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Saratoga County Landfill - Interim Decision 2, October 3, 1995

Interim Decision 2, October 3, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

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

-by-

SARATOGA COUNTY LANDFILL

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

SECOND INTERIM DECISION

October 3, 1995

SECOND INTERIM DECISION

Saratoga County (the "County" or the "Applicant") has appealed pursuant to 6 NYCRR 624.8(d)(2) from ALJ Edward Buhrmaster's August 1, 1995 Ruling that there are six substantive and significant issues to be adjudicated in connection with the County's application for a permit to construct and operate a landfill at the East end of Kobor Road in the Town of Northumberland (the "Town"). The Town, which has intervened in opposition to the project, supports the ALJ's determination as to the six issues that the ALJ found adjudicable; moreover, the Town has appealed from the ALJ's ruling that five other asserted issues were not sufficiently substantive and significant to warrant being adjudicated. Appeals from ALJ Buhrmaster's denial of party status have also been received from Howl of the Grey Wolf ("Howl"), the County of Warren and Washington Industrial Development Agency ("IDA"), and Adirondack Resource Recovery Associates ("ARRA"). At the issues conference, Farms First was granted amicus status on the issue whether the Kobor Road site is the most appropriate landfill location among the alternatives considered by the County; Farms First filed a reply brief on that issue and supports the appeals of the Town, IDA and ARRA. DEC Staff did not appeal, but filed a reply brief in support of the County's position and in opposition to the Town's appeal.

This decision will first address the regulatory standard by which these appeals will be reviewed; next it addresses the appeal from the ruling on issues found to be adjudicable, then the appeals from the ruling on issue found not to be adjudicable, and finally the appeals from party status rulings.

SUMMARY

The ALJ's rulings are affirmed, except as to: a) The economic burden component of the groundwater variance issue; this issue is rejected based upon my evaluation of the Town's offer of proof as not being substantive and significant in light of my interpretation of 360-1.7(c); and b) The siting study issue, which I conclude should not be an issue for adjudication, based on my interpretation of 360-2.12 of the Department's rules.

I. STANDARD OF REVIEW

My task in this Interim Appeal is to review whether the ALJ adhered to the applicable standard for adjudicable issues as set forth in 6 NYCRR 624.4(c). Where, as here, the contested issues were not the result of a dispute between an applicant and Staff (see subsection 624.4(c)(1)(i) and (ii)), but were proposed by third parties, an adjudicable issue must be "both substantive and significant" (see subsection 624.4(c)(1)(iii)). That rule provides that:

"An issue is substantive if there is sufficient doubt about the applicant's ability to meet statutory or regulatory criteria applicable to the project, such that a reasonable person would require further inquiry. In determining whether such a demonstration has been made, the ALJ must consider the proposed issue in light of the application and related documents, the draft permit, the content of any petitions filed for party status, the record of the issues conference and any subsequent written arguments authorized by the ALJ.

An issue is significant if it has the potential to result in the denial of a permit, a major modification to the proposed project or the imposition of significant permit conditions in addition to those proposed in the draft permit.

In situations where the department staff has reviewed an application and finds that a component of the applicant's project, as proposed or as conditioned by the draft permit, conforms to all applicable requirements of statute and regulation, the burden of persuasion is on the potential party proposing any issue related to that component to demonstrate that it is both substantive and significant."

As above noted, an issue is "substantive" if there is sufficient doubt as to an applicant's ability to adhere to a particular applicable standard as to reasonably require further inquiry. In making such a judgment, the ALJ is to consider the proposed issue in light of the application and related documents, the draft permit, the content of petitions for party status (such as offers of proof), the record of the issues conference, and authorized briefs to the ALJ on which matters are, or are not, worthy of being adjudicated.

In addition to being "substantive", an issue must also be "significant", meaning that the outcome of its being adjudicated has the "potential" to result in denial, major modification, or significant conditioning of the permit. This adds a relevancy component to the first element of doubt as to ability to meet an applicable standard.

In reviewing the ALJ's determination it is appropriate to consider the ALJ's interpretation of the applicable regulation as well as his interpretation of the facts. The factual record needs to be evaluated as it was when the ALJ made his ruling. New information submitted by the parties with its appeal from the ALJ's rulings, while potentially of great value in any subsequent adjudication, cannot be substantively evaluated on appeal. To the extent new information is offered as evidence, it should be submitted when there is an opportunity for cross examination and rebuttal. Moreover, neither the issues conference nor an appeal from an ALJ's issues ruling can substitute for the adjudicatory hearing. The issues conference ruling is a tool to define and winnow out from a plethora of potential issues only those which are substantive and significant. The interim appeals process necessarily gives substantial deference to the ALJ on factual issues in connection with interim appeals. See, In the Matter of Hyland Facility Associates, (Interim Decision, August 20, 1992). This is so because the ALJ who personally conducted the issues conference has the closest awareness of the facts and parties' positions. As to policy and legal issues, on the other hand, the Commissioner has greater discretion in the interim appeals process to offer policy and legal guidance to optimize the permitting process and focus the hearing.

It is also appropriate to mention the prior adjudication involving the Scott Paper/Finch Pruyn paper sludge landfill. This interim decision draws distinctions between that case and the one under review here. The reader should be aware of the Department's obligation under the statute to evaluate each project on a case-by-case basis. The offers of proof presented in this case are evaluated with that understanding.

With the above in mind, I will proceed to review the issues on appeal.

II. APPEAL BY THE COUNTY FROM THE SIX ISSUES WHICH THE ALJ FOUND TO BE SUBSTANTIVE AND SIGNIFICANT

The six issues found by the ALJ to require further consideration in the adjudicatory hearing are:

  1. Groundwater Variance
  2. Monitorability of groundwater given the proximity of an adjacent landfill
  3. Noise Impacts
  4. Separation from Airports
  5. Impact on the Northern Harrier, a threatened species
  6. Siting Study - Compliance with Part 360 requirements, and documentation on the selection of the Kobor Road site as compared to the eight preliminary sites considered

Each of these points is addressed separately below.

A. Groundwater Variance

The County has applied for a variance from the normally applicable requirement that at least five feet of separation be maintained between the base of the landfill liner system and the seasonal high groundwater table. The purpose of the five foot separation requirement is to protect against groundwater contamination. On the other hand, it is not uncommon for the Department to grant variances from the five foot separation standard where approvable alternative measures for groundwater protection can be employed. Under the circumstances in this case, it appears that if the five foot separation were to be maintained, the County would need to add considerable soil beneath the proposed landfill base, which would be costly, time consuming, and use up valuable material which could be otherwise used in the construction of the landfill baseliner and for final cover. On the other hand, lowering the base of the landfill below the natural seasonal high groundwater table and installing a pore pressure relief system and related engineering controls to depress the natural water table would enhance landfill capacity and reduce costs substantially. According to the Applicant, this will also achieve the objective of protecting against groundwater contamination.

In my July 14 ruling, I found that there is an issue as to the soil permeability measurements, which are linked directly to the design of the pore pressure relief system. Hence the landfill's final design and costs are potentially affected by the soil permeability issue previously decided upon as being adjudicable.

The Applicant, which seeks the groundwater separation variance, bears the burden of justifying its variance request. Under 360-1.7(c), an Applicant for a variance must show both that there would be no significant adverse impact on public health, safety, welfare, the environment or natural resources if the variance is granted, and that compliance with the five foot separation requirement would tend to impose an unreasonable economic, technological or safety burden on the Applicant. As applied to this case, the question is whether the variance if granted will provide an appropriate degree of protection against groundwater contamination while avoiding unreasonable expenditure.

The County appeals from the ALJ's ruling that adjudication of the variance must include determining whether there would be an unreasonable expenditure, or economic burden, on the Applicant if the variance was not granted. The ALJ found that the County's demonstration of economic burden was based on "assumptions, the bases for which have not been confirmed" (ALJ Ruling at p. 7). He further found that the County did not address the construction cost for the pore pressure relief system, which needs to be weighed against the costs in the event the variance is denied, to estimate the burden. In short, the ALJ found that the record needs to be completed and clarified on this issue.

The economic impact of granting or not granting the groundwater separation variance is necessarily part of the overall variance issue. This is not to say that proof of the economic burden facet of the groundwater variance issue needs to be highly detailed or complex. The County's variance request submitted with its application recounts that granting the variance would preserve landfill capacity by an estimated 232,000 tons, having an estimated replacement cost of $1.8 million, and lowering the unit cost of disposal at the proposed landfill. Importing subgrade fill needed to maintain a five foot separation is estimated to cost on the order of $300,000 or more, and the cost of replacement material for use of baseliner material would be on the order of $4.0 million, according to the County. The overall landfill cost has been estimated to be on the order of $11 million, according to the County's updated solid waste management plan. Accordingly, the County has shown that the economic burden of not granting the variance, under the proposed design, is well within the cost savings normally considered in determining economic burden under 360-1.7(c). For example, in Scott Paper/Finch Pruyn ("Finch/ Pruyn"), the economic burden of not granting the variance was 18% of construction costs.

The ALJ found, however, that the Applicant's demonstration of economic burden is based on stated assumptions which have not been confirmed, and that the pore pressure relief system's costs have not been addressed. He further infers, correctly, that this could affect the overall cost of construction, and impact a judgment on the economic burden of granting the variance.

However, I am not persuaded that this issue is either substantive or significant, or that the Town, which made no offer of proof on the question, has carried its burden of persuasion. Even if the final design of the pore pressure relief system or other factors were to increase the cost of the landfill substantially over the 1994 estimate of $11 million, the record shows that there would still be a significant economic burden within the meaning of 360-1.7(c) if the variance was denied. Finally, the ALJ's concern that the County's demonstration of the economic burden is based on unconfirmed stated assumptions is inconsistent with the reality that predictive engineering estimates of this nature are, of necessity, based on assumptions. Here the factors used to make the estimates (assumptions) are stated in the variance request submitted with the application (i.e.: average fill height of 50 feet). These assumptions are not challenged by the Town, and are accepted by the Staff. The Town merely argues that the estimates used to demonstrate the burden should be more detailed but further detail would not affect the outcome, and is therefore not significant. The economic burden component of the variance request on this issue has been satisfied within the meaning of 360-1.7(c), and no issue is raised for adjudication.

Therefore, ALJ Buhrmaster's determination that adjudication of the variance issue must include the "economic burden" to the County if the variance is not granted is reversed.

B. Monitorability

The County appeals the ALJ's ruling that a substantive and significant issue exists as to whether placement of the proposed landfill adjacent to the recently permitted papermill sludge landfill of Finch/Pruyn will violate the monitorability rule (6 NYCRR 360-2.12(c)(5)). This rule prohibits locating new landfills in areas where environmental monitoring and site remediation cannot be conducted. At approvable sites, the rule specifies that there needs to be an ability: a) to identify up and down-gradient groundwater flow direction; b) to place environmental monitoring points capable of detecting leaks; and c) to characterize and define releases and determine and take corrective action. It is relevant that the rule further expressly allows lateral expansion adjacent to existing leaking landfills, and notes that at such sites, the Department may impose special monitoring requirements, including lysimeters, tracers, statistical measures, additional wells around the entire site and other measures that it finds appropriate.

The Town's contention is that the presence of the proposed County landfill in proximity to the Finch/Pruyn landfill would violate the prohibitions of the monitorability rule because, according to the Town, it would be difficult to determine which of the two landfills was leaking in the event a leak was detected. The Town's argument is that the existence of the two adjacent pore pressure relief systems will frustrate an ability to pinpoint and correct the source of potential leakage from either or both landfills. The Town further argues that the leachate from the two landfills will have common characteristics, especially if papermill sludge is used for daily cover in the County's landfill, exacerbating the problem of identifying the source of a leak. The County responds that there will be a divide in the groundwater table between the two landfills, so that potential leaks will travel in separate directions, and that leachate from each facility can be separately monitored and identified. The Staff supports the County, and through its hydrologist contends that the design of the two landfills, each with a double liner and a pore pressure relief system (from which leachate can and will be monitored and analyzed on a regular basis), will readily allow potential contaminant plumes from each to be identified and characterized, should leakage occur.

The ALJ, upon review and summary of the parties' points, concludes that the experts are in disagreement and that this issue should be aired at the hearing. He also characterizes Staff's argument as being that, because the landfill design is redundant, leakage is unlikely, so monitorability is not a significant issue. He finds such an argument to be unpersuasive. He then concludes that it would be reasonable to probe further into the monitorability issue, especially given the permeability issue decided upon in my July 14, 1995 ruling.

On review of the ALJ's report, briefs, application and record of the issues conference, I believe it is not disputed that a single landfill at the Kobor Road site (whether the Finch/Pruyn facility or the County's) is monitorable within the meaning of 2.12(c)(5). That is, groundwater gradients can be characterized, monitoring points can be placed at the site to detect releases, and there is an ability to design a monitoring and remedial action plan which would identify and correct releases from a single facility at the site.

The Town suggests that the specter of uncertainty about detecting leakage and assigning responsibility for remedial action renders the site unmonitorable within the meaning of 2.12(c)(5). On the other hand, I have noted above that 2.12(c)(5) expressly allows landfill expansions adjacent to existing landfills--even those which are in fact contaminating groundwater--provided that measures satisfactory to the Department are taken. This provision hardly suggests that 2.12(c)(5) 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.

Moreover, Staff's position does not appear to me to be as the ALJ characterized it; that is, Staff, by emphasizing the design of the two facilities, appears to be saying that the double lined systems and pore pressure relief systems afford the facility operators and DEC the opportunity to collect and characterize leachate beneath each landfill so that identification of potential leakages and differentiation between contaminants from the two facilities can be readily done to facilitate remedial action, if needed.

The ALJ's conclusion that it would be reasonable to inquire further on monitorability is supported by the fact that he and I interpret Staff's position somewhat differently, as well as by the divergent views of the County's and Town's experts. These differences cannot be resolved until an opportunity is provided for direct, cross and rebuttal examination.

However, some observations on the monitorability rule would appear to be warranted at this point.

My interpretation of 2.12(c)(5) is that so long as a prudently designed monitoring system is provided for, siting adjacent landfill facilities is not to be 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, such as land use, roads, geologic and hydrologic factors. The regulation should be interpreted in light of the environmental purpose that it serves, and not rigidly or narrowly.

Whether this issue is both substantive and significant involves both interpretation of 2.12(c)(5) and evaluation of the facts and opinions of the experts. I am mindful of the importance of giving deference to the ALJ's factual rulings. I am reluctant to find that it was not reasonable for the ALJ to inquire further, and to conclude that inability to monitor, if such were the case, could result in permit denial or modification. Therefore, while I affirm the ALJ's ruling on this point, the parties should address the monitorability issue at the hearing in light of my above interpretation of 2.12(c)(5).

Subject to the foregoing, ALJ Buhrmaster's ruling on monitorability is affirmed.

C. Noise

Section 360-1.14(p) specifies that noise levels resulting from equipment or operations at the facility must be controlled to prevent transmission of sound levels beyond the property line at locations zoned residential from exceeding specified levels. At the issues conference, the parties (including the Applicant) agreed that noise levels would exceed the specified thresholds, and the ALJ found compliance with the noise level requirement to be a substantive and significant issue. Since the time of the issues conference, the Applicant submitted an application for a variance from the noise regulation.

Under the circumstances, a substantive and significant issue has been raised. Not only is there "doubt" as to the applicant's ability to meet 360-1.14(p), Applicant admits that the requirement cannot be met unless a variance is granted. Therefore, further inquiry is needed. Also, the potential exists for imposing noise control conditions in the permit. The related sub-issue of noise decay rate should be addressed at the hearing as well since conflicting factual assertions exist.

However, construction noise need not be addressed in the hearing. Section 360-1.14(p)(1) is read to apply to operational noise and not construction noise. This reading is confirmed upon review of the Final Environmental Impact Statement and Responsiveness Summary to the Part 360 rule revisions completed in August, 1988 (see pg. RS 1-54) and the Solid Waste Management Facility Guidelines, May, 1981 (see pg. 2-2(3)). Official notice is hereby taken of these latter two documents.

Accordingly, the ALJ's ruling that noise is an adjudicable issue is affirmed.

D. Separation from Airports

Section 360-2.12(c)(3) of the landfill siting regulations provide that a landfill into which putrescible waste is to be disposed must be located no closer than 5,000 feet from any airport runway used by piston-powered aircraft and no closer than 10,000 feet from any airport runway used by turbojet aircraft. Putrescible wastes can attract birds, which under some circumstances, can be a safety hazard to aircraft. The County's proposed landfill at the Kobor Road site will receive putrescible waste, and is located some 8,950 feet from the Heber Airpark, which the parties agree fits the definition of "airport" in 360-1.2(b)(5) of the Department's solid waste regulations. Therefore, the proposed site is 1,050 feet closer to the Heber Airport than the 10,000 foot limit for turbojet aircraft.

The Town asserted at the issues conference that the Applicant cannot comply with 2.12(c)(3) because the Army National Guard AH-1 and UH-1 helicopters use the Heber Airpark facility, landing there at a rate of approximately 10 times per month. The Town asserts that these helicopters are turbojet aircraft and, accordingly, use of the airport by the helicopters means that the Applicant cannot comply with 360-2.12(c)(3).

The ALJ, following a thorough analysis of the facts and background, agreed that the airport separation issue is significant and substantial. The County appeals. Staff supports the County's position.

Upon consideration of the positions of the parties, the ALJ's report and the correspondence between the FAA and the Applicant, and while the helicopters in question are not turbojet aircraft (as the Finch/Pruyn decision explains), I conclude that this situation cries out for a variance request from the Applicant. The 10,000 foot separation requirement, as Staff points out, is based on air safety considerations. The facts show that there are relatively infrequent landings by rotary wing, nonpiston-driven aircraft at a small airport at the outer range of the rule's 10,000 foot distance. Extensive discussion as to whether the helicopters in question are, or are not, "turbojet" aircraft is found in the record of this case and in the record in Finch/Pruyn. Also, correspondence submitted, but not yet in evidence, in this case suggests that the FAA does not appear to regard the above facts as presenting a significant threat to air safety, so that issuance of a variance from 2.12(c)(3) in this case would appear to be justifiable regardless of the engine design of aircraft that land at the Airpark.

I am mindful of the ALJ's and Commissioner's decision in Scott Paper/Finch Pruyn which ruled that the 10,000 foot separation limit did not apply in that case (an adjacent papermill sludge landfill) because the same helicopters were "turboshaft" aircraft and not "turbojet" aircraft. The main factual difference between the two cases is that the Finch/Pruyn landfill will receive papermill sludge, while the County's landfill is intended to receive mixed municipal solid waste.

The airport issue was raised in Finch/Pruyn by Mr. Heber not by the Town. While the Town was a party to the Finch/Pruyn case, it did not raise the airport separation issue in that case, because, as it asserted at the issues conference and in its brief in this appeal, the Town did not consider the papermill sludge to be putrescible, and deferred raising the airport separation question to this proceeding (Town brief). Thus the Town seeks to re-raise the turbojet/turboshaft issue and claims that it is not collaterally estopped from so doing.

Clearly the decision in Finch/Pruyn establishes one basis on which to rule out the airport separation issue in this case. I fully support the result in that case. However, in this case of the County's facility which will receive mixed municipal solid waste, I feel it is appropriate to examine the airport separation question in a manner which deals squarely with the aircraft safety issue. If Applicant submits a variance request and meets its burden of showing with record evidence that no significant air safety threat exists, I believe it should be entitled to a variance from 2.12(c)(3)'s 10,000 foot restriction. Materials presented in connection with the issues conference suggest strongly that a variance is a likely outcome, but it cannot be done on papers submitted at an issues conference. The Town is entitled to examine the Applicant's properly presented evidence at a hearing on this issue and to offer rebuttal. Separation from airports is an issue, and should be handled as set forth above.

E. Northern Harrier - Threatened Species - Critical Habitat

The ALJ concluded that a substantive and significant issue was raised by the Town with respect to whether Applicant's proposal satisfies the criteria of 360-1.14(c) of the Department's regulations which deals with endangered and threatened species protection. Section 1.14(c)(3) provides that facilities such as Applicant proposes "...must not be constructed or operated in a manner which causes or contributes to the taking of any endangered or threatened species...; or to the destruction or modification of their critical habitat."

The Town submitted an offer of proof asserting that the landfill site is located within an area of critical habitat of a threatened species, the northern harrier, a bird species, and that constructing the landfill on the site would contravene 1.14(c)(3) and amount to a "taking" of the species. The Town proposes to offer three witnesses on this issue: a biology teacher and raptor researcher, a resident of the area, and an ornithologist who teaches at SUNY Albany in the biology department. The thrust of their assertions appears to be that the site is critical habitat, based on observations of the northern harrier in the area, and that loss of the area proposed for the landfill would adversely affect the habitat to such a degree that a "taking" of the species would occur within the meaning of the Endangered Species Act and ECL Article 11. The County and Staff, on the other hand, claim that the site is not critical habitat and, in any case, use of the site as proposed will not adversely affect the maintenance of a balanced population of the species since the local northern harrier population occupies a large territory of which the site area is a negligible portion, and does not use the site for nesting. Therefore, County and Staff contend that construction of the landfill as proposed will not adversely modify the harrier's habitat or cause a "taking" of the species.

The County and Staff rely in part on a consultant's report evaluated and relied upon in the Finch/Pruyn case. The consultant's report studied the land use and availability of nesting habitat within a two mile radius of the Finch/Pruyn site (essentially the same as the County's site). Based on that report and other information, DEC in Finch/Pruyn concluded that constructing the papermill sludge landfill would not cause or contribute to the destruction or adverse modification of critical habitat for the Northern Harrier. A mitigation plan, involving setting aside 45 acres for the northern harrier, was also involved in that case. In that proceeding, the ALJ rejected the Town's offer of proof on critical habitat, and the Commissioner upheld that ruling. The ALJ's rationale in Finch/Pruyn was that mere use of the area for hunting is not sufficient to raise an issue concerning critical habitat without some showing that the area is necessary for the survival of the species, or essential to the conservation of the species. In the current case, on the other hand, the Town's offer of proof not only alleges that northern harriers use the site, but also that the site is critical habitat which will be adversely affected and that use of the site for a landfill would adversely impact the relevant population and result in a "taking."

Whether the Town's offer has merit remains to be determined after cross examination and rebuttal by the County and Staff. The ALJ's ruling that the issue is substantive and significant is affirmed since it is reasonable to inquire further on the matter, and since the issue is relevant to the issuance and/or conditioning of the permit.

Based on the discussion above, I am constrained to agree that the Town is not collaterally estopped on this issue. The northern harrier question was not an issue for adjudication in Finch/Pruyn because the Town had not submitted a sufficient offer of proof in that case. Here the ALJ found that it did. The Town is not collaterally estopped for the reasons given in the ALJ's report.

The arguments of the Applicant and Staff objecting to the Town's appeal generally focus on the merits, emphasizing, for example, that the site is not used for nesting, that there is plenty of habitat in the area, that the landfill will use a relatively small area, and that the species will remain robust regardless of the construction of the landfill. The County's role in the Finch/Pruyn mitigation plan is also raised. However, the issue on this appeal is limited to whether the Town has come forward with evidence which reasonably requires further inquiry. The ALJ concluded that the Town did so in this case, and I conclude that his judgment on the matter was supported and reasonable. The substantive issue, whether constructing the landfill would cause or contribute to significant destruction or adverse modification of critical habitat, cannot be adjudicated in this appeal. It should be done in the context of a hearing. The ALJ's ruling is affirmed.

F. Siting Study

Section 360-2.12 requires that Applicants for new landfills submit a site selection report, describing how Applicant's proposed site has been selected. The rule provides that a reasonable range of alternatives needs should be evaluated, and the "most appropriate alternative" within that range should be selected. The ALJ found that the County had considered a reasonable range of alternatives. He further found that there were some specific factual questions whether the "most appropriate alternative" was chosen among those considered. The issues as found by the ALJ related to field reconnaissance and inspection records, and to the matrix used to evaluate and score the sites under consideration. I find that the ALJ misinterpreted 360-2.12 and that no substantive and significant issue exists when the rule is placed in context with the overall siting process set forth in the ECL and Department rules.

The ECL provides at 27-0106 that the basic responsibility for planning and operation of solid waste management facilities remains with local governments. Planning and site selection for the Saratoga County facility has an intricate and lengthy history. By 1990, the County developed and DEC approved a solid waste management plan for the County. That plan specified the process to be used in the selection of a landfill site. The process was thorough, and included a matrix for evaluation of prospective sites, in addition to other site evaluation tools.

The County's engineer then developed a "Landfill Siting Study: Interim Report" which defined eight preliminary sites and set forth the weight to be given to particular subcategories in the evaluation matrix, scored the sites, and identified three primary sites for further field study. Following the further studies at the three sites, the Kobor Road site was selected. The County then evaluated the site under SEQRA, which also reviewed alternatives, and the County made its SEQRA findings statement in June, 1993. Next, the County filed its landfill permit application with DEC; the application contains the landfill siting report mentioned above, the siting process set forth in the solid waste management plan, and the preliminary site scoring tables as well as supportive technical material fulfilling the Part 360 criteria.

At the issues conference, the Town asserted that the County's site selection process failed to comply with 360-2.12. The ALJ ruled that the County had considered a reasonable range of alternatives. (Ruling at pp. 25-26.) However, the ALJ found that there is a substantive and significant issue as to whether the County selected the "most appropriate alternative" among the eight preliminary sites that were evaluated. The ALJ found that there are three aspects that warrant further inquiry:

a) Field Reconnaissance and Inspections

The ALJ ruled that Farms First's offer of proof raised doubt about whether the County's engineers actually performed a reasonable level of field reconnaissance and inspection of alternate sites. Such reconnaissance and field inspections requirements are included in 360-2.12(a)(2)(ii) and (iv), respectively. The ALJ concluded that unless a reasonable level of field reconnaissance has been achieved, the choice of the Kobor Road site as "most appropriate" is called into question.

I disagree that this sub-issue is significant. The record shows that field reconnaissance and inspections did in fact take place at the sites, thereby complying with that part of the rule. Farms First's offer merely suggests that the landowners of some parcels at some sites were not contacted. However, as Staff and the County point out, field reconnaissance and inspection does not necessarily require personal contact with each landowner. The professional judgment of the applicant's consulting engineers, as reviewed by Staff, was that a reasonable level of field reconnaissance and inspection was taken within the meaning of 360-2.12. The fact that field reconnaissance investigations may not have been undertaken at particular parcels making up sites under consideration is not inconsistent with the landfill siting process in 360-2.12. See, Tompkins County Board of Representatives, Interim Decision, August 2, 1990. Adjudication over whether further interviews or inspections should occur, or whether various landowners were or were not contacted, would not be germane.

b) Site Evaluation Matrix

The Town asserts that the scoring matrix and scoring of the eight sites was skewed in order to favor selection of the Kobor Road site. The ALJ found that the County should produce a witness to explain the weighting employed in the site evaluation matrix and how the matrix accounts for siting the criteria of 360-2.12(c). He further directed the County to explain the scores given in the matrix for hydrogeologic conditions, environmental resources, and agricultural factors.

I cannot agree. I conclude, based on the record of the issues conference, the application, and related papers that this issue is not substantive and significant. Section 360-2.12 has been complied with. The site selection process in this case has been the subject of detailed professional study over a number of years, and pursuant to the solid waste management planning process in Article 27. The result of this iterative and phased process was concluded, and DEC approved the site evaluation matrix. The County's scoring was done using the approved matrix. The scoring reflects the County's judgments and was not irrational. The matrix scoring is a tool used to help make an overall siting judgment. That judgment is supported by the iterative siting process, including public input and SEQRA. The County's process satisfies the criteria set forth in 360-2.12.

The Town has persuaded the ALJ that 360-2.12 should be allowed to serve as a basis for adjudicating both components of the siting process, as well as aspects of the substantive outcome of this process. I find that they read too much into the rule. The landfill siting rule requires that a disciplined site selection process be used and explained by the Applicant. The emphasis in the rule is on process. The siting procedures and criteria specified in other portions of Part 360 and the ECL are not to be ignored. See, Technical Assistance Guidance Document Solid Waste Management Facility Siting, April, 1990. There is no question that this applicant used such a disciplined siting process in this case and explained it fully. However, if, as the Town would like, the rule were to be interpreted as requiring substantive scrutiny of sub-elements of the overall mass of factors which make up a site selection judgment, the entire site selection choice would be put in issue. That is not what 360-2.12 says or means. That section does not restart the solid waste management planning process that a municipal planning unit has initiated and completed. Section 360-2.12 complements the established landfill siting and planning process, and is not an end to itself. I conclude that the determination of the ALJ in the site selection should be reversed. Site selection is not an issue.

III. APPEAL BY THE TOWN AND OTHERS FROM THE ISSUES WHICH THE ALJ FOUND NOT TO BE SUBSTANTIVE AND SIGNIFICANT

A. Unfair Competition - Compliance with ECL 27-0707(2)(c)(3)

The Town, the IDA and ARRA have appealed the ALJ's ruling that the proposed County landfill will not conflict with ECL 27-0707(2)(c)(3) by creating unfair competition between the County and the IDA and ARRA as owner and operator respectively of the Hudson Falls incinerator.

ECL 27-0707(2)(c)(3) states that a permit for a new solid waste management facility "will be issued only if a determination has been made that the proposed facility will not result in unfair competition between municipalities and scrap dealers, processors and consumers."

The ALJ determined that no issue exists, because the Hudson Falls incinerator (IDA and ARRA, owner and operator respectively) is not a "processor" within the meaning of ECL 27-0707(2)(c)(3). Additionally the ALJ finds that, even if the Intervenors fall under the statute's protection as processors, they have no entitlement to, or expectation of the continued receipt of Saratoga County's waste. Since Saratoga County has a legitimate interest in ensuring that the County can provide for its own waste disposal any resulting competition for Saratoga County's waste stream would not be "unfair".

Processor

On appeal the Town, the IDA and ARRA argue that the ALJ was incorrect in concluding that the term "processor" at ECL 27-0707(2)(c)(3) was intended to be modified by the word "scrap." The Intervenors contend that the Legislature would have included the word "scrap" in front of both "processors" and "consumers" if it had meant to so limit those categories. They point to the definition of "treatment facility" at ECL 27-0704(1)(g) as including "resource recovery, incineration, composting or other process," and to the definition of "resource recovery facility" at 6 NYCRR 360-1.2(b)(130) as "a combination of structures, machinery or devices, utilized to separate, process, modify, convert, treat, or prepare collected solid waste. . .," as demonstrating that a resource recovery facility is a processor.

These arguments are rejected. Not only does the statutory construction analysis used by the ALJ correctly refute the Intervenors contention, but the Legislature made it quite clear that the law was intended to foster private sector efforts to recycle scrap.

"The legislature does hereby recognize that the secondary materials industry, including scrap dealers, processors and consumers, make a significant contribution in reducing the solid waste stream by offering a market for the recycling of scrap materials. Consistent with the intent of this act to encourage the efficient management of solid waste by local governments and with the public policy to encourage and support the role of the private sector in recycling, nothing in this act shall be interpreted as authorizing unfair competition between municipalities and scrap dealers, processors and consumers."L.1980, c.552, 1(c)

This amplifies the ALJ's conclusion, by pointing out that the private sector is the focus of this provision.

Unfairness

Since the Intervenors are not among those protected by ECL 27-0707(2)(c)(3) it is not necessary to reach the issue of unfair competition. Nevertheless I concur with the ALJ's evaluation of the Intervenors' offers of proof on this matter.

Intervenors offer to supply evidence that there will be competition for the waste stream currently being processed by the Hudson Falls incinerator. The mere fact that competition may exist, however, does not support allegations of "unfair" competition. As the ALJ points out, the current project was clearly expected at the time the Hudson Falls incinerator was permitted. While the Intervenors may have had an expectation that they would initially receive a portion of Saratoga County's waste, there was no anticipation that this situation would continue, nor do the incinerator's owners and operators have any other claim to Saratoga County's solid waste.

B. Other Issues

1. Compliance with State Solid Waste Management Policy

Intervenors appeal the ALJ's ruling that there is no issue regarding the Project's compliance with the State solid waste management policy.

The Town, the IDA and ARRA contend that the proposed landfill is inconsistent with the state's solid waste management policy (ECL 27-0106) because that policy prefers incineration to landfilling, and the Project would divert to the new landfill waste that is now going to the Hudson Falls waste-to-energy facility. This issue was laid to rest by the Department approval of the County's solid waste management plan (which takes into account the objectives of the state's solid waste management policy) and subsequent court affirmation of that approval (Seymour v. Dept. of Env. Conservation, 184 A.D.2d 101, 591 N.Y.S.2d 593 (3d Dept., 1992)).

ECL 27-0106 does not mandate that solid waste be disposed of through a waste-to-energy facility, and allows the selection of a landfill as the principal disposal option under appropriate circumstances. (See, In the Matter of the Application of Monroe County to construct and operate the Mill Seat Solid Waste Landfill, Interim Decision, July 2, 1991). The County has rejected a waste-to-energy facility for economic reasons which are fully explained in its solid waste management plan. The application incorporates the County's solid waste management plan and includes the County's rationale. No issue has been raised.

2. Other Issues Appealed

In a one sentence closing statement the Town appeals from the ALJ's determination that compliance with the County Solid Waste Management Plan, regional cooperation, landfill cover, the impact on the Upland Sandpiper and leachate disposal are not issues requiring adjudication. (The issue of compliance with the State solid waste management policy is addressed above, in response to the ARRA's appeal.) No new argument is offered and there is not any assertion that the ALJ failed to properly apply the appropriate standard for determining adjudicable issues.

The ALJ has the primary responsibility to determine whether fact issues exist and substantial deference to the ALJ's judgment is appropriate. I agree with the ALJ's analyses and find no issue is raised.

IV. PARTY STATUS RULINGS

A. IDA and ARRA (Late Filing)

The IDA and ARRA did not meet the interest test. Since competitive injury is not sufficient to confer standing in a DEC hearing (See, In the Matter of the Hearing Request of Jack Gray Transport, Inc., Interim Decision of the Commissioner, November 20, 1985), their expressed concerns are outside the zones of interest protected by the ECL. The reason offered for submitting late petitions was that they were confused as to which of these should represent their interests. This rationalization does not constitute good cause, in a situation where the filing deadline was publicized well in advance of the hearing. They do not even allege that they were unaware of the deadline. The appeals are denied.

B. Howl of the Grey Wolf

Howl of the Grey Wolf appeals the denial of party status. In order to be granted party status, a party must show that it has raised an adjudicable issue or can materially contribute to an issue raised by another (See, In the Matter of Orangetown Sewer District No. 2, Interim Decision, January 27, 1989; also see In the Matter of the Applications of CWM Chemical Services, Inc., Interim Decision of the Commissioner, October 11, 1989).

I concur with the ALJ that HOWL did not raise an issue for adjudication and that it failed to demonstrate that it could materially contribute to the issue of the siting study as raised by the Town and Farms First.

C. Farms First

Farms First was granted amicus status on the siting study issue. Since I have concluded above that the siting study will not be an issue, Farms First is denied party status.

The matter is remanded to ALJ Buhrmaster consistent with my direction above.

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

Dated: October 3, 1995

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