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Seneca Meadows, Inc. - Ruling, February 12, 1999

Ruling, February 12, 1999

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Application for a Permit
To Construct a Solid Waste Management Facility
Pursuant to Environmental Conservation Law
Article 27, Title 7 (Solid Waste Management
And Resource Recovery Facilities), Article 24
(Freshwater Wetlands); Article 15 (Use and
Protection of Waters); Article 19 (Air Pollution
Control); and Title 6 of the Official
Compilation of Codes, Rules and Regulations of
the State of New York Part 360 (Solid Waste
Management Facilities); Part 663 (Freshwater
Wetlands); Part 608 (Construction and Repair of
Dams); and Part 212 (Air Pollution Control), by

Issues
Ruling
[2/12/99]

SENECA MEADOWS, INC.,

(Seneca County)
Applicant.

Summary of Rulings

The Administrative Law Judge ("ALJ") concludes that the consolidated Interveners either have misunderstood the permit application or have expressed general concerns that do not rise to the level of substantive and significant issues requiring adjudication. The Interveners failed to challenge any specific design feature of the proposed landfill expansion, nor have they identified any technical or scientific expert witness in support of any proposed issue. The ALJ finds no adjudicable issues in this matter. The permit application is remanded to the Department Staff to complete the SEQR process and issue permits with conditions as set forth in the draft permits.

Background

Seneca Meadows, Inc.,("SMI", or the "Applicant") proposes to construct and operate a landfill expansion in the Town of Seneca Falls, New York. The existing landfill is located on 530 acres of land situated west of N.Y.S. Route 414 and north of Salcman Road. The site has been used for waste disposal for nearly forty years. Presently, approximately 75 acres of the site are permitted for solid waste disposal (the "existing landfill"). The proposed landfill expansion has a design capacity of 4,700 tons/day. The life of the landfill expansion is estimated to be from 8.4 years to 12.2 years.

The existing landfill is currently permitted to an elevation of 707.5 feet. The proposed expansion would increase the elevation of the existing landfill to 763 feet, reaching a height of 281 feet above the surrounding topography. The proposed project includes a new landfill (referred to as the "A/B Landfill" or "A/B Expansion") to be constructed above the existing landfill and a separate new landfill in the southeast area of the site (the "Southeast Landfill" or "Southeast Expansion"). The Southeast Expansion would reach a final elevation of 704 feet, a proposed height of 222 feet above its surrounding topography. Both proposed new landfills would be constructed with a double composite liner system, land fill gas collection and treatment, leachate collection and treatment, stormwater management, and groundwater, leachate, landfill gas, surface water and sediment monitoring.

The existing SMI site includes two areas that are listed on the New York State Registry of Inactive Hazardous Waste Sites, the "Zone A/Zone B" site and the "Tantalo Waste Disposal Area". These sites are described in the Site Investigation Report, §1.3 (Vol. I of XI). The Zone A/Zone B site comprises the southerly portion of the existing landfill, currently inactive. This area of approximately 55 acres received solid waste from 1974 through 1983, including hazardous wastes deposited prior to New York State's prohibition against such disposal. The Zone A/Zone B inactive site was listed in the Registry in 1991 as a Class 2a site. Following some remedial activities by SMI, the Zone A/Zone B site was reclassified to a Class 4 site in March, 1996. The Class 4 classification indicates that the site is no longer a threat to human health or the environment and is properly closed, but requires continued management.

The Tantalo Waste Disposal Area is classified as a Class 2 hazardous waste site. A class 2 site is a site at which hazardous waste constitutes a significant threat to the environment. 6 NYCRR §375-1.8(a)(2)(ii). The site is approximately 25 acres in size and can be described as an elongated relatively flat mound, approximately 500 ft. wide by 2,200 ft. long. The length of the Tantalo site runs roughly between Black Brook and Salcman Road, approximately half way between Burgess Road and Route 414. In 1992, SMI and the Department entered into a consent agreement to complete a Remedial Investigation and Feasibility Study for the Tantalo site. By 1997, a preliminary Remedial Investigation and supplemental Remedial Investigation had been completed. Site Investigation Report, §1.3.2 (Vol. I of XI).

A small area of shallow overburden groundwater contamination has been identified on the SMI site emanating from the Tantalo site, and is presently being managed through a groundwater drain system. Environmental Monitoring Plan §2.2 (Vol. VI of XI).

The Montezuma National Wildlife Refuge (the "Refuge") is located in the area surrounding the SMI site. The landfill is hydrologically connected to the Refuge via Black Brook, a Class C(1) stream that bisects the Seneca Meadows Facility Site. East of the Site, Black Brook runs through rural and agricultural lands, crosses the New York State Thruway and reaches its outlet at the Refuge's Tschache Pool, approximately 7.5 miles downstream from the Seneca Meadows, Inc., Site. The Refuge provides habitat for use by rare, threatened or endangered species, including the bald eagle and the osprey. Draft Environmental Impact Statement §4.5.3.2 Rare, Endangered or Threatened Species.

The Public Hearing

On November 9, 1998 a legislative hearing was held before Administrative Law Judge ("ALJ") Kevin J. Casutto, at the Veterans of Foreign War Memorial Hall, 29 West Elisha Street, Waterloo, New York at 7:00 p.m. An issues conference was commenced immediately following the legislative hearing, at the same location. The issues conference was continued and concluded on January 20, 1999 at the same location. The issues conference record was closed on February 4, 1999, with receipt of the stenographic record.

Seneca Meadows, Inc., appeared at both the legislative hearing and the issues conference, by Ronald G. Hull, Esq., Underberg & Kessler, LLP, 1800 Chase Street, Rochester, New York 14604.

Staff of the New York State Department of Environmental Conservation ("Staff") appeared at the legislative hearing and the issues conference by Paul D'Amato, Regional Attorney, New

York State Department of Environmental Conservation ("NYSDEC") Region 8, 6274 East Avon-Lima Road, Avon, New York 14414.

At the legislative hearing, seventeen members of the public offered comments on the permit application. Several written comments also were received. Among those who provided comments were Hon. Ed Boudreaux, Seneca County Supervisor and Hon. Ted Young, Town Supervisor, Town of Waterloo, both expressing concern about possible long term impacts of the project on the surrounding communities and the nearby Montezuma National Wildlife Refuge. Hon. Janette Pfeiff, Town Supervisor, Town of Seneca Falls, commented in support of the project.

A few of the speakers during the legislative hearing supported the project. Several other speakers expressed concern about possible adverse environmental impacts of the project, including 1) difficulties in monitoring any landfill liner leaks that may occur, since the proposed expansion would be on top of the existing unlined landfill and will be adjacent to or over the Tantalo hazardous waste site; 2) impacts of the project on the nearby Montezuma National Wildlife Refuge; 3) odor and noise control; 4) traffic-related concerns; 5) visual/aesthetic concerns; and 6) assurance of closure funds. These matters were addressed at greater length during the issues conference.

The issues conference was advertised to commence on November 10, 1998. However, the Applicant and the Town of Seneca Falls were in the process of negotiating a Host Community Agreement. Consequently, they requested that the issues conference record be opened immediately following the legislative hearing on November 9, 1998, and then adjourned to allow the negotiations to be completed. Neither Department Staff nor the two Interveners identified below objected to this request. Therefore, the issues conference record was opened on the evening of November 9, 1998 and was adjourned to December 17, 1998 (later rescheduled to January 20, 1999). In the interim, the Applicant and the Town of Seneca Falls concluded their negotiations, resulting in a Host Community Agreement dated December 16, 1998.

Regional Staff prepared and circulated draft permits by November 4, 1998, including a Solid Waste Management Facility permit, an Air State Facility permit, a Freshwater Wetlands and Water Quality Certification permit, and a Protection of Waters permit. By letter dated January 13, 1999, Staff circulated revised draft permits including a revised Solid Waste Management Facility permit, a revised Protection of Waters permit and a revised Freshwater Wetlands and Water Quality Certification permit.

By letter dated January 19, 1999, Regional Staff made a tentative determination that the project as limited by the draft permits will comply with all statutory and regulatory requirements. The Applicant has accepted the permits.

The Petitions for Party Status

The deadline for receipt of petitions for party status was November 4, 1998. Petitions for full party status were received from Leland C. Henry (a Town of Waterloo Town Councilman) and from the Town of Waterloo. Additionally the Town of Seneca Falls, represented by Marc S. Gerstman, Esq., 313 Hamilton Square, Albany, New York, 12210, preserved its right to file a petition while it continued to negotiate a Host Community Agreement (the "Agreement") with the Applicant. Those negotiations did result in a Host Community Agreement dated December 16, 1998, that resolved all potential issues between the Town of Seneca Falls and the Applicant. No petitions seeking amicus status were received. However, the Town of Seneca Falls indicated that in the event an adjudication occurs, it may file a petition for amicus status. See 6 NYCRR §624.5(b).

An intervener seeking full party status must demonstrate an environmental interest in the proceeding (6 NYCRR 624.5[b][1][ii]) and must demonstrate that a substantive and significant issue exists regarding the permit application (6 NYCRR 624.4[c]). Staff assert that the Interveners have demonstrated adequate environmental interest in the project, but the Applicant has challenged the environmental interest of the Interveners. Both the Applicant and Staff contend that the Interveners have not identified any substantive and significant issue requiring adjudication. In view of the location of the site (abutting the eastern and northern boarders of the Town of Waterloo) and the close proximity of Town of Waterloo citizenry to the project, the Interveners have established an adequate environmental interest in the project.

During the issues conference adjournment from November 9, 1998 to January 20, 1999, the two Interveners consolidated their petitions and also retained counsel. On January 7, 1999 Interveners' counsel filed a Supplemental Petition for party status, described further below, as authorized by the ALJ.

At the issues conference on January 20, 1999, appearing with Applicant's counsel were Kenneth Gallagher, EMCON, an environmental consulting firm, and Peter Thummler, President, Seneca Meadows, Inc.

Appearing with the Department Staff counsel were technical Staff including Albert Butkas, Regional Permit Administrator, Daniel David, Regional Solid and Hazardous Material Engineer, Ted Williams, Environmental Engineer, Richard Baldwin, Supervisor, Western Facilities Section, Bureau of Solid Waste and Land Management, Bill Wurster, Environmental Chemist, Pat Conconnow, Environmental Engineer Geologist, John Swanson, Environmental Engineer, Vince Fay, Environmental Engineer Geologist and Wayne Mizerak, Environmental Engineer, Department of Remediation.

The Town of Waterloo and Leland C. Henry were represented as consolidated Interveners by the law firm of Menter, Rudin & Trivelpiece, P.C., Suite 500, 500 South Salina Street, Syracuse, New York 13202-3300, Thomas J. Fucillo, Esq., of counsel. Appearing with Mr. Fucillo were Hon. Ted Young, Town of Waterloo Supervisor, and Hon. Leland C. Henry, Councilman, Town of Waterloo.

The Town of Seneca Falls was represented by Marc S. Gerstman, Esq. and Midley and Swinehart, Rich Swinehart, Esq., of counsel. Appearing with counsel was Hon. Jeanette Pheiff, Seneca Falls Town Supervisor.

Because Staff have no objection to the application, the burden of persuasion is on the Interveners to show that substantive and significant issues exist - - e.g., the Interveners must demonstrate to the satisfaction of the ALJ, that the Applicant's presentation of facts in support of its permit application, does not meet the requirements of a statute or regulation. 6 NYCRR §624.4(c)(4). An issue requires adjudication if it is substantive and significant. See, 6 NYCRR §§624.4(c)(2) and 624.4(c)(3).

In this instance, the Interveners have either misconstrued the permit application or have expressed general concerns that do not rise to the level of a substantive and significant issue requiring adjudication. The Interveners were afforded additional time beyond the advertised November 4, 1998 deadline for receipt of petitions. With assistance of counsel, the Interveners filed a Supplemental Petition dated January 7, 1999. That petition, while a vast improvement over the initial petitions, failed to challenge any specific design feature of the proposed landfill expansion in furtherance of the Interveners' proposed issues. The Supplemental Petition also failed to identify any technical or scientific expert witness in support of any proposed issue. Therefore, the Interveners failed to raise any adjudicable issue. Following is a more detailed analysis of each proposed issue.

The initial Petitions of the Town of Waterloo and Leland C. Henry oppose the project on three grounds; 1) adverse visual impacts of the project that will affect tourism and business, 2) no adequate long-range safety planning is identified, and 3) that the Town of Waterloo is the true host community, since the Town contains the center of population closest to the project (approximately 1½ miles away). The Petitions each seek the same thirteen remedies or compensation, should the project be granted.

The Supplemental Petition for Party Status refined the concerns expressed in the initial Petitions into five proposed issues for adjudication, that are discussed below:

1. Site Monitorability

The Interveners assert that the proposed project involves siting a significant landfill expansion over and adjacent to the Tantalo hazardous waste site and the existing SMI landfill, both unlined. The Applicant and Staff acknowledge the Interveners' contention that in this case a groundwater contamination plume emanating from the Tantalo site already exists.

6 NYCRR §360-2.12(c)(5) provides that

"[n]ew landfills must not be located in areas where environmental monitoring and site remediation cannot be conducted. Identification of these areas must be based upon ability to sufficiently characterize groundwater and surface water flow to locate upgradient and downgradient directions; ability to place environmental monitoring points which will detect releases from the landfill; ability to characterize and define a release from the landfill and determine what corrective actions may be necessary; and the ability to carry out those corrective actions.

The Interveners assert that the presence of the Tantalo hazardous waste site beneath and adjacent to the existing facility and the proposed expansions precludes compliance with 6 NYCRR §360-2.12(c)(5). Specifically, the Interveners contend that the proposed project will preclude the ability to characterize and define a release from the landfill and determine what corrective actions may be necessary, contrary to the requirements of 6 NYCRR §360-2.12(c)(5). In conclusion, the Interveners contend that if the project is authorized, there will be no objective means of assuring that escape of leachate from the expanded facility is not contributing to the existing Tantalo site contaminant plume.

However, the Interveners have not challenged any specific design feature of the proposed landfill expansion design in furtherance of this issue, nor have the Interveners identified any technical or scientific expert witness in support of this proposed issue. This proposed issue is not substantive and significant, and therefore does not require adjudication.

2. Interference with Remediation of the Tantalo Hazardous Waste Site

6 NYCRR §360-1.9(g)(1) provides that:

"If the facility is proposed to be located at an inactive hazardous waste disposal site classified as Class 1, 2, 3 or 4 in the department's Registry of Inactive Hazardous Waste Disposal Sites; or if it is proposed to be located next to one and less than 150 feet separate the boundary of the facility and the boarder of the classified site that abuts the facility boundary, the applicant must submit as part of a complete application sufficient information to allow the department to determine whether the proposed activity would interfere significantly with any potential ongoing or completed inactive hazardous waste disposal site remedial program at the classified site or would expose the environment or public health to significantly increased threat of harm."

As with the first proposed issue, the Interveners have not challenged any specific design feature of the proposed landfill expansion design in furtherance of this issue, nor have the Interveners identified any technical or scientific expert witness in support of this proposed issue. This proposed issue is not substantive and significant.

3. Necessity of a SPDES Permit

The Interveners assert that the proposed project requires the use of retention ponds to collect runoff from the site including runoff from across the open face of solid waste deposited within the existing and proposed facility. The retention ponds would discharge into Black Brook. However, at the issues conference the Applicant and Staff clarified that the project calls for any runoff from the open face of the existing or proposed facility to be collected and treated as leachate. All leachate will be collected and treated offsite. Stormwater discharges from the existing and proposed landfill footprint and the stormwater basins will continue to be regulated by "SPDES-like" conditions in the Solid Waste Management Facility Permit. The remainder of the stormwater onsite will be regulated under the SPDES program through general stormwater permits. Draft Environmental Impact Statement ("DEIS") §2.7.2.3. The Interveners have misconstrued the project regarding collection of runoff from across the open face of solid waste deposited within the existing and proposed facility. No adjudicable issue is raised regarding need for a SPDES permit for this project.

4. Necessity of a Post-Closure Fund

The Interveners assert that the Department must require establishment of a post-closure fund for the project to assure funds are available to implement an environmentally sound closure plan. During the issues conference the Applicant and Staff clarified that both closure and post-closure funds are already in place to assure proper closure of the existing facility, and will continue for the proposed expansion. Engineering Report, Table 5-3 provides an estimate regarding post-closure care cost and A/B Landfill Expansion post-closure monitoring costs. Engineering Report, Vol. X. Further, the Applicant noted that the estimated total value for closure of the entire facility is approximately $12.6 million, whereas the current post-closure fund is valued at approximately $17.4 million. The Applicant asserted that the current fund would suffice to assure proper closure of the existing and proposed facilities. No adjudicable issue is raised regarding need for a post-closure fund.

5. No Need for the Project Has Been Demonstrated, as Required by the State Environmental Quality Review Act

The Interveners assert that under SEQRA, if impacts can not be mitigated then a balancing test must be applied to determine whether public need for the project exists. Interveners assert that the project will result in several adverse impacts that are not capable of being mitigated. Specifically, Interveners assert that the project will result in offsite migration of odors, traffic impacts, visual and aesthetic impacts, and social and economic impacts including the loss of tourism and business to the area. However, the Interveners have assumed that these impacts can not be mitigated. Interveners have not made any offer of proof to support their assumption. To the contrary, the Applicant and Staff showed that these issues have been addressed in the DEIS and mitigated to the extent practicable. For example project need and benefit is addressed in DEIS §2.8 (DEIS Vol. I). The Interveners have not referenced the DEIS in their proposed SEQRA issue. The Interveners' contentions that SEQR "need" has not been demonstrated or that need should be explored in a supplemental Environmental Impact Statement, must be rejected.

Nonetheless, during the issues conference, the Applicant's counsel represented that the Property Value Protection Plan, the Complaint Management Program and the Road Maintenance Program described in the Town of Seneca Falls/SMI Host Community Agreement are not limited to the residents (or roads) of the Town of Seneca Falls, but also are applicable to the residents (and roads) of the Town of Waterloo. By letter dated January 22, 1999 (Hull to Fucillo), the Applicant confirmed the applicability of these provisions of the Host Community Agreement to Waterloo residents.

State Environmental Quality Review

I direct that this matter be remanded to Department Staff to complete the SEQR process required by ECL Article 8 and 6 NYCRR Part 617, including preparation of a Statement of Findings, completion of the SEQRA notice and filing requirements for completion of a Final Environmental Impact Statement. Staff is further directed to issue environmental permits to the Applicant with conditions as set forth in the current draft permits (Exhibits 6, 13, 14 and 15).

Appeals

Pursuant to 6 NYCRR §624.8(d), these Rulings on party status and issues may be appealed in writing to the Commissioner by February 24, 1999. Reply briefs to any such appeals must be filed by March 4, 1999. All appeals and replies must be addressed to the office of Commissioner John P. Cahill, NYSDEC, Room 604, 50 Wolf Road, Albany, New York 12233-5500, and must be received by that office by the dates indicated herein. Additionally, three copies of all such appeals, replies, briefs, and other related filings must also be sent to the ALJ's attention at the Department's Office of Hearings and Mediation Services, and to all persons indicated on the Distribution List in this matter. Transmittal of documents must be made at substantially the same time and in the same manner to all persons. Any requests for revision of the above schedule must be addressed to Chief Administrative Law Judge Daniel E. Louis, at the Department's Office of Hearings and Mediation Services.

/s/
Kevin J. Casutto
Administrative Law Judge

February 12, 1999
Albany, New York

TO: Seneca Meadows, Inc., Distribution List

1 The best usage of Class C fresh surface waters is fishing. These waters shall be suitable for fish propagation and survival. The water quality shall be suitable for primary and secondary contact recreation, although other factors may limit the use for these purposes. 6 NYCRR §701.8.

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