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Sullivan County Division of Solid Waste (Phase II) - Issues Ruling, January 18, 2007

Ruling, January 18, 2007

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Application of the
SULLIVAN COUNTY DIVISION OF SOLID WASTE
for permits for the Phase II expansion
of the County Landfill in the Village of
Monticello, Sullivan County.

RULINGS OF THE
ADMINISTRATIVE
LAW JUDGE ON ISSUES
AND PARTY STATUS

(Application No. 3-4846-00079/00027)

BACKGROUND AND BRIEF PROJECT DESCRIPTION

The Sullivan County Division of Solid Waste ("the County") has submitted applications to expand the County's landfill, which is located south of Broadway in the Village of Monticello, Town of Thompson. The proposed 35-acre expansion, referred to in the application as the "Phase II expansion," is separate from the Phase I (Cell 6) expansion that was permitted by the New York State Department of Environmental Conservation ("the Department") in April 2005, and in which operations started in July 2006. The Phase II expansion would consist of Cells 7 to 11 on the east side of the existing facility, in the direction of Rose Valley Road. The Phase II expansion would partially overlap the existing landfill and raise its maximum height by about 100 feet. The currently permitted maximum annual tonnage would not change.

- - Permits Requested

As part of its Phase II permit application, the County requests modification of the following Department-issued permits:

  1. The solid waste management facility permit, which addresses the landfill itself;
  2. The Title V air permit, which addresses the collection and treatment of landfill emission gases; and
  3. The industrial State Pollutant Discharge Elimination System ("SPDES") permit, which addresses stormwater and leachate collection, treatment and disposal.

The County also requests from the Department a freshwater wetlands permit. That permit would allow a portion of the Phase II landfill expansion to be constructed in one-tenth of an acre of state-regulated Class 2 Freshwater Wetland MO-67 and approximately two-thirds of an acre of the 100-foot-wide adjacent area around this 28.5-acre wetland. As mitigation for loss of wetland and adjacent area, the County proposes to restore or create 3.61 acres of wetland adjacent to wetland MO-67.

Finally, the County requests a water quality certification under Section 401 of the Federal Water Pollution Control Act for the elimination of approximately 0.05 acres of federally regulated wetland and the disturbance of state-regulated wetland MO-67.

- - State Environmental Quality Review Act ("SEQRA") Evaluation

The previously permitted Phase I (Cell 6) landfill expansion and the proposed Phase II landfill expansion were evaluated together pursuant to SEQRA by the County as lead agency. The County determined that the landfill expansions were a Type I action that would have a significant effect on the environment; accordingly, the County issued a Positive Declaration on April 17, 1997. A Draft Environmental Impact Statement (dated December 1997) and a Final Environmental Impact Statement (dated March 1998) were prepared and have been available for public review.

- - Notice of Complete Application

Department Staff determined that the Phase II expansion application was complete, and referred it to the Department's Office of Hearings and Mediation Services for the scheduling of a permit hearing pursuant to Part 624 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York [6 NYCRR Part 624]. On March 23, 2005, a Notice of Complete Application, Legislative Hearing and Issues Conference (Exhibit No. 1) was issued by James T. McClymonds, the Department's chief administrative law judge. Pursuant to 6 NYCRR 621.1(d), a "complete" permit application is one which is in an approved form and is determined by the Department to be complete for the purpose of commencing review but which may need to be supplemented during the course of review in order to enable the Department to make the findings and determinations required by law.

The Notice of Complete Application, Legislative Hearing and Issues Conference appeared in the Department's on-line Environmental Notice Bulletin on March 30, 2005. (See Exhibit No. 2, a copy of the notice taken from the Department's website.) The notice was also published in the Middletown Times Herald Record on March 29, 2005, and in the Catskill Shopper on April 1, 2005. (See Exhibits No. 3 and 4, affidavits of publication for these newspapers.) Finally, copies of the notice were sent by the Department's Office of Hearings and Mediation Services to relevant government officials and others known to have an interest in the project. (See Exhibit No. 6, a copy of the Department's notice distribution list.)

At the time it determined the application was complete, Department Staff had not yet made any determinations with regard to the proposed modification of the solid waste management facility permit, the request for the freshwater wetlands permit, or the request for the water quality certification. However, Department Staff had made tentative determinations to approve the applications for the requested modifications of the SPDES and Title V air permits. This meant that Staff had determined, based on available information, that the regulated discharge and emissions would satisfy the minimum standards for permit modification. However, it did not signify Department approval or endorsement of either the activities for which the permit modifications were sought, or the overall project proposal.

A draft SPDES permit (Exhibit No. 9) and a draft Title V air permit modification (Exhibit No. 7) were prepared by the Department and made available for review. Under terms of the draft SPDES permit, all contaminated stormwater and leachate from the Phase II expansion would be piped to an existing wastewater treatment plant at the landfill, and all uncontaminated stormwater would be discharged into Wetland MO-67 via a "level spreader" extending 1,000 feet along the landfill's Phase II southern boundary with the wetland.

LEGISLATIVE PUBLIC HEARING

As announced in the March 23, 2005, notice, a legislative hearing was held at 3:00 and 7:00 p.m. on May 5, 2005, at the Sullivan County Government Center, 100 North Street, Monticello. The hearing, over which I presided, was held to receive the public's unsworn oral statements about the permit applications.

Two members of the public spoke at the afternoon session and another 12 spoke at the evening session. All the speakers, many of them people living close to the landfill, were opposed to the Phase II expansion. Many speakers complained of nuisance-type odors that they said they detected at their homes and along the roads particularly east and south of the landfill. Speakers questioned how the Phase II expansion could be allowed while a new odor control plan, which was made a condition of the Phase I permit, had only recently been implemented. One speaker said that the expansion should be prohibited or at least deferred until it is clear that the new plan works and odors are controlled on a consistent basis.

Many speakers said that the landfill poses a threat to public health, particularly given its location in the Village of Monticello, a residential population center. Concerns were expressed about potentially higher rates of cancer and respiratory illness for people living closest to the landfill, the risks of toxic air contaminants in landfill gases, and the possibility of ground and surface water contamination in the event of leachate breakouts. Some speakers addressed the adverse visual impacts of raising the landfill's height and removing trees in the Phase II expansion area, to the extent these trees have been a buffer between the existing landfill and properties along Rose Valley Road.

One speaker said the County's recycling efforts were insufficient, and another said a new environmental impact statement would be appropriate due to persistent landfill odors. One speaker suggested that county legislators whose districts are outside the Town of Thompson had not shown due concern about the landfill's environmental impacts, adding that these legislators would "sacrifice a town's health and well-being" for the sake of tipping fee revenue.

Apart from oral comments taken at the legislative hearing, written comments were also accepted by the Department, provided they were postmarked no later than May 20, 2005.

About 20 letters were received from residents of Mountain Lodge Estates, a seasonal community of summer homes on Rose Valley Road. These residents, most of whom live in New York City during the rest of the year, are strongly opposed to the Phase II expansion, given its close proximity to their development. Their letters indicate that 400 people, including about 300 children and infants, live in the community's 64 condominium homes. The homeowners point out that they purchased residences in Monticello so they could provide their children with fresh air in a beautiful, clean and safe environment, which they say is now threatened by the Phase II landfill expansion. They claim that they pay more than $100,000 in property, school, road and other taxes and put many more thousands of dollars into the local economy every summer. Even so, they say, they lack the "political clout" that might cause local officials to abandon the expansion plan, which is why they are appealing to the Department to stop what they consider to be a direct threat to their quality of life.

The residents of Mountain Lodge Estates say that while they consider the landfill odors to be a nuisance, they are especially concerned about air emissions that they do not smell, but which may be harmful to their health. The residents also complain about the landfill-related truck traffic on Rose Valley Road: the engine noise of the trucks as they move down the road, the diesel fumes of the trucks, and the risk the trucks pose to their children's safety. They argue that it makes no sense to expand a landfill in a residential area, and that it makes better sense to find a new landfill location in an area that is comfortably away from human habitation.

Apart from the letters from Mountain Lodge Estates, another two dozen letters were received, many of them from another nearby development, Beaver Lake Estates, on Southwoods Drive, within a mile or two of the landfill. Letters were from people who said they were bothered by odors more than once a week, and in many cases daily, most commonly at their houses but also as they drove in their cars and did errands in Monticello. One writer, a resident of Beaver Lake Estates, said he suffered from asthma and that the odor is very bad for his health. Some people said the odors were nauseating and kept family from visiting them. Others said they were concerned that in the event of a leachate breakout, their wells could become contaminated.

A letter was received from the Thompson town attorney alerting the Department that the town board had disapproved any further expansion of the landfill, and that town planning board approval would be necessary before any expansion could occur. A letter of the Thompson town conservation advisory council conveyed its opinion that the landfill poses a significant threat to the environment and that the town and village should do everything in their power to prevent the Phase II expansion and thoroughly study all alternatives to it.

Finally, a letter of May 20, 2005, in opposition to the landfill expansion was received from Special Protection of the Environment of the County of Sullivan, Inc. ("SPECS"), an intervenor in the Department's hearing on the Phase I landfill expansion. According to SPECS, the County's decision to construct and operate the Phase II expansion reversed, without explanation, a prior decision that the County become an "export community." SPECS contends that the County is unfit to hold a Phase II expansion permit because it has failed to achieve substantial compliance with the Department's odor control requirements. Also, SPECS contends that the emission of regulated air pollutants from the landfill expansion had been substantially underestimated by the County so as to evade applicable requirements of the Clean Air Act.

ISSUES CONFERENCE

Pursuant to 6 NYCRR 624.4(b), an issues conference began on August 2, 2005, at the Sullivan County courthouse in Monticello. The conference was originally scheduled to begin on June 13, 2005, but was postponed at the County's request, and with the other participants' consent, so they could negotiate with each other informally. The purpose of the issues conference, over which I presided, was to determine party status for any person or organization that had properly filed, and to narrow and define those issues, if any, which will require adjudication concerning the Phase II expansion and the terms of draft permits that have been prepared by Department Staff. Participating at the issues conference were counsel and other representatives of the County, Department Staff, and two prospective intervenors.

As permit applicant, the County was represented by Samuel S. Yasgur, the County attorney.

Department Staff was represented by Jonah Triebwasser, deputy regional attorney, and, after his retirement from the Department in September, 2005, by Carol Krebs, assistant regional attorney, of the Department's Region 3 office in New Paltz.

Two petitions for full party status were received.

One petition (Exhibit No. 10) was received from J. Benjamin Gailey, Esq., of Jacobowitz and Gubits, LLP, in Walden, New York, on behalf of the Town of Thompson. The landfill is adjacent to residential neighborhoods inhabited by town residents. The Town's petition outlines various issues for adjudication and requests either new or different conditions in the Department's permits, or permit denial, due to environmental impacts the Town alleges would be associated with the Phase II expansion. Furthermore, the petition states that the Town possesses its own authority to regulate the landfill, and that any Department permits for the expansion should require compliance with the Town's own laws regulating landfills, noise and litter, which the Town maintains it is prepared to enforce if necessary to protect its citizens.

A second petition (Exhibit No. 11) was received from Gary A. Abraham, an attorney in Allegany, New York, on behalf of an unincorporated association that calls itself Concerned Citizens of Sullivan County. Concerned Citizens, whose stated mission is to ensure a healthy environment, was formed shortly before the June 1 petition filing deadline. According to its petition, the group includes a number of people who live along Rose Valley Road, near the proposed Phase II landfill footprint. At the request of the County and Department Staff, Concerned Citizens produced a membership list (Exhibit No. 11-A) indicating that it consists entirely of the residents of Mountain Lodge Estates, as represented by the community's board of directors. In their petition, Concerned Citizens adopts as its own the issues outlined in the May 20, 2005, comment letter that their attorney, Mr. Abraham, wrote initially on behalf of SPECS. (SPECS has not sought party status on its own behalf.)

On July 29, 2005, I issued written rulings addressing two separate motions made jointly by the County and Department Staff, both relating to Concerned Citizens' petition. The rulings denied a motion to strike the petition based on the manner in which it came forward, and granted a motion to preclude consideration of additional air issues outlined in a July 15, 2005, letter of Mr. Abraham and a July 14, 2005, letter of Alan Shimada, Concerned Citizens' air expert.

On June 20, 2005, Department Staff released a set of technical comments prepared by its solid waste program, indicating further that each of the comments represented a potential hearing issue if not properly addressed by the County. There were several discussions of the comments between the County and Department Staff prior to the August 2 commencement of the issues conference, but when the conference began Staff said it still had "substantial concerns" that precluded development of a draft Part 360 landfill permit. On the other hand, Staff had drafted a Title V air permit (Exhibit No. 7), a freshwater wetlands permit (Exhibit No. 8), and a SPDES permit (Exhibit No. 9), each of which was acceptable to the County.

The August 2 conference date included some discussion of the environmental interests of the proposed intervenors, as well as an update on talks between the County and Department Staff regarding Staff's June 2005 technical comments. The conference was then adjourned to allow for further discussions among the parties, and did not resume until September 20, 2005. On that date, the Town's counsel, Mr. Gailey, provided a letter stating that the town board had determined to not further participate formally in the issues conference, though it was not withdrawing its petition or the issues and arguments raised therein. Mr. Gailey's letter (Exhibit No. 10-A) noted that Department Staff's concerns about the application were also raised in the Town's petition, and that the Town expected the Department to continue to address these concerns.

Mr. Gailey wrote that the Town urged the Department to effectively monitor landfill operations if the Phase II expansion is approved and constructed. He also reported that the Town, with the Village of Monticello, had sponsored meetings with a potential developer of a waste-to-energy facility, which he said must be considered as an alternative or supplement to the County's planned landfill expansion. The developer was not identified in the letter, but it had been reported that month in the local press that Taylor Recycling had plans to build a plant in Sullivan County that company officials indicated would solve the County's garbage problems and revolutionize the waste business.

When the conference resumed on September 20, 2005, Department Staff had developed a combined draft landfill and freshwater wetlands permit for the Phase II expansion (Exhibit No. 13), though it still had four areas of concern that it said had to be addressed adequately before it could recommend permit issuance. Those areas, as outlined in Staff's letter of September 15, 2005, concerned noise control, recycling, various landfill siting requirements, and odor and gas control.

As suggested by the County, the issues conference proceeded on September 20, 21 and 22, 2005, with an allowance for Department Staff to elaborate on its four areas of concern, and for the County to respond to Staff's concerns. Some of these discussions were led by me, and occurred on the record; others occurred off the record, directly among the issues conference participants.

These discussions led the County to make a number of submittals which, in effect, supplemented its permit application. (Exhibit No. 14 is a list of the application documents for the Phase II landfill expansion, at the time the application was deemed complete by Department Staff. Supplemental documents received from the County during the course of the issues conference are marked as Exhibits No. 14 A - W.) The County's supplemental submittals prompted additional technical comments from Staff, and responses to those comments by the County. At the same time, Concerned Citizens made various filings intended to supplement its petition, in some cases proposing new issues based on information provided by the County during the course of the issues conference. (These filings are Exhibits No. 11 B - M.)

The issues conference resumed on March 14, 2006, and continued again on July 12 and 13, and September 21, 2006. As the conference proceeded, the County was able to address all of Staff's concerns except noise control, which was the subject of additional testing by consultants for the County and Concerned Citizens during the spring of 2006.

On June 26, 2006, Michael B. Mednick, Thompson Town Attorney, advised me by letter (Exhibit No. 10-B) that his office was now representing the Town, in place of Mr. Gailey. Mr. Mednick appeared at the issues conference on July 12, 2006, stating that the Town was maintaining its petition as originally filed, not withdrawing any of its previously proposed issues but not proposing any new ones either.

RESOLUTION OF DEPARTMENT STAFF CONCERNS

The following discussion summarizes the concerns raised by Department Staff in its technical comments and how those concerns were resolved during the course of the issues conference.

Siting Restrictions

- - Monitorability of Phase II Expansion Area

Department Staff was concerned about groundwater contamination in the northeastern portion of the Phase II expansion area, such contamination having been caused by a wood stump dump created by a prior landowner. The Department's regulations contain a siting restriction prohibiting the location of new landfills in areas where environmental monitoring and site remediation cannot be conducted [6 NYCRR 360-2.12(c)(5)]. Unless the dump was removed and the contamination addressed, Staff was concerned that monitorability of the Phase II expansion would be compromised.

The County addressed Staff's concerns with plans to remove the wood and stump debris and monitor groundwater quality in the impacted area. According to a submittal by Malcolm Pirnie on behalf of the County, the landfill berm and access road will overlie the area affected by the debris. To limit the effect of the impacted soil and groundwater on Phase II monitorability, the fill in most of this area was excavated in August 2005. All wood and stump debris and associated soil in the northern, western and southern portions of this area were removed and transported offsite. Soil samples were taken from the bottom and sidewalls of the excavated area and analyzed by a laboratory, which confirmed that the soils were native and unaffected by the stump debris material. The eastern edge of the excavation extended up to the buffer of an adjacent federally regulated wetland, which the County did not disturb because it had not yet obtained a required permit from the Army Corps of Engineers. (See Exhibit No. 14-C, Malcolm Pirnie report, at pages 38 and 39.)

At the issues conference on July 12, 2006, it was reported that Department Staff had approved a water quality certification enabling the County to get the Army Corps permit. This will result in cleanup of the remainder of the dump area, estimated to be less than an acre in size. According to special condition No. 26 of the draft Part 360 permit (Exhibit No. 13), no solid waste may be placed into Cells 7 and 8 of the Phase II expansion, the general area of the former dump, until the dump is fully removed and two nearby, newly-installed monitoring wells are sampled over at least four quarters to establish baseline groundwater quality. The permit condition also states that the groundwater results from these wells must be demonstrated to be free of any external impacts from the stump dump before the wells can be incorporated into the landfill's groundwater monitoring array.

In the SPECS comment letter which became Concerned Citizens' statement of issues, Gary Abraham referred to the groundwater contamination associated with the stump dump, but attributed it to a leak in the County's Phase I landfill. As noted above, the contamination was actually due to the disposal of the stump debris by a prior landowner, in an area outside the existing landfill. Mr. Abraham later acknowledged his error at the issues conference.

- - Wetland Impacts

In its statement of position dated September 15, 2005, Department Staff indicated that the County had not adequately addressed the siting restriction at 6 NYCRR 360-1.7(a)(2)(iv), which prohibits the construction or operation of new solid waste management facilities within the boundary of a Department-regulated wetland. However, at the issues conference on September 20, 2005, Staff said that upon further review, its solid waste program had concluded that this provision does not apply, because it refers only to new facilities, not to expansions of existing ones.

I agree. Section 360-1.7(a)(2) includes various prohibitions for the siting of solid waste management facilities, including two that refer both to new facilities and expansions of existing ones. [See 6 NYCRR 360-1.7(a)(2)(i), prohibiting new facilities and lateral expansions of existing facilities on specially-designated agricultural land; and 6 NYCRR 360-1.7(a)(2)(ii), prohibiting most new facilities and expansions of existing ones on floodplains unless provisions have been taken to prevent the encroachment of flood waters.] The prohibition against construction and operation of solid waste management facilities within Department-regulated wetlands contains no language about expansions, which indicates that the prohibition applies only to new facilities. If the restriction were meant to include expansions as a separate category, presumably the regulation would so indicate, in the same manner as the restrictions addressing agricultural land and floodplains.

ln a letter of May 18, 2006, Gary Abraham argued for Concerned Citizens that Section 360-1.7(a)(2)(iv) applies to this project in light of a recent ruling in the hearing addressing the expansion of Waste Management of New York's landfill in Chaffee, New York. In that ruling, Department Administrative Law Judge (ALJ) Molly McBride referred to this section as prohibiting a landfill expansion within the boundary of a regulated wetland. [See Matter of Waste Management of New York, Ruling on Issues and Party Status, March 7, 2006, page 12.] This was not a holding of the ruling, as claimed by Mr. Abraham, merely a paraphrase of the regulation in the context of a discussion of a borrow area proposed by the permit applicant that would have intruded on the adjacent area of a state-regulated wetland. The applicant deleted the borrow area from its plans during the course of the issues conference and before the ruling was issued, rendering moot any issue related to the siting restriction, as the ALJ said in her ruling.

Despite the paraphrase of Section 360-1.7(a)(2)(iv) in the ALJ's ruling, the language of the regulation itself - which contains no reference to expansions - is controlling. That is not to say that the project will not affect wetland resources; it will, but the impact will be negligible. As noted above, only one-tenth of an acre of a 28.5-acre state-regulated Class 2 wetland (MO-67), and about two-thirds of an acre of that wetland's 100-foot-wide adjacent area, would be lost to construction of the Phase II landfill expansion. To compensate for that loss, the County proposes to restore or create 3.61 acres of wetland adjacent to the existing one. Special conditions No. 53 - 56 of the Department's combined landfill and freshwater wetlands permit (Exhibit No. 13) address protections for wetland MO-67 to prevent erosion and contamination from the landfill, and special conditions No. 57 - 61 obligate the County to perform the mitigation work specified in its plans and reports.

Department approval for the filling of state-regulated freshwater wetlands to construct and expand solid waste landfills is not unusual. The Department recently approved a freshwater wetlands permit authorizing the filling of 71 acres of Class 2 wetland as part of a proposed 178-acre expansion of the Seneca Meadows landfill in Seneca Falls, while requiring, as mitigation, restoration and enhancement of a much larger wetland area near the site. [See Matter of Seneca Meadows, Inc., Summary Report and Order of Disposition by ALJ Helene Goldberger, July 10, 2006.] Also, for new landfills, the Department may grant a variance to 6 NYCRR 360-1.7(a)(2)(iv) allowing the filling of state-regulated wetlands. [See Matter of Oneida-Herkimer Solid Waste Management Authority, Decision of the Commissioner, March 19, 2004, where such a variance was granted in conjunction with a wetland mitigation plan prepared by the permit applicant]. A variance to 6 NYCRR 360-1.7(a)(2)(iv) may be granted pursuant to 6 NYCRR 360-1.7(c) if certain showings are made, including a showing that the proposed activity will have no significant adverse impact on the environment.

- - Aircraft Safety

Department Staff was concerned that the landfill expansion would present a hazard to aircraft safety, both as a bird attractant and as a landscape feature which, at completion, is intended to be about 100 feet higher than the existing landfill. In this regard, a Department siting restriction prohibits a landfill or landfill subcell into which putrescible solid waste is to be disposed from being located closer than 5,000 feet from any airport runway end used by piston-powered fixed-wing aircraft and no closer than 10,000 feet from any airport runway used by turbine-powered fixed-wing aircraft [6 NYCRR 360-2.12(c)(3)(i)]. Another such restriction states that a landfill or landfill subcell into which putrescible solid waste is to be disposed, which is located within five miles of any airport runway end, must not, in the opinion of the Federal Aviation Administration (FAA), pose a potential bird or obstruction hazard to aircraft [6 NYCRR 360-2.12(c)(3)(ii)].

The Department claims no expertise in this area, and relies on FAA guidance. On April 26, 2006, FAA issued a "determination of no hazard to air navigation" for the landfill expansion (Exhibit 14-O). Based on an aeronautical study it had completed, FAA found that the project does not exceed obstruction standards and would not be a hazard to air navigation. Based on its evaluation, FAA concluded that marking and lighting are not necessary for aviation safety, but that use of temporary construction equipment such as cranes which will be higher than the landfill itself, will require separate notice to FAA.

According to the County, the nearest functioning airport to the landfill is the Sullivan County airport in Bethel, about eight miles away. There is a smaller rural airport (referred to as the old Monticello airport) on Cantrell Road about 2.5 miles south of the landfill, but the County says it is no longer in use, and has been sold to a developer who proposes to convert it into a sports car racetrack.

- - Endangered Species

Department Staff was concerned that no onsite reconnaissance had been done on behalf of the County to confirm that construction and operation of the landfill expansion would not cause or contribute to the taking of any endangered or threatened species or to the destruction or adverse modification of their critical habitat, addressing a solid waste management facility siting prohibition at 6 NYCRR 360-1.7(a)(2)(iii).

This concern was addressed by the County's performance of a habitat evaluation and protected species survey in the phase II expansion area on September 19, 2005. Prior to the field investigation, which was performed by a Malcolm Pirnie biologist, existing information including topographic maps, soil survey data, surficial geology data, wetland maps, and available aerial photography were collected and reviewed to determine potential habitat types. Resource agencies were consulted to obtain current records regarding government-protected species known to be on the site, or within a one-mile radius. Research was then conducted to determine whether habitat requirements for potential protected species were present. The field reconnaissance identified potential protected species habitats and searched those habitats for the species themselves.

According to Malcolm Pirnie's subsequent report (Exhibit No. 14-C, Tab 8) no federally-listed endangered or threatened species under U.S. Fish and Wildlife Service jurisdiction, or species proposed for federal protection, are known to exist in the project impact area. Also, no state-listed protected plant species are known to be at or in the immediate vicinity of the project site, according to the report. The report concludes that the likelihood that protected species are present within the project site is minimal based on information obtained from the Department, the U.S. Fish and Wildlife Service and New York's Natural Heritage Program.

- - Soil Permeability

Department Staff sought confirmation that the upper 20 feet of the unconsolidated deposits in the expansion area consist predominantly of soils throughout the vertical section, with a maximum in situ coefficient of permeability of 5 x 10-6 centimeters per second, with no appreciable continuous deposits having a maximum coefficient of permeability of 5 x 10-4 centimeters per second, consistent with the landfill siting requirement at 6 NYCRR 360-2.12(a)(1)(vi). Staff was concerned about this because the County had made a submittal early in the application process suggesting that it did not meet this requirement.

On behalf of the County, Malcolm Pirnie reported that subsequent to the original submittal of its expansion application, four undisturbed soil samples were collected in September 2004 from borings at the base of the proposed landfill and analyzed for permeability. The results ranged from 3.1 x 10-8 to 1.2 x 10-7 centimeters per second, which Malcolm Pirnie says are more representative of the soil characteristics beneath the proposed landfill than previously reported hydraulic conductivity results from perimeter monitoring wells. [See Exhibit No. 14-C, Malcolm Pirnie letter, page 39.] Staff has accepted Malcolm Pirnie's representation and is now satisfied that the landfill expansion meets the requirements of Section 360-2.12(a)(1)(vi).

Recycling

Department Staff has been critical of the County's recycling efforts and has used the issues conference to secure commitments for improvements. When the conference began Staff said the County was not complying with the comprehensive recycling analysis ("CRA") that was part of its state-mandated solid waste management plan ("SWMP"), adding that the County was emphasizing landfilling over waste reduction and recycling. Staff requested an updated CRA, a schedule for implementation of new source reduction and recycling initiatives, and a SWMP compliance update, which the County acknowledged was overdue.

Staff's concerns were initially raised under 6 NYCRR 360-1.9(f), which requires a CRA as part of a municipality's application for an initial permit to construct and operate a solid waste landfill or to renew a permit already issued. That section does not apply as this is an application to modify an existing permit, to in effect allow the landfill's expansion. Staff later reframed its concerns under 6 NYCRR 360-1.8(g), which requires that a permit application made by or on behalf of a municipality in a planning unit for the construction of a solid waste management facility shall not be complete until a local SWMP that contains all of the elements, including any required plan modifications or updates, set forth in ECL 27-0107(1)(b) and 6 NYCRR 360-15 is in effect for such municipality.

The County provided Staff with a SWMP compliance report update for the 2003-2004 reporting period, dated September 30, 2005 (Exhibit No. 14-B). The County addressed Staff's comments about its CRA with submittals dated March 10, 2006 (Exhibit No. 14-F) and April 10, 2006 (Exhibit No. 14-J), and with revised recycling reports for the years 2003, 2004 and 2005 that were forwarded to Staff on April 26, 2006 (see Exhibit No. 14-M). These documents satisfied Staff with regard to the County's proposed recycling activities, source reduction strategies, staffing and long-range planning. They also addressed discrepancies Staff had detected between the County's annual landfill reports and its recycling reports, in relation to waste disposal amounts.

Department Staff reported during a May 4, 2006, conference call with me and the other conference participants that its recycling concerns had been resolved. When the issues conference next resumed, Staff presented a permit condition (Exhibit No. 13-A) for inclusion in the Part 360 permit, requiring that by no later than 90 days after permit issuance, the CRA submittals dated April 10 and 26, 2006, be combined into one stand-alone document and officially adopted by County resolution, in accordance with 6 NYCRR 360-15.11(e)(7), which governs plan modifications and updates. The condition states that this updated and adopted CRA would supersede the CRA contained in the County's 1992 SWMP, and requires that the CRA be appended to all official copies of the SWMP. Finally, the condition mandates that the County abide by all provisions contained in the CRA unless otherwise authorized by the Department.

The new permit condition is intended to replace condition 4 in the original draft Part 360 permit (Exhibit No. 13), which had deferred the development of an approvable CRA until after permit issuance, but before any site clearing, construction or other activities could commence for any part of the Phase II landfill.

Odor Controls at Leachate Storage Tanks

Department Staff was concerned when the conference started that no odor controls had been proposed for the landfill's leachate treatment and storage facility, arguing that, without such controls, the County would have difficulty complying with the operational requirement that odors at a solid waste management facility be effectively controlled so that they do not constitute nuisances or hazards to health, safety or property [6 NYCRR 360-1.14(m)].

On behalf of the County, SCS Engineers reported on October 28, 2005, that it was in the process of conducting a field survey at the leachate pre-treatment plant to determine the potential for odor releases and what mitigation would be appropriate. Based on a first round of test readings on October 26, 2005, SCS Engineers said it appeared that odors from the storage tanks - including hydrogen sulfide odors, which are of particular concern to Concerned Citizens - were quite minor and that the environmental impact was negligible. SCS Engineers recommended that the County maintain the treatment building in a substantially closed-door condition to preclude the escape of odors, adding that if odorous conditions were found in the future, it would recommend that the County install activated carbon canisters on the tank vents. [See SCS Engineers letter, Exhibit No. 14-A.]

On February 15, 2006, Department Staff wrote that it recognized the County's efforts to quantify emissions from its leachate storage and treatment facilities, but that, due to the unpredictable and erratic nature of odor emissions, it required a detailed plan and schedule for placement of carbon filters. On March 9, 2006, SCS Engineers said in a letter to the Department (Exhibit No. 14-I) that it would provide a plan for installing carbon tanks on the vents of the two primary leachate storage tanks. On April 6, 2006, SCS Engineers provided the Department with a drawing for the carbon canister vent system (Exhibit No. 14-K).

During a conference call on May 4, 2006, Department Staff reported that it was satisfied with the County's plans for installation of the carbon filters. The filters were installed by the County in July 2006.

Gas Control Improvements

Department Staff entered the issues conference seeking improvements in the landfill's gas collection and control infrastructure, arguing that without such improvements, the County would have difficulty meeting the operational requirement that decomposition gases generated within a landfill be controlled to avoid hazards to health, safety, or property [6 NYCRR 360-2.17(f)].

On April 25, 2006, the County submitted drawings and specifications for a 2006 expansion of its gas collection system for the Phase I landfill (Exhibit No. 14-L), such expansion to include the construction, installation, start-up and testing of 20 new landfill gas collection wells, wellheads, valves and header piping. Also, in June 2006, the County provided an engineering report and drawings addressing the permanent capping of the existing landfill in those areas not overlapped by the Phase II expansion, during 2006 and 2007, as final grades are reached.

On February 3, 2006, the County issued a purchase order to LFG Specialties, LLC to evaluate and repair a flare unit that was malfunctioning and venting gas to the air upon flame out. LFG Specialties replaced the unit's burner controller and the bulb in the ultraviolet sensor that shuts the system down, and the flare has operated properly since that repair. The Department had the County consider use of wind shrouds on its gas flares, to improve their reliability and prevent them from blowing out. However, the flare manufacturer advised the County that its flares are not designed to be operated with wind shrouds, and none are made for them.

Staff contends that gas collection improvements, coupled with flare repairs and accelerated capping of the existing landfill, should help control odors that have impacted receptors generally east of the facility, from Apollo Plaza south along Rose Valley Road to Haddock Road. These locations are closest to the onsite odor sources and have experienced the most odors, according to a January 12, 2006, monitoring report prepared for the County by SCS Engineers (Exhibit No. 14-D).

ISSUE FOR ADJUDICATION - - NOISE IMPACT

An issue exists as to whether noise from the Phase II expansion would exceed an Leq energy equivalent sound level of 57 decibels (A) in the area east of the facility, including Mountain Lodge Estates, in violation of 6 NYCRR 360-1.14(p). Section 360-1.14(p) states that noise levels resulting from equipment or operations at the facility must be controlled to prevent transmission of sound levels beyond the facility property line at locations zoned or otherwise authorized for residential purposes to exceed certain Leq energy equivalent sound levels, which vary based on the character of the community.

This issue involves questions of fact, as to the noise levels that can be expected beyond the property line, as well as questions of law, as to the proper interpretation of Section 360-1.14(p). The factual questions arise from competing noise analyses performed on behalf of the County and Concerned Citizens, and must be adjudicated through testimony of those parties' noise experts: Acentech for the County, and the Noise Consultancy for Concerned Citizens. The legal questions do not depend on the resolution of disputed issues of fact, and are addressed below, consistent with 6 NYCRR 624.4(b)(5)(iii).

Questions of Law

According to 6 NYCRR 624.4(b)(2)(iv), one of the purposes of the issues conference is to determine whether legal issues exist whose resolution is not dependent on facts that are in substantial dispute and, if so, to hear arguments on the merits of those issues. In this case, such issues include whether Section 360-1.14(p) applies to construction as well as operational noise, whether the area east of the landfill facility is rural or suburban in character, and how noise from existing landfill operations should be accounted for in a noise impact analysis.

As to the first question, it is has been settled by a prior Commissioner's decision that Section 360-1.14(p) applies to operational noise and not to construction noise. [See Matter of Saratoga County Landfill, Second Interim Decision, October 3, 1995, page 8.] The County's noise modeling does not address noise associated with the landfill's construction, as noted by Concerned Citizens' consultants. However, such noise is not addressed by the regulation. The noise modeling addresses the delivery of waste to the working face and its disposal and compaction there, using assumptions that are meant to address a realistic "worst-case scenario" in terms of off-site impacts. Construction of a wall along the outside of the perimeter access road, and of soil berms around the working face, would create their own noise impacts, but such impacts would be temporary in nature, while the features themselves would mitigate noise impacts over the longer term operation of the facility, creating an overall benefit for off-site receptors.

Section 360-1.14(p) addresses noise control at areas "beyond the property line at locations zoned or otherwise authorized for residential purposes." The parties agree that potential noise exceedances are of concern only for the area east of the landfill facility, generally in the area along Rose Valley Road from Mountain Lodge Estates north to lower Broadway. Based on a Village of Monticello zoning map attached to a June 1, 2006, submittal by Acentech, this area of potential concern is zoned either as residential (this area encompasses Mountain Lodge Estates) or general business (a zoning classification that allows for one- and two-family dwellings, and is therefore "authorized for residential purposes" as well).

The level of sound that landfill operations may lawfully create in this area depends on whether the area has a rural or suburban community character. For rural areas, noise levels resulting from landfill operations must be controlled to prevent transmission of sound levels beyond the property line that exceed 57 decibels (A) during the period between 7 a.m. and 10 p.m., which encompasses the period of landfill operations. However, for suburban areas, sound levels may be as much as 62 decibels for this same period.

Department Staff and Concerned Citizens maintain that the area of potential impacts is rural in character, while the County maintains that it is suburban. Having driven along Rose Valley Road and also having made a site visit to Mountain Lodge Estates, I find that the area has a rural community character, because it is sparsely populated and developed. It is true, as the County points out, that Mountain Lodge Estates itself is a densely-populated area, consisting of closely clustered houses. However, that is not the case of the larger community in which Mountain Lodge Estates is located. In fact, the residents of Mountain Lodge Estates, who live most of the year in New York City, come to Mountain Lodge Estates in the summer because of the area's "country" character. The area is not suburban because it is not on the outskirts of a city or large town. It is on the edge of the Village of Monticello, but Monticello is not so densely developed or populated that it can properly be considered urbanized.

Because Part 360 sets different noise thresholds for rural, suburban, and urban communities without defining these terms, the conference participants have looked to different characteristics in making their own classifications. Concerned Citizens has cited the generally quiet environment of Mountain Lodge Estates, where it is generally acknowledged that ambient noise does not exceed 57 decibels (A), as indicative of its rural character. However, Section 360-1.14(p)(1) acknowledges that an area can experience background sound levels that exceed the limits set for that area's community character, in which case the solid waste management facility must not produce an Leq exceeding the background sound. In other words, the background sound does not necessarily determine the area's character.

Also, Concerned Citizens points out that large areas generally east and south of the landfill, outside the village, are zoned as "rural residential" by the Town of Thompson. [See town zoning map attached to Exhibit No. 14-P, Acentech's June 1, 2006, submittal.] This is some indication of the Town's intent for how that area should be maintained, but the better evidence of a community's character is how it actually appears upon inspection, as Department Staff argues.

The County points out that the area of greatest concern, at and near Mountain Lodge Estates, is not agricultural, and is actually within the village limits of Monticello. However, an area need not be farmed to be considered rural, and a village may include or be itself a rural area, depending on its size and concentration of development.

Because this application concerns expansion of an existing landfill, there was some discussion as to how noise from current activities should be accounted for in the noise analysis. I agree with Department Staff and Concerned Citizens that, for the purpose of gauging noise impacts, ambient sound levels beyond the property line should be considered as those that exist when the landfill is not operating. That understanding is consistent with Section 360-1.14(p)(1) which refers to the "background residual sound level" as "excluding any contributions from the solid waste management facility."

Acentech measured hourly Leq energy equivalent sound levels on May 25, 2006, with and without landfill operations, at three locations of potential impact: at the nearest residential property line along Rose Valley Road, east of proposed landfill cell 8; a residence within the western portion of Mountain Lodge Estates, east of proposed landfill cells 9 and 10; and adjacent to the senior center northeast of landfill cell 7. With the landfill operating, the 57 decibel limit was exceeded for at least one hourly period at each of the locations, though at no point was the sound measured as greater than 59 decibels. However, without landfill operations during the 6 a.m. and noon hours, background sound levels were at or below 57 decibels. Because the background residual sound level does not exceed 57 decibels, that limit applies to the proposed Phase II expansion, the County receiving no benefit from exceedances that occur during existing operations.

Questions of Fact

Apart from the legal questions addressed above, there are questions of fact that must be addressed and resolved through an adjudicatory hearing. These questions concern the noise impacts that would be related to the Phase II expansion, and, more particularly, whether operations in the expansion area would violate Section 360-1.14(p) by pushing ambient sound levels above 57 decibels in the area east of the landfill.

These questions can be adjudicated based on testimony from engineering experts hired on behalf of the County and Concerned Citizens, who have measured noise levels at and near the site, and modeled potential noise impacts. On the last day of the issues conference, September 21, 2006, these experts - Eric Wood for Acentech, on behalf of the County, and Stephen Szulecki and Eric Zwerling for the Noise Consultancy, on behalf of Concerned Citizens - were afforded an opportunity to address their competing noise analyses, thereby highlighting their areas of disagreement.

Department Staff does not have a noise expert of its own, but has concerns about noise that it says have not been completely met by the County. These concerns, set out most recently in technical comments dated October 10, 2006, include a questioning of assumptions used in Acentech's noise model. In a letter of November 2, 2006, Staff confirms that it cannot support issuance of the Part 360 permit at this time because it does not have a reasonable assurance that the County can meet the requirements of 6 NYCRR 360-1.14(p). As a result, Staff is proposing that compliance with these requirements be adjudicated as a hearing issue.

By way of background, Acentech was hired by the County in April 2006 to assess whether the Phase II landfill expansion would operate in compliance with Section 360-1.14(p), after concerns about this were raised by Department Staff. Acentech measured ambient sound in the area east of the landfill on May 25, 2006, during periods with and without landfill operations, and reported its results as part of a report it furnished on June 1, 2006 (see Table C-1 attached to Exhibit No. 14-P). Acentech also used the CadnaA sound propagation model to project noise impacts of Phase II operations, including the delivery of waste on trucks and the waste's subsequent spreading and compaction at the landfill face.

Acentech's assessment of noise impacts was not the first conducted on behalf of the County. Earlier noise assessments were prepared by EMCON as part of the 1997 Draft Environmental Impact Statement for the Phase I and II expansions (Exhibit No. 21 from the Phase I hearing; see in particular, pages 4-17 to 4-21, addressing noise impacts, and page 8-9, addressing mitigation measures) and by Malcolm Pirnie in response to Department Staff technical comments (Phase II Exhibit No. 14-C, Attachment 10, a noise assessment dated November 2005; and Exhibit No. 14-G, a comment letter dated March 10, 2006). However, to make its demonstration under Section 360-1.14(p), the County is relying solely on the analysis performed by Acentech, which also includes various submittals (Exhibits No. 14-U, 14-V and 14-W) responding to comments from Department Staff and Concerned Citizens.

According to the Draft Environmental Impact Statement, the proposed expansion was expected to slightly increase the noise during operational hours for receptors in the vicinity of the landfill. However, this increase was not considered to be a significant impact due to the pre-existing background noise of vehicles on NYS Route 17 and the amount of commercial activity in the area (DEIS, page 4-21).

As explained at the issues conference, the County intends to mitigate Phase II operational noise impacts by constructing a 16-foot-high "ply-wall" (made with treated wood) adjacent to the perimeter access road separating the road from properties to the east, and by building soil berms (consisting of waste and cover soils) at the perimeter of the working face, to buffer noise from waste spreading and compaction. (A sample soil berm is shown in Figure RTC 5, part of Exhibit No. 14-G.)

At one point the County proposed placing portable noise barriers no further than 50 feet to the north or east of the working face, to shield the face from off-site residential receptors. These barriers were to be made from acoustical noise blankets placed over mobile litter screen fences that come in 12-foot heights and have adjustable legs to fit the working face contour. Department Staff expressed concern about the stability of the barriers, particularly in heavy winds at high elevations, and how they would be anchored in the waste mass. The County responded that their legs would be filled with grout, or have additional weight - in the form of welded steel plates or old railroad beams, or pre-cast concrete blocks - attached to their feet. [See Exhibit No. 14-C, pages 3-2 and 3-3.] Ultimately, the County concluded that the barriers were not necessary to maintain compliance with Section 360-1.14(p).

Department Staff has prepared a draft Part 360 permit condition requiring the County to conduct an annual noise survey during leaf-off conditions to determine compliance with Section 360-1.14(p) after Phase II operations begin. [The initial language for the condition is reflected in Exhibit No. 13-B, and revised language adopting the County's suggestions is attached to a letter of Staff counsel Carol Krebs dated January 5, 2007.] The condition as currently drafted would require noise sampling at the landfill property line across from Mountain Lodge Estates and to the south near a transmission line right-of-way, though final locations would be determined in the field. The County said at the issues conference that if noise testing established a violation of the regulation, it could employ the portable barriers to further attenuate the noise. In the meantime, the County intends to move the barriers from the body of the application, as measures to be employed in the first instance, to the contingency plan required by 6 NYCRR 360-2.10, which is meant to provide a detailed description of action which would be taken in response to contingency events such as noise that exceeds the Part 360 standard.

According to the Department's regulations, mufflers are required on all internal combustion-powered equipment used at a solid waste management facility, and sound levels for such equipment must not exceed 80 decibels at a distance of 50 feet from the operating equipment [6 NYCRR 360-1.14(p)(4)]. The County has requested relief from this requirement for any landfill trash compactors to be used during Phase II operations, noting that its existing compactors do not meet the 80 decibels at 50 feet noise emission restriction. In a variance application dated March 10, 2006 (Exhibit No. 14-H), the County said that of the large machines it desired to use, only one, the Al-jon Advantage 600, could possibly meet that standard, that such a compactor would cost $650,000 without extended warranty and service contracts, and that it was unknown whether its existing compactors could be modified to achieve compliance.

In subsequent correspondence (Exhibits No. 14-S and 14-T) Al-Jon told the County that its compactor did not meet the standard, and that it could not provide the County with modifications that would make it feasible to do so. On behalf of the County, Malcolm Pirnie also reported that manufacturers will not provide a letter stating that their compactors can be modified to comply with Section 360-1.14(p)(4) because they are unwilling to incur the costs to engineer, redesign and test the complex cooling or hydraulic systems - the primary compactor noise sources - to meet that requirement. According to Malcolm Pirnie, there is no business need for the manufacturers to propose any changes to their equipment, especially as pre-proposal draft revisions to Part 360 have replaced the 80 decibel at 50 feet requirement with one merely requiring mufflers on all internal combustion-powered equipment used at a solid waste management facility. [See Malcolm Pirnie letter, Exhibit No. 14-Q.]

The County maintains that a variance should be granted because it can comply with Section 360-1.14(p) with the noise mitigation measures it has proposed, even if it cannot comply with Section 360-1.14(p)(4). However, whether these measures will achieve compliance with Section 360-1.14(p) is an unresolved question of fact, based on the competing assessments of Acentech and the Noise Consultancy.

The Noise Consultancy became involved in this matter early this year as a consultant to Concerned Citizens. In a letter of January 17, 2006 (Exhibit No. 11-B), Mr. Abraham offered testimony from the Noise Consultancy to prove that the Malcolm Pirnie's November 2005 noise assessment was deficient, particularly by overstating the ambient noise level at Mountain Lodge Estates. This was followed by the Noise Consultancy's own letter of February 14, 2006 (Exhibit No. 11-D), critiquing the noise assessment, which was followed by another letter on May 1, 2006 (attached to Exhibit No. 11-G), in which the Noise Consultancy contrasted the Malcolm Pirnie noise assessment with the one done as part of the 1997 Draft Environmental Impact Statement.

On June 9, 2006, the Noise Consultancy produced its own report (Exhibit No. 11-I) on ambient sound level measurements it took at Mountain Lodge Estates on May 25, 2006, the same day that Acentech was conducting measurements for the County. On June 23, 2006, the Noise Consultancy produced another report (Exhibit No. 11-J) responding to Acentech's June 1, 2006, submittal, and raising questions about Acentech's CadnaA acoustical model of sound emissions from the proposed expansion. Finally, on September 14, 2006, the Noise Consultancy produced a letter (Exhibit No.11-L) analyzing alleged deficiencies in the Acentech model, and reporting findings from an alternative model produced by the Noise Consultancy itself based on Acentech's CadnaA analysis, but with some modifications, such as treating the entire working face as one 20' x 60' area source, rather than treating each individual piece of equipment as a separate point source. According to the Noise Consultancy, its model demonstrates that the 57 dBA limit will be exceeded in several locations east of the landfill expansion under a range of equipment configurations (including one dozer, one loader, vehicles at the working face, and between one and three compactors), when the area source is in the eastern portion of cells 7, 8 and 9 of the Phase II expansion.

Since the last date of the issues conference, Acentech and the Noise Consultancy have continued to exchange correspondence challenging each other's findings. These letters include one from Acentech, dated September 26, 2006, highlighting differences in the competing analyses; one from the Noise Consultancy, dated October 6, 2006, responding to Acentech's September 26 letter; and another from Acentech, dated October 30, 2006, reporting on revised model runs, done since the issues conference, which are meant in part to show the noise mitigation achieved through the temporary use of 12-foot high portable noise barriers when the active working face is at the upper elevation of the eastern portions of cells 8 and 9 near the property line. According to Acentech, the use of these portable barriers, now proposed as a contingency measure, would bring noise levels below 57 decibels at all residential receptors in the area of concern, though, without the barriers, a minor exceedance (in the range of 57 to 58 decibels) is projected at the residential property line nearest to the landfill along the east side of Rose Valley Road.

The County maintains that Concerned Citizens was untimely in proposing the noise issue because it was not raised in its petition for party status. However, since the issues conference started, the County has redone its noise analysis twice, first through the assessment Malcolm Pirnie performed in response to Department Staff's technical comments, and again through the measurements and modeling done last year by Acentech. As the County acknowledges, Acentech's noise analysis has supplanted all earlier analyses, and if the noise issue goes to adjudication, the County will be relying solely on Acentech's work to meet its burden of proof. Acentech's analysis was not available at the time the application was noticed as complete, and therefore Concerned Citizens could not respond to it in its petition.

Applying the permit hearing procedures for late-filed petitions [6 NYCRR 624.5(c)(2)], Concerned Citizens has "good cause" for filing late on the noise issue because of the new analyses that have been furnished by the County since the filing deadline. Also, Concerned Citizens' participation on this issue will not significantly delay the proceeding or otherwise prejudice the County, since its claims have been raised during the course of the issues conference and its concerns are shared by Department Staff. Concerned Citizens has noise experts who are prepared to testify, while Staff does not, which means that Concerned Citizens' participation will materially assist in the determination of the noise issue, which would have to be litigated regardless based on Staff's own concerns whether the Phase II expansion can comply with Section 360-1.14(p), and Staff's inability, based on those concerns, to support issuance of the Part 360 permit at this time.

Applying the definitions of "substantive" and "significant" at 6 NYCRR 624.4(c)(2) and (3), the issue of compliance with Section 360-1.14(p) is "substantive" because the competing analyses of Acentech and the Noise Consultancy raise sufficient doubt about whether the 57 decibel (A) standard will be met at properties east of the landfill expansion area, such that a reasonable person would require further inquiry. Also, the issue is "significant" because it has the potential to result in permit denial, major modification to the proposed project or imposition of significant permit conditions in addition to those proposed in the draft permit. For instance, the Department could control noise at its source by restricting the level of operations - for instance, the amount of truck traffic or the extent of working face equipment activity - or regulating the rate at which waste may be received.

Although adjudication is required on the issue of off-site noise impacts, the issue is narrower in scope than that proposed by Concerned Citizens. Concerned Citizens alleges not only that there would be an exceedance of the 57 decibel limit at Mountain Lodge Estates, but that ambient sound levels there would increase by about 10 decibels from existing conditions, something that, by itself, would in most cases deserve consideration of avoidance and mitigation measures under the Department's noise policy (Exhibit No. 16, DEP-003, Assessing and Mitigating Noise Impacts, page 14.) This second issue shall not be adjudicated because the controlling regulation, 6 NYCRR 360-1.14(p), sets the limits for allowable noise from a solid waste management facility, and noise that falls below those limits may be viewed as not having a significant environmental impact under SEQRA. In fact, the Department's noise policy also states that most humans find that it requires a sound level of 60 to 70 dB(A) - beyond the 57 dB(A) threshold applicable here by regulation - to begin to create "a condition of significant noise effect" (Exhibit No. 16, page 14).

This matter is comparable to the one involving Saratoga County's landfill, another project proposed for a rural environment, where noise levels averaged about 44 or 45 dB(A) at locations away from roads, comparable to noise levels that the Noise Consultancy detected at Mountain Lodge Estates last spring, before most of the summer residents had arrived. In that case, involving a requested variance from Section 360-1.14(p), I found that the apparent intent of the regulation was to preserve noise levels at 57 dB(A) or below on the residential land, and that as long as that was accomplished, the relative increase in noise below that threshold was not the Department's concern. [Matter of Saratoga County Landfill, Hearing Report, pages 30 and 31, adopted by the Deputy Commissioner's Decision of September 3, 1996.]

In the Saratoga County matter, as in this one, the Department was an involved agency for SEQRA purposes, not the lead agency. Where another agency serves as lead agency and that lead agency has required the preparation of a Draft Environmental Impact Statement - as the County has done - 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 either (1) the Department notified the lead agency during the comment period on the Draft Environmental Impact Statement that the Draft Environmental Impact Statement was inadequate or deficient with respect to the proposed issue and the lead agency failed to adequately respond; or (2) the Department is serving as lead agency for purposes of supplementing the Final Environmental Impact Statement, in which case only issues that are the subject of the supplementation will be considered for adjudication. [See 6 NYCRR 624.4(c)(6)(ii)(b)]. Neither exception applies here, and therefore the Department is precluded as a matter of law from pursuing as a separate issue the relative increase in noise from existing ambient levels.

The need to adjudicate noise impacts is not eliminated by the permit condition requiring annual noise testing once operations commence, because, as is acknowledged in Staff's statement of position, the Department needs a reasonable assurance that the landfill expansion will comply with applicable operating standards, including those governing noise, before it is permitted. Post-construction testing can verify compliance with Section 360-1.14(p), but it does not assure compliance in the first instance. If the expansion does not comply with this section or any other operational standard, the County risks a shutdown of the landfill or, at the least, further restrictions on its operations, which, even if they were imposed only for a short period, would be disruptive to those who depend on the facility. For that reason, the County should not be allowed to proceed at its own peril, in the absence of a reliable understanding of the expansion's potential environmental impacts. On the other hand, adjudication of the noise issue could possibly support an adjustment of the noise testing condition, so that periodic offsite testing would be required only when operations are moving into areas of the expansion where they are most likely to cause a noise violation. As the County points out in a letter of January 11, 2007, noise testing is expensive, and if adjudication of the noise issue, which is based on projections by each party's experts, results in a determination that Phase II operations would not violate Section 360-1.14(p), annual noise testing to confirm that finding might not be warranted.

Adjudication of the noise issue must consider whether Acentech's noise model relies on reasonable assumptions and inputs, whether noise generators have been modeled in an appropriate manner, and whether worst-case scenarios for off-site impacts have been considered.

Key disputes involve the modeling of noise from the working face. For the County, Acentech has modeled each piece of equipment operating at the working face as a separate point source of noise, in a manner comparable to the noise modeling performed on behalf of Saratoga County in its landfill application. However, for Concerned Citizens, the Noise Consultancy says it is more reasonable to treat the working face as a 20' x 60' area noise source. The Noise Consultancy says this approximates the dimensions of an area that would be worked at any one time, but Acentech says it is unreasonably small for the number of equipment pieces involved. Acentech also contends that an area source approach is not appropriate at this site, arguing that it applies only for sources where the sound level is constant over the entire area.

Acentech claims that its calculations of Phase II operational noise were performed specifically to report one-hour energy equivalent Leq sound levels: in other words, average sound levels during one-hour periods, as contemplated by the Part 360 regulations. According to Acentech, its calculations are based on the way landfill equipment is observed to actually operate, ranging from high-load to mid-load to low-load to idle conditions over the course of an hour, rather than continuous high-load operations. Acentech claims that the Noise Consultancy has exaggerated noise impacts by employing sound inputs that represent only brief periods of high activity.

However, the Noise Consultancy claims that Acentech has underestimated noise impacts by employing a 3 decibel "max factor" intended by Acentech to express the portion of time that each item of equipment operates at high power or full load. The Noise Consultancy says that this factor was applied subjectively by Acentech to halve the sound energy from working face sound sources - including the compactor, dozer and loader - when modeling off-site noise impacts. The Noise Consultancy refers to the "max factor" as an "equipment usage factor" which suggests that a piece of equipment will be working only about half of the time, when it is apparent that there will be periods of activity when all equipment will be operating at full load for more than one hour continuously, and that this is the situation that must be modeled.

According to Acentech, both the "max factor" and the "equipment usage factor" must be recognized to properly calculate hourly energy equivalent Leq sound levels, but the Noise Consultancy fails to understand the difference between the two terms. According to Acentech, it modeled each piece of equipment as if it was operating continuously, but not always at maximum load, in a manner intended to replicate actual working face operations.

Acentech and the Noise Consultancy disagree not only about the modeling of noise from the working face, but also about the modeling of noise from haul trucks on the roads within the Phase II area. According to the Noise Consultancy, Acentech's model does not adequately account for the significance of engine noise, as compared to road noise, for trucks traveling on dirt highways at relatively low speeds. Acentech claims that it modeled truck noise using source heights commonly used in the United States, consistent with a Federal Highway Administration manual. However, the Noise Consultancy says such an approach is more appropriate for trucks on paved roadways at elevated speeds, where tire/pavement noise is a dominating factor. Department Staff agrees with the Noise Consultancy, pointing out that tire noise on dirt roads would be less than that on asphalt, and that since truck traffic will often be climbing steep slopes, engine noise could be quite high, greater than the tire noise.

Overall, the Noise Consultancy contends that Acentech's input data were chosen, in certain instances, to minimize the sound levels at receptor locations. The Noise Consultancy contends that even the modeled source elevations - - at the eastern side of the proposed Phase II landfill in cells 7, 8 and 9 - - were positioned so that the perimeter noise barrier would provide some degree of noise attenuation. The Noise Consultancy claims that by modeling the working face further to the west and therefore at higher elevations than Acentech modeled, the offsite noise impacts increase, despite the greater distance between the noise source and the receptor, due to the loss of mitigation that the noise wall provides.

Likewise, Department Staff, in its most recent comments, dated October 10, 2006, continues to have concerns about the assumptions used in Acentech's model. Staff contends that Acentech's modeled sound levels for on-site equipment are less than levels used in the Department's guidance document for assessing noise impacts, and that on-site data used by Acentech to calculate those levels may be unrepresentative, having been developed when working face equipment was not under load. Staff also contends that, in gauging truck traffic, Acentech did not account for the loud noise associated with heavy off-road trucks delivering cover soils.

Whether or not a realistic worst-case scenario for off-site noise impacts has been modeled for the Phase II expansion - when operating at the requested waste acceptance rate - is a matter of continuing dispute between the issues conference participants. Since the conference concluded, Acentech has revised and rerun the CadnaA model in an attempt to account for the criticisms of the Noise Consultancy and the concerns of Department Staff, adding 12-foot high portable noise barriers when the active working face is in the upper elevations of cells 8 and 9. [See letter of Acentech's Eric Wood, dated October 30, 3006.] According to Acentech, this new modeling shows that energy equivalent Leq sound levels for Phase II landfill operations will comply with Part 360 noise limits for residential receptors.

This additional modeling was not solicited by me, nor have Department Staff and Concerned Citizens been provided an opportunity to respond to it. Rather than re-open the issues conference record for more submittals, and given the unlikelihood that the parties can agree on a suitable model, it would be more efficient to send this matter to adjudication, so the project's ability to comply with Section 360-1.14(p) can be determined on the basis of competing expert testimony. As part of this issue, it must be determined whether the portable noise barriers, now proposed by the County as a contingency measure, are necessary in the first instance to achieve compliance.

Until these questions are answered, it cannot be determined whether a variance from Section 360-1.14(p)(4), in relation to compactor noise, can be granted. That is because, to secure the variance, the County must demonstrate that operating its trash compactors above the regulatory noise limit "will have no significant adverse impact on the public health, safety or welfare, the environment or natural resources and will be consistent with the provisions of the ECL and the performance expected from application of [Part 360]" [6 NYCRR 360-1.7(c)(2)(iii)]. If doing so would contribute to a violation of Section 360-1.14(p), the variance could be denied.

DISPUTES OVER PERMIT CONDITIONS

The County objects to two odor-related conditions of the draft Part 360 permit that Department Staff presented at the issues conference (Exhibit No. 13). Pursuant to 6 NYCRR 624.4(c)(1)(i), an issue is adjudicable if it relates to a dispute between Department Staff and an applicant over a substantial term or condition of the draft permit. Adjudication, however, does not in all cases require a fact-finding hearing. Where the dispute hinges on a legal issue and there are no disputed issues of fact, the ALJ can rule on the issue as part of the ALJ's issues rulings, after hearing arguments on the merits of the issue. [See 6 NYCRR 624.4(b)(2)(iv) and 624.4(b)(5)(iii).]

Special Permit Condition No. 6

The first of the County's objections concerns special condition No. 6 of the draft permit, as amended on July 12, 2006. That condition provides: "Before any site clearing, construction or other activities commence on any part of the Phase II landfill, the permittee shall document a six month track record of no significant odor outbreaks." Staff's basis for this condition is the history of odor problems at the landfill, which the County acknowledges generally, although the County does not admit each violation alleged by Staff in its inspection reports.

To improve the odor situation, Staff has proposed, and the County has agreed to and to some extent has already implemented, various engineering solutions that are meant to better control odor-producing gases. Although Staff is hopeful that these solutions will work, Staff's inspection reports continue to allege periodic violations of Section 360-1.14(m), which requires, as an operational requirement for solid waste management facilities, that odors "be effectively controlled so that they do not constitute nuisances or hazards to health, safety or property."

In the judgment of Department Staff, since the odor problems became an issue in the Phase I expansion hearing, conditions have improved, but the landfill has not been able to operate for six months without a significant odor outbreak, and until such a level of compliance has been achieved, Staff wants to be able to prohibit activities in the Phase II expansion, even if the permit for the expansion is granted by the Commissioner. Staff contends that its permit condition is consistent with Section 360-1.10(a), which provides in part that the Department "may issue a permit to authorize the construction of a new solid waste management facility or expansion of a facility only if the application's engineering and hydrogeological data and construction plans and specifications required by this Part . . . demonstrate an ability to operate in accordance with the requirements of the ECL and this Part." Concerned Citizens says that Staff's proposed condition is helpful in addressing its concerns about the County's fitness to operate the landfill, though Staff stresses that it is not raising fitness as an issue of its own. The County contends there is no authority for the condition under Part 360.

RULING: Special condition No. 6 shall be removed from the permit. The condition is inappropriate because it reserves to Department Staff a determination whether the Phase II expansion may proceed, a determination which now is the Commissioner's to make, Staff having referred this matter to hearing. If the condition remains, a situation could arise in which the permit is granted but the County is unable to use it because it has not built an odor compliance record that is satisfactory to Staff. It is also unclear from the permit language itself what would constitute a "significant odor outbreak." At the issues conference, Staff clarified it to mean any off site odor violation, or any odor emanating from the landfill and detected by Staff at or beyond the property boundary (Transcript, pages 447 and 448). In terms of an outbreak's significance, Staff makes no apparent distinctions based on odor strength, character, duration or area of impact. As a result, its odor control standard appears to be stricter than the one set by the Department's own regulations.

The Department's permit hearing procedures anticipate that the Commissioner will make a "final decision" on permit issuance for projects that are subject to those procedures [6 NYCRR 624.13(b)], and not remand the matter for Staff to make that decision. If, after any decision to issue a permit in this matter, a significant odor outbreak were to occur at this facility, Staff would retain the authority to initiate enforcement action which could result in a curtailment of site activities, regardless of whether this condition remains in the permit. If enforcement action were taken, the County would have an opportunity under Part 622 procedures to challenge the Department's findings. However, Staff's condition provides no avenue for the County to prove it has achieved an acceptable six month track record, should the County and Department Staff disagree on this point.

Staff has been unable to provide a legal basis for its proposed condition, nor has it shown a similar condition in any permit issued by the Commissioner. In other cases, the Commissioner has issued permits prohibiting the commencement of approved activities prior to the submittal of certain plans or other documentation. This condition is different as it requires the County to meet an operational performance standard - and hold that standard for a set period of time - before it can use the permit it has been granted.

Staff's condition is not supported by 6 NYCRR 360-1.10, despite Staff's claim to the contrary. That regulation requires that it be demonstrated through the application itself that the expansion will operate in accordance with the ECL and the Part 360 regulations. As to odor control, Staff's concern is not with the application, but with applicant's past performance of the regulated activity. Nor is Staff's concern with the expansion, but with the existing facility.

Section 360-1.10 provides a basis for adjudicating noise impacts, as the issue concerns the actual measures to be used to control noise in the Phase II expansion area. However, as noted above, Staff's concerns about odor control measures have been satisfied through the County's responses to its technical comments. If the measures do not work as anticipated, the Department has avenues to address this problem under its own regulations, making this permit condition unnecessary.

Special Permit Condition No. 11-A

The second of the County's objections concerns draft special permit condition No. 11, which requires the County to comply with and implement an odor control plan it developed as part of the Phase I expansion hearing. In particular, the County objects to a part of the condition (No. 11-A) which states that irrespective of what the odor control plan states, the Department considers a "threshold odor event" (in other words, one that would require a remedial response) to be "either a significant odor within the boundary of the facility or any landfill odor emanating from the facility found at or distant from the boundary line," and then adds that such an event "is considered a violation by the Department."

The County claims that the condition is inconsistent with 6 NYCRR 360-1.14(m), which requires that odors at solid waste management facilities be "effectively controlled so that they do not constitute nuisances or hazards to health, safety or property." Department Staff points out that the language to which the County objects is already part of special condition No. 6-1(a) of the permit authorizing the Phase I expansion, which the County accepted. The County's odor control plan defines a threshold odor event as the detection of an odor verified to be from the landfill at a street location on or beyond the perimeter of the County property, and not merely an odor detected on or around the perimeter of the landfill itself.

RULING: Special condition No. 11-A shall be removed from the permit, as it reflects an incorrect understanding of 6 NYCRR 360-1.14(m) and the Department's area of interest with regard to odor control.

The Department has no legitimate interest with regard to odors that are confined to the landfill site, only those that leave the site and enter the surrounding environment. Because of the nature of landfilling, some onsite odors are inevitable, as the County points out. While members of the public may access the site - - for instance, to drop off recyclables - - they are only briefly exposed to these odors, unlike people living nearby, who are exposed on a regular basis. Landfill workers are also regularly exposed to landfill odors, but their safety and health interests are addressed by the federal Occupational Safety and Health Act, 29 USCA 651, et seq., not by the Department's statutes and regulations.

For the Department, odors that leave the site are of legitimate concern; however, the detection of odor offsite, by itself, does not prove a violation of Section 360-1.14(m). To constitute a violation, the odor must be in the nature of a nuisance - - commonly defined as one that unreasonably interferes with the comfortable enjoyment of life or property - - or a health, safety or property hazard. In other words, to determine if a violation exists, one would want to consider the characteristics of an odor, its duration, and its impact on receptors. All odors emanating beyond the property line would not necessarily constitute a regulatory violation or require remedial action.

Because Section 360-1.14(m) itself sets a sufficiently clear odor control standard, no extra permit language in this regard is necessary. Although the Department is correct that its proposed language is no different from that in the existing permit, the language merely reflects the Department's understanding of what type of odor would be a violation and require remedial action, not an understanding that has ever been shared by the County.

ISSUES OF CONCERNED CITIZENS

In its petition for party status, Concerned Citizens adopted as its statement of issues the written comments that Mr. Abraham, Concerned Citizens' attorney, previously made in a comment letter dated May 20, 2005, which had been filed on behalf of Special Protection of the Environment of the County of Sullivan, Inc. ("SPECS"), his client in the Phase I expansion hearing. In rulings dated July 29, 2005, I denied motions by the County and Department Staff to strike the petition in its entirety, basically allowing Concerned Citizens to adopt the arguments in the comment letter as its own.

The SPECS letter makes three separate claims, each under its own bold-faced heading. The third claim - - that the landfill is a major source and the Phase II expansion is subject to New Source Review - - has been withdrawn. The first two - - that the County's pursuit of the Phase II expansion reverses an earlier decision, attributed to its solid waste management plan, to become an export community, and that the County is unfit to hold a Phase II permit because of its environmental compliance record - - remain and are addressed in these rulings.

Concerned Citizens advanced additional claims during the course of the issues conference, which the parties addressed on their merits and also in relation to their timeliness, to the extent they had not been raised in the SPECS comment letter. With the exception of noise, none of the issues proposed by Concerned Citizens warrant adjudication.

County's Fitness to Hold Department Permit

Concerned Citizens alleges that the County is unfit to hold a permit for the Phase II landfill expansion because it has failed to achieve compliance with relevant Part 360 operating standards and an October 2003 Department consent order addressing landfill odors. [See pages 5 and 6 of SPECS comment letter, attached to Concerned Citizens' petition, Exhibit No. 11.]

Concerned Citizens' offer of proof consists largely of landfill inspection reports prepared by the Department's onsite environmental monitor. Reports for the period from August 4, 2004, to April 28, 2005, were attached to Concerned Citizens' petition, and subsequent reports for the remainder of 2005 and all of 2006 have been received as Exhibit No. 20. Also as part of its offer of proof, Concerned Citizens has provided a summary of compliance problems for 2004 and the first half of 2005, as compiled from the inspection reports, as well as a summary of nuisance odor complaints for the same general period, as documented by the reports and by complaints from local residents about the effectiveness of the County's odor control hotline, which was established as a consent order requirement. (See Exhibits No. 21 and 22.)

The Department has a Record of Compliance Enforcement Guidance Memorandum ("EGM") (DEE-16, dated March 5, 1993) which establishes policy and procedures by which the agency ensures that persons who are unsuitable to carry out responsibilities under Department permits are not authorized to do so. The EGM does not establish a strict code of procedures or standards, but rather procedures and guidelines that are to be applied on a case by case basis to determine the appropriate Department position on permit applications.

As the EGM points out, the Department has the general authority to deny permits to those applicants it finds unsuitable based on factors such as past environmental compliance records. Past violations of the law related to the activity for which a permit is sought may form the basis for denying a permit application or imposing additional reporting or monitoring conditions on a permit. If the Phase II expansion permit is not denied, Concerned Citizens would like to see additional monitoring beyond that which is already provided by the Department monitor. During the issues conference Staff indicated that its monitor is at the landfill most of the day for three or four days a week. Concerned Citizens proposes that there be more continuous monitoring by the Department, with funding from the County. In the alternative, Concerned Citizens proposes that there be additional monitoring by an individual hired either by the Village of Monticello or by a committee made up of community members and other stakeholders.

As noted above, Department Staff is not proposing a fitness issue itself. Staff points out that the Part 360 compliance problems it has documented are amenable to engineering solutions or may be resolved by better attention to operational practices. Furthermore, Staff says it has no concerns about the County's honesty or trustworthiness to hold a permit.

Staff acknowledges that its inspection reports highlight a wide range of alleged Part 360 operational violations, mostly concerning odor control. However, Staff also argues that, overall, the landfill's environmental compliance record has improved during the time the issues conference has gone forward. Staff has chosen not to initiate enforcement action for any of the violations noted in the last several years' worth of inspection reports, opting instead to encourage engineering improvements, particularly for odor and gas control, through the discussions it has had with County officials concerning the Phase I and II expansion applications. Staff argues that gas collection improvements, coupled with flare repairs and accelerated capping of the existing landfill, should help control odors, as should the recent installation of carbon filters at the leachate storage tanks. Staff points out that closer attention to landfill management - - such as assuring sufficient cover, to keep gases in the landfill and routed to the collection system, and controlling leachate seeps - - also can help prevent odor breakouts.

The County submits that it is fit to hold a permit. The County adds that, in the absence of enforcement action, the Department's findings of Part 360 operational violations remain unproven, and that it would want the opportunity to challenge those findings in this permit hearing if fitness becomes an issue for adjudication.

RULING: The County's fitness to hold a permit for the landfill expansion shall not be adjudicated as a hearing issue, though Department Staff's monitoring of the facility should continue at existing levels and future inspection reports alleging Part 360 violations, particularly with regard to odor control, should be considered as a basis for enforcement action.

There is no question that the environmental compliance history of a permit applicant is a relevant consideration regarding qualification for permitting, whether the permit applicant is a private or public entity. Also, it is undisputed that a fitness issue may be raised by a prospective intervenor, not merely by the Department. That being said, there is no rigid formula by which fitness is determined; instead, it is a matter as to which the Department has considerable administrative discretion.

In this case, it is clear that the County has experienced difficulties in bringing its landfill into compliance with certain Part 360 standards, particularly with regard to odor control but also, as Concerned Citizens points out, with regard to gas, leachate and litter control, and the maintenance of cover. Some of these problems are in the nature of housekeeping violations, and can be addressed by closer oversight as day-to-day operations proceed. Other problems, particularly those involving odors, also require engineering solutions, such as capping of closed landfill cells and improved mechanisms to capture and control gas and to prevent flare outages. These latter problems would not be solved by prohibiting the landfill's expansion, because they result from decomposition of the existing waste mass.

Since the opening of the issues conference, the County, through efforts to address Staff's technical comments, has been able to address most of the structural problems that contributed to the violations documented in prior inspection reports. Litigating these violations now would serve no useful purpose, and say little about the County's fitness to hold a Department permit.

The housekeeping issues that recur in the inspection reports must be addressed through improved landfill management, and, to the extent that does not assure compliance, through a renewed enforcement response by the Department. These housekeeping issues are not of sufficient magnitude to warrant denial of the expansion permit, but future violations would warrant the assessment of monetary penalties as an inducement for heightened oversight and corrective action by the County.

While such an approach has not been used against Sullivan County since 2003, I take official notice that it was used more recently against the City of Albany, which operates its own permitted landfill. In a May 2005 consent order, the City was fined for alleged violations involving odor, litter, inadequate daily cover, and inadequate control of waste and leachate. In an August 2006 consent order, the City was fined again for odor and litter violations. Notably, the types of violations the Department identified at the City of Albany landfill are, in large part, the same as those the Department has identified at the Sullivan County landfill.

Concerned Citizens has sought to portray the County as dishonest and untrustworthy in its dealings with the Department and with those who live closest to the landfill and are subject to its odors. There is sharp disagreement between the County and Concerned Citizens as to whether the County's odor control hotline is working, with Concerned Citizens asserting that there is no consistent and timely response to neighbors' complaints. On the other hand, the County has logs of both complaints it has received and investigations it has done, which are available both to the Department and the community. Whether the County has been adequately responsive cannot be determined from the issues conference record, but again, to the extent Department Staff contends it has not, that too is a suitable basis for enforcement action, as the hotline's establishment and maintenance are required as part of a compliance schedule attached to the 2003 consent order.

Concerned Citizens also claims that the County has misrepresented facts in its application and at the issues conference; however, I find no intent to deceive, and, among the parties, only honest disagreements about the application's compliance with permitting standards. At one point, Concerned Citizens challenged the County's fitness based on a criminal prosecution involving former officials in its Department of Public Works. However, as the County pointed out and Concerned Citizens ultimately conceded, that prosecution was unrelated to the landfill's management.

Despite the Part 360 compliance problems identified in the Department's inspection reports, there is insufficient basis to adjudicate fitness as a hearing issue, in light of the County's corrective action and the overall improvement in site conditions detected by Staff over the last several years. On the other hand, should these problems continue, there is sufficient basis for enforcement action under Part 622. Enforcement action could induce remedial action beyond what the County has committed to as part of this hearing process, and would provide the County an opportunity to contest the Department's factual findings as well as the Department's application of the Part 360 regulations.

The Part 360 compliance problems identified in the Department's inspection reports, even if they were demonstrated at hearing, are not so great that they would warrant permit denial. As is generally agreed, the most important of these problems is landfill odors, which makes this matter comparable to the hearing many years ago for the proposed expansion of the Al Turi landfill in Goshen, Orange County. In that matter, in which fitness was an adjudicated issue, I also found that despite the problem odors created for people living near or driving past the landfill, they did not warrant denial of the expansion permit, noting that a recurrence of nuisance odors might adequately be addressed by improved control mechanisms and Department enforcement action that provides a compliance incentive. [See Matter of Al Turi Landfill, ALJ's Hearing Report, February 11, 1999, pages 49 and 52, attached to the Decision of the Commissioner, April 15, 1999.] In Al Turi, I recommended that the expansion permit be denied, and the Commissioner adopted my recommendation. However, that was due to the extensive criminal history of the corporation that operated the landfill, its three principals and their affiliates. Notably, that history involved felony convictions for activities, including tax fraud, that the Commissioner found to involve deceit and untruthfulness, which called the operator's trustworthiness into serious question.

The Part 360 compliance problems identified in the Department's inspection reports also do not warrant the imposition of permit conditions beyond those proposed by Staff and accepted by the County. The draft Part 360 permit already requires as a special condition (No. 48) that the County continue to fund the Department's environmental monitoring services, with annual payments that are subject to revision based on a number of factors including "an increase or decrease in the amount of monitoring necessary." This allows the Department to adjust its monitoring as site conditions warrant. Concerned Citizens would like to see additional monitoring that is controlled by the Village of Monticello or by local citizen stakeholders. However, the Department has no authority to require monitoring by a third party not responsible to it, or to require the County to pay for such monitoring.

Because Concerned Citizens did not show that adjudication of the landfill's compliance history would have the potential to result in the imposition of significant permit conditions in addition to those in the draft Part 360 permit, it failed to demonstrate that fitness is a "significant" issue warranting adjudication consistent with 6 NYCRR 624.4(c)(3).

Hydrogen Sulfide Odors

Concerned Citizens contends that the combined releases of hydrogen sulfide from all sources at the landfill, including the proposed Phase II expansion, will create an odor nuisance in violation of 6 NYCRR 360-1.14(m), which requires that odors at solid waste management facilities be controlled so they do not constitute a nuisance or hazard to health, safety or property.

This issue was not raised in Concerned Citizens' petition, but was proposed for the first time in letters from Mr. Abraham, Concerned Citizens' counsel, and Alan Shimada, Concerned Citizens' air expert, in July 2005. In my rulings dated July 29, 2005, I precluded consideration of this and other air issues proposed contemporaneously by Concerned Citizens, because Concerned Citizens had not shown "good cause" for raising them after the petition deadline. [See 6 NYCRR 624.5(c)(2)(i), addressing "good cause for late filing" as one of several requirements that late-filed petitions must demonstrate in order for them to receive any consideration.] While I did not allow Concerned Citizens to add the hydrogen sulfide issue as one of its own, saying this would be unfair to the County and Department Staff, I encouraged Staff to evaluate the issue on its merits and, if it found legitimate concerns had been raised, to pursue it itself.

In a letter dated March 24, 2006 (Exhibit No. 11-F), Mr. Abraham reasserted the issue on behalf of Concerned Citizens, writing that "hydrogen sulfide emissions from Phase II can be expected to exceed applicable odor thresholds." Again Mr. Shimada was named as Concerned Citizens' supporting expert, and reference was made to a comment letter dated January 13, 2006, that Mr. Shimada had submitted in relation to the five-year renewal of the landfill's Title V air permit, which addresses the collection and treatment of landfill gases. In that letter (Exhibit No. 11-C), Mr. Shimada wrote that emissions modeling for the Phase I landfill expansion suggested that "hydrogen sulfide emissions would exceed the odor threshold," in violation of a condition in the draft permit renewal prohibiting emissions of air contaminants in quantities that would cause air pollution. Mr. Shimada also wrote that to the extent the facility continued to have odor issues, albeit at a reduced frequency in light of changes the County had implemented to improve gas capture and control, it would continue to have violations not only of Section 360-1.14(m) of the Department's regulations, but also of nuisance-related standards in Sections 211.2 (prohibiting air pollution generally) and 257-1.4(b) (in relation to the maintenance of air quality standards).

On April 26, 2006, SCS Engineers, on behalf of the County, submitted a response to Mr. Shimada's January 13 letter (see Exhibit No. 14-N), and on May 15, 2006, Mr. Shimada replied to that response. (Mr. Shimada's letter is attached to Exhibit No. 11-H, a May 18, 2006, letter of Mr. Abraham.) On May 31, 2006, Department Staff counsel Carol Krebs provided a letter stating that Mr. Shimada's comments were being addressed in the Title V permit renewal process, and that Department Staff did not agree with Mr. Shimada's position.

The Title V permit renewal was not referred to this office and has proceeded separate from this hearing. Nonetheless, in a memorandum dated June 13, 2006, I said that Department Staff's response to Mr. Shimada's comments should be copied to me and the issues conference participants, as Concerned Citizens was seeking to raise those comments in this hearing as well. The Department subsequently sent me a copy of the landfill's renewed Title V permit, effective May 31, 2006, which reauthorizes existing operations, including the previously permitted Phase I expansion. (The Phase II expansion will require a modification of the Title V permit.)

The new Title V permit (Exhibit No. 28) includes a response to Mr. Shimada, noting that Staff reviewed his modeling and analysis before determining that it lacked sufficient detail to support his conclusions. In the responsiveness summary that is part of the permit, Staff wrote that to the extent it could not interpret the rationale and methodology used to support Mr. Shimada's conclusions and opinions, no further response or request to supplement the County's Title V permit renewal application was warranted.

More recently, the County and Concerned Citizens have continued to exchange correspondence on this issue. SCS Engineers provided a letter dated June 20, 2006 (Exhibit No. 14-R) stating that it does not believe that the Phase II expansion will create a hydrogen sulfide nuisance, and that reductions in such emissions can be expected over time. Mr. Abraham responded to this letter on July 10, 2006 (see Exhibit No. 11-K).

RULING: No issue exists for adjudication. Again, Concerned Citizens has not shown good cause for raising this issue in an untimely manner. Also, as a practical matter, its claims have been addressed in the Department's separate proceeding for renewal of the Title V air permit, in which Mr. Shimada's claims have been reviewed and rejected by Department Staff.

As noted above, Concerned Citizens was expressly precluded from raising this same issue - that the proposed Phase II expansion would create a hydrogen sulfide nuisance - in rulings I issued on July 29, 2005. No basis exists for reviving the issue now. Department Staff has been concerned about the ability of the expansion to comply with Section 360-1.14(m). However, that concern has been directed not at emissions from the waste mass - Mr. Shimada's concern - but at emissions from the landfill's leachate treatment and storage facility. On October 28, 2005, the County reported on testing it had recently done showing that odors from the storage tanks - including hydrogen sulfide odors - were quite minor and that their impact on site surroundings was negligible. Despite these results, the Department recommended, and the County has since installed, carbon filters on the vents of the two primary leachate storage tanks.

Department Staff's concern about odors from the leachate treatment and storage facility has not reopened the issue of odors generally - and hydrogen sulfide odors in particular - for new offers of proof, despite Concerned Citizens' arguments to the contrary. Nor has the issue been reopened by the County's submittal of a variance request, contrary to arguments advanced in Mr. Abraham's March 14, 2006 letter (Exhibit No. 11-F, page 2). That is because the variance request - in relation to allowable sound levels for compactors - concerns noise impacts, not odor impacts.

As noted in my July 29, 2005, rulings, the hydrogen sulfide issue was not raised in the SPECS comment letter that, as part of Concerned Citizens' petition, became its statement of issues. Odors were raised in the comment letter only in relation to a fitness claim, to demonstrate a pattern of noncompliance with the Department's regulations. Air emissions were discussed in the letter only in relation to claims, now withdrawn by Concerned Citizens, that the landfill is a major source of volatile organic compounds and that the Phase II expansion is subject to New Source Review. In short, hydrogen sulfide was not addressed explicitly in the petition, and Mr. Shimada's arguments about hydrogen sulfide cannot be inferred from the petition's contents.

Because the hydrogen sulfide issue was not timely raised in this hearing, it can be excluded on that basis. Also, it may be excluded on the basis of changes in the landfill's operation that came about during the Phase I expansion proceeding. More specifically, in June 2004, the County stopped receiving construction and demolition debris fines as alternative daily cover, specifically to remove the main source of hydrogen sulfide odors, which is gypsum (calcium sulfate) wallboard. [See ALJ's Supplemental Issues Ruling for the Phase I landfill expansion, December 15, 2004, page 2.] As the County's air expert, Peter Kuniholm of SCS Engineers, explained at the issues conference, odors from these fines were much greater than those associated with construction and demolition debris received as solid waste, because the fines had a very small particle size and, when used as cover material, were highly reactive when exposed to rainwater.

SCS Engineers has tracked hydrogen sulfide concentrations at several Northeast landfills since 2000, particularly as they relate to sites that had accepted construction and demolition debris fines containing gypsum wallboard material. After recommending that other landfills cease accepting this material, SCS Engineers observed that, based on site data collected, the average reduction in hydrogen sulfide concentrations in landfill gas was approximately 25 percent per year. At the Sullivan County landfill site, SCS Engineers reported, reductions in hydrogen sulfide concentrations have been even greater. [See SCS Engineers letter of June 20, 2006, Exhibit No. 14-R, page 2.]

As part of its odor control plan developed in the Phase I hearing, the County committed to cease receiving any further high-sulfate alternative daily cover, and to find substitutes for that material. [ALJ's Supplemental Issues Ruling, December 15, 2004, page 6.] Any non-soil materials the County could propose in the future as alternative daily cover would have to be approved by the Department, upon a demonstration that such materials will adequately control odors and not present a threat to human health and the environment [6 NYCRR 360-2.17(c)].

The County's elimination of high-sulfate cover - and the Department's regulatory control over substitute material - sufficiently addresses concerns about hydrogen sulfide odors from the Phase II waste mass. Also, odors are addressed explicitly in special condition No. 11 of Staff's draft Part 360 permit, which requires the County to comply with and implement the requirements of its various odor control plans as well as the terms of the 2003 consent order addressing violation of various requirements including 6 NYCRR 360-1.14(m). Concerned Citizens failed to raise an adjudicable issue about the adequacy of these measures such that a reasonable person would inquire further.

Waste Exportation Alternative

According to Concerned Citizens, the County's decision to embark on the Phase II landfill expansion project reverses without explanation an earlier decision, alleged to have been made in its Department-approved SWMP, to become an "export community." (See pages 2 - 4 of SPECS comment letter, attached to Concerned Citizens petition, Exhibit No. 11.) The County claims that it never made a commitment to become an export community, that landfilling has been and remains part of its SWMP, and that the landfill expansion is therefore consistent with it. Department Staff agrees with the County. I have reviewed and take official notice of the County's SWMP.

RULING : No issue exists for adjudication. As confirmed in ECL 27-0106(2), the state's solid waste management policy is that a state-local partnership be forged "in which the basic responsibility for the planning and operation of solid waste management facilities remains with local governments and the state provides necessary guidance and assistance." The policy is carried out by localities forming their own planning units and developing SWMPs that are then reviewed and approved by the Department. [See ECL 27-0107.]

In this case, the County, as the designated planning unit, had its SWMP approved by the Department on March 31, 1993. Landfilling was part of the SWMP, the Phase I (Cell 6) landfill expansion was consistent with the SWMP, and, for that reason, the SWMP did not require revisiting as part of the Phase I permitting hearing, as noted on page 19 of my rulings on issues and party status, dated July 20, 2004.

The County has been landfilling at this same site since 1982. From 1982 to 1994, the County operated a former landfill there that is now fully capped. The first phased expansion of the landfill (of which the final phase, Cell 6, was the subject of my prior hearing) was initially permitted in 1994. Cell 6 added 3.4 acres to the 42-acre Phase I footprint made from Cells 1 to 5.

The County's SWMP approved in 1993 contemplated the phased expansion of its landfill on approximately 40 acres (see Exhibit No. 25, which is plan page 6-28), but not the Phase II expansion that is the subject of this hearing. The SWMP's executive summary said that the County would continue to reevaluate its position of reliance on landfilling throughout the 20-year planning period. [See Executive Summary, ES-18.] However, the County has never abandoned landfilling as its plan for residual waste that cannot be recycled or otherwise recovered.

The County's SWMP included a discussion of material recovery projections and a figure (a copy of which was received as Exhibit No. 17) illustrating how the County would achieve increasing waste recovery rates on a year by year basis from 1990 through 2000, from 3 percent in 1990 to 68 percent from 1999 forward to 2015. In a "compliance report update" for the 2001-2003 reporting period (Exhibit No. 18), the County admitted that this goal had not been met, noting that as a community with a disposal facility that, at the time, imported waste from within the mid-Hudson region, economic emphasis had shifted somewhat away from waste reduction and recycling. The County contrasted its situation to other communities which export waste and have a greater economic incentive to reduce waste generation and subsequent transport and disposal costs. (See Exhibit No. 18, Section 1.A.2.)

Due to obstacles that the County said prevented it from meeting the 68 percent goal, the compliance report update, submitted to the Department on March 24, 2003, indicated that the County had decided to embark on a new solid waste management program, at the conclusion of which the County landfill was expected to achieve maximum capacity. Furthermore, the report update said: "Prior to the County becoming an export community, the decision to construct a waste recovery/recycling infrastructure or export certain recyclables to the private sector, as other communities have, will be made" (Exhibit No. 18, Section 1.A.3.). Finally, the report update said that landfilling would continue as per the original schedule in the SWMP, with closure in 2009 (Exhibit No. 18, Section 1.B.) (The compliance report update was submitted in 2003, not 1993, as erroneously stated in Concerned Citizens' petition.)

According to Concerned Citizens, the landfill expansion currently proposed by the County reverses the County's "decision" to become an export community. That is not the case. The County has never decided to become a waste exporter; in fact, its decision has been to expand the landfill beyond what was contemplated in its 1993 SWMP. The language in the compliance report update does not reflect a commitment to export waste, only an entertainment of that possibility in the event no further expansion of its landfill was permitted. On March 24, 2003, when the compliance report update was submitted to the Department, the County was pursuing permits to expand its landfill, but faced the possibility that no further expansions would be allowed.

Concerned Citizens also argues that the proposed Phase II landfill expansion represents "a significant change in the method of managing all or any significant portion of the solid waste generated within the planning unit," and therefore requires a modification of the SWMP pursuant to 6 NYCRR 360-15.11. I disagree. The expansion actually represents a continuation of the method the County has chosen to manage its residual waste; therefore the SWMP need not be modified to reference the expansion.

Addressing the relationship between local SWMPs and landfill siting, Department Technical Administrative Guidance Memorandum (TAGM) SW-96-08, effective May 3, 2001, states:

"In accordance with 6 NYCRR 360-2.12(b)(1), inclusion in an approved solid waste management plan is required for both municipal and private sector applicants if the proposed site of the landfill or landfill expansion does not exhibit all of the characteristics required by 6 NYCRR 360-2.12(a)(1). The proposed landfill or expansion must be specifically identified in the plan as a component of the integrated solid waste management system for the planning units in which the facility is located." [TAGM SW-96-08, Exhibit No. 24, page 4 of 6.]

The Phase II expansion of the County's landfill is not identified or included in its SWMP, as discussed above. On the other hand, the expansion site exhibits all of the characteristics set out in Section 360-2.12(a)(1), so that is not a barrier to permitting. At the outset of the issues conference, given certain of Staff's technical comments, there was some question whether all of the characteristics were exhibited. More particularly, there was some question whether the expansion would be in an area in which environmental monitoring and site remediation could not be conducted [see Section 360-2.12(a)(1)(ii), with reference to Section 360-2.12(c)(5)], whether the expansion would present a hazard to aircraft safety [see Section 360-2.12(a)(1)(ii), with reference to Section 360-2.12(c)(3)], whether the expansion would affect endangered species [see Section 360-2.12(a)(1)(i), with reference to 360-1.7(a)(2)(iii)], and whether soils underlying the expansion area are sufficiently impermeable [see Section 360-2.12(a)(1)(vi)]. All of these questions have since been answered in the County's favor, as noted above in this ruling's discussion of siting restrictions.

Recycling

According to Concerned Citizens, the County is not doing recycling in a meaningful way, when so much more can be accomplished. If the Phase II landfill expansion is approved, Concerned Citizens argues that it will create an economic disincentive for waste diversion.

RULING: No issue exists for adjudication.

As noted above, Department Staff too was critical of the County's recycling efforts when the issues conference began, and used the conference to secure commitments to improvements. The County acknowledged that improvements were needed, and, in response to Staff's technical comments, produced an overdue SWMP compliance report update for the 2003-2004 period (Exhibit No. 14-B), another submittal on recycling (Exhibit No. 14-J), and revised recycling reports for the years 2003, 2004 and 2005 (Exhibit No. 14-M). The County questioned whether recycling was a relevant issue in this hearing. However, despite this reservation, it has accepted a proposed Part 360 permit condition (Exhibit No. 13-A) requiring the County to implement promised improvements to its recycling program, and to make those improvements part of its SWMP by means of a formal plan modification, to be accomplished by County resolution no later than 90 days after permit issuance.

These improvements include various initiatives outlined in Exhibit No. 14-J, including, for the year 2006, expansion of a textile recovery program, implementation of an electronic scrap recycling program, and a pilot yard waste composting program. A pilot wood recovery program to augment the yard waste composting operation is expected in 2007, as is the lease or purchase of a glass crusher/pulverizer to process glass bottles generated in the County's recycling program.

In a submittal dated May 18, 2006 (Exhibit No. 11-H, page 5), Concerned Citizens claims that the Phase II expansion is an obstacle to achieving a meaningful recycling rate because the application requests approval to dispose 200,000 tons of solid waste annually, while the County generates no more than 80,000 tons annually, and would generate even less if the County finally achieves its goal of a 68 percent waste recovery rate. This goal remains part of the County's solid waste management plan, but so does landfilling as the County's plan for management of its residual waste, as Department Staff points out in a letter dated May 31, 2006. As Staff points out, because landfilling remains part of the County's approved plan, it may continue so long as applicable requirements are met. The County is not obliged to operate the landfill at its permitted capacity, nor is it prohibited from importing waste to landfill, as it has done in the past.

Concerned Citizens argues that the Phase II expansion is oversized, which will impede efforts to encourage waste reduction and recycling. The potential for conflict between an oversized facility and waste reduction and recycling efforts has been reviewed in Department proceedings involving solid waste incinerators, because such facilities are sized thermodynamically. [See Matter of Ogden Martin Systems of Onondaga, Inc. and the Onondaga County Resource Recovery Agency, Commissioner's Interim Decision, May 4, 1992, at pages 4 - 7.] However, such a consideration does not exist for landfills, where waste is buried instead of burned.

Finally, Concerned Citizens says a report the County itself commissioned on landfill expansion and technology options (Exhibit No. 19) found that other communities have adopted a goal of 100 percent waste diversion, and that, for Sullivan County too, "zero waste is an appropriate long term development objective." What Concerned Citizens omits is that the report, prepared in 2004 by R.S. Lynch and Company, states that zero waste is an appropriate objective only "as new technologies emerge and are successfully implemented on a commercial scale and non-traditional recycling markets are developed, such as the numerous nascent technologies and markets currently being evaluated for the recycling of post-consumer glass." (Exhibit No. 19, page 18.)

Community Character

According to Concerned Citizens, potential impacts on community character should be considered as an issue in light of Monticello's enactment of a law prohibiting landfill expansions in the village. A copy of the law (Local Law No. 7 of 2005) is attached to a letter of Mr. Abraham dated March 24, 2006 (Exhibit No. 11-F), in which the proposed issue is explained.

By its terms, the Monticello law says that no solid waste management facility shall be constructed, expanded or allowed to commence operation within the village, while adding that any bona-fide solid waste management facility previously in existence on the law's effective date shall remain exempt under the current terms and conditions of its operating permit. In enacting the law, the village board of trustees explicitly found that the "existing community character" of the village will be "adversely and unalterably impacted" by expansion of existing solid waste management facilities or location and operation of new solid waste management facilities within the village.

According to Concerned Citizens, the County's application does not adequately examine the potential impacts of the Phase II expansion on community character in the vicinity of the landfill, including impacts on the community at Mountain Lodge Estates. Concerned Citizens claims that clean air and quiet are integral to Mountain Lodge Estates' character, and that increased noise and odor would disturb existing religious practices at Mountain Lodge Estates, many of which are held outdoors or (like the ritual bath) very close to Rose Valley Road. Impacts on community character are proposed as an environmental impact issue under SEQRA, given SEQRA's definition of "environment" as including "existing community or neighborhood character" [ECL 8-0105(6) and 6 NYCRR 617.2(l)]. Concerned Citizens' proposed witness on this issue is Phil Brown, a Brown University sociology professor and director of the Catskills Institute, an educational and research organization focusing on the significance of the Catskills in American Jewish life. (Prof. Brown's preliminary report on potential effects of the landfill expansion on Mountain Lodge Estates is part of Exhibit No. 11-G.)

Concerned Citizens proposed community character impacts as an issue for the first time at the March 14, 2006, session of the issues conference. Concerned Citizens said it had good cause for raising the issue then, after the deadline for filing petitions, because of the enactment of the village law after petitions were due.

RULING: Community character impacts shall not be adjudicated as a separate issue under SEQRA.

According to 6 NYCRR 624.4(c)(6)(ii)(b), where another agency serves as lead agency, and that lead agency has required the preparation of a draft environmental impact statement, 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:

  1. the Department notified the lead agency during the comment period on the draft environmental impact statement that the draft environmental impact statement was inadequate or deficient with respect to the proposed issue and the lead agency failed to adequately respond; or
  2. the Department is serving as lead agency for purposes of supplementing the final environmental impact statement, in which case only issues that are the subject of the supplementation will be considered for adjudication.

As Department Staff points out, neither of these two exceptions apply. Department Staff did not notify the County during the comment period that the Draft Environmental Impact Statement was inadequate with respect to its discussion of community character. Nor is there any indication that residents of Mountain Lodge Estates - - who comprise the membership of Concerned Citizens - - raised community character or any other issue at the time the County's SEQRA review was conducted in the late 1990's.

Furthermore, the County has never relinquished its status as lead agency for the SEQRA review of the landfill expansion, and the Department's permit hearing is not being held to supplement the Final Environmental Impact Statement.

Under these circumstances, inclusion of the community character issue is precluded as a matter of law by 6 NYCRR 624.4(c)(6)(ii)(b).

Even if this were not the case, the passage of the village law does not justify the failure to raise the issue in Concerned Citizens' petition. The law addresses the impacts of landfilling on the village's community character; however, Concerned Citizens' offer of proof is tailored to impacts on the character of Mountain Lodge Estates as its own community within the village. Whatever the character of the community surrounding the landfill, that character is not changed by the passage of the village law, so there is no reason community character impacts could not have been raised in a timely manner, by Concerned Citizens or by the Village for that matter, if it had sought to intervene in this proceeding.

As a separate matter, the County contends that the village law will have no impact on its ability to construct and operate the Phase II expansion. All the issues conference participants (including Concerned Citizens) agree that the validity of the village law is not an issue for the Department to decide, that the County will have to comply with whatever local laws are applicable, and that the applicability of the village law will have to be decided in state court, should the village seek to enforce it.

In a letter of May 18, 2006 (Exhibit No. 11-H) Mr. Abraham argues that the County's application for a variance in relation to compactor noise and its anticipated modification of its local SWMP provide avenues for considering environmental, health, safety and welfare impacts, including impacts on community character. This is partially true. In fact, the variance request will be considered against Part 360 requirements, which demand a demonstration that "the proposed activity will have no significant adverse impact on the public health, safety or welfare, the environment or natural resources" [6 NYCRR 360-1.7(c)(2)(iii)]. However, there is no connection between the modification of the County's SWMP, as intended to increase recycling, and the landfill's impact on community character.

Application Updating and Repackaging

Concerned Citizens argued that the Phase II expansion application should have been updated and repackaged prior to the close of the issues conference record, to account for supplemental material that was received during the course of the conference. Concerned Citizens also maintained that the application, as revised, should then have been noticed to the public and opened to another round of comment.

RULING: Updating and repackaging of the application, public notice of the revised application, and another round of public comment are not necessary at this time. No additional notice or public comment is required, because the project and the permits requested by the County remain as announced in the initial notice announcing the hearing to the public. As supplemental material has been added to the application - in effect updating and amending it - there has been an opportunity to propose issues with regard to the new information. Under these circumstances, requiring that the application be repackaged and reformatted now when it is unclear whether or in what form the application will be approved - and when it is already sufficiently clear what the application consists of - would not be an efficient use of time. Should the application be approved, whatever updating and repackaging is necessary shall be performed under the direction of Department Staff, to assure there is a complete and current set of application documents that can be referenced in any permits that ultimately are issued, and accessed by the Department and the public to assure that the project goes forward in strict conformance with approved plans.

ISSUES OF TOWN OF THOMPSON

The Town's issues are addressed below in the order in which they were proposed in the Town's petition. None of these issues require adjudication or the provision of additional information.

Adequacy of the Gas Management System

The Town contends that the gas management system for the landfill has malfunctioned a number of times and cannot be relied on to properly limit emissions, as evidenced by the Department's own findings that the landfill has violated 6 NYCRR 360-2.17(f), which requires that decomposition gases generated within a landfill be controlled to avoid hazards to health, safety, or property. (Petition, Exhibit No. 10, pages 4 and 5.)

RULING: No issue exists for adjudication.

Department Staff entered the issues conference with the same concern as the Town. Staff sought improvements in the landfill's gas collection and control infrastructure, concerned that, without such improvements, the landfill would find it difficult to achieve compliance with Section 360-2.17(f). The County responded with plans for an expansion of the existing landfill's gas collection system (see Exhibit No. 14-L), an engineering report for the landfill's capping, and repairs to a flare unit whose malfunction had caused the release of gas to the surrounding environment. As Staff argues, these steps should improve gas management and help bring the landfill into compliance with relevant operational requirements. The Town made no contrary offer of proof.

New Source Review Applicability

The Town contends that the County's air emissions analysis, used to conclude that New Source Review does not apply to the Phase II landfill expansion, did not use available data and instead relied on inappropriate default values that deflated projected emissions. More particularly, the Town says the County underestimated the waste's methane generation capacity, did not factor alternative daily cover into its calculations, and underestimated the volatile organic compound ("VOC") content of the uncollected non-methane organic compounds. (Town petition, pages 5 and 6.)

RULING: No issue exists to adjudicate.

Although the Town contends that the Phase II expansion should be subject to New Source Review requirements, it offers no analysis demonstrating the applicability of this program, only alleged defects in the County's analysis, all of which were addressed by the County and Department Staff at the issues conference. Concerned Citizens initially maintained that the Phase II expansion would trigger New Source Review because of a projected increase in VOC emissions associated with the Phase II expansion. However, based on further review by Alan Shimada, Concerned Citizens' air expert, Concerned Citizens withdrew that claim, conceding that emissions of criteria pollutants would fall below major source thresholds. [See letter of Mr. Shimada, dated July 14, 2005, attached to a letter of Mr. Abraham, dated July 15, 2005.]

The withdrawal of the New Source Review issue by Concerned Citizens left the Town as the issue's sole proponent. The Town's offer has essentially three different components, as discussed below.

(1) The Town contends that in its LandGEM run, the County erroneously applied a potential methane generation capacity (or Lo) value for arid climates of 100 m3/Mg, rather than EPA's AP-42 default value of 170 m3/Mg, and that, had the proper value been used, the potential methane emissions would have been up to 70 percent greater. However, as Staff's air expert, Thomas Miller, points out, AP-42 states that a Lo value of 100 m3/Mg is appropriate for most landfills (Exhibit No. 26, AP-42, 11/98, at page 2.4-4), the 170 m3/Mg value is a Clean Air Act default value (Transcript, page 506), and the County actually used a value of 90.52 m3/Mg based on site-specific information (Transcript, page 501).

Peter Kuniholm, the County's air expert, also points out that his company, SCS Engineers, derived a methane generation constant (or k) value of 0.13 based on data from comparable landfill sites. That value is considerably higher than the recommended AP-42 defaults that include a k value of 0.04 for areas receiving 25 or more inches of rain per year, and 0.02 for areas receiving less than that. (See Exhibit No. 26, page 2.4-4.).

As Mr. Miller explained, the higher value the County used for k would offset the impact of its Lo value, so that, overall, emissions are, if anything, overestimated by the County's analysis, not underestimated as the Town alleges.

(2) The Town contends that the County failed to factor alternative daily cover into its emissions analysis, despite its potential to contribute to emissions. The County provided a landfill gas generation summary (Table A-0) as part of its application, dated June 21, 2004, to modify the landfill's Title V permit. (The Title V application is part of the Volume III binder of Phase II application documents. See Exhibit 14 for the complete list of documents.) That summary accounts for construction and demolition debris fines that were received as alternative daily cover up until June 2004, and assumes, going forward, a waste acceptance rate of 200,000 tons per year, the current permit limit which the County seeks to retain.

Staff's recent Title V permit renewal requires that alternative daily cover be factored into the 200,000 ton per year limit, by considering waste to be both (1) actual municipal solid waste weighed and (2) a municipal solid waste equivalent that accounts for alternative daily cover. According to the permit renewal, the County must submit alternative daily cover material information documenting its municipal solid waste equivalent, and that equivalent must be included in the annual tonnage limitation for the landfill. Finally, should the County and the Department disagree on the equivalency, the County must defer to the Department's percentage or the entire tonnage of any organic alternative daily cover material will be considered to be municipal solid waste for purposes of annual tonnage limitations.

The foregoing paraphrases part of Condition 24 of the Title V permit renewal, forwarded under a cover letter of Department attorney Carol Krebs, dated November 2, 2006. That language is intended to carry over to the permit modification that covers the Phase II expansion, as confirmed in a letter from Ms. Krebs dated January 5, 2007.

Staff's permit condition reflects an appreciation that, like municipal solid waste, alternative daily cover that is subject to degradation can produce gas as it decomposes, and therefore contribute to landfill emissions. The factoring of alternative daily cover into the 200,000 ton per year limit, for purposes of emissions estimation, means that the landfill gas generation summary provided in 2004 does not need to be revised.

(3) The Town contends that the County inappropriately assumed that VOCs were only 39 percent by weight of the uncollected non-methane organic compounds (NMOCs), thereby significantly reducing the projected uncollected landfill gas emissions. According to the Town, when calculating such emissions, the VOC content of the uncollected gas should be estimated as 85 percent by weight of the NMOC content where the NMOC content is 2420 parts per million by volume ("ppmv") of the gas generated by the entire landfill.

As discussed in my Phase I rulings, the 2420 ppmv value recommended by the Town is appropriate for a "co-disposal" landfill (a landfill into which hazardous and non-hazardous waste has been disposed), while a value of 595 ppmv, as employed by the County, is appropriate for a "no co-disposal" landfill (one into which no hazardous waste has been disposed). The County landfill should not be construed as a co-disposal facility because there is no evidence that it and the earlier landfills from which it also collects gas have ever been used for hazardous waste disposal. [See Matter of Sullivan County Division of Solid Waste, Phase I (Cell 6) Expansion, Rulings of the ALJ on Party Status and Issues, July 20, 2004, pages 40 - 42, as well as the Deputy Commissioner's Interim Decision affirming those rulings, February 15, 2005, pages 15 and 16.] Therefore, the value suggested by the Town is inappropriate, and the value employed by the County is correct, as was confirmed by Mr. Miller at the issues conference. (See Transcript, pages 510 - 511.)

The Town had proposed in its petition that it would offer the testimony of Tod Delaney, an engineer with First Environment, Inc., in support of the foregoing contentions as well as other issued proposed by the Town. However, by the time these issues were discussed at the issues conference, the Town was not participating in the discussion, though it had not withdrawn its petition either. Because of the Town's absence, the discussion of its claims on New Source Review was limited to securing responses from air experts for the County and Department Staff. The Town, having offered no rebuttal to the other parties' arguments, failed to demonstrate that further inquiry is warranted.

Odor

According to the Town, the County has failed to effectively control landfill odors, and this failure must be addressed in any permit for the Phase II expansion. (Town petition, page 7.)

RULING: No issue exists for adjudication.

Special condition No. 11 of the draft Part 360 permit (Exhibit No. 13) explicitly addresses odor control by directing the County to comply with and implement the requirements of its various odor control plans and a 2003 consent order which arose from Department findings that the landfill was not effectively controlling odors, in violation of 6 NYCRR 360-1.14(m). The permit condition prohibits the County from decreasing any of these requirements without the Department's written approval, and anticipates that the County may have to propose and implement further changes to its plans to improve odor and gas control. The condition also sets standards for maintenance of the County's odor control hotline, perimeter odor monitoring by County personnel, and the timely placement of intermediate cover to limit the escape of odors from the waste mass.

As part of the 2003 consent order, the Department required the County to prepare a report evaluating landfill gas and odors. That report said the production of hydrogen sulfide - - which is generated from high-sulfate gypsum board, a common component of construction and demolition debris - - was likely the primary cause of the malodorous gases being emitted from the facility. According to the report, the hydrogen sulfide odors came primarily from Phase I Cells 3, 4 and 5, where intermediate low-permeability cover had not been placed and the relatively gas-permeable alternative daily cover materials (e.g., construction and demolition debris screenings and municipal solid waste incinerator ash) did not hinder migration of landfill gas to the atmosphere.

As a short-term measure, the County addressed this problem by placing temporary landfill gas extraction wells in Cells 3, 4 and 5. However, neighbors have continued to complain about an odor nuisance that is threatening their health, and the Department continues to find violations of Section 360-1.14(m) on a periodic basis. In response, the County has now embarked on a further expansion of its Phase I gas collection system, coupled with a capping program for portions of Phase I that will not be overlapped by the Phase II expansion, as final grades are reached. [See special condition No. 12 of Staff's draft Part 360 permit, Exhibit No. 13, which sets out a Phase I closure schedule.]

Admittedly, odors continue to be a problem at the landfill facility. However, they are a problem that is amenable to an engineered solution, and that solution is still being developed and implemented. Department Staff maintains that improved gas collection, coupled with flare repairs and accelerated capping of the existing landfill, should abate the nuisance conditions to which those living closest to the landfill have been exposed. The Town failed to rebut this assertion, or even to respond to the new measures that were developed during the issues conference, in response to Staff's technical comments. Even if these measures do not eliminate the odor problem, the Department retains the option of requiring further controls or taking enforcement action to spur new initiatives from the County.

Water Quality Impacts

According to the Town, the landfill has caused groundwater contamination that the County has not committed to remediate. The Town objects to issuance of a Phase II expansion permit unless the County remediates the existing contamination and the permit contains a condition ensuring adequate protection of groundwater and corrective action in the event of groundwater impacts. (Town petition, pages 7 and 8.)

RULING: No issues exist for adjudication.

There is no evidence that the existing landfill has caused groundwater contamination. The contamination alleged by the Town occurred not within the existing landfill, but in the northeastern portion of the proposed Phase II expansion area, and was caused not by the County, but by a prior landowner's creation of a wood stump dump. Prompted by Department Staff, the County developed plans to remove the wood and stump debris and monitor groundwater quality in the affected area prior to waste deposition. The County did not balk at site remediation, but noted that some of this work would involve disturbance of the buffer of a federally regulated wetland, and therefore would require a permit from the Army Corps of Engineers. The Department has since approved a water quality certification so the County can secure the Army Corps permit.

The Town is also concerned about leachate ponding on the landfill surface, as noted in some of the Department inspection reports. There is no evidence that such ponding has led to groundwater contamination. To the extent leachate has seeped from or broken out of the waste mass, the underlying double composite liner system is designed to prevent impacts to groundwater.

Impacts to Wetlands

The Town objects to issuance of Staff's draft freshwater wetlands permit (combined with the Part 360 permit as Exhibit No. 13) that would allow a portion of the Phase II landfill expansion to be constructed in one-tenth of an acre of state-regulated wetland and approximately two-thirds of an acre of the 100-foot adjacent area around the wetland. (Petition, pages 8 - 10.)

The Town says the project should not be allowed to impact wetlands at all, and that the County has not adequately demonstrated that the landfill expansion plan meets the compatibility requirements of the wetland regulations. The Town says that its expert, Dr. Delaney, would testify that a Phase II expansion plan can be devised which eliminates wetland impacts.

RULING: No issue exists for adjudication.

The County's Phase II landfill expansion would have only a negligible impact on the 28.5-acre MO-67 wetland that extends south and southeast of the project site, and this impact is more than compensated for by the County's proposal, not referenced in the Town's petition, to restore or create a combined total of 3.61 acres of wetland adjacent to MO-67.

The Town maintains that the County has mischaracterized its current application as one for a landfill expansion; in fact, the Town argues, the County is applying for a new landfill permit. That is not true. The County is applying for a modification of its existing landfill permit, and its project is not for a new facility, but the lateral and vertical expansion of an existing facility, including the overlapping of existing cells. This is a critical distinction, because the Department has a siting restriction [6 NYCRR 360-1.7(a)(2)(iv)] that prohibits, within the boundary of state-regulated wetlands, only the construction and operation of new solid waste management facilities, not the expansion of existing facilities, as discussed above in relation to Staff's own concerns about wetland impacts.

The expansion of the County's landfill into MO-67 is not prohibited by the Part 360 regulations, nor would permit issuance violate the Department's freshwater wetlands permitting requirements at Part 663. The Town points out that, as a Class 2 wetland, MO-67 is deemed to "provide important wetland benefits, the loss of which is acceptable only in very limited circumstances," such that a permit for landfilling - - an activity incompatible with a wetland and its functions - - "shall be issued only if it is determined that the proposed activity satisfies a pressing economic or social need that clearly outweighs the loss of or detriment to the benefit(s) of the Class II wetland" [6 NYCRR 663.5(e)(2)]. Such a determination can be made in this case. The landfill expansion is, as Staff points out, a public benefit project, the need for which the County has explained as an alternative to the cost risks inherent to waste exportation. (A joint state and federal wetlands permit application is included in Volume II of the application documents.)

Although the regulations anticipate that the need must be weighed against the impact to the wetland, in this case the wetland as a whole would actually benefit from the project, through a combination of wetland improvements and expansion of MO-67 along the southeastern edge of the expansion area. Mitigation plans to compensate for the filling of wetlands are not unusual, and are viewed favorably by the Department in its consideration of freshwater wetland permit applications, including those for landfills. [See, for example, the Commissioner's Interim Decision, dated April 2, 2004, in Matter of Oneida-Herkimer Solid Waste Management Authority, at pages 10 - 12, accepting the applicant's plan to create 32.62 acres of freshwater wetland to compensate for the loss of 14.34 acres of Class II wetlands due to landfill construction.]

As Staff points out, the landfill expansion will assure that the wetland is replenished in a manner similar to existing conditions. The County intends to construct a system that would collect storm and surface flow, direct that flow to a basin for treatment and settling, and then redistribute the treated stormwater by means of a French drain system, in a "sheet flow" pattern similar to the current flow type, along the southern edge of the project site.

To issue the freshwater wetlands permit, the Department must also make other determinations, such as whether the proposed activity would "be the only practicable alternative that could accomplish the applicant's objectives and have no practicable alternative on a site that is not a freshwater wetland or adjacent area" [6 NYCRR 663.5(e)(2)]. Staff explained at the issues conference how the County could not pull the expansion completely away from the wetland without seriously reducing the amount of airspace that would be available for landfilling, and how the final design - - which involves a very small wetland encroachment - - represents the only practicable alternative available to the County at this site (Transcript, pages 522 - 523). The County could find another site for a landfill, but as it points out in its Draft Environmental Impact Statement, the current site is already partially developed as a landfill, with an existing infrastructure that includes a substantial investment in environmental controls to mitigate landfilling impacts. [The Draft Environmental Impact Statement for the Phase I and II expansions was received as Exhibit No. 21 in the Phase I hearing. See discussion of alternative site locations at pages 5-4 and 5-5.]

Dr. Delaney did not appear at the issues conference and the Town's petition did not explain how a practicable landfill expansion could be designed at the existing site which avoids wetlands altogether without substantially reducing the available air space for disposal.

Litter Control

According to the Town, due to past litter control problems at the landfill, the Phase II expansion must be conditioned to assure that specified performance standards are met. (Town petition, page 10.)

RULING: No issue exists for adjudication.

The Department's draft Part 360 permit (Exhibit No. 13) mandates in special condition No. 15 that the County implement a litter control plan meeting specified requirements in relation to (1) the cleaning and placement of litter control fences, (2) prompt cover placement on waste that may present a blowing litter problem, and (3) a thorough sitewide spring litter cleanup. Litter problems, including litter along internal roadways, have persisted at the landfill, as evidenced by the Department's inspection reports (Exhibit No. 20). Litter control requires vigilance by landfill management and a commitment to fund sufficient cleanup efforts.

The Department's operational requirements for solid waste management facilities require that blowing litter be confined to solid waste holding and operating areas by fencing or other suitable means, and that waste be confined to an area that can be effectively maintained, operated and controlled. Furthermore, the requirements state solid waste must not be accepted at a solid waste management facility unless the waste is adequately covered or confined in the vehicle transporting the waste to prevent blowing litter. [See 6 NYCRR 360-1.14(j).]

The Department's regulations provide an adequate standard against which the County's litter control efforts may be judged. If litter control problems persist, the Department should consider them as a basis for enforcement action seeking monetary penalties, which could have the effect of improving control efforts.

Prohibition of Out-of-County Waste

According to the Town, any solid waste permit issued by the Department should prohibit importation of waste from outside the County in order to assure that the residents and businesses of Sullivan County are fully able to use the landfill. (Town petition, pages 10 - 11.)

RULING: No issue is raised for adjudication.

The Town proposed this same issue in the Phase I landfill expansion hearing, and it was dismissed by both me and the Deputy Commissioner. I ruled then that issues about the management of the landfill's disposal capacity, which include whether or not to import waste from outside the County, were to be determined by the County as the Department-recognized planning unit. [See Matter of Sullivan County Division of Solid Waste, ALJ Rulings on Party Status and Issues, July 20, 2004, at pages 17 - 19.] The Deputy Commissioner concurred with me that "whether to restrict or ban waste imports is a policy issue for the County and its elected officials, and not the Department" [Matter of Sullivan County Division of Solid Waste, Deputy Commissioner's Interim Decision, February 15, 2005, at page 21.]

The importation of waste from outside the County is not prohibited by the existing landfill permit, nor is it prohibited by the draft permit for the Phase II expansion. The landfill in the past received significant amounts of waste from Rockland, Dutchess and Orange counties.

As Staff argued in the Phase I hearing, it is not the Department's business to decide whether waste importation should resume. As a matter of law, the Department cannot control the landfill's service area, only the types of waste it accepts (as addressed in special condition No. 29 of the draft Part 360 permit), and, for purposes of assuring the landfill is run properly, the maximum rate at which waste is received, which is fixed in terms of tons per week and tons per year (as addressed in special condition No. 31 of the draft Part 360 permit).

The Town argues that the County, as the landfill's owner/operator, may prohibit the receipt of out-of-County waste, citing Swin Resource Systems, Inc. v. Lycoming County, 883 F.2nd 245 (3rd Cir. 1989), cert. denied 493 U.S. 1077 (1990). No one disagrees with that, but it does not mean that the Department, as a permitting agency, may do the same.

Waste Tonnage Limit

According to the Town, the Department should not allow the County to accept waste at the currently permitted rate, because the County cannot demonstrate an ability to manage and operate the landfill so that it complies with Part 360 requirements to adequately control leachate, litter and odor, and apply adequate cover material. (Town petition, pages 10 - 11.)

Department Staff's draft permit provides that, for the Phase II expansion, the annual waste acceptance limit for the landfill would remain 200,000 tons, with a weekly limit of 4,000 tons, except during the peak summer period between Memorial Day and Labor Day, when the weekly limit would be raised to 5,500 tons. (See special condition No. 31 of the draft Part 360 permit, Exhibit No. 13.) The landfill now operates well below these limits, yet has had difficulty maintaining compliance with the aforementioned Part 360 requirements. The Town offers the testimony of its expert, Dr. Delaney, as to the impacts and feasibility of setting a lower tonnage limit for the landfill and the relationship between the amount of waste accepted at the landfill and the resulting operating and compliance issues, such as odor, litter, leachate and groundwater contamination.

RULING: No issue exists for adjudication.

As with waste importation, the Town proposed this same issue in the Phase I hearing, and it was rejected by me and the Commissioner. I ruled then that it was up to the County to determine the extent to which it wanted to operate below the tonnage limits set in its permit. I added that before one could determine that a further tonnage restriction was necessary to address operational problems - which then, as now, related primarily to odors - one would first need to conclude that the problems could not be addressed by other means. [Matter of Sullivan County Division of Solid Waste, Rulings on Party Status and Issues, July 20, 2004, at pages 20 and 21.] Addressing an appeal of my ruling, the Deputy Commissioner confirmed that the Department had the authority to revisit waste tonnage limits to assure the facility is capable of operating properly, but that the rate of waste disposal, so long as it was within the maximum waste acceptance limits set by Department Staff, was appropriately within the discretion of the County as the Department-recognized solid waste management planning unit. Furthermore, the Deputy Commissioner said she concurred with me that it was not demonstrated, by a competent offer of proof, that a reduction of the proposed waste limits was necessary to address the landfill's odor problem. [Matter of Sullivan County Division of Solid Waste, Deputy Commissioner's Interim Decision, February 15, 2005, at pages 22 and 23.]

The Department's recent inspection reports (included in Exhibit No. 20) show that operational deficiencies persist, particularly as to odor control. However, the Town failed to demonstrate that such deficiencies - in relation to odor, litter and leachate control - warrant lowering the permitted rate of waste acceptance. In fact, the odor problem results from waste that was previously disposed, and is affected by a number of factors including the types of waste that have been accepted - not just the amount of waste in general - and the techniques that have been used to collect and manage landfill gas. Because Dr. Delaney did not appear at the issues conference, his alleged connection between the amount of waste accepted and the compliance issues identified in the Town's petition was not explained.

Daily and Intermediate Cover

Because of monitoring reports indicating the County has failed to maintain adequate daily and intermediate cover, the Town says the Part 360 permit must contain conditions requiring and ensuring that the County comply with Part 360 regulations pertaining to such cover. (Town petition, page 11.)

RULING: No issue exists for adjudication.

The Department's draft Part 360 permit contains a condition (No. 28.b) requiring that all operations be in strict conformance with Part 360 regulations, which mandate that (1) a minimum of six inches of compacted cover material be applied on all exposed surfaces of solid waste at the close of each operating day to control vectors, fires, odors, blowing litter and scavenging; and (2) a minimum of 12 inches of compacted cover material be applied and maintained on all landfill surfaces where no additional solid waste has been or will be deposited within 30 days. [See 6 NYCRR 360-2.17(c) and (d).] The permit's requirement for intermediate cover is even stricter than the regulation, stating that a minimum of 12 inches of intermediate cover must be applied and maintained on all landfill surfaces where no additional solid waste has been or will be deposited within 15 days, a time frame that can be shortened even further if the Department deems it necessary. (Condition No. 11-G.)

Ability to Operate In Accordance with the ECL and Part 360

The Town argues that the landfill has a poor environmental compliance record, which is why the Department should include, in any permit for the Phase II expansion, conditions to ensure compliance, including inspection, sampling, monitoring, reporting and verification. (Town petition, pages 11 and 12.)

RULING: There is no adjudicable issue.

The Department's draft Part 360 permit and the various County plans under which the landfill would have to conform its operations contain the items requested by the Town. The draft permit contains several special conditions (No. 21, 22, 23 and 24) dealing with recordkeeping and reporting in particular. Pursuant to special condition No. 48, Department employees would continue to act as onsite environmental monitors, being present during all aspects of facility operation and construction at times designated by the Department. The Department's environmental monitoring services would be funded by the County on an annual basis.

Consistency with Local Solid Waste Management Plan

The Town alleges that the County adopted a solid waste management plan to divert 68 percent of its waste from disposal, but then abandoned the plan without explanation. According to the Town, adoption of the plan showed that diversion of 68 percent of the County's waste is practicable. Therefore, the Town objects to issuance of a permit not containing a requirement that the County justify its deviation from the plan. The Town also wants any permit issued by the Department to mandate waste diversion, to lower the landfill's waste acceptance rate. (Town petition, page 12.)

RULING: No issue exists for adjudication.

As noted above, the 68 percent waste diversion goal remains part of the County's solid waste management plan, and has not been abandoned, even if it has not been met on the schedule originally anticipated. The Department's draft Part 360 permit does require that the plan be modified to incorporate needed improvements in its recyclables recovery program. [See Exhibit No. 13-A, Staff's proposed condition addressing a comprehensive recycling analysis.]

Failure to Adequately Mitigate Adverse Impacts

The Town objects to issuance of the requested permits for the Phase II landfill expansion, claiming that they do not assure adequate mitigation of adverse impacts, consistent with 6 NYCRR 360-1.11(a)(1). That section states that the provisions of each permit issued pursuant to Part 360 "must assure, to the extent practicable, that the permitted activity will pose no significant adverse impact on public health, safety or welfare, the environment and natural resources," and that the activity will comply with the relevant Part 360 requirements, and with other applicable laws and regulations. According to the Town, permits based on the County's current application would not be adequately protective of air and water quality or adequately prevent generation of noxious odors, litter and other environmental impacts associated with landfills. (Town petition, page 12 and 13.)

RULING: No issue exists for adjudication.

Department Staff's draft Part 360 permit (Exhibit No. 13) includes special conditions addressing the impacts of concern to the Town, including odors (special condition No. 11), litter (special conditions No. 15, 35 and 37) and groundwater quality (see, for example, special condition No. 26, addressing remediation of the stump dump; special condition No. 38, requiring that liners, leachate collection systems, groundwater monitoring wells and other appurtenances be maintained in proper working order; and special conditions No. 41 - 46, addressing leachate management). A separate draft Title V air permit modification (Exhibit No. 7) addresses landfill gas emissions, which are to be controlled through an active gas collection system and two flares. The collection system would consist of an extensive network of gas extraction wells, thousands of feet of lateral and header gas conveyance piping, and miscellaneous appurtenances. The Town did not identify specific deficiencies in the Department's permits, or show that they were inadequately protective of the environment. Nor did the Town identify an engineering deficiency in the gas collection system for the Phase II landfill expansion. For these reasons, the Town failed to raise an adjudicable issue, one that is both substantive and significant.

Non-compliance with Town Laws

The Town says the Department's Part 360 permit should include a condition requiring compliance with applicable Town laws. (Town petition, page 13.)

The Town says it has adopted laws regulating noise and litter, and in 1989 adopted a law providing that no landfill may be established or operated in the Town until a permit has been applied for and issued by its board. In addition to prohibiting or otherwise regulating a solid waste management facility, the Town says it has authority to adopt local laws that limit landfill size and prohibit receipt of out-of-County waste.

RULING: No issue exists to adjudicate.

ECL 27-0711 makes it clear that the ECL does not preempt local laws on the subject of landfilling which are at least as stringent as the Department's Part 360 regulations. On the other hand, it is not for the Department to decide the extent to which the landfill, as a County facility, is subject to Town laws, or to determine which approvals other than its own are necessary for the construction and operation of the landfill expansion. Department permits notify recipients that they are responsible for obtaining any other permits or approvals that may be required. [See Item C in the draft Part 360 permit, Exhibit No. 13, page 2 of 18.] Securing those other permits and approvals is the permittee's duty, and permittees proceed without these other permits and approvals at their own peril.

SEQRA Non-compliance

According to the Town, the Department should require the County to prepare a Supplemental Environmental Impact Statement addressing all potential impacts associated with the Phase II expansion as well as alternatives to that expansion. To the extent necessary for this purpose, the Town says lead agency status should be reestablished, with the Department replacing the County given the County's economic stake in the outcome of this permitting hearing. The Town also claims that the County's SEQRA review, which resulted in a Final Environmental Impact Statement in 1998, is outdated and inadequately anticipates or addresses the air quality, water quality, odor, litter and other impacts of the proposed Phase II landfill expansion. (Town petition, pages 13 - 15.)

RULING: No issue exists to adjudicate.

There is no need for the Department, as an involved agency, to take lead agency status or require the provision of a supplemental environmental impact statement. The Town made the same claims under SEQRA during the Phase I expansion hearing, and I drew the same conclusions there as well. [Matter of Sullivan County Division of Solid Waste, Rulings on Party Status and Issues, July 20, 2004, at pages 23 - 25.]

By way of background, the County, at Department Staff's request, reviewed its SEQRA documentation and recertified its 1998 findings statement in a letter dated October 8, 2002. In that letter (Exhibit No. 27, also Phase I Exhibit No. 24), the County confirmed that the description of the proposed action had not changed, no new alternatives to the project had become available, and no known changes had occurred in relation to baseline conditions that previously had been evaluated as a basis for determining potentially adverse impacts and mitigation measures. Finally, the County noted that since the Draft Environmental Impact Statement was completed in 1997, a number of state and federal regulatory changes had occurred with respect to air quality, which it said would be addressed as part of the air permitting process for the expansion projects, adding that it was confident that the overall findings relative to air quality impacts and mitigation would not change. In conclusion, the County wrote that the 1998 SEQRA findings were still appropriate and valid and that a new or supplemental SEQRA review was not warranted. Department Staff, in a letter of December 3, 2002 (Phase I Exhibit No. 24-A), said it found the County's recertification letter was generally acceptable, though it requested that the County address the need for an improved contingency plan for odor control.

As a basis for recertification of its March 1998 SEQRA findings, the County's consultants prepared a report dated August 2002 (Phase I Exhibit No. 25) that included a review of the environmental conditions at and around the landfill, to determine whether any significant changes had occurred which would require a Supplemental Environmental Impact Statement. The report found no grounds for changing the conclusions previously reached in the Draft and Final Environmental Impact Statements, and therefore no need for a Supplemental Environmental Impact Statement.

According to the Department's SEQRA regulations, a lead agency may require a Supplemental Environmental Impact Statement limited to significant adverse environmental impacts not addressed or inadequately addressed in the initial environmental review. These impacts may arise from changes proposed for the project, newly discovered information, or a change in circumstances related to the project [6 NYCRR 617.9(a)(7)(i)]. The Town's petition states that the Phase II expansion falls squarely within this requirement, but does so in conclusory fashion, without explaining why.

The types of impacts of concern to the Town - for air and water quality, and in relation to odor and litter - were all addressed in the County's SEQRA review, and to the extent they were addressed inadequately, the Town has had the opportunity to raise them anew in this hearing, allowing it a level of engagement at least equal to what it would be afforded in the development and review of a Supplemental Environmental Impact Statement.

Also, the decision whether to require a Supplemental Environmental Impact Statement is discretionary, and belongs to the lead agency, which in this case is not the Department. Because the County would not voluntarily relinquish lead agency status to the Department, the Department would have to challenge the County for it. On the other hand, the Town's specified concerns are not just SEQRA considerations, but matters under the Department's own permitting jurisdiction, and have been considered here because the Department as an involved agency has its own permitting decisions to make.

ISSUES RULING SUMMARY

In summary, the only issue that requires adjudication is whether noise from the Phase II expansion would create a violation of 6 NYCRR 360-1.14(p) in the area east of the landfill facility, including Mountain Lodge Estates. As part of that issue, the hearing shall also consider whether the County's proposed variance from 6 NYCRR 360-1.14(p)(4), in relation to compactor noise, would contribute to such a violation.

All other claims of Concerned Citizens and the Town of Thompson, whether or not addressed explicitly in these rulings, have been considered and found not to raise issues for adjudication or to require the provision of additional information.

The disputes between the County and Department Staff concerning two odor-related conditions of the draft Part 360 permit do not require a fact-finding hearing, and are resolved in the County's favor, so that special conditions 6 and 11-A of the draft Part 360 permit shall be removed.

RULINGS ON PARTY STATUS

According to 6 NYCRR 624.5(d)(1), to secure full party status, a prospective intervenor must:

  1. file an acceptable petition pursuant to 6 NYCRR 624.5(b)(1) and (2);
  2. raise a substantive and significant issue or be able to make a meaningful contribution to the record regarding a substantive and significant issue raised by another party; and
  3. demonstrate adequate environmental interest.

Each of these elements is discussed below in relation to the petitions filed on behalf of Concerned Citizens and the Town.

Acceptable Petition

Both the Town and Concerned Citizens filed petitions addressing all the elements contemplated by the regulations. In written rulings dated July 29, 2005, I denied a motion by the County and Department Staff to strike Concerned Citizens' petition because of the manner in which it came forward.

Substantive and Significant Issue

Concerned Citizens has raised a substantive and significant issue about the noise impacts that can be anticipated from the Phase II expansion, as proposed in the County's application. Even without Concerned Citizens' involvement, this issue requires litigation based on Department Staff's concern that operation of the Phase II expansion would not meet the noise control requirement at 6 NYCRR 360-1.14(p). Through the testimony of its expert witnesses, Concerned Citizens would, at the least, meaningfully contribute to the record on the noise issue. The Town, however, would not, as it did not raise the noise issue in its petition or at the issues conference, and had no offer of proof addressing it. For those reasons, the Commissioner should deny the Town's petition for party status.

Environmental Interest

Neither the County nor Department Staff contested the Town's environmental interest, because the Town is host to the landfill. However, the environmental interest of Concerned Citizens was a matter of considerable discussion on the first conference date.

To support its claim of standing, Concerned Citizens produced a membership list (Exhibit No. 11-A) that consisted entirely of residents of Mountain Lodge Estates, which, as noted above, is a summer-only residential community on Rose Valley Road. According to Mr. Abraham, the residents of Mountain Lodge Estates, through their board, decided to retain him and intervene in this matter as Concerned Citizens on May 31, 2005, one day before the hearing notice's deadline for filing petitions.

On August 3, 2005, in conjunction with a visit to the landfill site, members of Mountain Lodge Estates led me and representatives of the other conference participants on a tour of their property. After the tour and production of the membership list, Department Staff submitted a letter of August 5, 2005, conceding the environmental interest of Concerned Citizens. This environmental interest cannot be seriously questioned, as Mountain Lodge Estates is within a few hundred feet of the Phase II expansion area, which means that if the landfill is not operated properly, its residents may expect to be impacted. (See Exhibit No. 12-C, an aerial photo on which the boundaries of the existing landfill and the Phase II expansion have been superimposed, which gives an indication of the proximity of Mountain Lodge Estates to the project site.)

At the issues conference on September 20, 2005, Mr. Abraham, responding to my question, said his client would have no objection to being granted party status not as Concerned Citizens, but as Mountain Lodge Estates, since its members all reside at Mountain Lodge Estates. This change would be appropriate because the name Concerned Citizens of Sullivan County suggests that the petitioner has a broader range of membership than is actually the case.

RULING: The Town's petition for party status is denied. Concerned Citizens' petition is granted as an award of party status to Mountain Lodge Estates.

APPEALS

A ruling of the administrative law judge 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)(2)]. Ordinarily, such appeals must be filed in writing with the Commissioner within five days of the disputed ruling [6 NYCRR 624.6(e)(1)].

Allowing extra time due to the length of these rulings, any appeals of these rulings and any requests to stay proceedings while the appeals are entertained, must be received at the Office of the Commissioner (Attn: Louis A. Alexander, Assistant Commissioner for Hearings and Mediation Services), 625 Broadway, Albany, New York, 12233, no later than 4 p.m. on February 16, 2007. Any responses to appeals, and any responses to requests for a stay of proceedings, must be received by 4 p.m. on March 9, 2007. One copy of each submittal must be sent to me, to the Department's Chief Administrative Law Judge, James T. McClymonds (also at my address), and to all others on the service list at the same time and in the same manner as the submittal is sent to the Commissioner. Service of papers by facsimile transmission (FAX) is not permitted, and any such service will not be accepted.

Appeals should address my rulings directly, rather than merely restate a party's contentions. To the extent practicable, papers should include citations to transcript pages and exhibit numbers. A list of marked conference exhibits is attached to these rulings. The record also includes all correspondence between me and the parties, which I have retained in a separate folder.

ORDER OF DISPOSITION

The Department's permit hearing procedures state that there will be no adjournment of the hearing during appeal except by permission of the ALJ [6 NYCRR 624.8(d)(7)]. Recognizing the County's interest in securing a timely decision on the Phase II expansion, adjudication of the noise issue shall not be stayed pending resolution of appeals to these rulings, unless a stay is requested from and ordered by the Commissioner. The noise issue shall be adjudicated on the basis of prefiled written testimony from the parties' expert witnesses, following procedures set forth in 6 NYCRR 624.7(e). A schedule for such testimony will be established after the deadline for appeals of these rulings or, if adjudication of the noise issue is stayed by the Commissioner, once the stay is lifted and adjudication is allowed to proceed. Consistent with 6 NYCRR 624.9(b)(1), the County shall have the burden of proof to demonstrate that its proposal will comply with 6 NYCRR 360-1.14(p).

/s/
Edward Buhrmaster
Administrative Law Judge

Albany, New York
January 18, 2007

ISSUES CONFERENCE EXHIBIT LIST

SULLIVAN COUNTY DIVISION OF SOLID WASTE (Phase II Landfill Expansion - - Application No. 3-4846-00079/00027)

1. Notice of complete application, legislative hearing and issues conference

2. Hearing notice (as published in on-line Environmental Notice Bulletin)

3. Hearing notice in Middletown Times Herald-Record (3/29/05)

4. Hearing notice in Catskill Shopper (4/1/05)

5. Hearing notice with ALJ's cover letter to Samuel Yasgur (3/23/05)

6. Hearing notice distribution list (3/23/05)

7. Draft air facility permit

8. Draft freshwater wetlands permit and water quality certification (7/28/05)

9. Draft State Pollutant Discharge Elimination System (SPDES) permit

10. Town of Thompson petition for party status (6/1/05), with cover letter of J. Benjamin Gailey (6/1/05) and affidavits of service transmitted under Gailey cover letter (6/7/05)
10-A. Letter of J. Benjamin Gailey indicating Town's determination not to further participate formally in issues conference (9/20/05)
10-B. Notice of appearance by Michael B. Mednick as new counsel for Town of Thompson (6/26/06)

11. Concerned Citizens' petition for party status with cover letter of Gary Abraham (6/1/05)
11-A. Letter of Gary Abraham with attached list of names and addresses for Concerned Citizens (8/4/05)
11-B. Letter of Gary Abraham incorporating Concerned Citizens' request to supplement on noise and odor issues, and addressing aircraft safety siting restriction (1/17/06)
11-C. Letter of Alan Shimada on Title V permit renewal for Sullivan County landfill (1/13/06)
11-D. Technical comments by the Noise Consultancy on County's 11/05 noise assessment (2/14/06) with cover e-mail of Gary Abraham (2/14/06)
11-E. Draft Environmental Impact Statement (DEIS) sound level measurements for Mountain Lodge Estates
11-F. Letter of Gary Abraham addressing proposed community character issue, with attachments addressing noise and odor impacts (3/24/06)
11-G. Letter of Gary Abraham (5/1/06) with attached reports on community character issue (by Prof. Phil Brown, 5/1/06) and noise issue (by the Noise Consultancy, 5/1/06)
11-H. Letter of Gary Abraham (5/18/06) with additional submittals on noise issue (by the Noise Consultancy, 5/16/06) and Title V permit renewal for Sullivan County landfill (by Alan Shimada, 5/15/06)
11-I. Letter of Gary Abraham (6/9/06) with attached letter on noise issue (by the Noise Consultancy, 6/9/06)
11-J. Letter of Gary Abraham (6/23/06) with attached submittal of the Noise Consultancy (6/23/06) addressing County's 6/1/06 Acentech report on ambient sound level measurements
11-K. Letter of Gary Abraham addressing odor issue (7/10/06)
11-L. Letter of Gary Abraham (9/18/06), corrected copy of Gary Abraham letter (9/15/06), and report of the Noise Consultancy (9/14/06), with attachments
11-M. Resume of Stephen M. Szulecki of the Noise Consultancy

12-A. Satellite photo of landfill, Rose Valley Road and Mountain Lodge Estates
12-B. SCS Engineers odor control plan map
12-C. Composite of satellite photo and odor control plan map
12-D. Aerial photo of landfill (7/28/05)

13. Combined draft Part 360 and freshwater wetlands permit, with water quality certification (9/19/05)
13-A. Draft Part 360 permit condition addressing comprehensive recycling analysis (6/30/06)
13-B. Draft Part 360 permit condition addressing annual noise survey (produced 9/21/06)

14. Phase II list of application documents (for Notice of Complete Application)
14-A. County's response (10/28/05) (by SCS Engineers) to DEC comments of 9/15 and 9/30/05 (re: air and landfill gas issues)
14-B. Draft 2005 County solid waste management plan compliance report update (9/30/05)
14-C. Malcolm Pirnie response of 11/16/05 to DEC comments of 9/15/05
14-D. County's field olfactometer odor monitoring report (SCS Engineers) (1/12/06)
14-E. Malcolm Pirnie transmittal of FAA letter of 12/2/05
14-F. County's response (by John Kehlenbeck) to DEC comments on recycling (3/10/06)
14-G. Malcolm Pirnie response to DEC comments of 2/15/06 and 3/7/06 re: noise (3/10/06)
14-H. Part 360 variance application for landfill trash compactor noise (3/10/06)
14-I. SCS Engineers response to DEC comments of 2/15/06 re: air and landfill gases and odor (3/9/06)
14-J. County's response (by John Kehlenbeck) to DEC comments on County's comprehensive recycling analysis (4/10/06)
14-K. SCS Engineers response to DEC comments of 2/15/06 re: leachate treatment tank modifications, with attached carbon canister vent system drawing (4/6/06)
14-L. Drawings and specifications for 2006 landfill gas collection system expansion at Phase I landfill, under cover letter of John Kehlenbeck (4/25/06)
14-M. Revised 2003, 2004 and 2005 annual recycling reports for Sullivan County, under cover letter of John Kehlenbeck (4/26/06)
14-N. SCS Engineers response to Concerned Citizens and DEC comments on odor and gas control (4/26/06), with attached revised Startup, Shutdown and Malfunction Plan for the landfill's gas collection and control system (4/26/06)
14-O. Federal Aviation Administration Determination of No Hazard to Air Navigation (4/26/06)
14-P. County's response (by Acentech) to DEC comments on noise impacts, with attachments (6/1/06)
14-Q. Malcolm Pirnie letter clarifying County's variance application for landfill trash compactor noise (6/16/06)
14-R. SCS Engineers response to Concerned Citizens comments on odor and gas control (6/20/06)
14-S. Letter of Al-jon, landfill trash compactor manufacturer, to John Kehlenbeck (7/10/06), in support of noise variance application
14-T. Memorandum from Al-jon to John Kehlenbeck (4/24/06), with attachment addressing sound levels for the AL-jon ADV600 compactor, in support of noise variance application
14-U. Letter of Eric Wood of Acentech to John Kehlenbeck (8/14/06), with attachments
14-V. Letter of Eric Wood of Acentech (9/20/06), responding to Concerned Citizens' submittals
14-W. Letter of Eric Wood of Acentech (9/20/06), responding to DEC Staff submittal

15. Letters addressing completeness of the County's application

  • Letter from DEC (Lawrence Biegel) to the County (John Kehlenbeck) (3/16/04)
  • Letter from the County (Daniel Briggs) to DEC (Lawrence Biegel) (3/31/04)
  • Letter from DEC (Margaret Duke) to the County (Daniel Briggs) (4/22/04)
  • Letter from the County (Samuel Yasgur) to DEC (Margaret Duke) (4/30/04)
  • Letter from the County (Samuel Yasgur) to DEC (Margaret Duke) (5/12/04)

16. Department noise policy "Assessing and Mitigating Noise Impacts" (as revised 2/2/01)

17. Figure 6.1-1 of County Solid Waste Management Plan (SWMP) (Materials Recovery and Waste Reduction Projections)

18. County SWMP compliance report update for 2001-2003 (referenced on page 2 of Concerned Citizens' petition)

19. Phase II report to Sullivan County re: Phase II landfill expansion issues and technology options, prepared by R.S. Lynch & Company, Inc. (11/18/04)

20. DEC landfill inspection reports (5/4/05 - 12/29/06)

21. Inspection report summary by Gary Abraham (1/04-7/05)

22. Summary of nuisance odor reports by Gary Abraham

23. (No exhibit - - This exhibit number was reserved for portions of the County SWMP that relate to Phase II landfilling. The County later acknowledged there are none.)

24. Technical Administrative Guidance Memorandum (TAGM) SW-96-08, re: review of local SWMPs.

25. Page 6-28 of Sullivan County Final Generic Environmental Impact Statement (GEIS)/Integrated SWMP and Comprehensive Recycling Analysis

26. USEPA AP-42 (11/98)

27. County's SEQRA re-certification for the landfill expansion, in a letter from Malcolm Pirnie to DEC Staff (10/8/02)

28. Air Title V Permit Renewal for the Sullivan County Landfill (effective 5/31/06)

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