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Scott Paper Co/Finch, Pruyn & Co - Decision, May 8, 1995

Decision, May 8, 1995

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1010

In the Matter

- of -

the Application of SCOTT PAPER COMPANY/FINCH, PRUYN & COMPANY, INC.

c/o Finch, Pruyn & Co.
1 Glen Street
Glens Falls, New York 12801
Pursuant to Environmental Conservation Law ("ECL") Article 27
and Title 6 of the Official Compilation of Codes, Rules and Regulations of
the State of New York ("6 NYCRR") Part 360 for a permit to construct and operate
a solid waste management facility in the Town of Northumberland,

Saratoga County

DEC Project No. 5-4146-00020/00001-1

DECISION

May 8, 1995

DECISION OF THE COMMISSIONER

My Decision of April 28, 1995 in this matter did not contain the required certification of findings pursuant to the State Environmental Quality Review Act. Accordingly, that Decision is null and void, and this Decision is issued in its place.

My Decision in this matter relates to the application of Scott Paper Company and Finch, Pruyn & Co., Inc. (the "Applicant"), c/o Finch, Pruyn & Co., 1 Glen Street, Glens Falls, New York 12801. The attached Hearing Report of Administrative Law Judge ("ALJ") William J. Dickerson, including its Findings of Fact, Conclusions, Discussion and Recommendation, is adopted as my Decision in this matter.

The Applicant proposes to construct and operate a 50 acre landfill for the disposal of paper mill sludge on a 232 acre parcel of land which is located at the eastern end of Kobor Road in the Town of Northumberland, Saratoga County, New York. Access to the landfill will be by an access road to be constructed north from Peters Road to the site. The proposed landfill will only accept paper sludge generated by the Scott Paper Company facility in Fort Edward, New York and the Finch, Pruyn & Co. facility in Glens Falls, New York.

This Decision will also be my determination on the appeal of Intervenor Mr. James Heber to the ruling of ALJ Dickerson which denied Mr. Heber's Motion to Compel Disclosure and which held that the distance from the end of the runway at Heber Airpark to the access road easement is not relevant to the requirements of former 6 NYCRR 360-2.12(c)(3). Although the definition of "site" in former 6 NYCRR 360-1.2(b)(141) includes access roads, former 6 NYCRR 360-2.12(c)(3) clearly refers to the landfill or landfill cell in which solid waste is placed. The appeal is denied and ALJ Dickerson's ruling is upheld.

Intervenor Heber also submitted certain information after the close of the record. Absent an explanation as to the purpose of the extra-the-record submission, the information is rejected as untimely. Even so, a review of the information indicates it does not change the key points already established for this project. The entire record of the proceeding adequately demonstrates that the airport meets the distance requirements in Part 360, that helicopters are not considered turbojet aircraft and that, even if these factors did not alleviate concerns about flight safety, that paper sludge is not a bird attractant.

The Hearing Report, taken in conjunction with the entire hearing record and the Final Environmental Impact Statement (FEIS), affords an adequate basis for my finding that the requirements of the State Environmental Quality Review Act ("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 which is Exhibit No. 34 in these proceedings.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Decision to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York this 8th day of May, 1995.

____________/s/____________
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
MICHAEL D. ZAGATA, COMMISSIONER

STATE OF NEW YORK DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 1223-1550

In the Matter

- of the -

Application of SCOTT PAPER COMPANY and FINCH, PRUYN & COMPANY, INC.
for a permit to construct and operate a solid waste management facility
in the Town of Northumberland, Saratoga County

DEC Project No. 5-4146-00020/00001-1

HEARING REPORT

- by -

William J. Dickerson
Administrative Law Judge

PROCEEDINGS

These proceedings involve an application submitted by Scott Paper Company and Finch, Pruyn & Company Inc. (the "Scott Paper Company/Finch, Pruyn & Company Inc. Landfill Partnership", hereinafter, the "Applicant") for permits to construct and to operate a solid waste management facility in the Town of Northumberland, Saratoga County. The application was filed on February 22, 1993 and was determined complete on March 24, 1993. A Notice of Complete Application was published in the Department's Environmental Notice Bulletin on March 31, 1993 and in The Saratogian on April 6, 1993. The Department Staff notified the Applicant of the determination to hold a hearing on the applications by letter dated April 25, 1994. The applications were received in the Office of Hearings on April 28, 1994.

The Saratoga County Industrial Development Agency is the lead agency for the State Environmental Quality Review (SEQR) of this action. The lead agency accepted the Draft EIS on April 8, 1992, completed the Final EIS on March 1, 1993 and issued the Findings Statement on March 31, 1993.

Pursuant to a Notice of Hearing published in the Albany Times Union, The Saratogian and the Department's Environmental Notice Bulletin on May 11, 1994 and the Glens Falls Post Star on May 13,1994, a legislative hearing was held before Administrative Law Judge ("ALJ") William J. Dickerson in the Auditorium of the South Glens Falls High School, 42 Merrit Road, South Glens Falls, New York on June 7, 1994 at 7:00 PM and in Moak's Auction Barn, Route 32, Bacon Hill, Schuylerville, New York on June 8, 1994 at 7:00 PM. A pre-adjudicatory hearing issues conference was held at the Northumberland Town Hall, Catherine Street, Gansevoort, New York on June 9 & 14, 1994 at 10:00 AM.

The Applicant was represented at the legislative hearing sessions by James D. Ryan, PE and at the issues conference by Michael T. Wallender, Esq. The Department Staff was represented at the initial hearing by Thomas Hall, Environmental Analyst and at the issues conference by Steven Brewer, Esq. Assistant Regional Attorney.

The Town of Northumberland, Farms First and James Heber petitioned for full party status in opposition to the proposed project. The Town of Northumberland was represented at the legislative hearing and the issues conference by Laura Zeisel, Esq. Farms First was represented by Barbara Weed, Robert Kenny and Arthur White. James Heber, the owner/manager of Heber Airpark, appeared on his own behalf.

Following the Issues Conference, the Administrative Law Judge issued Rulings on Party Status and on Issues to be Adjudicated on September 12, 1994. Appeals of these rulings were filed by the Applicant, the Town of Northumberland and Farms First. In an Interim Decision, dated December 22, 1994, the Commissioner determined that there was only one issue requiring adjudication, whether the application satisfied the minimum distance requirement between the Heber Airpark runway and the landfill. The Commissioner also determined that Mr. Heber would be the only petitioner to be accorded full party status.

An adjudicatory hearing on the sole remaining issue was held in the Northumberland Town Hall, Catherine Street, Gansevoort, New York on March 7, 1995 at 10:00 AM. As agreed at the hearing, the record was closed upon receipt of written closing statements or letter briefs on March 27 , 1995.

Proposed Project

The Applicant proposes to construct and operate a 50 acre landfill for the disposal of paper mill sludge on a 232 acre parcel of land which is located at the eastern end of Kobor Road in the Town of Northumberland, Saratoga County. Access to the landfill will be by an access road to be constructed north from Peters Road to the site. The proposed landfill will only accept paper sludge generated by the Scott Paper Company facility in Fort Edward, New York and the Finch, Pruyn & Co. facility in Glens Falls, New York.

SUMMARY POSITION OF THE PARTIES

Position of the Applicant

The Applicant claims that Heber Airpark is not an "airport" within the meaning of the regulations, that Heber Airpark is not used by "turbojet" aircraft and, even if the paper mill sludge is deemed "putrescible", the application meets the siting requirements of the applicable regulations.

Position of the Department Staff

The Department Staff claims that the distance from the proposed landfill cell and the end of the Heber Airpark runway is 7,495 feet, that Heber Airpark is used by small piston-type aircraft and occasionally Army National Guard helicopters, the Heber Airpark is not used by turbojet aircraft, that the proposed paper mill sludge landfill will pose no significant bird hazard or other risk to aircraft which use Heber Airpark, that the proposed project, as conditioned in the draft permit, complies with all applicable laws and regulations and therefore a permit should be issued.

Position of James Heber

Mr. Heber is opposed to the proposed project because of the prohibition against locating a landfill containing putrescible solid waste closer than 5,000 feet from any airport runway used by piston-type aircraft and closer than 10,000 feet from any airport runway used by turbojet aircraft which is contained in 6 NYCRR 360-2.12(c)(3); because of the proximity of the existing airport and its proposed expansion to the proposed landfill and because of his concern for the safety of aircraft using Heber Airpark.

APPLICABLE REGULATION

6 NYCRR 360-2.12(c)(3) reads in pertinent part as follows:

"(i) 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."

DISCUSSION

Mr. Heber alleged in his petition for full party status that the proposed paper mill sludge landfill was within 5,000 feet of the end of the runway at Heber Airpark which is used by piston-type aircraft and the entire proposed landfill area with the exception of the farthest northeast corner was within 10,000 feet of the end of the runway. Based on the maps originally filed with the application, Howard Doster, P.E. scaled the distance from the end of the runway to the landfill at 4800 feet.

Following the determination of the issues to be adjudicated by the Commissioner, during the discovery process, the Applicant's surveyor, Charles E. Lent, P.L.S., using a precise Global Positioning System (GPS) survey, determined that the distance between the easterly end of the runway and the closest point of the proposed paper sludge landfill is 7,495 feet with a relative accuracy of 1/5 inch. Mr. Lent also calculated the distance from the easterly end of the runway to the closest portion of the Applicant's property to be 5,227 feet. Using the certified survey map prepared by Mr. Lent, Mr. Doster scaled that distance at 5,230 feet. Based on the information developed during the discovery process and made part of the record at the hearing, the only outstanding questions were: 1.) the types of aircraft which actually use Heber Airpark, and 2.) whether these aircraft can be considered to be "turbojet" aircraft. The results of the adjudication of these questions are set forth below.

FINDINGS OF FACT

  1. Scott Paper Company and Finch, Pruyn & Company Inc. (the "Scott Paper Company/Finch, Pruyn & Company Inc. Landfill Partnership") propose to construct and operate a 50 acre landfill for the disposal of paper mill sludge on a 232 acre parcel of land which is located at the eastern end of Kobor Road in the Town of Northumberland, Saratoga County.
  2. Heber Airpark is a public use airport located east of Brownville Road and generally southwest of the proposed landfill. The asphalt runway at Heber Airpark is 1,558 feet long and 24 feet wide and is oriented in an east north east-west south west direction (060 degrees - 240 degrees).
  3. The horizontal distance from the easterly end of the runway at Heber Airpark and the closest point of the proposed paper mill sludge is 7,495 feet, with a relative accuracy of five millimeters (1/5 inch) measured from the centerline at the end of the runway to the nearest point of the landfill liner system. The distance from the easterly end of the runway at Heber Airpark and the closest portion of the Applicant's property is 5,227 feet.
  4. A turbojet engine is the simplest form of a gas turbine consisting of a compressor, combustion chamber, turbine and a propulsive nozzle. The turbojet is a reaction engine which obtains its power by thrusting backwards a large mass of air. A turboshaft engine is a gas turbine in which as much energy as possible is taken from the gas jet and used to drive a high-speed shaft which in turn drives an external load such as a helicopter transmission.
  5. The following types of aircraft use and are stored at Heber Airpark: Grumman AA1C Lynx, American AV AA-1A, Piper PA-22-160, Piper PA-28-160 Cherokee, Cessna 150L, Cessna 150, Cessna 182 Skylane, Cessna 172 and an Ultra-lite. These are all fixed wing piston-type aircraft.
  6. The following types of aircraft use Heber Airpark on a transient basis: AH-1 Cobra helicopter, UH-1 utility helicopter and the OH-6 observation helicopter. These are all turboshaft, rotary wing aircraft.
  7. The minimum runway length required to serve multi-engine turbojet aircraft is 2,165 feet. There is no record of any turbojet aircraft using Heber Airpark.

CONCLUSIONS

  1. Only piston-type and helicopter aircraft use Heber Airpark. Helicopters are turbo shaft rather than turbojet aircraft. No turbojet aircraft use Heber Airpark. The distance from the easterly end of the runway at Heber Airpark to the Applicant's property line is greater than 5,000 feet and the distance from the end of the runway to the proposed landfill is greater than 7,400 feet.
  2. The proposed project meets the distance requirements for separation of the land fill from the closest end of the runway at Heber Airpark which are set forth in 6 NYCRR 360-2.12(c)(3); that is, the landfill is more than 5,000 feet from end of the runway which is used by piston-type aircraft.

RECOMMENDATION

The application to construct and operate the proposed paper mill sludge landfill should be approved with the conditions set forth in the draft permit which has been accepted by the Applicant and which is Exhibit No. 34 in these proceedings.

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