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Scott Paper Co/Finch, Pruyn & Co - Interim Decision, December 22, 1994

Interim Decision, December 22, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

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

INTERIM DECISION

December 22, 1994

INTERIM DECISION OF THE COMMISSIONER

This Interim Decision arises out of appeals to the September 12, 1994 rulings of Administrative Law Judge ("ALJ") William J. Dickerson. Appeals were received from the Scott Paper Company/Finch Pruyn & Company, Inc. Landfill Partnership (the "Applicant"), the Town of Northumberland (the "Town") and Farms First, an unincorporated association.

All parties agree that this application is governed by the Solid Waste Management Facility rules (6 NYCRR Part 360) that were in effect from December 31, 1988 through October 2, 1993. Unless otherwise noted, all references in this Interim Decision are to this version of the rules.

Applicant's Appeal

Compliance of the Siting Study with 6 NYCRR 360-2.12

The Applicant argues that the Department cannot examine the adequacy of the siting study because the lead agency under the State Environmental Quality Review Act ("SEQRA"), the Saratoga County Industrial Development Agency ("SCIDA"), approved the study. Even if the Department has authority to review the study, it further argues that the ALJ has taken a too narrow reading of the regulatory requirements and that a proper reading of those requirements leads to the conclusion that there is no substantial question about the study's adequacy.

The first argument does not take cognizance of the Department's obligation to rule on all permitting criteria contained in its own laws and rules. This is true whether or not the lead agency under SEQRA has addressed a similar area in its SEQRA review and SEQRA findings. Nor can the Department be bound by SEQRA findings of the lead agency insofar as its own permitting criteria are concerned. This conclusion should be obvious from the legal requirement that SEQRA not change jurisdiction among agencies [ECL 8-0103(6)].

I find, however, that the second component of the Applicant's argument has merit. The chief reasons that the ALJ found the need to adjudicate the Applicant's compliance with 6 NYCRR 360-2.12 were that the Applicant did not explain its decision to principally examine two sites and that it did not use an iterative process to select the preferred site. I note that he did not find that there was a substantial issue about the selection process between the two sites that were focused on, nor did he find any evidence that any other site would be a more appropriate choice.

Review of the rule at issue reveals that it requires that the siting report describe the process used to select the proposed site, that it demonstrate that a reasonable range of alternatives were evaluated considering the objectives and capabilities of the applicant and that it show that the selected site is the most appropriate alternative [6 NYCRR 360-2.12(a)(1)]. It recommends but does not require that an iterative process be used. Since the requirements for siting studies are narrative rather than numerical, determining whether those requirements have been satisfied necessarily involves the exercise of judgment.

Considering all of the relevant factors, I conclude that there is no substantial issue concerning the adequacy of the Applicant's study. Although the Applicant could have better described the decision-making process, as further detailed below, there is strong evidence in the record that it did examine a reasonable range of alternatives and that the site selected is the most appropriate one. Under these circumstances, there is no realistic possibility that adjudication of this issue would lead to a direction to redo the siting study.

First, it is important that the proposed site is one that was owned by the Applicant and would not need to be acquired under the eminent domain authority of SCIDA. While there may be legal authority to acquire parcels from unwilling owners, there are sound public policy reasons for not resorting to the use of such authority when an acceptable site is already available.

In addition, while the siting requirements in 6 NYCRR Part 360 are independent of SEQRA, they are related. It is highly significant that SCIDA, in its capacity as lead agency under SEQRA, found that the proposed site was the most appropriate among the alternatives examined and that there was no evidence that any other site existed which would lessen or mitigate the impacts of the landfill. These findings have been sustained on judicial review. While they are not binding on the Department in either its capacity as an involved agency under SEQRA or as the implementor of the solid waste permitting requirements, they are factors in the overall process of exercising judgment on this matter.

In summary, I find that there is no substantive and significant issue concerning the adequacy of siting study to meet the requirements of 6 NYCRR 360-2.12. No issue is raised for adjudication.

Monitorability of the Site

The rules require that new landfills must not be located in areas where environmental monitoring cannot be conducted [6 NYCRR 360-2.12(c)(5)]. The monitorability of the site is being questioned because of the plans to establish the Saratoga County landfill on an adjacent parcel of property. The Town argues that, if the two landfills are constructed side by side, it will be difficult to identify the source of any leachate that may escape the liner system. The Applicant maintains that any leachate that is detected in the monitoring wells could be associated with one landfill source or the other, principally because of the differing directions of groundwater flows at the two sites and the differences in the composition of the leachate that would be generated at the two landfills.

There is no question that a single facility can be monitored without any difficulty. Hence, even if it were not possible to reliably monitor two adjacent facilities, this problem is not a valid basis to prevent one of them from being approved. Because the Applicant's project is further advanced in the regulatory review process, it is appropriate that this issue be addressed only in the context of the review of the Saratoga County landfill and not in this proceeding.

Proximity of the Heber Airport to the Landfill

The rule at issue establishes the minimum required distances between landfills containing putrescible wastes and airport runways [6 NYCRR 360-2.12(c)(3)]. The purpose is to protect against the aircraft hazards that can be created when birds are attracted to the landfill.

The party status filing of Mr. James A. Heber demonstrates the existence of legitimate fact issues concerning the distance of the airport runway to the landfill. Although the Applicant and the Staff argue that paper sludge wastes should not be considered putrescible, there is little doubt that, under the solid waste management facility rules which govern this application, the wastes are putrescible. Mr. Heber cannot be expected to provide any offer of proof concerning the likelihood that paper sludge wastes will attract birds when the governing rules do not require such a showing.

At hearing, the Applicant may attempt to demonstrate that its proposal meets the distance requirements or it may apply for a variance based upon a demonstration that the wastes do not present a bird hazard.

Town's Appeal

Impact on Endangered Species

The Town asserts that the proposed site constitutes critical habitat for the northern harrier, which is on the state's endangered species list, and the upland sandpiper, which is currently listed as a species of special concern. It also questions whether the construction or operation of the landfill would result in a taking of either species as defined in ECL 11-0103(13). The solid waste regulations prohibit the construction or operation of a landfill which causes or contributes to the taking of an endangered or threatened species or to the destruction or adverse modification of its critical habitat [6 NYCRR 360-1.14(c)(3)].

As pointed out by ALJ Dickerson, this prohibition does not apply where the species involved is one of special concern, only where it has been designated as either endangered or threatened. Therefore, no issue is raised with respect to the sandpiper.

The ALJ also pointed out that, even though New York State laws and regulations do not define critical habitat, it is appropriate to rely on the definition in the Federal Endangered Species Act (16 USC 1531 et. seq.), upon which the relevant ECL provisions are based (see Practice Commentaries ECL 11-0535, McKinney's Consolidated Laws of New York Annotated) In the Matter of the City of Albany, Decision of the Commissioner, February 13, 1990. Under the Act, critical habitat must be habitat that is essential to the conservation of the species [16 USC 1532(5)(A)].

Without any specific designation of areas as critical habitat, it is obvious that whether any particular area constitutes critical habitat will involve analysis of the facts. However, that does not mean that there will always be disputes about those facts that are substantial enough to warrant adjudication. In this case, the ALJ concluded that the offer of proof submitted by the Town did not raise such an issue. I find no basis to disturb that conclusion.

With respect the question of a taking, I again concur with the ALJ that the proposed activities do not constitute a taking. The speculative possibility of the loss of individual members of an endangered species cannot be held to constitute a taking of individual members of the species (In the Matter of the City of Albany, supra). No issue is raised for adjudication.

Variance from Groundwater/Landfill Separation Requirements

The Applicant seeks a variance to the standard for minimum separation distances between the base of the constructed liner system and the seasonally high groundwater table [6 NYCRR 360-2.13(d)]. In order to justify varying a requirement, the rules require that an applicant must demonstrate unique circumstances that make compliance result in a hardship and that the variance will not result in a significant adverse impact to the environment [6 NYCRR 360-1.7(c)(2)]. The Town has not raised any question about the environmental impacts of the proposed design in the Applicant's variance request. Instead, the Town argues that the Applicant has not adequately demonstrated hardship.

The record shows that the Applicant's assertion that compliance with the groundwater separation rule would add an additional $3,250,000 (18% of construction costs) remains unchallenged. There is no issue about the adequacy of the Applicant's hardship showing.

Cumulative Impacts of the Proposed Saratoga County Landfill

The Town has only raised two specific areas with the potential for cumulative impacts arising from the proposed construction of the Saratoga County landfill at an adjacent parcel - site monitorability and impacts on endangered species. Both of these areas have been dealt with above. There is no offer of proof showing that there are any other potential cumulative impacts that are reasonably foreseeable.

Analysis of the Industrial Waste Stream

The Town asserts that the wastes that are destined for the proposed landfill are not adequately characterized and that the wastes may be hazardous. It also argues that a further analysis is required pursuant to the provisions of 6 NYCRR 360-2.14(a).

Regulations contained in 6 NYCRR Part 371 establish testing procedures for determining whether solid wastes are hazardous. The record shows that the Applicant used these procedures to support its determination that the wastes to be disposed of at the landfill are non-hazardous. The Town has not provided any offer of proof that would lead one to question whether the tests were performed as prescribed by rule.

I also agree that the ALJ has correctly interpreted 6 NYCRR 360-2.14(a). The premise of that rule is that the requirements of Subpart 360-2 are adequate to ensure environmental protection of landfills that house any type of non-hazardous solid waste. The Department recognized the practical difficulty in prescribing specific facility requirements for each stream of industrial solid waste. Therefore, it opted to provide flexibility by allowing for case-by-case determinations to vary facility standards based on the pollution potential of the particular waste stream (see Final Environmental Impact Statement and Responsiveness Summary for Revisions to 6 NYCRR Part 360, August 1988).

In this case, the Applicant does not seek to vary facility requirements based on the characteristics of the waste stream. Though it does seek a variance from the separation to groundwater requirements, the variance is not based on the characteristics of the waste stream and therefore the requirements of 6 NYCRR 360-2.14 are inapplicable.

Motion to Consolidate with the Proposed Saratoga County Landfill

The Town has requested that this proceeding be consolidated with a subsequent hearing that it anticipates will be held in relation to the application of Saratoga County for a county-wide landfill.

At the present it appears that consolidation would delay this proceeding since the review process for the Saratoga County landfill is substantially behind the one for the proposed facility in this proceeding. Furthermore, there has been no showing that the failure to consolidate the review of the two applications will result in the inability to fully assess cumulative impacts of the two projects. ALJ denial of the motion is sustained.

Motion to Require Additional Public Comment Period

The Town requests an extension of the comment period based upon the fact that revisions were made to the application after the public comment period closed.

Whether application revisions are extensive enough to warrant extension of the public comment period is a matter of judgment. In this case, I find that the changes do not alter the project sufficiently to justify such an extension. Moreover, I note that the Town has had a vehicle to comment on the changes through the adjudicatory hearing process. No members of the non-participating public have requested such an opportunity, adding doubts as to the benefits of any extension of the comment period. The Town's motion is denied.

Farms First's Appeal

Farms First has not raised any issues for adjudication. While it has submitted information that is related to its objections in a broad sense, it has not provided adequate reason to inquire further. In each instance, there is a fundamental problem with its offer of proof. A brief explanation of the defects in the offers of proof follows.

Failure to Comprehensively Investigate the Proposed Site

None of the offers of documentary or testimonial evidence casts any doubt about the Applicant's compliance with site investigation requirements of 6 NYCRR 360-2.3(d). Although the Applicant did not investigate the property outside the landfill footprint as intensively as it did the footprint itself, that fact, in and of itself, does not cast doubt upon the adequacy of the investigation outside the footprint.

Failure to Identify, Investigate and Provide for the Monitoring of All Surface Water on the Site

Farms First has shown that there is one isolated pond on the site which was not addressed by the Applicant. However, since the pond is to be fully removed during construction, further investigation or monitoring of water quality required by 6 NYCRR 360-2.13(a)(3) is unnecessary.

Failure to Complete the Well Survey

The rules require that an applicant perform a survey of all public and private wells within one mile downgradient of the facility [6 NYCRR 360-2.11(a)(5)]. Farms First points to several wells within a mile radius of the site to demonstrate that the Applicant has not adequately assessed downgradient wells. The application documents show that these wells are not downgradient of the site and there is no substantial offer of proof to the contrary.

Inadequate Horizontal Separation between Proposed Facility and the Property Boundary

Farms First argues that the Applicant has not demonstrated that the proposed facility will have the necessary 100 foot horizontal separation to the property boundary [6 NYCRR 360-2.13(a)(1)]. The application demonstrates that the horizontal separation will be substantially beyond this minimum distance. The possibility that Saratoga County will acquire land within 100 feet of the boundary is speculative. Such an acquisition would place the facility in violation of the Part 360 rules unless a variance was obtained.

Other Issues

All other matters raised by Farms First already have been dealt with above under the appeals for other parties or has been addressed adequately by the ALJ's rulings.

Party Status

Farms First has not satisfied the requirements to obtain party status. However, since it appears that its interests are consistent with those of the Town, Farms First is urged to work with the Town to develop the record on any of the issues set for adjudication.

Summary

There is only one issue that requires adjudication, the question of whether the minimum required distance between airport runways and landfills is satisfied by this application. Since Mr. Heber is the only petitioner who has filed with respect to this issue, he is the only one to be accorded full party status. To the extent that the Town and Farm's First have any information relevant to the resolution of this issue, they are encouraged to work with Mr. Heber and/or the Department Staff.

_____________/s/_____________
Langdon Marsh,
Commissioner
Albany, New York

Dated:December, 1994.

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