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Seneca Meadows, Inc. - Decision, February 12, 1993

Decision, February 12, 1993

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 WOLF ROAD
ALBANY, NEW YORK 12233-1550

In the Matter of the Application of

SENECA MEADOWS, INC.
1786 Salcman Road
Waterloo, New York 13165

DEC Project No. 8-4532-00023/3-0

DECISION OF THE COMMISSIONER
AND
SEQRA FINDINGS STATEMENT

February 12, 1993

DECISION OF THE COMMISSIONER and SEQRA FINDINGS STATEMENT

The attached Hearing Report of Administrative Law Judge ("ALJ") Andrew S. Pearlstein on the application of Seneca Meadows, Inc. (the "Applicant" or "SMI") for renewal and modification of its permit to construct and operate a solid waste management facility pursuant to 6 NYCRR Part 360 ("Part 360"), for a vertical expansion of the Seneca Meadows Landfill, is adopted as my Decision in this matter, subject to my comments below. The Report, along with the other documents incorporated by reference at the end of the Report, is also concurrently accepted as a complete Supplemental Final Environmental Impact Statement ("SFEIS") for this action, in which the Department is the lead agency under ECL Article 8, the State Environmental Quality Review Act ("SEQRA").

By the Stipulation executed by the Applicant and Department Staff, along with the Consent Order and revised Draft Permit, the Applicant has committed to completely remediate the groundwater contamination discovered below one area of the landfill site. The compliance plan required by these agreements will operate to bring the facility into full compliance with the applicable standards in Part 360. This conclusion is further buttressed by the Applicant's execution of trust agreements providing financial assurance for closure of the facility when it reaches its newly permitted capacity, and for post-closure long-term care and monitoring.

I further concur with the ALJ's recommendations requiring expanded and extended public notice of the Consent Order and associated agreements, and their incorporation by reference into the Part 360 permit to be issued. The groundwater contamination was not discovered until after the issues conference was held in this matter. The enhanced opportunity for interested parties and the public to comment on the additional requirements imposed on the Applicant due to the groundwater problem, and on the SFEIS, will serve to fulfill the intent of SEQRA review and notice requirements.

I agree that although allegations of operational compliance problems were made, there is not sufficient reason to certify a record of compliance issue for adjudication in all the circumstances of this proceeding. The on-site monitor and stringent monitoring and reporting requirement in the Draft Permit are adequate to satisfy my concerns at this time.

The SFEIS and the record of this proceeding thus affords an adequate basis for rendering the SEQRA findings statement pursuant to 6 NYCRR 617.9. Accordingly, I certify that:

  1. The requirements of 6 NYCRR Part 617 have been met;
  2. Consistent with the social, economic and other essential considerations from among the reasonable alternatives thereto, the action approved is one which minimizes or avoids adverse environmental effects to the maximum extent practicable, including the effects disclosed in the environmental impact statement; and
  3. Consistent with social, economic and other essential considerations, to the maximum extent practicable, adverse environmental effects revealed in the environmental impact statement process will be minimized or avoided by incorporating as conditions to the decision those mitigative measures which were identified as practicable.

I direct the Applicant and Department Staff to follow the notice and incorporation requirements set forth in the Recommendations, paragraph 3(a-d), of the Hearing Report.

Since the requirements of SEQRA have been satisfied and the Project has been shown to comply with all applicable laws and regulations, I direct that the Applicant's renewal and modification permit be granted in accord with the revised Draft Permit and all other associated documents constituting the SFEIS, as soon as feasible after completion of the SEQRA notice procedures required by 6 NYCRR Part 617 and this Decision. This Decision will then be effective twenty (20) days from the date of publication of notice of completion of the SFEIS.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Decision to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York this 12th day of February, 1993.

DEPARTMENT OF ENVIRONMENTAL CONSERVATION
THOMAS C. JORLING, COMMISSIONER
/s/

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1550
In the Matter of the Application of

SENECA MEADOWS, INC.
1786 Salcman Road
Waterloo, New York 13165

for Renewal and Modification of its Permit to Construct and
Operate a Solid Waste Management Facility, the Seneca Meadows
Landfill, pursuant to 6 NYCRR Part 360, in the Town of Seneca
Falls, Seneca County, New York.

DEC Project No. 8-4532-00023/3-0

HEARING REPORT

and

SUPPLEMENTAL FINAL ENVIRONMENTAL IMPACT STATEMENT

/s/

Andrew S. Pearlstein
Administrative Law Judge

February 8, 1993

PROCEEDINGS

Project Description and Background

Seneca Meadows, Inc. (the "Applicant" or "SMI") has applied to the Region 8 Staff of the New York State Department of Environmental Conservation (the "Department Staff") for a renewal and modification of its permit to construct and operate its existing solid waste management facility, the Seneca Meadows Landfill (the "facility" or "landfill") located on Salcman Road in the Town of Seneca Falls, Seneca County, New York. The proposed permit modification or "Project" is for a vertical expansion of the capacity of the existing landfill. The expansion would take place over the 96-acre footprint of the landfill and raise its height up to 127 feet above its currently permitted grade. This would allow the SMI facility to receive approximately an additional 2.4 million tons of solid waste and to extend the landfill's useful life for about five years.

This application was filed and processed pursuant to the Environmental Conservation Law ("ECL") Article 27, Title 7, and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 360 (Solid Waste Management Facilities). The permit application and processing procedures are found in the ECL Article 70 and 6 NYCRR Part 621. The permit hearing procedures are governed by 6 NYCRR Part 624. The Department Staff, as lead agency pursuant to the State Environmental Quality Review Act (ECL Article 8 or "SEQRA," implementing regulations at 6 NYCRR Part 617) determined that this Project may have a significant effect on the environment. The Applicant was therefore required to submit a Draft Supplemental Environmental Impact Statement as part of its application.

The Seneca Meadows Landfill was constructed by the Applicant's predecessor in interest, Tantalo Construction, Inc., who began its operation in 1981 when the facility received its original permit. That permit was renewed in 1985 upon application by the current Applicant, SMI. SMI next applied for a renewal and modification in 1987. That application was granted in 1989, allowing a 40-foot vertical expansion with an expiration date of December 31, 1991. During the pendency of this renewal and modification application, the Department Staff extended the expiration date of the permit to December 31, 1992, which entailed a minimal expansion of the previously permitted final grade contours. SMI is operating the facility under that authority at this time as the landfill is approaching its currently designated maximum capacity.

The instant application for a 127-foot vertical expansion was first submitted by the Applicant to the Department Staff on July 12, 1990. In its initial Notice of Incomplete Application, the Department Staff stated that due to the scope of the proposed modification, this application would be treated as a new application pursuant to 6 NYCRR 621.13(e). As indicated above, the Staff also rendered a positive declaration under SEQRA and required the Applicant to submit a SDEIS, to supplement the previous environmental impact statements filed during the previous permit proceedings for the Seneca Meadows Landfill. Following the exchange of a series of Notices of Incomplete Application and responses between the Department Staff and the Applicant, the application was determined complete by Staff on September 4, 1991 and referred to the Office of Hearings for a permit hearing pursuant to 6 NYCRR Part 624.

Legislative Hearing

Pursuant to the duly published Notice of Complete Application and Notice of Hearing, a legislative public statement hearing convened before Administrative Law Judge Andrew S. Pearlstein on October 15, 1991 in the Town of Seneca Falls Town Hall. Approximately 70 persons attended the legislative hearing, and there were 27 speakers.

Most speakers expressed their support for the continuing operation of the landfill as providing a necessary service for the residents and businesses of its central New York service area. Many speakers gave short statements simply expressing their support for the continued operation of the landfill. Representatives of the Onondaga Resource Recovery Agency, the Western Finger Lakes Solid Waste Management Authority, regional business associations, and of several municipalities that rely on the Seneca Meadows Landfill for waste disposal services also urged that its permit be renewed and modified in accord with the application.

Two speakers -- the representatives of the Concerned Citizens for the Preservation of Black Brook ("CCPBB") and of the Montezuma National Wildlife Refuge, United States Fish and Wildlife Service, Department of the Interior ("Montezuma") -- expressed concerns about various aspects of the Project, with respect to stormwater management, slope stability, surface and groundwater monitoring, and post-closure care of the facility.

Issues Conference

The issues conference convened before ALJ Pearlstein in the Town of Seneca Town Hall on October 16, 1991. In addition to the Applicant and Department Staff, two intervenors, CCPBB and Montezuma, filed for party status and participated in the issues conference.

The Applicant, SMI, was represented by William J. Gilberti, Esq., Devorsetz, Stinziano, Gilberti & Smith, P.C., Syracuse. The Applicant is currently represented by Ronald G. Hull, Esq., Underberg & Kessler, Rochester, who assumed representation as the Applicant's attorney of record in this matter on or about January 29, 1992. The Department Staff has been represented throughout by Paul D'Amato, Esq., Regional Attorney.

At the issues conference, the ALJ ruled that the intervenors CCPBB and Montezuma were denied party status due to their failure to present a substantive and significant issue for adjudication supported by an offer of proof. Those parties did not appeal that ruling.

The chief issue then addressed at the issues conference concerned the applicability of the revised 6 NYCRR Part 360 construction and design requirements to the instant application for a renewal and modification of its permit for a vertical expansion of the landfill. This issue focuses on the application of the transition provisions at 6 NYCRR 360-1.7(a)(2) governing the phasing in of the new construction and operation standards for existing landfills after the December 31, 1988 effective date of the extensive revisions in Part 360. Briefly stated, the Department Staff took the position that the revised requirements, in particular the requirement for a double composite liner underlying the waste mass, did apply to this application for a vertical expansion, or that a variance was required. The Applicant took the position that those requirements were not applicable to this Project. The Applicant and Department Staff submitted post-issues conference briefs and reply briefs on this issue to the ALJ.

Issues Ruling and Commissioner's Interim Decision

The ALJ issued a ruling dated November 12, 1991 which generally supported the Department Staff's position in finding that the revised Part 360 construction requirements applied to this Project, or that a variance was required. The Applicant appealed. In an Interim Decision dated April 24, 1992 the Commissioner sustained the appeal and reversed the ALJ's ruling. The Commissioner held that the transition provisions did not require retrofitting of existing facilities to comply with the revised Part 360 standards. No attempt will be made in this Hearing Report to repeat the arguments and analyses on this issue. The reader is referred to the ALJ's Ruling and the Commissioner's Interim Decision for a full discussion of the issues conference proceedings and the transition and retrofitting issues.

The Commissioner remanded the matter to the ALJ for further proceedings to determine whether any issues remained for adjudication in light of the Interim Decision and the applicable Part 360 standards.

Stipulation By the Parties

After issuance of the Commissioner's Interim Decision, the Applicant and Department Staff, the only parties to the proceeding, began discussions regarding the permitting of the Project and whether any issues may remain for adjudication. A series of tentative dates for holding an issues conference before the ALJ were adjourned as those discussions continued between the parties.

The chief issue that arose between the Applicant and Staff during this period concerned the detection of contaminants in contravention of groundwater standards in a newly constructed monitoring well at the landfill. The parties were not aware of this problem at the time of the issues conference. The Department Staff also alleged that SMI had committed several other violations of the Part 360 regulations and its operation permit.

The negotiations between the Applicant and the Department Staff culminated in their execution of a Stipulation dated January 19, 1993, attached as an appendix to this Report. The Stipulation states that during the pendency of this proceeding, the Applicant performed an investigation of the groundwater problem and has agreed to a compliance program contained in a Consent Order (Case #R8-0918-92-01, executed January 15, 1993) which will fully remediate the contamination and eliminate its source. The Consent Order incorporates by reference the technical documents which constitute the compliance plan. The draft permit was revised to require expanded groundwater monitoring and submission of an expanded hyrdrogeologic report addresseing the area of concern. The Applicant also entered into trust agreements to provide financial assurance for closure of the facility and post-closure monitoring.

The Consent Order also requires SMI to pay a civil penalty of $280,000 in settlement of the alleged operational violations. The parties agreed that the Consent Order did not constitute an admission of any liability on the part of SMI except for the obligation to comply with the Order, and that the allegations were not to be considered proven. The Department Staff agreed not to raise any of the allegations or use the Consent Order as the basis for asserting that the Applicant may not be entitled to the permit under the Department's Record of Compliance policy.

With those conditions, the Applicant and Department Staff stipulated that there are no further issues appropriate for adjudication in this proceeding, and that the permit should be issued in accord with the revised Draft Permit.

The Applicant submitted a Responsiveness Summary dated February 4, 1993 responding to comments received at the legislative hearing held on this Project and the SDEIS.

DISCUSSION

6 NYCRR 617.9(c) provides that stipulations resolving potential hearing issues "do not alter the responsibility of the commissioner to make a determination on the application consistent with all applicable laws." The Commissioner's Organization and Delegation Memorandum #85-13 sets forth the procedures to be followed when a stipulation is reached after opening the hearing record. In accord with that memorandum, the ALJ must review the stipulation, prepare a summary hearing report, and forward it to the Commissioner for issuance of a decision. Where the Department is lead agency under SEQRA, the ALJ must also ensure that SEQRA procedures are followed resulting in preparation of a Final Environmental Impact Statement (in this case a Supplemental "FEIS" or "SFEIS").

Groundwater Contamination

The chief potential issue which arose between the parties in light of the Commissioner's Interim Decision (which eliminated any issues relating to the need for a variance from the revised construction and liner requirements) was the ability of the Project to operate without discharging leachate in contravention of groundwater quality standards, as required by 6 NYCRR 360-1.14(b)(2). During the pendency of this proceeding, after the issues conference, the Department Staff discovered a limited area of groundwater contamination below the landfill indicated by the results in a newly constructed monitoring well.

This potential issue is resolved by the Stipulation which refers to the requirements of the Consent Order now binding on the Applicant. The Applicant is required under the Consent Order to follow a detailed and comprehensive remedial compliance plan. The basic elements of the plan require SMI to construct a groundwater/leachate interceptor trench, pump out the contaminated plume, and excavate the source of the contamination from the landfill itself. As certified by the Department Staff and the Applicant's consultants, this plan will result in complete elimination of the existing problem and bring the facility into full compliance with Part 360.

The long-term monitoring and 30-year post-closure care requirements of the Consent Order and Part 360 are addressed and resolved by the revisions to the Draft Permit and the post-closure trust agreement. Financial assurance for closure and post-closure is also provided by those agreements.

While these agreements to complete the remedial compliance plan and related monitoring, reporting and provision of financial assurance resolve any potential issues arising from these matters, the procedural consequences of their timing must be addressed. The entire issue of groundwater contamination did not arise until after the issues conference when the problem was discovered in a new monitoring well. Thus there was no prior opportunity for notice of this issue to the public or the parties who originally filed for party status in this permit proceeding. Also, the permit itself, which is the ultimate product of this proceeding, should reflect the Applicant's additional obligations to complete the remedial program, which are now contained only in the Consent Order.

Based on the record and the representation of the parties that the agreements will completely remediate the problem, this newly discovered information is not significant enough to have required the preparation of a supplemental SDEIS under 6 NYCRR 617.8(g). However, provision should be made to ensure that there is adequate public notice of the new requirements addressing groundwater contamination as part of the SFEIS and permit that is issued as a result of this proceeding. The Applicant's obligations would be set forth more clearly if the Consent Order and trust agreements were incorporated by reference into the permits. These recommendations do not substantively alter SMI's obligations in any way and do not constitute non-acceptance of any portion of the Stipulation.

Therefore as indicated more specifically below in the Recommendations section of this Report, the following procedural steps should be taken: notice of completion of the SFEIS should be published in local newspapers as well as in the Department's ENB; direct notice of the SFEIS should be sent to all parties who originally filed for party status or are otherwise known to be interested in this Project; the time for public comment on the SFEIS should be extended beyond the minimum 10 days required by 6 NYCRR 617.9(a); and the Draft Permit should be amended to incorporate by reference the Applicant's obligations to complete the remedial compliance plan as set forth in the Consent Order, as well as the financial assurance trust agreements.

Record of Compliance

The Consent Order also alleges that SMI committed various operational violations of its permit and Part 360 including: exceeding the landfill's permitted contours; failing to control leachate; accumulating and discharging excess surface water; failing to apply adequate daily cover; and failing to apply proper final cover in closed areas. The number and range of these allegations indicate that, if true, the Applicant has had a relatively serious compliance problem.

Although the parties agreed that these allegations were not proven and that the Consent Order could not be used by the Department Staff to raise a record of compliance issue, this agreement is not binding on the ALJ or the Commissioner. If the Consent Order's allegations raise sufficient doubt in the ALJ's or Commissioner's mind as to the Applicant's fitness and ability to carry out its permit obligations, the matter could be opened as an issue for adjudication. The merits and the significance of the allegations and any proven violations could then be assessed in terms of the Record of Compliance policy.

However, in this case there is not sufficient doubt created concerning the Applicant's fitness to obtain the permit to raise an issue for adjudication. Based on the record of this proceeding, the Applicant has operated the facility for nearly 10 years without any serious prior compliance problems. The Draft Permit requires the Applicant to fund a full-time on-site environmental monitor and contains stringent monitoring and reporting requirement. It is not disputed that there is a considerable need in the Seneca County area for the waste disposal services provided by the SMI landfill. The need for a facility may be considered as a factor in weighing an applicant's record of compliance (see the Matter of Conover Transfer Station and Recycling Corp., Interim Decision of the Commissioner, August 21, 1992). In these circumstances there is not sufficient doubt as to the Applicant's fitness to carry out the required permit conditions to raise an issue for adjudication. The Applicant is however undoubtedly placed on notice by the penalty that any serious future operational violations will subject it to permit revocation in addition to liability for additional civil penalties.

Summary

The record of this proceeding, including the SDEIS, associated application documents, the Stipulation, revised Draft Permit, Consent Order, trust agreements, and Responsiveness Summary, together indicate that the Project will comply with all applicable laws, that a SFEIS may be issued, and that the positive SEQRA findings may be made for this action. In order to ensure adequate public notice of the additional requirements imposed after the issues conference, expanded and extended public notice of the SFEIS should be provided. The Part 360 permit itself should also incorporate the Stipulation, Consent Order, and trust agreements by reference.

CONCLUSIONS

  1. The Project that is the subject of this application by Seneca Meadows, Inc., for a renewal and modification of its permit to construct and operate a solid waste management facility, for a vertical expansion of its landfill, will comply with all applicable requirements in 6 NYCRR Part 360.
  2. No issues for adjudication have been raised in this proceeding.
  3. The compliance plan required by the Consent Order will completely remediate the groundwater contamination at the landfill discovered during the pendency of this proceeding.
  4. The trust agreements for closure and post-closure provide financial assurance that those measures will be properly executed.
  5. Additional public notice and clarity should be provided with respect to the completion of the SFEIS and the proposed issuance of the permit with all conditions required by all the relevant documents.

RECOMMENDATION

  1. The Commissioner should approve the application by SMI for the renewal and modification of its Part 360 permit for a vertical expansion of the Seneca Meadows Landfill, in accord with the terms and conditions in the revised Draft Permit, the Consent Order, and associated documents.
  2. The Applicant should be placed on notice that any future serious violations of its permit or Part 360 could lead to revocation of its permit.
  3. The following procedural steps should be required in addition to those already required by 6 NYCRR Part 617, in the completion of the SEQRA process and the issuance of the permit to the Applicant in this proceeding:
    1. The Applicant should be required to publish notice of completion of the SFEIS in a newspaper in general circulation in the Seneca Falls - Waterloo area in addition to the Department's publication of such notice in the ENB required by 6 NYCRR 617.10(f);
    2. The Department Staff should be required to send notice of completion of the SFEIS directly to CCPBB, Montezuma, and all other persons, agencies or organizations known to be interested in this Project;
    3. The time for public comment on the SFEIS should be extended to 20 days as a reasonable time period for this action pursuant to 6 NYCRR 617.9(a); and
    4. At the conclusion of the Draft Permit, the Department Staff should insert a new heading entitled Incorporated Documents and substantially the following language: "The Applicant's obligations to complete a groundwater remedial compliance plan are set forth in the attached Consent Order (Case #R8-0918-92-01; January 11, 1993) and the documents referenced therein. The Applicant's financial assurance obligations for closure and post-closure care of the facility are set forth in the Trust Agreement for Closure and Trust Agreement for Post-Closure for the Seneca Meadows Landfill (insert dates of final execution, respectively)."

SUPPLEMENTAL FINAL ENVIRONMENTAL IMPACT STATEMENT

The Supplemental Final Environmental Impact Statement ("SFEIS") for this action will incorporate by reference the following documents: the revised SDEIS dated August 21, 1991; this Hearing Report; the ALJ's Rulings dated November 12, 1991; the Commissioner's Interim Decision dated April 24, 1992; the Stipulation dated January 19, 1993; the revised Draft Permit dated January 11, 1993; the Consent Order dated January 7, 1993; the Trust Agreements for Closure and Post-Closure; and the Responsiveness Summary.

(Attachment available upon request.)

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