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Scott Paper Co/Finch, Pruyn & Co - Ruling 2, September 12, 1994

Ruling 2, September 12, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
of
the Application of
Scott Paper Company
-and-
Finch, Pruyn & Company Inc.

RULINGS

INTRODUCTION

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 a permit to construct and a permit 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 present version of Part 360 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6NYCRR") governing Solid Waste Management Facilities was effective October 9, 1993. 360-1.7(a)(3)(vi) states if an application for a permit to construct or operate a solid waste management facility was complete on or before the effective date of Part 360, the Department will review the application for compliance with the solid waste management facility regulations in effect on the day before the effective date of Part 360. Therefore the pending application will be reviewed for compliance with 6 NYCRR Part 360, effective December 31. 1988, as revised May 28, 1991.

360-1.7(a)(3)(vi) further states if a permit is issued following the effective date of the current Part 360, the permittee must comply with the operational, closure and post-closure requirements set forth in 6 NYCRR Part 360, effective October 9, 1993 pertaining to the type of solid waste management facility in question.

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 provisions of the current version of 6 NYCRR Part 624 (Permit Hearing Procedures) apply to those proceedings in which the determination to hold an adjudicatory hearing was made on or after the effective date of these regulations which was January 9, 1994. Therefore the provisions of 6 NYCRR Part 624, effective January 9, 1994 govern this hearing.

Proposed Project

The Applicant 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. 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.

PARTY STATUS

The Applicant and the Department Staff are mandatory parties to these proceedings pursuant to regulation [6NYCRR 624.5(a)]. The Town of Northumberland, Farms First and James Heber have petitioned for full party status.

According to 6 NYCRR 624.5(d), the ALJ's ruling on entitlement to full party status will be based on: 1.) a finding that the petitioner has filed an acceptable petition pursuant to 6NYCRR 624.5(b)(1) and (2); 2.) a finding that the petitioner has raised a substantive and significant issue or that the petitioner can make a meaningful contribution to the record regarding a substantive and significant issue raised by another party; and 3.) a demonstration of adequate environmental interest.

SUMMARY POSITIONS OF THE PARTIES AND POTENTIAL PARTIES

The Applicant

The Applicant claims that none of the potential parties have raised substantive and significant issues for adjudication nor made a sufficient offer of proof adequate to meet their burden of persuasion. The Applicant claims that Farms First has not fulfilled the requirements of 6 NYCRR 624.5(b)(2)(ii). With respect to Mr. James Heber, the Applicant claims that his presentation is not adequate to establish a substantive or significant issue in the face of the determination rendered in the FEIS that determined the Heber Airport is beyond the 5,000 foot limit. The Applicant also claims that the presentation of the Town of Northumberland is a resubmission of comments made to the SEQRA lead agency repackaged as Part 360 issues.

The Department Staff

The Department Staff agrees with the Applicant that Farms First has not filed an adequate petition for party status because they haven't met the standard in 6 NYCRR 624.5(b) in that their offers of proof fail to specify witnesses or the nature of the evidence that is going to be presented by each of those witnesses. With regard to the Town and Mr. James Heber, the Department Staff state they did comply and made an adequate filing for party status.

Town of Northumberland

The Town of Northumberland is opposed to the proposed project because the siting study conducted by the Applicants is not sufficient for the purposes of 6 NYCRR 360-2.12(a); the proposed site constitutes critical habitat of a threatened species, the Northern harrier, and construction of the landfill would destroy the critical habitat in violation of 6 NYCRR 360-1.14(c); the soils at the project site are unstable and siting of the proposed landfill at the site would violate the prohibition contained in 6 NYCRR 360-2.12(c)(4); the application does not meet the criteria set forth in 6 NYCRR 360-1.7(c)(2) for a variance from the provisions of 6 NYCRR 360-2.13(d) pertaining to the minimum groundwater separation distance; the Applicant has not adequately characterized the composition of the waste as required by 6 NYCRR 360-2.14(a); consideration of the cumulative impacts of the project on the natural resources of the State as required by ECL 3-03-1.1(b) is impossible because of the absence of information about another proposed landfill at the same site and the location of two landfills at the site will prevent adequate monitorability and remediation of both landfills in contravention of the requirements of 6 NYCRR 360-2.12(c)(5).

Farms First

Farms First is opposed to the proposed project because the engineering plan fails to properly and comprehensively investigate the entire site; the engineering plan fails to identify and investigate all surface waters on the site or address the issues of water quality and water quality monitoring; the water well survey is not complete; the horizontal separation requirements cannot be met under the co-use option with the Saratoga County landfill; the Applicants have failed to meet the landfill siting criteria; and the Applicant has failed to demonstrate that the site is demonstrably better than all other available sites and therefore a variance from the provisions of 6 NYCRR 360-2.13(d) [minimum separation of five feet between the base of the constructed liner system and the seasonal high groundwater table] should not be granted.

James Heber

Mr. Heber is the owner/manager of the Heber Airpark which is located within 5,000 feet of the south westerly corner of the proposed landfill. 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.

ISSUES FOR ADJUDICATION

In order for an issue to be adjudicated, the issue must relate to a dispute between the Department Staff and the applicant over a substantial term or condition of the draft permit; relate to a matter cited by the Department Staff as a basis to deny the permit and is contested by the Applicant; or it is an issue proposed by a potential party and which is both substantive and significant.

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. 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.

6 NYCRR 624.4(c)(4) specifically provides that 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.

6 NYCRR 624.4(c)(6)(ii)(b) states whenever a lead agency other than the Department has required the preparation of a DEIS, no issue that is based solely on compliance with SEQRA and not otherwise subject to the Department's jurisdiction will be considered for adjudication unless certain conditions which do not apply in this case are met. SEQR does not change the existing jurisdiction of agencies nor the jurisdiction between or among State and local agencies [6NYCRR 617.3 (b)]. The fact that a matter may have been reviewed during a SEQRA proceeding by a lead agency other than the Department does not bar its consideration in these proceedings if it is a matter subject to the Department's jurisdiction apart from SEQRA [6 NYCRR 624.4(c)(6)(b)].

As noted above, the pending application will be reviewed for compliance with 6 NYCRR Part 360, effective December 31. 1988, as revised May 28, 1991 and, if a permit is issued, the permittee must comply with the operational, closure and post-closure requirements set forth in 6 NYCRR Part 360, effective October 9, 1993 pertaining to landfills.

The proposed issues are addressed generally in the order they were presented at the Issues Conference.

Proposed Issue No. 1

The Town has proposed as an issue for adjudication the question:

Does the proposed landfill site constitute critical habitat for an endangered or threatened species? If so, would the construction and/or operation of the facility destroy or adversely modify that habitat? Would construction or operation of the site constitute a "taking" of a threatened species?

6 NYCRR 360.14(c)(3) states: Endangered species. 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.

The Town submits that construction and operation of the proposed facility will cause or contribute to the taking and/or the destruction of the critical habitat of two such species: the Northern harrier, Circus cyaneus, which is currently listed as an endangered species, and the Upland sandpiper, Bartramia longicauda, which is currently listed as a species of special concern and which has been proposed to be reclassified as a threatened species. The Town claims that the application does not address threatened species.

The Town's offer of proof consists of proposed testimony that the Northern harrier nests in the area between the landfill site and Mott Road (which is approximately 4,000 feet north of the site) and uses the site for hunting; and proposed testimony that "critical habitat" is a biological concept, that the site constitutes critical habitat for the Northern harrier and that the proposed project will destroy or adversely modify critical habitat by eliminating area which is used by Northern harriers year round, suitable for nesting and regularly used for courtship behavior and hunting. The Town also intends to subpoena a staff member from the Department's Endangered Species Unit to discuss the Department's draft definition of critical habitat for the Northern harrier and its implications for this permit application.

The Applicant claims that the Upland sandpiper is not an endangered or threatened species and therefore there is no substantive issue raised with respect to that species. The Applicant also claims that there has been a determination that the site is not critical habitat for the Northern harrier and without any evidence of nesting on the site, there has not been a sufficient showing to raise an issue.

The Department Staff also notes that the Upland sandpiper is not now a threatened species. It is Staff's position that the construction and operation of the proposed landfill will not cause or contribute to the taking of Northern harriers or to the destruction of or adverse modification of critical habitat for the Northern harrier because the proposed site is not essential to the survival of the Northern harrier and therefore is not critical habitat.

With respect to the Upland sandpiper, no issue has been raised because that species is not an endangered or threatened species. With respect to the Northern harrier, it should be noted that critical habitat is not defined in the regulations. This matter, however, has been addressed at some length in the Commissioner's Decision, In the Matter of the Applications for the proposed twenty-five acre expansion of the Rapp Road landfill by the City of Albany, New York, dated February 13, 1990. In that case, the relevant criteria was whether the site was "essential to the conservation of the species". The Town's offer of proof that the area is used for hunting by the Northern harrier 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 in the words of the Rapp Road decision "essential to the conservation of the species".

The Rapp Road decision also addressed the taking issue, basically holding that when there is no element of the Applicant's project whose objective is the taking of an endangered species and where the actual taking of a member of the species was conceivable but speculative and clearly unintended, it would not be a taking under ECL 11-0103(13). This principle would also apply to the present case where the actual taking of a Northern harrier is even less likely than would have been the taking of a Karner Blue Butterfly in the Rapp Road case. It also should be noted in that case, the habitat in question was a plant, the wild blue lupine, on which the endangered species, the Karner Blue Butterfly, was totally dependent during its larval stage. In the present case, the endangered species is a bird which is not dependent on any particular plant species for its survival and which is mobile compared the larval stage of a butterfly. No issue has been raised.

Proposed Issue No. 2

The Town has proposed as an issue for adjudication the question:

Is the siting study which was carried out by the applicant sufficient to justify issuance of a permit?

The Town submits that the siting study carried out by the Applicant does not comply with either the letter or the spirit of 6 NYCRR 360-2.12(a). The Town claims that the siting study evaluates only two sites and the site selection study does not specify or explain the criteria or methodology used to make the initial selection of the two sites studied. The Town also claims that an iterative approach was not employed in the selection process and that the ranking methodology used and the numerical scores assigned to the two sites were arbitrary and in some cases, in error. The Town further claims that the siting study does not address all the prohibitions set forth in 6 NYCRR 360-1.14, specifically, the siting study does not mention endangered or threatened species or wetlands and that critical components in evaluating a site's suitability (depth to seasonal groundwater levels, soil permeability and relative soil homogeneity of soil) were omitted from the siting study.

The Applicant claims that it did in fact perform a siting study that complies with 6 NYCRR 360-2.12 and that with regard to reasonable alternatives, through the SEQRA process and the FEIS, the lead agency has made a binding determination which has been upheld by the Supreme Court that there is no alternative to the proposed project.

The Department Staff's position is that the siting study adequately complies with Part 360 and no adjudicable issue has been raised. In the opinion of Staff, the proposed site is a good site because of the presence of deep unconsolidated deposits of clay and a good depth to bedrock at the proposed site. Further even if there were some inconsistencies or irregularity in the scoring, they are not significant enough to change the end result.

As noted above, the fact that a matter may have been reviewed during a SEQRA proceeding by a lead agency other than the Department does not bar its consideration in these proceedings if it is a matter subject to the Department's jurisdiction apart from SEQRA. The Department has an obligation to review this application for compliance with Part 360 criteria which may not be the same as the SEQRA criteria used in the lead agency's determination. It should be noted that the provisions of 6 NYCRR Part 360, effective October 9, 1993 have modified the requirements for a siting study under certain circumstances (6 NYCRR 360-2.12).

6 NYCRR 360-2.12, effective December 31. 1988, as revised May 28, 1991, sets forth in detail the requirements for a site selection study report which are too lengthy to be repeated here. The main principles and requirements governing an applicant's site selection study and report are set forth in subdivision (a) of 360-2.12 as follows:

"(1) The report must describe the process used to select the proposed site, including evaluation criteria, assumptions, data sources, decisionmaking means (such as numerical ranking systems) and other factors used to make the siting decisions. The report must demonstrate that the range of alternative sites evaluated was reasonable considering the objectives and capabilities of the applicant, and that the selected site is the most appropriate alternative. The decision making process must be described to provide a clear understanding of how and why the siting decisions were made, at a level of detail sufficient to provide for a comparative assessment of the alternatives discussed. The report must also include maps of sites and describe the results of the field investigations, the comparative advantages and disadvantages of the highest ranked sites, and the basis for selecting the proposed sites.

"(2) The site selection process must be comprehensive and it must evaluate the complete range of alternative sites which are feasible considering the objectives and capabilities of the applicant. All of the criteria used to eliminate and evaluate the suitability of the potential sites must be clearly defined and consistently applied. An iterative (phased) approach should be used, in which a more detailed evaluation of sites occurs as the number of potential sites is reduced."

Section 360-2.12 further describes the main steps which must be followed in the site selection process. The applicant must initially exclude prohibited siting areas identified in 6 NYCRR 360-1.14(c) (Prime agricultural land, floodplains, critical habitat, and regulated wetlands) and areas restricted for landfills identified in 360-2.12(c) (aquifers, floodplains, airports, unstable areas, and unmonitorable or unremediable areas).

The applicant must then identify potential sites which appear suitable according to the landfill siting criteria in subdivision (d) of 360-2.12. These siting criteria emphasize the preference for sites with thick sequences of low-permeability materials such as clay soils, which are most likely to minimize the migration of contaminants from the facility. The favorable siting criteria also include predictable patterns of bedrock groundwater flow, relatively flat natural topography, and distance from water supply sources.

The next step is to comparatively apply the landfill site evaluation criteria listed in subdivision (e) of 360-2.12 to the potential sites identified thus far. These evaluation criteria include such considerations as population density; transport routes, proximity to incompatible structures; community impacts; visual impacts, proximity to parks, open space and recreational resources; and impacts on agricultural land.

The Applicant's Landfill Siting Report is contained in Appendix XIII of Volume 5 of the application. The two sites evaluated are the Loeb property in the Town of Hartford, Washington County and the Clausen property in the Town of Northumberland, Saratoga County. The stated purpose of the report is to evaluate these two sites in regard to their suitability for landfill development. There is nothing in the Applicant's Landfill Siting Report to indicate how or why the two sites studied were chosen or selected.

The Town has claimed that the scores for soil stability and depth to bedrock used in the siting study are questionable. Review of the siting report reveals that the scores for depth to bedrock reflect the information contained in that report, which is dated December 1989. The Town's claim that the values assigned for depth to bedrock are flawed appears to be based on information contained in the application which was obtained after the siting study. More up to date or later information obtained during detailed site specific studies would not invalidate the prior siting study. With respect to the scores for soil stability, given the text of the report concerning soil stability of the two sites considered, the disparity of the ranking of that factor between the two sites is unexplainable.

Review of the Landfill Siting Report also indicates that there are some omissions in the document. The siting study does not address endangered species or the presence of regulated wetlands [6 NYCRR 360-1.14(c)] or the proximity to water supply sources or the relationship to mines, caves or other anomalous hydrogeologic features that might alter groundwater flow [6 NYCRR 360-2.12(d)].

The siting report states that the criterion (sic) used in the study is in accordance with 6 NYCRR 360-2.12(a)(2)(ii). What is missing is the information required by 6 NYCRR 360-2.12(a)(1) such as the evaluation and elimination criteria (for example, minimum acreage required, geographic area considered, etc.), assumptions, data sources, decision making means and other factors used to make the siting decisions.

Although these general criteria may have been implicitly considered, they are not expressly set forth in the report nor is there any explanation of how the Applicant arrived at the two sites were selected. It is clear that there has not been an elaboration of the process used to select the proposed sites or a description of the decision making process sufficient to provide a clear understanding of how and why the siting decisions were made, at a level of detail sufficient to provide for a comparative assessment of the alternatives discussed.

Because of the nature of siting studies, when reviewing them, we cannot demand the same precision that could be required for construction or operating criteria. The report must demonstrate that the range of alternative sites evaluated was reasonable considering the objectives and capabilities of the Applicant, and that the selected site is the most appropriate alternative. We should only look to see that the process essentially follows the requirements and that implementation of the selection criteria is rational. Considering this, even though there might have been some question concerning the score assigned to a particular factor considered in the ranking of the two sites, the selection between the two sites is acceptable. Given the absence of any criteria or rationale in choosing the two sites, the failure to articulate the initial site criteria and to describe the decision making process leading to the siting decision is not acceptable.

The Town has raised a sufficient doubts concerning whether the siting study complies with the requirements of 6 NYCRR 360-2.12 such that a reasonable person would inquire further. This question should be adjudicated. In adjudicating this issue, the Applicant may present documents, contemporaneous with the siting study, to demonstrate the criteria which were used for the initial site selection but will not be permitted to generate documents after the fact to back justify the results of the study.

If the Applicant cannot demonstrate the criteria that were used in the initial site selection and that an iterative process was used to arrive at the final two sites, I will recommend that Commissioner require the siting study be redone.

It is recognized that private applicants may permissibly limit the number of sites that they examine. If the Applicant maintains that only two sites were examined because of any such limitation, it will need to explain its relationship with the Saratoga County Industrial Development Agency.

Proposed Issue No. 3

The Town has proposed as an issue for adjudication the question:

Are the soils at the project site sufficiently stable to justify allowing a landfill to be constructed on them?

6 NYCRR 360-2.12(c)(4) Unstable areas reads in pertinent part as follows:

(i) A landfill must not be located in unstable areas where inadequate support for the structural components of the landfill exist or where changes in the substrate below or adjacent to the landfill may result in failure of the facility. ...

(ii) Factors to be considered when determining unstable areas include: soil conditions that may result in differential settling and subsequent failure of dikes, berms, or containment structures; geologic or man-made features or events that may result in sudden or gradual failure of dikes, berms or containment structures; the anticipated loading due to height and density of waste deposition; and the stability characteristics of the waste to be deposited.

The Town claims that the soils on site are unstable soils. The Town also claims that the Applicant has not sufficiently accounted for seepage pressure and piping and that landfills should not be built on weak glacial clays which have been identified as susceptible to mass movement. The Town further claims that a more thorough soil stability analysis needs to be performed, including laboratory testing to determine the likelihood of slope failure, and, at a minimum, the project should be redesigned to avoid mass loading in the immediate vicinity of the slope and to calculate an appropriate setback from the top of the slope. The Town argues that unless the New York State Geological Survey Map "Landslide Susceptibility Within the Lake Clays of the Hudson Valley, New York" is incorporated into the application, the Applicant has not addressed the soil stability issue.

The Town's offer of proof in this regard is based on the proposed testimony of Dr. Roy T. Budnick, a Certified Professional Geologist. He is prepared to testify that the Hudson soils located along the eastern side of the project have low slope stability and are inherently prone to slope failure which can include rapid erosion, mass slippage and landslides. His proposed testimony is that slope failure could manifest itself at the proposed landfill site in at least two ways: externally ( by slope movement on the ravine areas) or internally (movement of soil could impair the integrity of the liner and leachate collection system) and the Applicant's proposed mitigation measures to prevent slope failure are insufficient because they only address surface erosion.

The Applicant claims that the Town has made no submission that the site specific stability analysis which is contained in Appendix VIII of the application is flawed. The Applicant claims the slope stability calculations demonstrate that an appropriate factor of safety is built into its design and would likewise be present if sand and gravel were used as daily cover. The Applicant argues that the conclusory assertions about the expected testimony of the Town's proposed witness do not constitute an "offer of proof" within the meaning of 6 NYCRR 624.5(b)(2)(ii).

The Department Staff's position is that because a portion of the site is listed on the New York State Geological Survey Map "Landslide Susceptibility Within the Lake Clays of the Hudson Valley, New York" does not mean automatically that the site is unstable and therefore a landfill cannot be sited there. The Staff notes that the map itself has a caveat that the map cannot be used as a substitute for an onsite geologic investigation.

The Staff position is that the Applicant's site specific geotechnical engineering analysis, which included a settlement stability analysis and a slope stability analysis demonstrated that the site is not unstable, that it provides adequate support for the landfill components and won't result in failure. The Staff claims that there isn't any evidence of landslide activity in the area of the site such as terrain sliding or scarps based on their visual inspection of the site and from study of topographic maps. The Staff also claims the Town has failed to present any evidence or offer of proof that effectively challenges the Applicant's analysis but instead relies on unsupported general statements and speculation. The Staff further claims the Town did not perform any site specific evaluation, no accepted models were run, and no calculations based on borings or other on-site data were done. In short, there is no demonstration that the Applicant's evaluation was flawed or inadequate.

The basic factual issue is: are the soils on the site unstable within the meaning of 6 NYCRR 360-2.12(c)(4)(ii)? 6 NYCRR 360-2.12(c)(4)(ii) sets forth the factors to be considered when determining unstable areas and they include soil conditions on the site that may result in differential settling and subsequent failure of dikes, berms, or containment structures; geologic or man-made features or events that may result in sudden or gradual failure of dikes, berms or containment structures; the anticipated loading due to height and density of waste deposition; and the stability characteristics of the waste to be deposited.

Although the Town claims that a more thorough soil stability analysis needs to be performed, the Town has not pointed out any defect in the stability analysis contained in the application or made any offer of proof to show that there is any defect in that analysis. Dr. Budnick's conclusion that the area of the site is susceptible to landslides is based on the results of a literature search, in particular, the New York State Geological Survey Map "Landslide Susceptibility Within the Lake Clays of the Hudson Valley, New York".

The Landslide Susceptibility Map shows general areas of potential landslide hazard, based on the occurrence of "Lake Clay" having a slope greater than 12 and a minimum relief of 40 feet. The Map itself states that it cannot be used as a substitute for an onsite geologic investigation. The fact that the map shows an area of potential hazard does not raise a question of the site stability in the face of the Applicant's stability analysis together with observations of the Department Staff that there isn't any evidence of landslide activity in the area of the site such as terrain sliding or scarps based on visual inspection of the site and from study of topographic maps .

Given the fact that the Town has not pointed out any defect in the stability analysis contained in the application or made any offer of proof to show that there is any defect in that analysis, no issue has been raised.

Proposed Issue No. 4

The Town has proposed several related issues for adjudication pertaining to the question of distance of the landfill system from the seasonally high groundwater level:

The Town claims that the Applicant admits that the site does not meet the minimum separation distance required by 6 NYCRR 360-2.13(d) because the base of the constructed liner system and the seasonal high groundwater table do not meet the separation distance requirement. Therefore, the Town claims that the Department must first determine whether the soils at the site justify a reduction or waiver from the minimum five foot separation requirement. If a waiver is not justifiable, should the variance as requested by the Applicant be granted? Does the application demonstrate that it meets the criteria for a variance from the groundwater separation distance which are set forth in 6 NYCRR 360-1.7(c)(2)?

The Applicant claims that the Town's proposed issue is not a substantive issue regarding the waiver because the Applicant has applied for a variance from the five foot separation requirement and further there has been no offer of proof that would suggest that the double liner design would not provide the protection required.

The Department Staff claim that the Applicant has met the requirements for a variance by demonstrating that an unreasonable economic burden would exist if the variance were not granted and that there would be no adverse impact on the public health or the environment. It is the Staff's position that if the Applicant had met the five foot separation requirement, only a single liner system would be required, however the proposed project includes a leachate collection system over the upper liner, a leak detection system between the upper and lower liners and a pore pressure relief system below the lower liner therefore making a better design than if the variance had not been required.

The Applicant has applied for a variance from the requirement contained in 6 NYCRR 360-2.13(d) that "a minimum separation of five feet must be maintained between the base of the constructed liner system and the seasonal high groundwater table". The Applicant proposes to construct a subsurface drainage system consisting of a pore pressure relief system and drainage dewatering trenches to ensure that subsurface water does not adversely impact the bottom of the landfill liner system. The only question is whether the application for the variance meets the requirements of 6 NYCRR 360-1.7(c)(2), not whether the application meets the requirements of 6 NYCRR 360-2.13(d) for a reduction or waiver.

Although the Town has claimed that the Application does not meet the standard for granting a variance set forth in 6 NYCRR 360-2.13(d), it has made no offer of proof to show that the application does not meet the standard for granting a variance except for a conclusory statement that the economic burden to the Applicant is not the type of unique circumstances contemplated by the regulations. The Town has made no offer to challenge or bring into question the Applicant's estimate that the increased cost of the project without the variance would be approximately $3,250,000 or made any offer to show that the project as proposed with the variance would have any significant adverse impact on the public health, safety or welfare, the environment or natural resources. No issue has been raised.

Proposed Issue No. 5

The Town has proposed as an issue for adjudication the question:

Does the application adequately address the cumulative impacts of the proposed paper sludge landfill, when coupled with the reasonably foreseeable impacts which can be expected to result from the Saratoga County municipal solid waste landfill intended to be located directly north of the paper sludge management facility? Can two landfills adjacent to each other, owned and operated by separate entities, meet the monitorability requirements of 6 NYCRR 360-2.12(c)(5)?

The Town states that the Commissioner is required to consider the cumulative impacts of any project upon the natural resources of the state before making a determination with regard to the project pursuant to ECL 3-0301.1(b), an obligation that is separate from the one imposed by SEQRA. The Town claims that the pending application does not disclose or consider the facts and impacts associated with the pending application of Saratoga County to site another landfill on the same property as the proposed project thereby making it impossible to consider the cumulative impacts of the project.

The Town argues that projects adjacent to one another are bound to impact each other and are likely to affect the environment in a way they would not if the projects were totally separate. Here a municipal solid waste facility is proposed to be placed on acreage directly to the north of Phase I of the sludge facility. The Town also argues that it defies common sense to fail to address in a single hearing facts which are relevant to, and affected by, both landfill proposals. Without a reasoned evaluation of the cumulative effects associated with constructing two landfills next to each other, no final decision should be made.

The Town claims that cumulative impacts which can be reasonably predicted include, but are not limited to, effects on monitorability of the site and threatened species habitat. With regard to the question of monitorability, the Town argues when you have two potential leachate sources next to each other, one has to be able to determine which facility is the source of a leak if one occurs. With respect to the critical habitat of threatened species, the Town argues that the application states that approximately half the site will be left open but in actuality most of the rest of the site will be the proposed county facility.

The Applicant claims that the cumulative impact issue has been determined and it is not a substantive issue under the terms of 6 NYCRR 624.4(c)(6)(ii)(b).

Neither the Applicant nor the Department Staff have directly addressed the Town's claim that the Department has the authority to address cumulative impact under ECL 3-0301.1(b), relying instead on their claim that cumulative impact considerations have been foreclosed by the SEQRA proceedings.

ECL 3-0301.1(b) authorizes the Commissioner to take into account the cumulative impact upon the water, land, fish, wildlife and air resources in making any determination in connection with any license, order, permit, certification or other similar action in order to carry out the environmental policy of the state set forth on ECL 1-0101. This authority is independent of and actually predates the provisions of the State Environmental Quality Review Act as set forth in ECL Article 8. Like any other issue, however, it need only be adjudicated if there is a substantive and significant dispute over compliance with its provisions.

Under the general issue of cumulative impacts which can be reasonably predicted, the Town raises two specific issues, the effects on monitorability of the site and the effects on threatened species habitat, each of which can be considered directly under the relevant Part 360 requirements. The two issues will be discussed separately for clarity.

Monitorability

6 NYCRR 360-2.12(c)(5) provides that 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: (1) ability to sufficiently characterize groundwater and surface water flow to locate upgradient and downgradient directions; (2) ability to place environmental monitoring points which will detect releases from the landfill; (3) ability to characterize and define a release from the landfill and determine what corrective actions are necessary; and (4) ability to carry out those corrective actions.

The Town does not claim that the proposed project, operating on its own, is unmonitorable. Instead, the Town claims that the proposed project, along with the proposed adjacent Saratoga County landfill, is unmonitorable. As an offer of proof, the Town proposes testimony from Dr. Thomas Zimmie and Dr. Nicholas Clesceri to show that building two landfills on the same site will prevent adequate monitorability and remediation for both landfills in contravention of the requirements of 6 NYCRR 360-2.12(c)(5).

Dr. Zimmie's summary of his review of the application is that it will be impossible to properly monitor (detect the source of leaks) due to the close proximity of two landfills on the site, especially to insure that all possible leaks detected in the East-West corridor separating the landfills can be easily traced back to the source, since the leak could come from either landfill. Dr. Zimmie recommends whatever the outcome of the proceedings that only one landfill be placed on the site, primarily because of the monitoring issue, but also because of the "Pass the Buck" syndrome which he describes as the human tendency to blame any problems (groundwater pollution, odors, dust, traffic, etc.) on the other landfill. Dr. Clesceri's proposed testimony will address the differences in composition of the two paper sludges and the resulting leachate.

With respect to the question of monitorability, the Applicant claims the design of the facility and the environmental monitoring plan established the monitorability. The Department Staff's position with respect to monitorability is that the landfill design, groundwater flow directions, the difference in leachate characteristics and the availability of geophysical and other methods to track contaminant plumes all combine to provide the capability to adequately monitor the proposed facility.

The Town's offer of proof raises a doubt about the Applicant's ability to demonstrate the monitorability of the site such that a reasonable person would inquire further. Although the Staff notes that the groundwater flow from the proposed paper sludge landfill is to the east-southeast while the groundwater flow from the county facility is to the north-northeast, Dr. Zimmie concluded that the groundwater flow directions will probably change locally after landfill construction raising the substantive question of whether the siting of two landfills adjacent to each other will result in a situation where environmental monitoring and site remediation cannot be conducted. This is an issue to be adjudicated.

Endangered species

As an offer of proof, the Town proposes testimony from Dr. Kenneth Able that building two landfills on the same site will increase the likelihood of a "taking" of a threatened species and eliminate the opportunity to effectively mitigate adverse impacts on the critical habitat of such species

With regard to critical habitat, the Applicant claims the issue has already been addressed and further the Applicant has accepted Special Condition I pertaining to habitat maintenance imposed as part of the SEQRA process. The Department Staff agreed with the Applicant's position with respect to cumulative impact and the Northern harrier.

With respect to the question of the critical habitat in the context of cumulative impact, although the Town claims that most of the remaining portions of the site will be occupied by the proposed county facility, as discussed above, the Town has not made a sufficient showing that the site of the proposed project under consideration here is a critical habitat for the Northern harrier, nor is the Town's offer of proof that the Northern harrier nests in the area between the proposed landfill site and Mott Road (which is approximately 4,000 feet north of the site) sufficient to raise a question that the nesting site is within the proposed Saratoga County landfill site. Although, cumulative impact may be an issue independent of SEQRA, the Town has not raised a substantive and significant issue concerning critical habitat in the context of cumulative impact or in the context of the Part 360 requirements.

Proposed Issue No. 6

The Town has proposed as an issue for adjudication the question:

Has the Applicant adequately characterized the composition of the waste intended to be placed at the landfill? Has the pollution potential of the landfill been accurately assessed by the Department?

The Town cites 6 NYCRR 360-2.14(a) as requiring that the pollution potential of a landfill must be evaluated based upon the volume of waste; its physical, chemical, and biological properties; and its variability. [The Town has apparently misread the requirement imposed by 6 NYCRR 360-2.14(a) which requires an evaluation of the pollution potential of the waste in specific circumstances only.]

The Town's offer of proof is the proposed testimony of Dr. Nicholas Clesceri that the pollution potential has not been adequately addressed because the sampling has not been as detailed as it should have been and that it was not a proper method of sampling. The Town claims that the testing done by the Applicant doesn't address the breakdown products of chlorine (dioxin and furan-related compounds) and thus needs to be addressed to determine the pollution potential of the landfill. The Town also claims that in addition to paper sludge, waste deposited at the landfill will include sludge from the Finch, Pruyn waste water treatment plant, including waste products from paper making and bleaching processes and several other waste streams from the factory; and bottom ash from the Finch, Pruyn boiler.

The Applicant claims that this is not a substantive or a significant issue. The Applicant claims that the Town ignores the design of the landfill with its redundant systems, leachate collection, leak detection, pore pressure relief and the clay layer; the environmental monitoring plan and the terms of Special Condition No. 7 of the Draft Permit.

The Department Staff basically agrees with the Applicant, claiming that the Applicant's waste is not hazardous. The Staff also point out that the Environmental Monitoring Plan requires the waste be sampled prior to disposal in the landfill and sampled again when there is any change in the paper making process.

6 NYCRR 360-2.14(a) pertaining to industrial/commercial landfills provides that landfills used solely for the disposal of solid waste resulting from industrial or commercial operations are subject to all the requirements of the regulations applicable to landfills unless the applicant demonstrates that specific landfill requirements are not necessary for the solid waste to be disposed of at the proposed facility. This section allows the modification of the landfill requirements on a case by case basis and authorizes the imposition of additional or less stringent requirements on the proposed landfill based upon the pollution potential of the waste. The evaluation of the pollution potential of the waste is only required when an Applicant has demonstrated or attempted to demonstrate that specific landfill requirements are not necessary which is not the case in these proceedings. No issue has been raised.

Farms First has proposed the following as an issues for adjudication:

Proposed Issue No. 7

The Applicant has not demonstrated an ability to meet statutory or regulatory criteria applicable to this project because the engineering plan fails to properly and comprehensively investigate the entire site.

Proposed Issue No. 8

The applicant has not demonstrated an ability to meet statutory or regulatory criteria applicable to this project because the engineering plan fails to properly identify and investigate all surface waters on the site and address the regulatory issues of water quality and water quality monitoring.

Proposed Issue No. 9

The applicant has not demonstrated an ability to meet statutory or regulatory criteria applicable to this project because the water well survey is not complete.

Proposed Issue No. 10

The Applicant has not demonstrated an ability to meet statutory or regulatory criteria applicable to this project because, the applicant has failed to meet landfill siting criteria, permit issuance criteria, permit application, engineering report and hydrogeologic report requirements.

Proposed Issue No. 11

The applicant has not demonstrated an ability to meet statutory or regulatory criteria applicable to this project because the site selection process was not comprehensive, failed to identify and evaluate a complete range of feasible alternative sites, and failed to clearly define and consistently apply all siting criteria used to eliminate and evaluate the suitability of the potential sites.

Proposed Issue No. 12

The applicant has not demonstrated an ability to meet statutory or regulatory criteria applicable to this project which has the potential to result in the denial of the permit, modification of the proposed project, or the imposition of significant permit conditions in addition to those proposed in the draft permit. Therefore, a variance application from 6 NYCRR 360-2.13(d) should be denied.

Proposed Issue No. 13

The applicant has not demonstrated an ability to meet statutory or regulatory criteria applicable to this project because, under the co-use option with Saratoga County, horizontal separation requirements cannot be met.

Except for Proposed Issue No. 8, Farms First has made no offer of proof specifying witness(es), the nature of the evidence they expect to present and the grounds upon which the assertion is made with respect to the proposed issues. Without the requisite offer of proof, a substantive and significant issue can not be demonstrated.

With respect to Proposed Issue No. 8, Farms First, as an offer of proof, intends to present a picture of the pond taken on May 22, 1994, a copy of the US Geological Survey Fort Miller, New York Quadrangle Map, dated 1967 and a NYS Department of Transportation map, dated 1967 which delineate the pond, and an aerial photo titled "Proposed Monitoring Well and Piezometer Locations" dated January 13, 1991 prepared the by Smith and Mahoney Engineering Firm on behalf of the Saratoga County Board of Supervisors to establish the existence of a surface pond on the eastern portion of the site.

Farms First maintains that the pond is a "surface water" within the meaning of the regulations [6 NYCRR 360-1.2(b)(153)] and claims that 6 NYCRR 360-2.13(a)(2) prohibits the deposition of solid waste closer than 100 feet from the mean high water elevation of any surface water. Farms First argument is specious because the pond will be removed during construction. No substantive or significant issue has been raised with regard to the pond.

Proposed Issue No. 14

Mr. Heber claims that the proposed project violates the provisions of 6 NYCRR 360-2.12(c)(3) which prohibit 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. Mr. Heber states that the end of the runway at the Heber Airpark is less than 5,000 feet from the southwest corner of the proposed facility and the entire facility except for the farthest northeast corner is within 10,000 feet of the end of runway 24 at the Heber Airpark.

Mr. Heber has submitted an offer of proof that the Heber Airpark is a public use airport with a 1,558 foot by 24 foot paved runway, that both piston and turbojet aircraft use the airport and that testimony by a professional engineer will establish that the Heber Airpark is within both 5,000 and 10,000 feet of the project site. Mr. Heber has identified a pilot of turbine powered aircraft who will testify that he has utilized the Heber Airpark for training purposes. Mr. Heber notes that aircraft fly directly over the proposed site at an altitude of approximately 300-400 feet during their final approach to runway 24 at the airpark and that aircraft departing the airpark from runway 6 are in the same position after takeoff.

The Applicant claims that the Heber Airpark runway is 1500 feet long, that only piston powered aircraft could reasonably utilize the Heber Airpark, that the FAA states it is unsuitable for a public use airport, that paper mill sludge is not putrescible and does not attract birds or create an airport hazard.

The Applicant asserts that the proposed paper sludge disposal site is in excess of 5,000 feet from the Heber Airpark. This assertion is based on a statement contained in the FEIS which in turn was based upon a November 1, 1991 letter from the Federal Aviation Agency ("FAA") which had determined that the runway at the Heber Airpark was more than 5,000 feet but less than 10,000 feet from the proposed Kobor Road site and which stated that turbine- powered aircraft are not likely to utilize gravel-surfaced airstrips. This letter from the FAA is predicated upon the Haber Airpark having a gravel surface runway.

There is a question of what coordinates were used by the FAA in making its distance determination. As the Applicant's attorney correctly noted at the Issues Conference, the proper way to measure the distance from the airport is from the end of the runway, not from the mid-point of the runway. 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 is a basic siting restriction. There is clearly a question of fact to be determined: does the end of the airport runway lie within 5,000 or 10,000 feet of the proposed landfill as defined in the regulations?

There is also a question if the Finch, Pruyn paper mill sludge is putrescible as defined in the regulations, that is, has the tendency of organic matter to decompose with the formation of malodorous byproducts. Although the Department Staff has deemed paper mill sludge to be non-putrescible, the application documents indicate that the Finch, Pruyn sludge has the potential to give off hydrogen sulfide.

A substantive and significant issue has been raised.

RULING ON PARTY STATUS

As noted above, the ALJ's ruling on entitlement to full party status will be based on: 1.) a finding that the petitioner has filed an acceptable petition pursuant to 6NYCRR 624.5(b)(1) and (2); 2.) a finding that the petitioner has raised a substantive and significant issue or that the petitioner can make a meaningful contribution to the record regarding a substantive and significant issue raised by another party; and 3.) a demonstration of adequate environmental interest. 6NYCRR 624.5(b)(2) requires that the petitions for full party status contain an identification of an issue for adjudication which meets the criteria of 6 NYCRR 624.4(c) described above and present an offer of proof specifying witness(es), the nature of the evidence the person expects to present and the grounds upon which the assertion is made with respect to that issue.

I find that the petition for full party status filed by Mr. Heber meets the requirements of 6NYCRR 624.5(b)(1) and (2) and as discussed above Mr. Heber has raised not only a substantive and significant issue but one which is a threshold issue for these proceedings.

I find that the petition for full party status filed by the Town of Northumberland meets the requirements of 6NYCRR 624.5(b)(1) and (2) and has raised substantive and significant issues as discussed above.

I find that the petition for full party status filed by the Farms First does not meet the requirements of 6NYCRR 624.5(b)(1) and (2). Farms First's application for party status clearly states Farms First intention to present oral and written arguments (including public records and engineering reports) to show that the Applicant has not complied with the applicable regulations. Farms First has not made an offer of proof specifying witness(es), the nature of the evidence they expect to present and the grounds upon which the assertion is made with respect to that issue. The question is not whether Farms First has identified "expert" witnesses who will testify on their behalf but whether Farms First has identified any witnesses who will testify concerning substantive and significant issues.

MOTIONS

Motion No. 1

The Town of Northumberland submitted a Motion for an Order directing the Applicant to (1) supplement the pending applications in order to disclose how the announced cessation of papermaking at the Scott Paper Company facility in Fort Edward, New York will affect the construction and operation of the proposed paper sludge landfill; and (2) to submit SPDES applications for the various point source and stormwater discharges associated with the project.

The Town based its motion on the facts that 20% of the sludge to be disposed of at the landfill will come from the Scott Paper Company facility in Fort Edward; that papermaking operations at the Fort Edward facility will be phased out over a two-year period; there will then be no Scott sludge to be disposed of at the landfill; the sludge from the Finch, Pruyn & Company facility in Glens Falls, New York produces hydrogen sulfide gas; that the application stated that Scott sludge would be used as cover material for the Finch, Pruyn sludge if odor were to be a problem and if Scott sludge were unavailable, sand and gravel cover or other appropriate materials may be placed on the Finch, Pruyn sludge.

The Town claims that 6 NYCRR 360-2.9(g) requires that all applications for landfill permits describe the cover material management plan, specifying "the types of cover material (daily, intermediate, and final), identifying the quantities required and sources for each cover material by type including the method of cover material placement, compaction, and the anticipated density ..." and that the information contained in the application concerning the proposed duration of landfilling and the traffic impacts is no longer accurate due to Scott Paper Company's announced plan to cease papermaking at the Fort Edward facility.

The Town further asserts that the Applicants have failed to include applications for State Pollutant Discharge Elimination System ("SPDES") permits for the groundwater and stormwater which will be discharged from the proposed landfill facility or demonstrated that good cause exists for this omission. The Town claims that the application needs to be supplemented because of the requirements of 6 NYCRR 621.3(a)(4) which states "If a project requires more than one department permit, the applicant must simultaneously submit all the necessary applications, or demonstrate to the department's satisfaction that there is good cause not to do so."

The Applicants oppose the Towns motion on the grounds that the question of cover material is already addressed in Special Condition No. 12 of the Draft Permit and that the Department has already issued a general SPDES permit which covers the proposed facility.

The Department Staff claim that although Scott Paper Company has announced plans to cease paper making operations at the Fort Edward facility in 1995, that option is still being evaluated and it is speculative to require the Applicant to provide additional information at a time when it is not certain that paper making at the Fort Edward facility will cease in 1995. The Department Staff do not view this as a substantive and significant issue which does not have to be adjudicated or even briefed. In the Staff's view it is a matter which could be dealt with by providing additional information but it is also Staff's position that such additional information is not required at this time. The Department Staff's position is that the discharge of groundwater does not require a permit.

Motion No. 2

The Town of Northumberland has moved that the present proceedings be consolidated with the review process for the proposed Saratoga County solid waste management facility which is located on the same parcel of land and directly adjacent to the proposed project being considered in these proceedings. The Town argues that the only way the Department can fulfill its obligation to look at the cumulative impact of the two projects is to look at them together.

The Town notes the two facilities share a common access road and the two sites are less than 100 feet apart. The Town acknowledges that cumulative impact is one of the issues that the lead agency has to look at under SEQRA but points out the Department has a separate obligation under ECL 3-0301 to evaluate cumulative impacts and cumulative effects on the environment of granting the approval.

The Department claims that the consolidation of the hearings on the two projects is not warranted because the two projects are not the same, there are two different waste streams, one municipal waste, the second paper sludge, there are different environmental concerns with each type of waste stream and the two projects are in different stages in the review process. The Department Staff claims that the cumulative impact of the two projects were considered in the SEQRA process by the lead agency. The Department Staff also claim that the issue on monitorability, whether the leachate from each site could be monitored was considered as was the issue of whether or not the two sites could be sited in such close proximity to each other.

The Applicant claims that cumulative impact was considered in the SEQRA process and the SEQRA determination was upheld in court.

Motion No. 3

The Town moved for a Department investigation and response, and full disclosure by the Applicant and Mr. Constantine J. Carayiannis with respect to the circumstances concerning Mr. Carayiannis's past employment with the Applicant. The Town also requested that the ALJ refer the issue of a potential conflict on the part of Mr. Carayiannis to the State Ethics Commission. However the Town did not specifically allege there was a conflict of interest or that Mr. Carayiannis did not review the application carefully because he used to work for Finch Pruyn.

The Department Staff acknowledged that Mr. Carayiannis worked for Finch Pruyn from July 1984 to July 1985 and claimed that there was no proof or any reason to believe that there was a conflict of interest or that the project reviewed by Mr. Carayiannis had any relation to the work he actually did when working for Finch, Pruyn.

The Applicant had no comment other than to note that Mrs. Zeisel used to work for the Department.

RULING ON MOTIONS

Motion No. 1

The Applicant and the Department Staff claim that if the Scott Paper sludge is not available for use as cover material, sand and gravel or other appropriate cover will be used and Special Condition No. 12 of the Draft Permit requires suitable cover must be available in the event odors develop is sufficient.

6 NYCRR 360-2.9(g) requires that all applications for landfill permits describe the cover material management plan, specifying "the types of cover material (daily, intermediate, and final), identifying the quantities required and sources for each cover material by type including the method of cover material placement, compaction, and the anticipated density ...

A general statement that sand and gravel or other appropriate cover will be used is not a substitute for the cover material management plan required by 6 NYCRR 360-2.9(g). The Applicant is directed to supplement the application with a cover material management plan as required by 6 NYCRR 360-2.9(g).

The Town claims that the Applicants have failed to include applications for State Pollutant Discharge Elimination System ("SPDES") permits for the groundwater and stormwater which will be discharged from the proposed landfill facility or demonstrated that good cause exists for this omission. The provisions of the SPDES General Permit For Storm Water Discharges from Construction Activities That Are Classified As "Associated With Construction Activity", Permit No. GP-93-06, do not automatically apply when the storm water discharges are associated with construction activity which requires any other Uniform Procedures Act permit. This has been addressed recently by the Commissioner in the Fourth Interim Decision, In the Matter of the Application of Hyland Facility Associates, dated August 29, 1994, which states:

"However, where other, non-storm water, Department permits are required for a project, the "automatic" coverage is not available. This is reflected in the terms of the general permit; specifically the construction permit states:

New storm water discharges associated with construction activity which require any other Uniform Procedures Act permit (Environmental Conservation Law, 6 NYCRR Part 621) must submit the information specified in Appendix G.

Upon review of this information, DEC may authorize the applicant to submit a NOI to obtain coverage under this general permit. (GP-93-06 Part I.D.6).

The referenced Appendix G is a list of items to be required in an application for an individual permit. The general permit for other industrial activities contains substantially similar language (see GP-93-05 Part I.B.2.b.).

The determination to permit coverage under the general permit in such situations is discretionary. Moreover, unlike the completeness determination under the Uniform Procedures Act (ECL Article 70), there are no circumstances under which it will be made by default or by operation of law. Hence, the Staff determination to permit coverage under the general permit is reviewable in the hearing context, just as other determinations Staff makes that are not ministerial or otherwise compelled by law."

As in the Hyland case, the detailed storm water management controls have not been submitted by the Applicant. The Hyland decision notes that under the terms of GP-93-05 a description of these controls would normally be submitted as part of the storm water pollution prevention plan (see GP-93-05 Part III.D.2). This submittal would not normally be due as part of the Applicant's initial filing to determine coverage under the storm water general SPDES permits (see GP-93-05 PartI.B; GP-93-06 Part I.D); it would only need to be submitted at some time prior to the filing of the Notice of Intent required by GP=93-06, up to two days prior to the commencement of construction (see GP-93-06 Part I.E, III.A and III.D). Where projects required other permits as well, reliance on the storm water general SPDES permits was not intended to exclude the review of matters that would have otherwise been part of the overall project review.

The Applicant is directed to submit the information required by Appendix G of the SPDES General Permit For Storm Water Discharges from Construction Activities That Are Classified As "Associated With Construction Activity", Permit No. GP-93-06, and the corresponding information required by Appendix D of the SPDES General Permit For Storm Water Discharges Associated With Industrial Activity except Construction Activity, Permit No. GP-93-05. It should be noted that Appendix G of Permit No. GP-93-06 and Appendix D of Permit GP-93-05 require different information. The Applicant is also directed to submit a description of the storm water management controls that address the matters covered by Appendix D to GP-93-06.

Motion No. 2

The Town has claimed that the only way the Department can fulfill its obligation to look at the cumulative impact of the two projects is to look at them together in a combined hearing. The Department Staff has stated the two projects are in different stages in the review process. The record is not clear that there has been a decision yet to go to hearing on the Saratoga County proposal. Cumulative impacts which can be reasonably predicted can be addressed in these proceedings and have been discussed above. Consideration of cumulative impact does not require consolidation of the two proceedings. Given the status of the two proceedings, the Town has not shown a sufficient reason to consolidate the two hearings or to delay these proceedings.

Motion No. 3

The fact that Mr. Carayiannis was briefly employed by Finch, Pruyn approximately 10 years ago in a technical operating capacity is not a matter which is within the purview of this hearing. The motion and request is denied.

SUMMARY OF RULINGS

As noted above the Applicant and the Department Staff are parties to these proceedings pursuant to regulation. The Town of Northumberland and James Heber are granted full party status. Farms First is denied full party status.

The issues to be adjudicated are: 1.) Whether the siting study complies with the requirements of 6 NYCRR 360-2.12? 2.) Can the proposed paper sludge landfill, when coupled with the reasonably foreseeable impacts which can be expected to result from the proposed adjacent Saratoga County municipal solid waste landfill meet the monitorability requirements of 6 NYCRR 360-2.12(c)(5)? and 3.) does the proposed project violate the provisions of 6 NYCRR 360-2.12(c)(3) which prohibit 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?

The Applicant is directed to submit: 1.) the information required by Appendix G of the SPDES General Permit For Storm Water Discharges from Construction Activities That Are Classified As "Associated With Construction Activity", Permit No. GP-93-06; 2.) the corresponding information required by Appendix D of the SPDES General Permit For Storm Water Discharges Associated With Industrial Activity except Construction Activity, Permit No. GP-93-05; and 3.) a description of the storm water management controls that address the matters covered by Appendix D to Permit No. GP-93-06.

MISCELLANEOUS MATTERS

Subsequent to the agreed upon submissions to close out the Issues Conference, I have received several communications requesting, among other things, clarification of certain procedural and other matters. It is appropriate they should be addressed here.

The Town requests clarification concerning the 30 day period set forth in 6 NYCRR 624.4(b)(5). 6 NYCRR 624.4(b)(5) clearly states that the time limit for the ALJ's rulings is thirty days after the issues conference or the receipt of written submissions thereafter. The Department Staff's written submission in accordance with the agreed upon schedule established at the Issues Conference was received on August 11, 1994, therefore the 30 day limit tolls from that date.

The Town notes that, as agreed upon at the Issues Conference, the deadline for filing appeals to the Commissioner would be extended briefly. The Town raises question concerning the date for any discovery requests given the uncertainty of when the final designation of issues will occur. The Town requests that the ALJ's ruling address a date by which any discovery requests will have to be made. The scheduling of appeals and any subsequent discovery requests will be addressed below.

Farms First requests guidance concerning a response to a letter submitted by the Applicant's attorney on August 16, 1994. Farms First also requests an opportunity to respond to the letter. The parties and potential parties are advised that it is my practice to file unauthorized and/or unsolicited communications in a separate file folder which segregated from the case file and then ignored. In the present case, given the letter from the Applicant's attorney dated August 25, 1994 withdrawing the August 16, 1994 letter, the issue of any response is moot, the letter will be placed in a separate file folder and not considered any further in these proceedings.

Farms First has also raised a question concerning the accuracy of the transcripts of the Issues Conference held on June 9, and June 14, 1994. This was first raised by correspondence among the parties and potential parties and an attempt to resolve the matter by stipulation was made. The parties and potential parties are to be commended for their efforts to resolve the difficulty. By letter of September 6, 1994, Farms First claims that their proposed errata have not been incorporated in the "corrected transcripts" and inquires what mechanism must be employed to insure an accurate record.

The parties and potential parties are advised that having been fully involved in preparing these rulings, I have not made any attempt yet to examine the proposed corrections to the transcripts. In my previous experience with situations of this sort, the parties and potential parties have submitted the proposed corrections to me, and based on my notes and recall as well as consultation with the reporter, I have issued an order settling the record. Given the present circumstances, any outstanding proposed corrections are to be submitted to me and all those listed on the Interim Mailing List within 10 working days of receipt of these rulings, and any objections to the proposed corrections are to be submitted to me and all those listed on the Interim Mailing List within 15 working days of receipt of these rulings.

APPEALS

The regulations provide that certain rulings of the ALJ, including a ruling to include or exclude any issue for adjudication, a ruling on the merits of any legal issue made as part of an issues ruling or a ruling affecting party status may be appealed to the Commissioner on an expedited basis [6 NYCRR 624.8(d)]. The regulations also provide that expedited appeals must be filed with the Commissioner in writing within five days of the disputed ruling [6 NYCRR 624.6(e)(1)].

At the Issues Conference, the Parties and Potential Parties agreed upon a schedule for filing appeals with the Commissioner which would extend the five day limit by a few days. Accordingly, any appeals of these rulings, shall be mailed on or before September 23, 1994 to the Commissioner and all those listed on the Interim Mailing List, a copy of which is attached to these rulings for your convenience. Any replies or responses to those appeals shall be mailed on or before September 30, 1994. Appeals to the Commissioner should be addressed to Commissioner Langdon Marsh, New York State Department of Environmental Conservation, Room 604, 50 Wolf Road, Albany, New York 12233-1010.

DISCOVERY DEADLINES

As noted above, a question has been raised concerning the time limits for discovery. The regulations provide that discovery demands may be served upon any other party within 10 days after service of the final determination of the issues [6 NYCRR 624.7(b)]. As has been pointed out, the Parties and Potential Parties may not be aware of any appeals to the Commissioner until nearly 10 days after the service of the ALJ's Rulings, therefore it would be equitable to make provision for that circumstance. Any discovery requests should be made on or before October 7, 1994 unless appeals to the Commissioner have been filed as set forth above. If appeals are filed with the Commissioner, any discovery requests should be made within 15 days of the Commissioner's Interim Decision on the appeals unless he provides otherwise.

_____________/s/_____________
William J. Dickerson
Administrative Law Judge
Albany, New York

Dated: September 12, 1994

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