landfill Monitoring

30. One mechanism involves the monitoring of the secondary leachate collection and removal system, which would allow a containment failure (or breakdown) of the primary liner to be detected in advance of groundwater contamination. In the event of such failure, contingency actions would occur to remediate the leak in the upper liner, and the frequency for analyzing effluent from the pore pressure relief system would be accelerated.

31. In the remote possibility that the lower or secondary liner failed at the same time as the upper liner, the failure would be detected through monitoring of the pore pressure relief system. Since such monitoring would allow leachate to be identified at the point where it enters groundwater, monitorability would actually be enhanced over a more conventional landfill design, since it would not be necessary to wait until groundwater migrates to a monitoring well in order to determine if contamination is being released from the landfill. In other words, the pore pressure relief system would function as an intermediate level of detection, identifying contaminants at their source, well before they migrate to any of the monitoring wells.

Groundwater Flow

32. Consideration of groundwater flow directions would also be helpful in determining which landfill was the source of any groundwater contamination.

33. In general, groundwater does not flow from the site of one landfill to the other, due to a groundwater divide between the sites. The direction of groundwater flow from the county landfill site is principally to the north, with minor components of flow to the northwest and east. In contrast, the direction of groundwater flow from the site of the paper companies' landfill is to the east-southeast. There is only a small portion of the county landfill where it is possible that the flow from each facility overlaps.

34. Once both landfills begin operating, groundwater flow directions would change in ways that are not totally predictable at this time, due to effects of the two pore pressure relief systems. Therefore, Department Staff's draft permit contains a special condition (No. 10) requiring the County to provide updated shallow, interface and bedrock potentiometric surface maps, compiled on a monthly basis, once the pore pressure relief system becomes operational. Pursuant to this condition, the County must also periodically report the effect of its landfill and pore pressure relief system on groundwater elevations and flow patterns.

35. Developing revised groundwater contour maps is integral to Staff's concept of maintaining a "green space" or physical separation in the corridor between the two adjacent landfills. In the unlikely event of a containment failure, this corridor would be monitored for contaminant concentrations in a progressive manner, allowing a contaminant plume to be tracked from its point of origin. In the even more unlikely event that both landfills had a simultaneous containment failure, additional wells could be added at suitable locations, based on conditions that are present at that time.

36. The monitoring well network for the County landfill has been designed not only to monitor that facility, but also to identify potential impacts from the paper companies' landfill. For example, two of the nine monitoring well clusters encircling the County landfill are located upgradient and cross-gradient of the County landfill and between the two facilities. In the event that landfill-derived impacts were indicated at either one of these locations, the secondary leachate collection and removal systems and the pore pressure relief systems of the two facilities could be used to identify the source. If no contaminant release was indicated by the systems at the County landfill, the suspected source would be the paper companies' facility.

Leachate Characteristics

37. The distinct characteristics of the leachate generated by the two landfills would also help to determine the source of any contamination. The Saratoga County landfill is intended for municipal solid waste, whereas the paper companies' landfill will contain paper mill sludge waste.

38. Municipal solid waste and paper mill sludge waste have different chemical characteristics or "fingerprints". Leachate from the paper companies' landfill would be highly enriched in calcium, alkalinity, and sulfate, compared to typical municipal solid waste leachate, which usually has no sulfate and is enriched in sodium, not calcium. Paper sludge leachate also may be enriched in toluene and other organic substances not found in municipal solid waste leachate. Finally, compared to paper sludge leachate, municipal solid waste leachate has significantly higher concentrations of many metals such as iron, manganese, and zinc.

39. Because both leachates have certain parameters in common, reliance on their different characteristics would not be sufficient standing alone to determine which landfill was the source of any contamination. However, when used in conjunction with the other mechanisms delineated in these findings, leachate characterization would ensure monitorable conditions.

40. One positive aspect regarding leachate characterization in this case is that both the County's and the paper companies' landfills have primary and secondary leachate collection and removal systems, as well as pore pressure relief systems. The collection and analysis of leachate from these systems would greatly assist in leachate characterization, better ensuring contamination is tracked to its source.

41. The acceptance of industrial sludge at the Saratoga County landfill should not impair the ability to differentiate between the leachate of the two landfills. The only industrial sludge that has been identified for possible disposal at the County landfill is wastewater treatment plant sludge from Ball Metal Company. Even if this sludge were to be disposed at the County landfill, it would comprise a very minor portion of the facility's overall waste stream. Approximately 35 tons of sludge per month are generated at Ball Metal, a small amount compared to the limit of total waste that the landfill is authorized to receive (106,000 tons per year, which is approximately 9,000 tons per month).

42. The small amount of sludge generated at Ball Metal would not significantly affect the characteristics of the County landfill's leachate. Also, the Ball Metal sludge does not have the same chemical composition as the paper sludge that would be disposed at the paper companies' landfill. Finally, the County has accepted a special draft permit condition (Exhibit No. 1-C) which requires it to ensure that any generator of industrial sludge provides a waste profile analysis to DEC and the County for their review and approval, prior to the sludge's disposal.

43. Another condition (No. 11) to the draft permit (Exhibit No. 1) states that if the County elects to accept paper sludge and other known sources of dioxins and furans, a representative number of monitoring wells (as approved by DEC) must be sampled and analyzed for dioxins and furans prior to commencement of the facility's operation. According to its permit application, the County does not intend to accept paper sludge at its landfill. Therefore, DEC has waived the Part 360 requirement that groundwater samples be analyzed for dioxins and furans.

Electromagnetics

44. A final mechanism to ensure monitorability is electromagnetics, which assists to define and track a contaminant plume. Surface electromagnetic induction is effective in distinguishing between fluids with different electrical conductivities or ion strengths. Since landfill leachate typically has high conductance due to elevated levels of dissolved solids, electromagnetic induction can be used to differentiate between contaminated and unimpacted groundwater. If a plume were detected, borehole geophysics employed at monitoring well locations would be effective in defining the vertical contaminant profile.

Remediation Measures

45. Assuming an escape of contaminants from either landfill's pore pressure relief system, the corridor between the landfills provides adequate space for remedial fixtures such as recovery wells or a slurry trench. The low seepage velocity would likely allow remediation to occur prior to any widespread contamination.

DISCUSSION - GROUNDWATER SEPARATION VARIANCE

Background

The County requests a variance from the requirement [at 6 NYCRR 360-2.13(d)] that a minimum separation of five feet be maintained between the base of the landfill's constructed liner system and the seasonal high groundwater table. The County determined in its hydrogeologic report that the five-foot separation cannot be maintained due to the presence of low- permeability soils and the high water table that results from them. According to the County and DEC Staff, granting the variance would not have a significant adverse impact on the environment. The Town disagrees, claiming there is a considerable risk of groundwater contamination.

This general issue of separation to groundwater was certified by Deputy Commissioner Sterman in his interim decision of July 14, 1995. To receive a variance, the County must demonstrate not only that there would be no significant adverse impact, but that compliance with the separation requirement would impose an unreasonable economic, technological or safety burden. In his interim decision of October 3, 1995, Deputy Commissioner Sterman found that the economic burden component of the variance request had been satisfied and was not an issue for hearing. Accordingly, to obtain this variance, the County must now demonstrate that there will be no significant adverse impact on the public health, safety, or welfare, the environment or natural resources.

The Town's chief witness on this issue was Dr. Thomas Zimmie, an environmental consultant who is also an R.P.I. civil engineering professor. Summarizing his prefiled testimony, Dr. Zimmie contends that the soils underlying the proposed landfill footprint are significantly more permeable than the County has alleged. Based upon his own testing on the Wells property, north of the site, as well as the County's own data, Dr. Zimmie says the landfill design will not provide an appropriate degree of protection against groundwater contamination if the variance is granted. Overall, Dr. Zimmie contends that the landfill design is "dangerous" because the surrounding soils contain highly permeable layers of sand and silt, which he says would allow for the rapid movement of contaminants to nearby ravines and the Snook Kill aquifer, both of which are northwest of the site.

In his July 14, 1995, interim decision, Deputy Commissioner Sterman said adjudication of this issue should focus on the County's permeability measurements, because the Town had raised a doubt about their reliability. He also said evaluation of the permeability issue would require both the County and DEC Staff to evaluate Dr. Zimmie's science.

No Significant Adverse Impact

Although it would not meet the groundwater separation requirement, the County landfill would not have a significant adverse impact on the environment. Environmental impacts of groundwater contamination would not be significant (or meaningful) given the design of the landfill, the characteristics of the surrounding soil, the soil's low overall permeability, and the distances from the landfill footprint to nearby ravines and the Snook Kill aquifer.

The presentation on this issue was very extensive, with a lot of conflicting expert testimony. The County presented three witnesses. The first was John Kucewicz, manager of geology services with Smith & Mahoney, the County's environmental consulting firm. Mr. Kucewicz explained the hydrogeologic investigation which is part of the County's permit application. Two other witnesses, Dr. Gregory Richardson and Dr. Donald Siegel, offered opinions about soil permeability, including how it is measured, and the design of the pore pressure relief system. Dr. Richardson is a geotechnical engineer specializing in landfill containment design and permitting. An independent consultant as well as an earth sciences professor at Syracuse University, Dr. Siegel is a hydrogeologist and geochemist with special expertise in contaminant hydrogeology.

The County's presentation was supplemented by testimony from DEC Staff hydrogeologist Dale Becker. Given the differences of opinion between the County's and the Town's experts, Mr. Becker's testimony as a disinterested Staff reviewer was particularly important in this case, especially given his background evaluating landfill applications. In an organized and convincing presentation, Mr. Becker explained how the request for a variance was processed by DEC Staff. His testimony was also persuasive to the extent it accounted for the evidence presented and the arguments advanced by the Town's chief expert, Dr. Zimmie.

Summarizing his main points, Mr. Becker said that the County met the requirements for a groundwater separation variance because:

  1. The landfill design meets or exceeds the minimum requirements of Part 360;
  2. The design incorporates a pore pressure relief system to prevent uplift of the liner;
  3. Groundwater in the pore pressure relief system would be sampled for water quality parameters on a quarterly basis; and
  4. The site is underlain by 20 to 50 feet of low-permeability, glaciolacustrine clay.

As Mr. Becker noted, a request for a variance from the five-foot groundwater separation requirement is not unusual. In April of 1990, DEC published a solid waste management facility siting guidance document addressing this point. According to the document, "One example of a regulatory requirement for which a variance might be appropriate is the requirement for a five-foot separation to groundwater."

The siting guidance document confirms the Department's intent that landfills be sited in thick, clay-rich soils, but notes that these soils are often associated with a high water table, and therefore may not meet the minimum separation of five feet to groundwater. The document then states that a high water table should not be considered a reason for rejecting an otherwise appropriate site.

As noted in Staff's closing brief, the Department will typically grant a groundwater separation variance where a landfill permit applicant has conducted an appropriate siting study resulting in the selection of a site with the desired low-permeability, silt- and clay-rich soils, and an associated high water table. In these instances, however, the applicant is also required to design a groundwater suppression system to prevent hydrostatic uplift pressures from "floating" the liner.

As noted in the findings, the County's design incorporates a double-composite liner, two leachate collection and removal systems, and a pore pressure relief system. According to Mr. Becker and the County's witnesses, this is a safe design which is very unlikely to result in a containment failure. Should there be any significant leakage, the design provides adequate opportunity for its detection and collection before leachate would escape into the surrounding soils. As Mr. Becker noted, the addition of a pore pressure relief system makes the landfill at least as safe as one meeting the groundwater separation requirement, since it provides another layer of detection capability that would not be present in a standard landfill design.

Soil Characteristics

Preferred landfill sites should be underlain by "thick sequences of homogeneous, clay and silt rich, low permeability materials where permeable lenses and channels are unlikely to be present" (Emphasis added) [6 NYCRR 360-2.12(d)(1)]. Staff considers homogeneity in terms of the materials' general physical characteristics. Under this definition, the soils do not need to exhibit a uniform texture provided they are consistent over the property. Staff's intent is that applicants avoid sites containing large-scale coarse-grained deposits, such as channel fillings or sand beds, which could be conduits for contaminant migration if a containment failure occurred.

As noted in the findings of fact, the soils at this site are low-permeability glaciolacustrine clay. The clay is banded in varves consisting of alternating layers of clay and silt or fine sand. Each varve represents one year of sediment deposition.

The County characterized the soils as part of a hydrogeologic investigation, which is detailed in Section 7.0 of the permit application. Mr. Kucewicz testified that 62 test pits were excavated and 45 soil borings drilled at or in the vicinity of the landfill site. Some of this work was performed by Smith & Mahoney on behalf of the County. Other work was performed by Clough, Harbour & Associates with regard to the paper companies' landfill, which is next to the proposed county facility.

The test pits were excavated to assess shallow soil conditions, and the soil borings were used to collect samples for analysis. Laboratory and grain size analyses confirmed that the soils are more clay than silt, and have a very minor sand component. Also, there was no evidence of large-scale coarse-grained deposits, which Mr. Becker said was not surprising.

As Mr. Becker explained, one would not expect to find a broad sand layer two or more feet thick in the depositional environment characteristic of the site. In a glacial lake, he said, such a deposit would be associated with a sand delta at the mouth of a meltwater stream entering the lake. There, he said, the coarse material settles out, whereas farther out, in the lacustrine silts and clays, one would expect at most only thin sand laminations, which are not typically continuous over large areas.

Soil Permeability

Soils' permeability, or their ability to transmit water, depends on their physical characteristics, since certain soils are more permeable than others. Clay has a low permeability, and silt is somewhat more permeable, although not to such a degree that it is disfavored at landfill sites. Sand is more permeable than clay or silt, and of the three soil types, it is the best avenue for contaminant transport.

According to DEC's Part 360 regulations, permeability (or hydraulic conductivity) may be determined using pump tests, slug tests, packer tests, tracer studies, thermal detection, or other suitable methods. [6 NYCRR 360-2.11(a)(11)] The County did two types of permeability measurements: in situ or field hydraulic conductivity tests, and laboratory hydraulic conductivity tests.

In situ hydraulic conductivity was determined through the use of slug tests in boreholes or completed wells distributed throughout the site area. In slug tests, a solid cylinder (or "slug") of a known volume is inserted into and then removed from a hole or well, displacing the water level. The rate of response as the well recovers is measured throughout the test with a frequency sufficient to define a water level response curve, which should plot as a straight line if the test was conducted properly. Initial and final head values, initial and final times, and well geometry parameters are then plugged into a formula to determine the permeability of the soil interval over which the well was screened.

Using slug test methods, the County calculated a geometric mean horizontal hydraulic conductivity of 4.8 x 10-6 centimeters per second in the clay unit of the County landfill footprint and its associated downgradient areas, as noted in Table 7-1I of the permit application. The geometric mean averages data points that range over several orders of magnitude, and depicts the average permeability of the entire unit.

The County also figured that the vertical hydraulic conductivity of the glacial lake clays is much smaller than the horizontal hydraulic conductivity. This is not surprising, since vertical conductivity is controlled by the low-permeability clay layers. The Town agrees that the County's values for vertical permeability are reasonable, but adds that it is the horizontal and not the vertical permeability which is critical at this site.

The soils' permeability is important in two respects: It concerns the rate of contaminant transport, in the event of .containment failure; and it concerns the engineering design of the pore pressure relief system. Given the small values for vertical and horizontal hydraulic conductivity across the site, groundwater-borne contaminants would move very slowly. As noted in the County's application, the depth of the low-permeability clay would effectively retard leachate migration to the bedrock surface. Laterally, groundwater flows through the clay no faster than 3 feet per year, according to the County's calculations.

Contaminants would move more quickly through silt or sand features at the site. However, silt is also a low permeability material, although it is more permeable than clay. Also, the sand features are so thin that they would not likely have any great lateral continuity. As Mr. Becker explained, the County's slug testing accounted for the effect of any silt and sand laminae. The test results, said Dr. Siegel, were consistent with what one would expect in a glaciolacustrine varved lake deposit.

In his July 14, 1995, interim decision, Deputy Commissioner Sterman said that because the County's permeability measurements were directly linked to the engineering design of the pore pressure relief system, it is critical to verify the County's data to ensure the County is aware of any potential redesign that the system might need.

According to Dr. Siegel, the pore pressure relief system is designed to handle 325 gallons per minute and there is no question that it can handle the amount of groundwater that would seep into it. Even under what his pre-filed testimony described as foolishly worst-case conditions, Dr. Siegel figured that the system would receive no more than 25 gallons per minute from its sides and bottom, fully 12 times less than it could accommodate. Dr. Siegel also said that under natural conditions, the amount of water entering the pore pressure relief system would be almost negligible, especially since the already small horizontal gradient would be diminished due to the lowering of the water table. Dr. Richardson agreed with Dr. Siegel that the pore pressure relief system was conservatively designed, even assuming the varved soils are as permeable as Dr. Zimmie postulates.

Although a concern of the Deputy Commissioner, the adequacy of the pore pressure relief system to handle incoming groundwater was not proposed as an issue by the Town or identified as an issue in my rulings. When the Town did not address this point in its prefiled testimony, I asked Dr. Zimmie if it was a concern of his. He confirmed that it was not. According to Dr. Zimmie, the two-foot thickness of the pore pressure relief system and the sizes of its pipes "appear to be fine."

Contaminant Travel Times and Distances

The distances from the landfill footprint to nearby ravines and the Snook Kill aquifer must also be considered in determining whether groundwater contamination would pose a significant risk to the environment. The County's application states that in the unlikely event that a total containment failure introduced contaminants into the glaciolacustrine clay, a worst-case scenario requires 73.5 years for the contaminants to reach the Snook Kill aquifer. At another point, the application states that in the event of a complete failure of the liner/collection system, nearly 100 years would be required for leachate to reach adjacent drainage ravines.

Dr. Zimmie describes these as mean or average times for contaminant travel, which account for only the very slow movement of groundwater. He notes that the County's scenario of 73.5 years for contaminants to reach the Snook Kill aquifer presumes complete downward migration through the clay into a bedrock fracture running directly to the aquifer. However, he says that contaminants could reach the Snook Kill aquifer far more quickly through sand layers, moving laterally without first having to penetrate the bedrock.

In his pre-filed testimony, Dr. Zimmie estimated that a contaminant traveling a direct path from the landfill to the aquifer via a continuous sand lens could reach the aquifer in eight years, with its leading edge reaching the aquifer in less than one year, accounting for diffusion and dispersion. This scenario presumes that sand layers are much more laterally continuous than the evidence suggests. Also, it exaggerates the effects of dispersion and diffusion, according to the credible evidence of Mr. Becker and the County's experts.

Finally, it overplays the importance of the leading edge of contaminants. Dr. Zimmie himself acknowledged that leachate is a fairly dilute material. By definition, its leading edge would be even more diluted, since it represents the first detectable concentration. The Town did not explain how this leading edge would pose a significant threat to the environment.

According to the County's application, the straight line distance from the site to the Snook Kill is about 3,500 feet, and the published maps that display the unconsolidated aquifer associated with the Snook Kill place that aquifer as close as 1,700 feet in a straight-line distance. These distances suggest that contaminants escaping the landfill would have a prolonged travel time before they could cause significant harm. Even assuming that contaminants would cover this distance, there being no remedial efforts, the clay-rich sediments themselves would act as a filter, minimizing any impact the contaminants would have on the aquifer's water chemistry.

At the hearing Dr. Zimmie said that the escape of any contaminants from the landfill would have a significant adverse impact because they would "eventually" reach the wells of surrounding homes. He did not name these wells or identify them on a map. However, he did acknowledge that most nearby wells are in bedrock. Also, when I asked him to explain his concern, he described a situation where a "large slug" of contamination escapes the landfill, moves vertically into the bedrock, and then passes quickly to the wells through bedrock fractures.

In his explanation, Dr. Zimmie did not account for the clay soils' thickness and low vertical permeability, which would greatly restrict the downward spread of contamination. However, the soils' low vertical permeability was acknowledged by Dr. Zimmie in his prefiled testimony, where he says the county's values for it appear reasonable, and that, at any rate, vertical permeability is not very important relative to contaminant transport.

Finally, the proximity of wells was considered by the County and DEC Staff. The County performed a water well survey, which included locating all public and private wells within one mile downgradient of the landfill site. Also, Mr. Becker said the proximity of wells to the site was considered during Staff's review of the application, and that, in his opinion, none of the nearby wells was particularly susceptible to contamination, even in the event of a containment failure. Dr. Zimmie did not effectively rebut this conclusion.

Town's Contentions

According to the Town, the County has failed to demonstrate that its landfill would not have a significant adverse impact on the environment. The Town's chief witness, Dr. Zimmie, contends that the soils at and near the Kobor Road site have a greater horizontal permeability than the County has maintained. He says an in-gradient landfill is a "very risky" design at the site, since the landfill would extend down into the groundwater. According to Dr. Zimmie, highly permeable horizontal lenses and varves would provide a very fast route for contaminants to move to and enter the Snook Kill aquifer.

Dr. Zimmie's contentions about soil permeability include a critique of the County's data as well as findings based on his own investigation at the Wells property, just north of the site. In general, Dr. Zimmie maintains that there is insufficient permeability data and grain size analyses for the soils underneath the landfill footprint, and that smearing may have influenced the County's slug test results.

Permeability Testing of Landfill Footprint

According to the Town, the horizontal permeability of the soils beneath the landfill footprint is not known because the application contains insufficient data testing points. The Town is correct that the monitoring well clusters, where permeability was tested, are concentrated at or just beyond the footprint's perimeter. However, as Mr. Becker explained, this pattern is typical for most landfill sites.

Mr. Becker said that the number of borings and permeability tests one performs is to some degree controlled by the complexity of the site geology. As Staff argues, the tests pits and borings within the footprint demonstrate that the soil characteristics there are consistent with soils throughout the remainder of the site (i.e., they are clay and silt-rich glaciolacustrine deposits). Also, the slug test results for borings beneath the landfill footprint are consistent with permeability values from slug tests over the rest of the site. Finally, the numerous test pits, borings and slug tests around the footprint perimeter and throughout the site establish that there are no highly permeable layers that could acts as conduits for rapid contaminant migration.

Explaining the relative lack of permeability tests directly under the landfill footprint, Mr. Becker noted that any boring or monitoring well within the footprint eventually gets abandoned or destroyed due to the landfill's construction. He said that ideally an applicant would like to use borings and wells not only for site characterization, but for monitoring once the facility is actually operating.

As a final and most important point, Mr. Becker said that permeability testing from the interior of the footprint is not necessary. As he noted, the purpose of such testing is to identify zones that could enhance contaminant transport away from the site. If testing is concentrated around the footprint perimeter, these zones are identified, if in fact they even exist.

Grain Size Analyses

The Town also contends that the application lacks data for grain size analyses of the soil underneath the landfill footprint. However, as Mr. Becker pointed out, there are three grain size analyses from within the landfill footprint and two additional analyses on the footprint perimeter.

Smearing

Finally, the Town contends that smearing and well turbidity may have influenced the County's slug tests, so that the results would suggest less permeability than may actually exist. According to Dr. Zimmie, where clay soils are layered with permeable sand and silt, the drilling process may cause clay to smear over the more permeable layers, considerably reducing the permeability measurements. Dr. Zimmie also said that turbidity in the wells could affect the slug test results, since silt could clog the sand pack around the well screen.

Experts for the County and DEC Staff successfully refuted these concerns, noting that, with proper well development, there would be no problems with smearing and turbidity. Also, Dr. Siegel credibly discounted the potential for significant smearing, given the blockiness and relatively low plasticity of the clay soils. Dr. Siegel said that the similarity in measurements of hydraulic conductivity in undeveloped test holes and developed monitoring wells argued for minimal smearing of open pore spaces with clay. While proper well development requires the exercise of engineering judgement, there was no evidence that the County's procedures in this regard were flawed or implemented improperly.

Town's Affirmative Case

Apart from criticizing the County's data and conclusions, the Town made an affirmative case on the issue of soil permeability, based upon field work Dr. Zimmie has conducted. When the County chose the Kobor Road site as its preferred landfill location, the Town retained Dr. Zimmie, and on November 9, 1992, he supervised the digging of four test pits, each about 12 feet deep, on the southern part of the Wells property, just north of the landfill site. The locations of these test pits in relation to the landfill footprint and the County's monitoring well clusters are shown in Exhibit No. 209, a sketch Dr. Zimmie prepared. (A copy of the sketch is attached to this report as Appendix "F".)

In fairness to Dr. Zimmie, his four test pits were not meant to substitute for the County's more detailed and comprehensive hydrogeologic investigation of the landfill site. For one thing, Dr. Zimmie had been precluded from testing at the site itself. Also, on behalf of his client, he had constraints of time and money.

Dr. Zimmie dug the test pits to determine (1) the position of the water table, specifically its maximum elevation; (2) the amount of soil stratification; and (3) the horizontal permeability of the soil strata. Dr. Zimmie said that, at the time he dug the test pits, the County was insisting that the water table at the site was much lower than it now admits is the case. He said he wanted to prove that the five-foot separation could not be met because the groundwater table is, in fact, very close to the surface. Dr. Zimmie videotaped his test pit excavations. He provided a copy of the tape to the County shortly after the test pits were excavated; a copy was also received in this record as Exhibit 184, offered by DEC Staff.

Dr. Zimmie says that despite his videotaped evidence, the County's engineers, Smith & Mahoney, continued to insist for several years that the site had a very deep water table. He notes in his pre-filed testimony how the County's initial Part 360 application, dated March, 1993, said that the required five-foot minimum separation would be maintained between the bottom of the Phase I baseliner and the seasonal high groundwater table. The fact that the County has reversed its position and applied for the groundwater separation variance confirms to Dr. Zimmie that the conclusion he drew from his test pits relative to the position of the seasonal high groundwater table was and is sound.

In his pre-filed testimony, Dr. Zimmie said that he would have preferred to conduct a more thorough hydrogeologic investigation in and around the proposed landfill footprint, using test pits, slug tests, laboratory soil tests, and perhaps pump tests. He would still like to do this work, despite the Commissioner's interim decision of July 14, 1995, which concluded that site access by the Town was not necessary.

Clearly the work Dr. Zimmie did outside the site was preliminary in nature, meant to justify site access which, if granted, would have allowed a more thorough onsite investigation. Because site access has been denied, the question now becomes what value and reliability the test pits have in addressing the remaining issues of soil stratification and permeability.

On the issue of soil stratification, Dr. Zimmie testified that in the four test pits he dug, there were numerous sand and silt lenses, occupying about 10 percent of the profile in three of the test pits (Nos. 1, 2 and 4, as shown in Appendix "F"), and 20 percent in the other (No. 3), if one were to add them all up. However, this cannot be verified by his videotape, and his contemporaneous field notes, while referencing "lots of sand seams," do not provide the same level of detail as his testimony. Finally, as Mr. Becker notes, Dr. Zimmie can be observed in the videotape collecting soil samples. However, he has presented no gradation or other laboratory results that support his statements about the percentage and location of sand and silt layers. In general, Dr. Zimmie's statements about soil characteristics lack the level of corroboration found in the County's application. While I do not discount his observations entirely, the lack of supporting documentation casts serious doubt upon this part of Dr. Zimmie's testimony, despite his many years of field experience.

On the issue of soil permeability, Dr. Zimmie says there were more than enough sand lenses in his test pits so that sand dominates and determines the horizontal permeability value. Dr. Zimmie calculated that value as on the order of 10-4 centimeters per second, in the range of 100 times greater than the value asserted by the County for the landfill site.

As explained in his prefiled testimony, Dr. Zimmie did his calculation by observing how fast water entered the test pits and then applying standard engineering equations applicable to slug tests in uncased boreholes. To perform the equations, Dr. Zimmie had to estimate the size of the test pits and the rates of groundwater inflow, then in effect "convert" the rectangular test pits into circular holes for which the equations could be properly applied.

A major point of contention between Dr. Zimmie and the experts for the County and DEC Staff concerned the use of test pits to measure soils' horizontal permeability. In his pre-filed testimony, Dr. Zimmie said that he feels "very comfortable and competent" using test pits to estimate effective horizontal permeability because one gets to view a very large area of soil and because soil smearing is generally a minor problem. Dr. Zimmie concedes that some smearing of soil does occur during the digging of the test pit, but adds that it is virtually impossible to fully smear the pit walls, since a large area of soil is exposed. In addition, he says that in stratified soils such as those at this site, the permeability determined by a test pit provides an average or effective value of all the layers of soil, not just the more permeable sand and silt layers.

The County and DEC Staff contend that test pits are not an acceptable method to determine permeability, and that the permeability value offered by Dr. Zimmie is not representative of the site, but instead is an anomaly that can be explained by the manner in which it was developed. Having reviewed the parties' evidence and arguments, I agree that Dr. Zimmie's testing was flawed and that his permeability value is not reliable.

First, as noted by DEC Staff, the use of test pits to determine hydraulic conductivity is not consistent with the Part 360 regulations [more particularly, 6 NYCRR 360-2.11(a)(11)], while slug tests are explicitly identified as a suitable method. The regulations do not rule out the use of methods not referenced explicitly in the regulations; however, to Mr. Becker's knowledge, test pits have not been approved by DEC as an acceptable method for determining hydraulic conductivity. Instead, test pits are used to determine shallow stratigraphy, as noted at 6 NYCRR 360-2.11(a)(4).

Mr. Becker's dismissal of test pits as a method of determining hydraulic conductivity was echoed by the County's .experts. Dr. Richardson said he had never seen a test pit used to evaluate permeability, and Dr. Siegel said that the use of test pits for this purpose was "nonsense" given the difficulties of ascertaining pit dimensions, which do not exist in relation to an augur hole. As was apparent from the videotape, these difficulties were exacerbated in this instance by the sloughing of pit walls and an initial water influx from the tops and sides of the pits, which would tend to exaggerate permeability measurements. (To account for the water influx, Dr. Zimmie said that he delayed his first measurements by about 45 minutes to one hour, until the test pit bottoms were covered with water.)

A significant problem involved Dr. Zimmie's use of equations not intended for his purpose. As noted by Mr. Becker and the County's experts, Dr. Zimmie used equations that pertain only to slug tests performed in boreholes or wells where an instantaneous change to the static water level is induced and the corresponding response is measured and graphed.

To ensure an accurate slug test result, the rate of response as the well recovers must be measured frequently enough to define a water level response curve, which should plot as a straight line if the test has been conducted properly. Since Dr. Zimmie took only two measurements in each test pit, he was unable to graph and thereby verify his results. Consequently, notes Mr. Becker, it cannot be determined whether the tests he performed are valid. Dr. Zimmie himself said he would have liked to have left the test pits open longer, so he could measure the water level changes over a greater period of time. But he added that for safety reasons and due to time constraints, this was not possible on the day the pits were excavated.

Finally, even if one accepts Dr. Zimmie's methodology, his test pits, being 12 feet deep, did not cover the entire depth for which contaminant spread would be a concern. According to Mr. Becker, the landfill subgrade would be excavated to a depth of about 16 feet below the ground surface, and the primary level of concern is from the subgrade to a depth of 10 feet below that elevation. Mr. Becker said that boreholes would be the only practical means of determining hydraulic conductivity at these depths.

Silt Layers

In addition to Dr. Zimmie, the Town presented a second witness, Dr. Kevin Brewer, to rebut Dr. Siegel's contentions that silt layers in the subsurface soils are discontinuous and do not extend across the landfill footprint. Apart from being a consultant, Dr. Brewer is an R.P.I. hydrogeology professor. Using the well and test pit logs in the County's application, Dr. Brewer identified distinctive features silt seams or layers as well as the top of the bedrock and attempted to track them across the site. At each location where a silt seam was found, Dr. Brewer noted its elevation above mean sea level and then looked at the bedrock elevation. A list of the test pits selected and a description of a silt layer from one to three inches thick on the western part of the site was received as Exhibit No. 246; visual representations of this "western" silt layer in the Phase I landfill footprint and extending off-site were received as Exhibits No. 243, 244 and 245. (These visual representations also depict an "eastern" silt layer in the second and third phases of the landfill footprint.)

As Dr. Brewer testified, the silt layers are oriented in line with the bedrock surface as well as can be determined from the County's data. Because sediment layers are draped over bedrock features, this suggests to him that the layers are continuous over a wide area, and likely are larger than shown in his depictions.

According to Dr. Brewer, the existence of the two silt layers he identified is important for two reasons. First, he said, it suggests that other continuous layers may exist, although they are too small to track from one location to the next. Second, he said, the western silt layer is about three feet below the proposed pore pressure relief system and extends toward a ravine west of the landfill footprint, where Dr. Zimmie has observed water seepage. Therefore, Dr. Brewer concludes that the western silt layer is significant in terms of contaminant transport.

After Dr. Brewer testified, Dr. Siegel returned to the stand for the County and said the silt layers identified by Dr. Brewer were not continuous. He said that the western silt layer, if extrapolated to the west at the same grade or slope, is not found in test pits where it should be located. Similarly, he said there is a test hole in the area of the silt layer identified by Dr. Brewer where the layer is not found. However, under cross-examination, Dr. Siegel admitted there is no data of any sort for the area between the southwestern corner of the alleged silt layer and the ravine, and therefore nothing from which the extension of the layer into the ravine could be ruled out.

The parties' closing briefs disagree about how effective Dr. Siegel was in discrediting Dr. Brewer's testimony, and whether the silt layers alleged by Dr. Brewer are as continuous as he contends. Given the amount of available information, no findings can be made on this point. However, even if there is a western silt seam as extensive as the Town suggests, it does not warrant denying the variance or requiring further investigation.

As noted by DEC Staff, it is not reasonable to expect that the County or any other applicant could identify a site with low permeability soils that did not have a significant proportion of silt or silt layers present. According to Mr. Becker, there is no ideal landfill site comprised entirely of clay and no significant glaciolacustrine deposit that does not have some proportion of silt layers. The presence of silt layers is not inconsistent with Part 360 (which prefers that landfills be sited in clay and silt-rich materials) or guidance from DEC's Division of Solid Waste. Mr. Becker testified that if sites with thin silt layers were excluded, there would be no viable sites in Region 5, where he works, and probably throughout much of the state.

Mr. Becker said that the presence of a silt layer would not compromise the ability to monitor the landfill or remediate the site, given the slow movement of contaminants through silt. Dr. Siegel agreed, saying that a continuous silt layer, such as the western silt layer depicted by Dr. Brewer, would not be very significant with respect to contaminant transport issues. He confirmed Mr. Becker's testimony that silt is a material of low permeability, which is why one looks for places with clays and silts to install various waste facilities.

With regard to the western silt layer in particular, one must also note that it does not intersect the pore pressure relief system, but is three feet beneath it. As noted already, the soils have a very low vertical permeability, due to the clay layering. The layer is also quite thin, from one to three inches, not a large-scale feature even if one could demonstrate it is more permeable than the County or DEC Staff believe.

Additional Testing

The Town contends that given substantial deficiencies in the County's hydrogeological data, additional testing underneath the landfill footprint is necessary before a groundwater separation variance can be granted. At the time of the issues conference and during the adjudicatory hearing, the Town proposed that Dr. Zimmie do this testing. The Town's closing brief is more ambiguous, saying that the testing must be done, but not specifying whether the Town or the County should do it.

Dr. Zimmie explained and defended the Town's request at the adjudicatory hearing. According to his testimony, the following work should be performed:

  • Three or four low-volume flow rate pump tests, to assess horizontal permeability over a large area of the site. The tests could be performed in the County's monitoring wells or, if the wells were not adequate, in additional boreholes (developed with monitoring wells) to be drilled on the landfill footprint. The Town would like to see a few pump tests on the landfill footprint and one in the corridor between the County's and the paper companies' landfills.
  • At least 10 and as many as 20 test pits, 12 to 14 feet deep, about 3 feet wide, and about 6 to 8 feet long. These would be used to assess the horizontal soil permeability by measuring the time it would take for the pits to fill with water. Also, the test pits would be used to determine if silt and sand lenses are continuous, by trying to track them from pit to pit.
  • Grain size analyses and laboratory testing, particularly of sand lenses found in the test pits, but more generally of representative samples of different soil types.
  • A trench 20 feet deep and 50 to 100 feet long to trace the continuity of permeable sand and silt layers.
  • Additional slug tests to confirm or disprove the County's determination of overall horizontal permeability.

The Department's regulations provide two avenues by which additional testing could be directed. First, with the permission of the ALJ, a party may access real property in the custody or control of another for the purpose of conducting drilling or other sampling, pursuant to 6 NYCRR 624.7(c)(4). In such an instance, the regulation requires that all parties be given notice of such activities and be allowed to observe and to take split samples or use other specified methods of verification. This provision provides authority for the Town to do its own testing, in the presence of the County and DEC Staff.

Second, ECL Section 70-0117.2 and 6 NYCRR 621.15(b) provide that at any time during the review of a permit application, DEC may request any additional information reasonably necessary to make any findings or determinations required by law. Pursuant to these sections, DEC could require the County to do any hydrogeologic testing deemed necessary to decide whether the groundwater separation variance should be granted or, for that matter, whether the site is monitorable.

At the issues conference, I granted permission for the Town to do pump tests and dig test pits at the site (Issues Conference [IC] Transcript, p. 256) as part of a bench ruling making the groundwater variance a hearing issue. This ruling was reversed as part of the Deputy Commissioner's interim decision of July 14, 1995, which determined that site access by the Town was not necessary.

Actually, my ruling was not premised on a finding that site access was necessary. In fact, I said, "While I do think the testing would result in material and relevant evidence, I want to make it clear that I am not ordering the testing pursuant to the Department's authority under ECL 70-0117 or the regulations at 621.15(b) as necessary for the Department to make findings. I'm ordering it pursuant to the discovery provisions of 624 instead. I think that the standard of necessity for the Department to require the information for its own purposes is a different standard, a higher standard, and I'm not applying that standard here; therefore, I'm not requiring that the County do the testing, but I am affording the Town the opportunity for the discovery that it's seeking." (Emphasis added.) [IC Transcript, p. 260-261]

The testing was authorized because I thought it would result in material and relevant evidence. [IC Transcript, p.257]. I still think it would. DEC recognizes the use of test pits to determine shallow stratigraphy [see, 6 NYCRR 360-2.11(a)(4)], even if, standing alone, they are not reliable indicators of soil permeability. Also, according to 6 NYCRR 360-2.11(a)(11), pump tests may be used to determine hydraulic conductivity, although there was a lively debate among the parties' experts about how useful they would be at this site.

The general consensus was that pump tests are useful for determining hydraulic conductivity in relatively permeable soils. As explained by Mr. Becker, such tests are performed by pumping water from a well, then noting the cone of depression at nearby observation wells. Mr. Becker said pump tests are normally applied to sites with highly permeable soils, and to aquifers typically. He said that at sites with low-permeability soils, the pumping well is drawn down too fast, the pumping rate cannot be sustained, and the test fails. The Town turned this around on Mr. Becker by noting that whether the test succeeded or failed would itself provide information on the soils' permeability. Mr. Becker conceded that if pump tests were successful, this would tend to support Dr. Zimmie's assertion that the soils are more permeable than the County has characterized them. He also acknowledged that inferences could be drawn from a successful pump test about the continuity of any seams or layers in the soil, and that a properly conducted pump test would provide information about the soils' hydraulic conductivity over a much larger area than an individual slug test.

Had the Town been able to do the testing it initially requested, there is no doubt that additional relevant information would have been added to this record. The testing might have eased the Town's concerns or rebutted its contentions. All the parties could have been present and part of the testing, eliminating the types of concerns that carried over to this proceeding, such as how the County's monitoring wells were developed and the degree to which soil and surface water came into the Town's test pits. These types of issues arose because one party's experts were unable to witness what another party's experts did.

All this being said, however, the Deputy Commissioner denied site access to the Town, and his interim decision appears to close the door on further discovery. On the other hand, the decision leaves open the possibility that the County could be required to gather additional information to ensure an acceptable design, or that additional information might be required pursuant to 6 NYCRR 621.15(b) as reasonably necessary to decide the hearing issues. While the Staff's brief states that I "encouraged" the issue of additional testing, and that it was discussed at the hearing "ad nauseum", I read the decision as requiring that the hearing address two questions: not only (1) whether the existing information favors granting the variance, but (2) whether the existing information is enough to decide the variance issue.

The interim decision said that DEC Staff could require additional information pursuant to 6 NYCRR 621.15(b), but prior agency precedent leaves it to the administrative law judge, as the Commissioner's representative, to make that decision once Staff refers the application to hearing. [See, In the Matter of Peckham Materials Corp., ALJ Ruling, July 9, 1991.] Given the existing record, I conclude that additional testing is not necessary, and that enough evidence exists to warrant granting the groundwater separation variance and to conclude that the County's and the paper companies' landfills would be independently monitorable.

As Mr. Becker confirmed, the County performed a sufficient level of testing to draw conclusions about the soil characteristics and permeability in and around the landfill site, and did so in a manner that is consistent with DEC regulation. The Town was basically unsuccessful in its attempts to discredit the County's evidence, while the County and DEC Staff raised serious doubts about Dr. Zimmie's testing, based in part upon the procedures he used. In the Matter of Hyland Facility Associates (Decision of the Commissioner, April 13, 1995, p.4), Commissioner Zagata said, "A standard of reasonableness is warranted when determining the level of detail for evidence to be deemed "sufficient" . . . A proper balance must weigh the sound and legitimate methods and tests performed by the Applicant and the nature of the evidence offered to contradict them."

The credible evidence demonstrated that the site's glaciolacustrine soils have low permeability, and that their silt and sand layers do not pose a significant threat in terms of contaminant transport. Pump tests would very likely be unsuccessful in these soils, as Mr. Becker and Dr. Siegel argued. Also, there have already been many test pits in the footprint vicinity; at any rate, DEC does not recognize them for measuring permeability.

As Mr. Becker noted, there are results from 25 grain size analyses available for the site, and further gradations would be of minimal benefit. The application contains results for 44 slug tests at the site, and the Town was unable to show that due to smearing or other problems, these tests should be disregarded. Also, Mr. Becker explained why additional slug tests on the landfill footprint would not be advisable or worthwhile.

Finally, a 50- to 100-foot long trench to trace the continuity of permeable sand and silt layers would be a very expensive endeavor fraught with safety concerns for whoever would have to enter its 20-foot depth. And of course it would only provide information for a certain area, and none for even deeper depths to bedrock where contaminant movement is also a concern. As an alternative, the County could dig a series of test pits, but even then one could not be sure which layers went from hole to hole.

I appreciate the Town's point that no one can be certain what is underneath the landfill footprint, and what possible avenues, as yet undetected, may exist for the escape of contaminants. I also agree that more information is always better. Yet, in making a permitting decision, the Department is entitled to draw justifiable inferences from reliable data, and should not compel an applicant to provide additional information unless, as the law says, it is "reasonably necessary" to decide an issue.

While I find that no additional testing is required, if the Deputy Commissioner were to direct additional inquiry, it would appear more appropriate that it be done for the area between the footprint and the ravines generally west of the site, rather than on the footprint itself, given the concern for contaminant spread away from the landfill.

Variance Condition

The Department's regulations provide that in granting a Part 360 variance, DEC will impose specific conditions necessary to assure that the activity will have no significant adverse impact on the public health, safety, or welfare, the environment or natural resources. [6 NYCRR 360-1.7(c)(3)]. While I am not recommending it, one possible condition on the variance would require over-excavation of the soil as part of the landfill's construction and the subsequent re-compaction of the clay to break up any sand and silt lenses and, in effect, create another liner below the pore pressure relief system.

Although not formally proposed as a condition, this concept was advanced by Dr. Zimmie at the issues conference and again at the adjudicatory hearing. At the issues conference, he said it is always advisable to over-excavate below the pore pressure relief system about four to five feet and re-compact the clay for additional safety. At the hearing, he said that the state of Wisconsin "wants" over-excavation of ten feet around the pore pressure relief system for in-gradient landfills, and that the re-compacted clay forms another line of resistance to contaminant transport.

Dr. Zimmie said over-excavation is not intended as part of the County's landfill application, and that under the current design, any sand and silt lenses would not be broken up, and instead would be directly in contact with the bottom of the pore pressure relief system. The County and DEC Staff did not challenge this part of his testimony. However, Mr. Becker said that in light of the landfill's double liner, the over-excavation and recompaction of soils to create a third liner is not warranted, and, at any rate, is not typically required at a landfill site. Also, while the record is somewhat muddled on this point, it appears that where Wisconsin requires over-excavation, the landfills are not double-lined and do not have geomembranes.

The record is undeveloped about the costs involved in this process, although its benefit is apparent. Given the good safety record of double-lined landfills, I view it as unnecessary in this instance. However, I note it for the Deputy Commissioner's consideration as a possible additional design safeguard.

CONCLUSION - GROUNDWATER SEPARATION VARIANCE

1. Although the minimum five-foot groundwater separation would not be maintained, the landfill would not have a significant adverse impact on the public health, safety, or welfare, the environment or natural resources.

RECOMMENDATION - GROUNDWATER SEPARATION VARIANCE

1. The variance from the groundwater separation requirement should be granted.

DISCUSSION - MONITORABILITY

Background

Part 360 prohibits locating landfills in areas where environmental monitoring and site remediation cannot be conducted. Pursuant to regulation, these areas must be identified based upon the ability to sufficiently characterize groundwater and surface water flow to locate upgradient and downgradient directions; ability to place environmental monitoring points which will detect releases from the landfill; ability to characterize and define a release from the landfill and determine what corrective actions are necessary; and ability to carry out those corrective measures. [6 NYCRR 360-2.12(c)(5)]

The County's discussion of monitorability is in Section 7.6.3 of its permit application. Here, this issue relates to the planned placement of the County's landfill in an area variously described by the parties as 250 or 300 feet from the recently-permitted paper companies' landfill.

Section 360-2.12(c)(5) allows landfill expansions adjacent to existing landfills which are already contaminating groundwater so long as the proposed expansion area can be constructed in a way that demonstrates compliance with Part 360. As the Deputy Commissioner noted in his October 3, 1995, interim decision, this provision "hardly suggests that the monitorability requirement should be interpreted as discouraging the construction of landfills adjacent to each other on monitorability grounds. It simply requires that a reasonable and prudent system be engineered to be able to detect and identify releases, and to provide for such remedial action as may be warranted in the event of leakage" (Emphasis added) (Interim Decision, p. 7).

Further on, the Deputy Commissioner interprets the monitorability requirement as indicating that "so long as a prudently designed monitoring system is provided for, siting adjacent landfill facilities is not disfavored simply because cross contamination might possibly occur. In fact, there may be overriding sound reasons for siting facilities (including multi-celled landfills) adjacent to one another. . . The regulation should be interpreted in light of the environmental purpose that it serves, and not rigidly or narrowly." (Interim Decision, p.7.)

Monitoring Mechanisms

As stated in my findings of fact, various mechanisms exist to determine the source of any groundwater contamination resulting from the operation of either the County's or the paper companies' landfill. The design of the County landfill is helpful, since monitoring of the leachate collection and removal systems and the pore pressure relief system would provide the County with the ability to determine the source of groundwater contamination between the landfill sites. Also, as noted by Mr. Kucewicz, the landfill would be encircled by nine monitoring well points or clusters. Mr. Becker said the well spacing exceeds the minimum requirements of Part 360, and is adequate to pick up contaminants escaping the pore pressure relief system. In addition, he said, these wells could be supplemented in the event that contamination escaped the landfill system.

Groundwater Divide

A lot of discussion focused on a groundwater divide which now generally separates the two landfill sites. There was conflicting testimony about whether this divide would be enhanced or reduced, or whether and in which direction it would shift, once both landfills begin operating. Dr. Zimmie said the operation of the two landfills would change the groundwater flows in unpredictable ways, as would seasonal fluctuations of the water table. Whether and to what extent the pore pressure relief systems were working would also be a factor, he added.

If the divide remained between the two landfills, it would provide a convenient hydraulic boundary, as Dr. Siegel testified. However, as Staff argued, the divide is not critical to establishing monitorability. This is because if the containment system of only one of the two facilities fails, the source of that failure would be obvious through monitoring capabilities built into the landfill designs. Also, if both facilities failed at the same time, updated groundwater contour maps prepared in accordance with special permit condition No. 10 would determine groundwater flow patterns between the facilities, and provide a basis for the prudent enhancement of the monitoring well network.

Leachate "Fingerprinting"

The County also intends to use the distinct characteristics (or "fingerprints") of the two landfills' leachates to identify the source of any contamination. Dr. Siegel, an expert in contaminant hydrogeology, testified credibly that geochemical methods (considering the concentration ratios of different chemical substances) could be used to distinguish municipal and industrial leachate from leachate generated from paper sludge. Mr. Becker agreed, although he acknowledged that such methods, standing alone, would not be foolproof.

In another proceeding, Dr. Zimmie himself has acknowledged the usefulness of chemical fingerprinting, and noted how leachate characteristics vary depending on what goes into different landfills. Here, however, he has a concern that industrial sludge received at the County's landfill would produce a leachate very similar to that produced by the paper companies' landfills. The County successfully rebutted this concern by showing that industrial sludge would very likely constitute a negligible amount of the total waste received at its landfill.

Also, as noted in the findings, DEC Staff has prepared a permit condition that would require the County to ensure that any generator of industrial sludge provides a waste profile analysis to DEC and the County for their review and approval, prior to the sludge's disposal. This is intended to ensure the County can distinguish the constituents of industrial sludge disposed of at its landfill from the constituents of the paper sludge disposed of at the paper companies' landfill.

To better ensure this result, I recommend that the condition be supplemented with language granting DEC authority to disallow the disposal of any industrial sludge that, in its opinion, would compromise the separate monitorability of the two landfills. This would address the possibility that sludge generators other than Ball Metal Co. will someday want to use the landfill for sludge whose chemical composition too closely resembles that of the paper companies. In such circumstances, DEC must have approval authority over the product, not just its waste profile analysis.

Electromagnetics

Finally, electromagnetics can be used to monitor contaminant spread. Dr. Zimmie expressed concern that due to the clay soils' stratification, contaminants would move faster through the more permeable layers, resulting in a "fingering" effect and leaving no well-defined plume for electromagnetic detection. The County and DEC Staff acknowledged that in clay soils such as those at this site, electromagnetics tend to be less effective than they might be in other soil deposits. However, at the least, they are somewhat effective, and Mr. Becker said he had been involved in projects in DEC's Region 5 where electromagnetic methods have been used to define the limits of a contaminant plume.

Summary

Overall, electromagnetics and chemical fingerprinting appear to be useful in addressing monitorability, although the design of the two landfills, the periodic monitoring of groundwater flow between them, and the potential for prudent enhancement of the monitoring well network as needed to address contamination, provide the main assurance that leakage would be detected, identified and remediated in a timely fashion.

CONCLUSION - MONITORABILITY

1. The County complies with the restriction against locating landfills in areas where environmental monitoring and remediation cannot be conducted.

RECOMMENDATION - MONITORABILITY

1. DEC Staff's draft permit condition (Exhibit No. 1-C) requiring DEC's approval of a waste profile analysis for industrial sludge proposed for disposal at the County landfill should be supplemented with language granting DEC authority to disallow the disposal of any industrial sludge that, in its opinion, would compromise the separate monitorability of the County's and the paper companies' landfills.

SUMMARY OF CONCLUSIONS AND RECOMMENDATIONS

ISSUE NO. 1 - - NOISE VARIANCE

CONCLUSIONS
  1. Noise from the landfill operations would not have a significant adverse impact on the surrounding environment.
  2. Compliance with the Part 360 noise level requirement would impose an unreasonable economic burden on the County and its taxpayers.
RECOMMENDATION
  1. The variance from the noise level requirement should be granted, subject to the following conditions on the landfill's operation:
    • No more than 10 trucks per hour may move to and from the landfill footprint along the site's access road.
    • 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. The area of concern shall be initially defined as any location within 1,000 feet north or west of the landfill footprint.
    • After the landfill begins receiving waste, the County shall sample actual noise levels north and west of the landfill during a peak hour of activity. The information from this sampling may be used by DEC to redefine the area of concern.

ISSUE NO. 2 - - AIRPORT SEPARATION

CONCLUSIONS
  1. The siting of the County's landfill footprint 8,750 feet from the Heber Airpark runway, at the location now proposed, would have a significant adverse impact on public safety.
  2. The County has not demonstrated that compliance with the airport separation requirement would necessarily impose an unreasonable economic burden, given the availability of alternatives to landfill re-siting.
RECOMMENDATIONS
  1. The Deputy Commissioner should remand the matter to provide an opportunity for the County to explore options, including those raised in this report, which might either allow a variance to be granted or dispense with the need for a variance by ensuring compliance with the airport separation requirement.
  2. In the meantime, the variance request should be held in abeyance, pending its possible supplementation. If the matter is not remanded, the variance should be denied.

ISSUE NO. 3 - - NORTHERN HARRIER

CONCLUSIONS
  1. The landfill site is critical habitat for the northern harrier. However, the County's mitigation plan, by overall improving habitat quality, adequately addresses the loss of habitat associated with the landfill's construction and operation.
  2. Active harassment measures directed at gulls and flocking birds, as proposed for the active landfill face, would cause or contribute to a taking of the harrier, and the adverse modification of its critical habitat, offsetting benefits of the mitigation plan.
RECOMMENDATIONS
  1. Any permit should be conditioned to prohibit the active harassment measures proposed by the County, including the firing of pyrotechnic shells and the playing of bird distress calls.
  2. The permit condition identified as Exhibit No. 1-A requiring implementation of the harrier mitigation plan should be modified to impose monitoring and reporting requirements similar to those on pages 13 and 14 of the harrier management plan for the Washington County solid waste management facility in Hartford (Exhibit No. 98). This would assist DEC in developing requests for the plan's modification, which are anticipated by the permit condition.

ISSUE NO. 4 - - GROUNDWATER SEPARATION VARIANCE

CONCLUSION
  1. Although the minimum five-foot groundwater separation would not be maintained, the landfill would not have a significant adverse impact on the public health, safety, or welfare, the environment or natural resources.
RECOMMENDATION
  1. The variance from the groundwater separation requirement should be granted.

ISSUE NO. 5 - - MONITORABILITY

CONCLUSION
  1. The County complies with the restriction against locating landfills in areas where environmental monitoring and site remediation cannot be conducted.
RECOMMENDATION
  1. DEC Staff's draft permit condition (Exhibit No. 1-C) requiring DEC's approval of a waste profile analysis for industrial sludge proposed for disposal at the County landfill should be supplemented with language granting DEC authority to disallow the disposal of any industrial sludge that, in its opinion, would compromise the separate monitorability of the County's and the paper companies' landfills.

ADDENDUM

Apart from the corrected transcript, the adjudicatory hearing record includes 327 numbered exhibits. Incorporated by reference to the hearing record are the two bound volumes of the permit application; the complete set of engineering and hydrogeological drawings which accompany the application; the County's draft EIS, dated August, 1992; the final EIS, dated January 1993; and the County's SEQRA findings statement, which is annexed to section 1.3 of the permit application.

The issues that were identified and litigated in the adjudicatory hearing all related to Part 360 landfill permitting standards, and not to SEQRA. Therefore, this report contains no fact findings, conclusions or recommendations with regard to SEQRA issues.

However, DEC is an involved agency in the SEQRA review of this project, since it has a discretionary decision whether to grant a Part 360 permit. Therefore, the Deputy Commissioner must make SEQRA findings on behalf of the agency before making his final permitting decision. These findings must be based upon and related to information in the EIS record.

_____________/s/_____________
Edward Buhrmaster
Administrative Law Judge

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