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Waste Management of New York - Ruling, January 31, 1995

Ruling, January 31, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Application for a consolidated permit to operate a surface clay mine
pursuant to Articles 23 and 24 of the Environmental Conservation Law of
the State of New York (ECL), and Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR)
Parts 420 and 663 in the Town of West Bloomfield, Ontario County by

DEC No.
8-3200-10/1-0

RULINGS ON ISSUES AND
REQUESTS FOR PARTY STATUS
AND ORDER

WASTE MANAGEMENT OF NEW YORK
APPLICANT

SUMMARY

This ruling describes the Applicant's proposal, and summarizes the administrative hearing held on December 1, 1994. The ruling discusses the proposed issues for adjudication concerning potential haul routes, traffic safety, groundwater, dust, noise, and real property values. For the reasons explained below, these rulings find there are no issues for adjudication. Since there are no issues for adjudication, all requests for Party Status are denied. The instructions for appealing these rulings are provided below. If these rulings are not appealed, the matter is remanded to the Department Staff to complete the environmental review of the Project and to issue the requested permits.

PROJECT DESCRIPTION

The Applicant, Waste Management of New York, Inc., 425 Perinton Parkway, Fairport, NY, filed an application with the Region 8 Office of the Department of Environmental Conservation for a consolidated permit to operate a surface clay mine. The Site of the proposed mine is a 658 acre parcel near the intersection of NY 5 & US 20 (Routes 5 & 20), and Sand Road in the Towns of West Bloomfield and East Bloomfield, Ontario County. Mining will occur in six phases over 10 years, and will affect a 200.8 acre portion of the Site which is located exclusively in the Town of West Bloomfield. The excavated material will not be processed on Site. The Applicant will reclaim the Site concurrently with mining to a combination of grasslands, areas of open water and freshwater wetlands.

THE DRAFT ENVIRONMENTAL IMPACT STATEMENT (DEIS)

The Department determined that the Project was a Type I action that may have a significant effect on the environment. Pursuant to ECL Article 8, and 6 NYCRR Part 617, the Applicant prepared a DEIS in January 1994. After revisions to the DEIS, the Department issued a Notice of Completion on August 3, 1994. The public comment period on the DEIS ended on September 9, 1994.

LEGISLATIVE HEARING

The Applicant published a Notice of Public Hearing dated October 24, 1994 (the Notice) in the Canandaigua Messenger on October 31, 1994. The Notice appeared in the Department's Environmental Notice Bulletin (ENB) on November 2, 1994. Administrative Law Judge Daniel P. O'Connell presided over a legislative hearing on the application and DEIS on December 1, 1994 at the Fire Hall in the Town of West Bloomfield. The public hearing began at 10:00 A.M.

About 25 people attended the legislative hearing. There were 9 speakers including the Applicant's Project Manager, the Department Staff, local officials, and residents of the Towns of East and West Bloomfield. A few individuals submitted written statements. In general, the comments made at the public hearing focused on property values, dust, noise, traffic, the hours of operation, and future uses of the Site.

ISSUES CONFERENCE

The Issues Conference began immediately after the legislative hearing to hear requests for Party Status and to discuss potential issues for adjudication.

Leo Bracci, Esq., Assistant Regional Attorney appeared for the Department Staff. Beh Herter, Project Manager, and Bill Studzinski, Esq., represented the Applicant. Shirley Coons, a resident of the Town of East Bloomfield, appeared on her own behalf. Patrick Crowley, Supervisor, represented the Town of East Bloomfield. Kenneth Gordon from Larsen Engineers and Edward Strapp, Supervisor, appeared for the Town of West Bloomfield. William Travis from Cumberland Associates represented Ronald and Margaret Fontaine, and Phillip Megaffee.

The Office of Hearings received the stenographic record of the legislative hearing and the Issues Conference on December 16, 1994.

Requests for Party Status

As provided by 6 NYCRR 624.5 (effective January 9, 1994), the Parties to any adjudicatory hearing are the Applicant, the Department Staff and those who have been granted Party Status. According to the Notice dated October 31, 1994, written requests for Party Status were due at the Office of Hearings on November 28, 1994. By that date, Shirley Coons, and the Town of East Bloomfield had filed requests for Party Status.

Potential parties may file their requests after the date set in the Notice of Public Hearing under limited circumstances [624.5(c)]. At the legislative hearing, Kenneth Gordon from Larsen Engineers requested Party Status for the Town of West Bloomfield. With his request, Mr. Gordon filed a letter from the Town of West Bloomfield Planning Board dated December 1, 1994 and a copy of a report from Larsen Engineers dated November 30, 1994.

By letter dated December 2, 1994, David Anderson, Esq., filed a request for Party Status for the Town of West Bloomfield. Mr. Anderson explained that the Town's request was late because the Town was waiting for the report from Larsen Engineers. The Town's request for Party Status incorporates the report from Larsen Engineers dated November 30, 1994 by reference.

At the legislative hearing, William B. Travis from Cumberland Associates also requested Party Status on behalf of Mr. and Mrs. Fontaine, and Phillip Megaffee. The Fontaines and Mr. Megaffee own property next to the proposed mining Site.

By letter dated December 3, 1994, Mr. Travis filed a request for Party Status for his clients. Mr. Travis explained that the request for Party Status was late because his clients were unfamiliar with the hearing procedures and did not know that they had to file a written request by November 28, 1994. The Fontaines and Mr. Megaffee did not retain Mr. Travis until the evening before the public hearing. Consequently, Mr. Travis could not prepare a request for Party Status before the hearing.

The Draft Permit

For the Issues Conference, the Department Staff prepared a draft permit that is identified in the record as Exhibit 2. The Staff asserted that the Project, as conditioned by the draft permit, would conform to all applicable statutory and regulatory requirements. Accordingly, the Staff concluded there would be no issues for adjudication if the Applicant accepted the draft permit conditions. Attached as Appendix A is a copy of the draft permit.

At the Issues Conference, the Applicant accepted the draft permit conditions, and stated there were no issues for adjudication.

Since the draft permit was not available for review until the Issues Conference, the potential parties were given additional time to comment about it. The Issues Conference participants filed their comments according to a schedule established at the hearing.

In a letter from its attorney dated December 14, 1994, the Town of East Bloomfield said that it found the draft permit conditions to be appropriate and acceptable. The Town asked the Department Staff, however, to include an additional permit condition that would restrict truck traffic from the Site to State and Federal roadways.

By letter dated December 14, 1994, the Town of West Bloomfield Planning Board provided extensive comments about the draft permit conditions and recommended some additional permit conditions.

Mr. Travis sent a letter dated December 14, 1994 explaining his clients' concerns about the Project.

By letter dated January 5, 1995, the Department Staff responded to the comments made at the legislative hearing about the DEIS and the Project. The Staff's letter also addressed the potential parties' requests for Party Status and their comments about the draft permit. The Staff maintained there were no issues for adjudication. In Section IV of the letter, however, the Staff outlined some changes and additions to the draft permit conditions based on the comments made at the legislative hearing. Attached to these rulings as Appendix B are the Staff's changes and additions to the draft permit.

In a letter dated January 5, 1995, the Applicant responded to the comments made at the legislative hearing. The Applicant's letter also addressed the potential parties' requests for Party Status and their comments about the draft permit. The Applicant argued there were no issues for adjudication. The Applicant accepted the changes and additions to the draft permit proposed in the Staff's January 5, 1995 letter.

With a cover letter dated January 3, 1995, the Applicant filed additional hydrological information with the Department Staff. By letter dated January 9, 1995, the Department Staff responded to the new information. Upon receipt of the Department Staff's review of the new hydrological information, the record of the Issues Conference closed on January 9, 1995.

RULINGS ON ISSUES FOR ADJUDICATION

Standards for Determining Issues

Section 624.4(c) [effective January 9, 1994] outlines the standards for adjudicable issues. When the Department Staff has determined that the Project, as conditioned by the draft permit, will conform to all applicable statutory and regulatory requirements, the burden of persuasion is on the potential party proposing the issue to show that the proposed issue is both substantive and significant [In the Matter of the Town of Huntington,Interim Decision of the Commissioner, December 22, 1988 and In the Matter of Bonded Concrete, Inc., Interim Decision of the Commissioner, June 4, 1990. Now codified as 624.4(c)(4)].

An issue is substantive if there is sufficient doubt about the Applicant's ability to meet the applicable statutory or regulatory criteria such that a reasonable person would inquire further. To determine whether an issue is substantive, the ALJ must consider the proposed issue in light of the application, and related documents, the draft permit, the content of any petitions filed for Party Status, the record of the Issues Conference and any subsequent written arguments authorized by the ALJ [In the Matter of the International Business Machines Corporation, Interim Decision of the Commissioner, July 3, 1990. Now codified as 624.4(c)(2)]. To be substantive, the issue cannot be based merely on speculation but on facts that can be subjected to adjudication [In the Matter of Concerned Citizens Against Crossgates v. Flacke, 89 AD2d 759 (3rd Dept., 1982), aff'd. 58 NY2d 919 (1983)].

An issue is significant if the adjudicated outcome can result in permit denial, a major modification to the proposed project, or the imposition of significant conditions in addition to those proposed in the draft permit [In the Matter of NYC Dept. of Environmental Protection, Chelsea Pump Station, Third Interim Decision of the Commissioner, October 6, 1988; In the Matter of St. Lawrence County, Third Interim Decision of the Commissioner, April 30, 1990. Now codified as 624.4(c)(3)].

The issues proposed by the potential parties are discussed below.

Haul Routes

Ms. Coons and the Town of East Bloomfield do not want the Applicant to use any town roads in East Bloomfield as haul routes. They asked the Department Staff to include a permit condition that would limit the Applicant's haul routes to only County, State and Federal roadways. According to the Town of East Bloomfield, drafting a local ordinance to set weight limits on town roads would be difficult, and that even if the Town could draft such an ordinance, there is no local police department to enforce the limits.

The Town of West Bloomfield also joined in the request for a permit condition that limited potential haul routes to County, State and Federal roadways.

The Applicant stated it neither supports nor opposes a permit condition that limits transportation routes to County, State and Federal roadways. The Department Staff, however, opposed such a condition. According to the Staff, the draft permit incorporates by reference the Applicant's Mine Land Use Plan which limits potential truck routes to State and Federal highways.

Ruling and Discussion: Whether the draft permit should be modified to prohibit the Applicant from using town roads is not a substantive and significant issue. The Towns of East and West Bloomfield, rather than the Department, have the authority to limit the type of vehicles that use Town roads. The Towns cannot waive their jurisdiction because they find it difficult to set and enforce weight limits on their roads. There is no legal authority, and therefore not a significant basis, for the Department to impose a permit condition that prohibits the Applicant from using town roads.

Furthermore, the Applicant's Mine Land Use Plan (p. 5) limits potential haul routes to only State and Federal highways. Since Special Condition No. 1 of the draft permit incorporates the Mine Land Use Plan by reference, the issue proposed by the potential parties is not substantive. The Applicant has accepted the draft permit condition that limits haul routes only to State and Federal roadways.

Traffic Safety: Sight Distances and Hours of Operation

Without performing any kind of independent analyses, the adjacent property owners asserted that locating the access road for the Site on Routes 5 & 20 would not provide adequate site distances. They further alleged that the hazards associated with inadequate site distances would be compounded by school bus traffic if mining operations were permitted from 7:15 A.M. to 8:15 A.M.

The Applicant responded to the adjacent property owner's assertions by citing the December 2, 1992 letter from the NYS Department of Transportation (Appendix M of the DEIS). This letter explains that the DOT Staff reviewed the Site Impact Traffic Evaluation (Appendix G of the DEIS) and concluded that adequate sight distances along Routes 5 & 20 were available for the access road. With respect to the hours of operation, the Applicant cited 11.5(g) of the Town of West Bloomfield Zoning Ordinance which authorizes excavation operations from 7:00 A.M. to 6:00 P.M. Monday through Saturday with no Sunday or holiday hours. The Applicant argued the draft permit limits weekday hours of operation to the same time.

The Staff argued that the DOT's favorable response to the Applicant's Site Impact Traffic Evaluation demonstrates the suitability of locating the access road on Routes 5 & 20.

Ruling and Discussion: There are no adjudicable issues about traffic safety. The adjacent property owners' concerns about the sight distances and the hours of operation are speculative rather than substantive. They did not offer any proof that contradicted the expert review of the traffic impact analysis in the DEIS by the NYS DOT Staff. Absent any substantive showing to the contrary, I must accept the expert evaluation of the NYS DOT Staff concerning the adequacy of the sight distances for the access road along Routes 5 & 20. [See In the Matter of the Application of Wilmorite, Inc., the Commissioner's Interim Decision dated October 7, 1981]

Groundwater

The only source of potable water for Mr. Megaffee's home is a well that is next to the proposed mining Site. Mr. Megaffee cited several contradictions in the data presented in the DEIS about the geology of the Site. Based on these contradictions, Mr. Megaffee challenged the Applicant's conclusion about there being no hydrological connection between the soils on Site and the aquifer that he draws water from.

The Department Staff and the Applicant asserted the data in the DEIS is consistent and accurate.

Discussion and Ruling: The basis for a substantive issue can be inconsistencies in the data or information presented in the application and related documents. Besides the data in the DEIS, the Applicant also performed additional borings on the Site near Mr. Megaffee's property during the week of November 14, 1994. The Town of West Bloomfield's consulting engineers were present when the Applicant collected this additional data. After independently reviewing this information, the Town of West Bloomfield's engineers agreed with the Applicant's conclusion that the Project would not affect groundwater flow patterns or groundwater supply. Based on the Applicant's additional test data, there is no substantive factual dispute. Therefore, there is no issue for adjudication.

Dust

The Fontaines own property on Routes 5 & 20 next to the proposed location of the access road. Their home is back 300 feet from Routes 5 & 20. Since the Applicant is paving only the first 200 ft. of the access road and because their home is down wind from the access road and the areas that will be mined, the Fontaines argued that dust will impact their property. They want the Applicant to develop a better plan to mitigate dust.

Without any elaboration, the Town of West Bloomfield argued that the Applicant should examine dust mitigation further.

The Department Staff argued that any potential dust impacts are related exclusively to truck traffic because the moisture content of the clay is high and the materials will not be processed on the Site. The Staff argued that the Project's operation and design features outlined in the Mine Land Use Plan as well as the additional permit condition requiring the Applicant to build a berm along the haul road will mitigate dust to the maximum extent practicable.

The Applicant stated that it would use established industry practices to control dust. The Applicant explained that these practices are outlined in the Mine Land Use Plan and have been incorporated into the draft permit by reference. The Applicant accepted the additional permit condition that would require a berm along the haul road.

Discussion and Ruling: The mining regulations do not provide a dust standard [422.2(c)(4)(i)]. SEQR, however, does require the Applicant to mitigate impacts to the maximum extent practicable [617.9(c)(3)]. Therefore, to raise a substantive issue, the potential parties must show that the Applicant's proposal will not mitigate dust impacts to the maximum extent practicable. Such a showing could include, for example, additional permit conditions with an explanation about why additional permit conditions are necessary.

The adjacent property owners have provided an adequate explanation for why additional mitigation is necessary. However, there is no issue for adjudication. The additional permit condition requiring the Applicant to build a berm along the haul road (Appendix B) as well as the other dust control measures outlined in the Mine Land Use Plan will mitigate dust impacts to the maximum extent practicable. The berm along the haul road specifically addresses the Fontaines' concern about dust. Consequently, there is no issue for adjudication.

Noise

The adjacent property owners want the Applicant to prepare a more extensive plan to mitigate noise. They contend there are no berms or other noise reduction measures that will mitigate the noise from trucks entering or exiting the site. The adjacent property owners challenged the noise level values for the equipment used in the Applicant's analysis by referring to the Noise Fundamentals Training Document, US DOT, Federal Highway Administration, and the Environmental Impact Data Book, Ann Arbor Science Publisher, Inc. They argued that noise levels will increase significantly, and therefore require additional mitigation.

Without any elaboration, the Town of West Bloomfield argued that the Applicant should examine noise mitigation further.

The Department Staff argued that the DEIS and the Applicant's letter dated September 15, 1994 comprehensively treat potential noise impacts. The draft permit incorporates the DEIS and the Applicant's September 15, 1994 letter by reference. Furthermore, the Staff argued that the berm along the haul road would mitigate noise impacts further (Appendix B).

The Applicant asserted the Project will mitigate noise to the maximum extent practicable. The Applicant accepted the additional permit condition proposed by the Department and will build a berm along the haul road.

Discussion and Ruling: The mining regulations do not set a specific noise standard. Rather, the regulations require a plan to abate noise. [See 422.2(c)(4)(i) and (iii)]. In addition to this rule, SEQR requires the Applicant to mitigate impacts to the maximum extent practicable [617.9(c)(3)]. To raise substantive issues in this context without a regulatory standard, the potential parties must show that the Applicant's proposal will not mitigate noise impacts to the maximum extent practicable. Such a showing could include, for example, either a critique of the Applicant's noise study by a qualified expert, or a noise study by a qualified expert that contradicts the Applicant's noise study.

The Applicant performed a Sound Level Study (Appendix I of the DEIS) and discussed potential noise impacts in 4.2.6.3 of the DEIS. Though not required, the Applicant used the Federal Highway Abatement (FHWA) Criteria as guidance in evaluating potential noise impacts. The potential parties did not show that the FHWA Criteria was unreliable. Therefore, the criteria will be used here as guidance to determine whether the Project would mitigate potential noise impacts to the maximum extent practicable.

The Applicant's analysis shows that noise levels on the Site will be below the FHWA criteria for Active Category B which limits exterior noise levels to 70 dBA. Active Category B includes categories not listed in Category A as well as residences, motels, hotels, public meeting rooms, schools, churches, libraries and hospitals. No one argued that the Applicant's operations should meet Active Category A which limits exterior noise levels to 60 dBA.

To evaluate the adjacent property owners' challenge concerning the noise level values used in the Applicant's analysis, two fundamental concepts about noise must be understood. First, noise level values are expressed as decibels at a given distance from the noise source (e.g. 90 dBA at 25 ft.). Second, noise levels abate at a rate of 6 decibels per doubling of the distance under general conditions. The latter concept is known as the Noise Reduction Formula, and is a widely accepted scientific principle.

While the Applicant expressed its noise level values as decibels at 100 ft., the adjacent property owners relied on the values presented in the Noise Fundamentals Training Document, and the Environmental Impact Data Book which are expressed as decibels at 25 ft. These values, therefore, cannot be compared unless they are expressed at the same distance. After applying the principle in the Noise Reduction Formula, the noise level values referenced by the potential parties are nearly identical to the noise level values provided in the Applicant's analysis. Consequently, the adjacent property owners' challenge is without merit.

The project design anticipates noise mitigation in a number of ways. The Applicant will build berms along the setbacks that are next to roads and residences. Also, the active mine faces will reduce noise levels. The Applicant will muffle equipment to meet standards set by the Mine Safety Health Administration, and instruct employees about how to operate equipment to reduce noise. The draft permit includes these measures as well as an additional condition for a berm along the haul road.

The potential parties did not provide a critique of the Applicant's noise study by a qualified expert, or a noise study by a qualified expert that refutes the Applicant's analysis. Furthermore, they did not assert that the noise level criteria used by the Applicant to evaluate potential noise impacts were unreasonable. The adjacent property owners failed to show why the draft permit conditions would not mitigate any potential noise impacts to the maximum extent practicable. Consequently, they did not raise a substantive and significant issue concerning noise.

Real Property Values

The adjacent property owners and the Town of West Bloomfield want the Applicant to address the effects of mining on real estate values and town taxes.

The Applicant argued that the potential parties have not offered any evidence to refute the conclusions in the DEIS. According to the Applicant, the proposed excavation and reclamation activities will be concurrent with mining activities and will restore the property to a condition that reflects the present condition of the Site. The Applicant provided a study concerning the impacts of a proposed stone quarry in Dutchess County, NY to show there would be no negative impacts on the property values of nearby residences. Furthermore, the Applicant is negotiating agreements with the adjacent property owners to guarantee the fair market value of their residences.

According to the Department Staff, the potential parties' concerns about property values are speculative. The Staff argued that the Applicant adequately addressed this issue in the DEIS.

Ruling: The effects of the Project on real estate values will not be an issue for adjudication. Based on the Interim Decisions of the Commissioner, restrictions to preserve property values can only be imposed by local rather than state authorities [In the Matter of William E. Dailey, Inc. (May 14, 1992), and In the Matter of Red Wing Properties, Inc. (January 20, 1989)].

Other Proposed Issues and Concerns

In the November 30, 1994 report from its consulting engineers, the Town of West Bloomfield identified other matters of concern. These include other potential issues and questions about the Final Environmental Impact Statement (FEIS). These matters are discussed here for completeness.

According to the Town, the settling ponds proposed by the Applicant to control stormwater runoff will not be effective based on the particle size of the material to be excavated. In addition, the Town wants the Applicant to prepare a Pollution Prevention Plan that includes detailed drainage studies.

The DEIS (Appendix L) provides detailed plans and calculations for the proposed settling ponds. The Town's criticism about the effectiveness of the settling ponds is conclusory and lacks the requisite offers of proof to raise an issue. There is no issue for adjudication.

With respect to the Town of West Bloomfield's demand for a Pollution Prevention Plan, the Applicant must prepare a Storm Water Pollution Prevention Plan (SWPPP) according to the terms of the State Pollutant Discharge Elimination System (SPDES) general permit. The Applicant needs this permit to control storm water at the Site. There is no issue for adjudication, however, about what should be in the SWPPP because the terms of the general permit outline its content.

The Town of West Bloomfield wants more information about the effects of mining on the former Bloomfield Landfill.

Special Condition No. 8 of the draft permit addresses this concern. The Applicant cannot mine within 500 feet of the former landfill.

The Town of West Bloomfield wants the Applicant to clarify: (1) the sequence for revegetating mined areas, and (2) the wetlands mitigation plan.

The Applicant can clarify these aspects of the Project without an adjudicatory hearing. The Town of West Bloomfield has not identified any statutory or regulatory criteria that the Applicant will not meet. The Town did not offer any evidence that would serve as the basis for denying the requested permit, significantly modifying the Project, or adding significant conditions.

All other proposed issues not explicitly discussed above were considered and are not issues for adjudication.

Concerning the FEIS, all substantive comments made at the legislative hearing on December 1, 1994 are part of the official record. Before the Department, as the lead agency, can make any findings or decisions about the Project, the Applicant must prepare a responsiveness summary. In addition, the FEIS will include any changes or additions made to the DEIS during Staff's review and the public comment period. [See 6 NYCRR 617.14(i).]

RULINGS ON REQUESTS FOR PARTY STATUS

None of the potential parties have identified any issues for adjudication that meet the criteria provided in 624.4(c). Therefore, I deny all requests for Party Status.

APPEALS

Pursuant to 6 NYCRR 624.8(d), the Issues Conference participants may appeal these rulings on issues and requests for Party Status. The Commissioner must receive any appeals by February 17, 1995. Replies are authorized, and the Commissioner must receive them by February 24, 1995. Address all appeals and replies to the Commissioner, NYS Department of Environmental Conservation, Room 604, 50 Wolf Road, Albany, New York 12233-5500. Also send copies of all appeals and replies to me and to everyone named on the Service List. Appeals and replies must be distributed to everyone at the same time and in the same manner.

ORDER OF DISPOSITION

Subject to the Commissioner's determination of any appeals that may be property filed, there are no issues requiring adjudication. Therefore, the adjudicatory phase of the hearing is canceled. The application is remanded to Staff to complete the environmental review process and to issue the requested permits (Appendices A and B).

__________________________
Daniel P. O'Connell
Administrative Law Judge

Dated: Albany, New York
January 31, 1995

To: Service List dated December 15, 1994

Attachments:
Appendix A - Draft Permit (Exhibit 2)
Appendix B - Modifications and Additions to the Draft Permit

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