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Brookhaven, Town of - Interim Decision, July 27, 1995

Interim Decision, July 27, 1995

50 Wolf Road
Albany, New York 12233-1010

In the Matter

- of the -

Application for a Permit to Construct a Solid Waste Management Facility
Pursuant to Environmental Conservation Law Article 27, Title 7
(Solid Waste Management and Resource Recovery Facilities), and Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York
Part 360 (Solid Waste Management Facilities),

- by -


DEC Project No. 1-4722-00030-00004-0


July 27, 1995


This Interim Decision is in relation to appeals of Administrative Law Judge ("ALJ") Kevin Casutto's April 26, 1995 Issues Ruling in the Matter of the Application by the Town of Brookhaven for a permit to construct a solid waste management facility. The facility is a 78 acre expansion of the Town of Brookhaven's existing landfill to accept ash from the Hempstead Resource Recovery Facility -- which incinerates Brookhaven's municipal waste -- pursuant to an intermunicipal agreement, and sewage sludge, sludge ash, unprocessible recycling residues and downtime waste from other facilities.

Appeals were timely filed by the Town of Brookhaven ("Applicant" or "Town") and by proposed Intervenors Horizon Village Community ("Horizon") and a group of local civic and community organizations ("Consolidated Petitioners" or "Consolidated"). The Environmental Defense Fund ("EDF") filed its appeal late. Proposed intervenor Sierra Club and the Department Staff did not appeal the Ruling. Replies to the filings were submitted by the Town, the Consolidated Petitioners and Department Staff. Subsequent to the deadline for responsive papers, the Town filed a letter of objection to EDF's late appeal. Consolidated Petitioners submitted two additional letters, to which Department Staff and the Town objected. In its letter of objection, Staff also raised an objection to the late filing by EDF.

The ALJ's Rulings not appealed are affirmed. These are: Ruling Nos. (2) taking without just compensation, (3) environmental discrimination, (4) hydrogen sulfide gas, (5) solid waste management plan issues, (6) regional ashfill, (7) best available control technology for toxins, (8) leachate detection system, (9) site hydrology, and (10) monitorability.

The ALJ's Rulings on the central issue of health-related impacts from fugitive dust is addressed below.


To raise an adjudicable issue, a prospective party must demonstrate that there is sufficient doubt about an applicant's ability to meet statutory or regulatory criteria such that a reasonable person would inquire further. 6 NYCRR 624.4(c)(2). An issue may also be raised by the identification of a defect or omission in the application. See, In the Matter of Oneida County Energy Recovery Facility, (Interim Decision, July 27, 1982); In the Matter of Halfmoon Water Improvement Area, (Interim Decision, April 2, 1982); In the Matter of Broome County Department of Public Works, (Commissioner's Decision, June 11, 1984). Whether an issue is raised through identification of a defect or omission or by offering contrary evidence, the issue must be substantive and significant. The proposed issue must have the potential to result in the denial of the permit or major modification of the proposed project, or the imposition of significant additional permit conditions. 6 NYCRR 624.4(c)(3).

Where the ALJ finds information that creates a doubt about the applicant's ability to meet all pertinent criteria, an adjudicable issue is raised. In that event, review of the ALJ's determination is generally limited to whether the ALJ correctly applied the substantive and significant issue standard. Where the issue is one of law or policy, then the Commissioner may engage in a more probing review. See, In the Matter of Hyland Facility Associates, (Interim Decision, August 20, 1992).

Health-Related Impacts

The ALJ ruled that the Applicant did not meet its burden to show that there will not be off-site impacts from fugitive dust containing incinerator ash. Fugitive dust must be effectively controlled so that it does not constitute a nuisance or a hazard to health. 6 NYCRR 360-1.14(k).

The Consolidated Petitioners offered proof that incinerator ash contains substances known to be harmful to human health, such as lead, arsenic and cadmium. Based upon the capability of ash particulate to become airborne, physical considerations such as the height of the proposed Cell 5, wind velocity, its frequency and direction in the area, and the close proximity of residences to proposed Cell 5, the ALJ concluded that the Town must further demonstrate that the landfill expansion into proposed Cell 5 will meet the regulatory criteria regarding fugitive dust control.

In addition, the ALJ ruled the variance from the regulatory requirement of daily cover must be justified from a health-related perspective. This is because the rationale supporting the variance not to use cover material was based upon economic reasons, i.e., cover material taking up landfill space. Use of cover material, however, is one method that may be used to control fugitive dust.

The ALJ found that these matters could be addressed in a one- year air monitoring program on the adjacently situated and currently operating Cell 4 where ash is presently disposed. The air monitoring measurements taken from that operation could then be used to determine whether Cell 5 would require operating permit modifications to ensure fugitive dust was in fact effectively controlled. The ALJ's Ruling directs that the permit be amended to require the Applicant to provide the air monitoring data to Horizon and the Consolidated Petitioners and to Staff; it further directs Staff to evaluate the data and provide that evaluation to the Petitioners. The ALJ further directed that the intermunicipal agreement between the Town and the Town of Hempstead be modified to raise the minimum moisture content requirement from 18 to 20% to be consistent with the moisture content specified in the permit application submitted by the Town.

The Town appeals, questioning both the need for these requirements and the ALJ's authority to require the ambient air monitoring study when he ruled that no substantive and significant issue had been raised. In its response to the Town, Staff cites 6 NYCRR 621.15(b) and 624.4(c)(7) as regulatory authority for the ALJ to require the Applicant to submit additional information, absent finding an adjudicable issue. I agree that the ALJ has sufficient authority under these provisions to require the Applicant to supplement its data on fugitive dust. However, I find that an adjudicable issue has been raised by Consolidated Petitioners, since the omission of pertinent information requires further inquiry.

The Ruling reveals that the ALJ fully analyzed the health-related information and found that the Town, in relying primarily upon its Strauss Report, did not show that fugitive dust from the operation of Cell 5 will be controlled. The ALJ's analysis recognized the close proximity of Cell 5 to a residential neighborhood and the physical and climatic conditions affecting the area. Horizon Village is located approximately 800 feet from the new Cell 5. This area of Long Island is flat, sparsely vegetated with low-growing shrubs, and is often windy. The final elevation of the proposed expansion cell when completed would be 232 feet mean sea level. There is a reasonable concern that harmful constituents of ash could become airborne, leave the site, and be inhaled or ingested, causing illness or disease. It is within this context that the ALJ focused on fugitive dust as expressed by numerous members of the public. If fugitive dust is confined to the landfill site, however, it cannot cause adverse health impacts.

The record indicates local citizens have long expressed concerns about health impacts from the Town's landfill cells, such as Cell 4 currently in operation, which will be closed in 1996, and continuing concerns about its replacement, Cell 5. The Environmental Impact Statement ("EIS") contains a proposal by the Town's consultant for a one-year fugitive dust study of existing Cell 4, but the Town rejected its consultant's recommendation. Instead, the Town submitted the Strauss Report extrapolating from ambient air monitoring data from other ashfills, principally one in Haverhill, Massachusetts, to predict Cell 5 impacts. This would be one acceptable way of predicting impacts. However, the ALJ found many differences between the conditions at Haverhill and Brookhaven which were not adequately dealt with in the Strauss Report or elsewhere, including: the moisture content of the ash, the amount of ash accepted daily, the climatic conditions in the area, the existence of berming of the working face, and the requirement of daily cover. Under these circumstances I found it prudent to assure that Cell 5 be adequately designed to operate in compliance with the Part 360 standard for fugitive dust prior to final approval.

Permit to Construct

Consolidated and Horizon urge that both the permits to construct and operate be held in abeyance pending the results of the air monitoring study since, they argue, the results may require redesign of the facility. Department Staff respond that, if any modification is required as a result of the air monitoring results, such modification would likely be limited to operational changes such as berming, daily cover, and ash moisture content requirements. The Applicant and Staff further assert that other permitted waste not presenting a fugitive dust problem could still be accepted if it is eventually determined that ash could not be safely disposed in Cell 5. I agree and see no reason to deny the permit to construct.

Completion of the Study

The ALJ required that the Town perform a year-long air monitoring study of existing Cell 4 before commencing and as a condition to approval to operate Cell 5. While appealing the conditioning of the permit to operate upon completion of the study and evaluation of the data, the Town asks that the air monitoring program at Cell 4 be modified by shortening the period of the study to six months and by increasing the frequency of sampling commensurately, so the same number and type of test samples are taken as if the one-year study were undertaken. Staff is supportive of this request.

While I affirm the ALJ's Ruling in requiring the air monitoring program as a condition of the permit to operate as further discussed herein, I find that a six-month program commencing immediately and consisting of the same number and type of samples as the proposed one-year study would be adequate to determine whether ash particulates (fugitive dust) are likely to leave the site and what operational controls are required to assure fugitive dust does not leave the site.

Consolidated urges that the Issues Conference be reconvened following receipt of the air monitoring data and, further, that a citizen panel be established to monitor the operations of the landfill and interface with the community on health-related issues. The substance of what Consolidated is seeking will occur since I have found fugitive dust as an issue. The process I have established will provide ample opportunity for citizen input on the Applicant's supplementary submission on fugitive dust, and has the advantage of being within the scope of the Department's authority and hearing process.

Disposal of Other Waste

The Town criticizes the ALJ's Ruling as being overly broad in forbidding disposal of all wastes, such as bypass waste and recycling residues, which pose no fugitive dust concern, until after evaluation of the air monitoring data. Staff agrees. Since no adjudicable issue is raised regarding waste other than ash, the permit to operate may be granted with respect to those components of the waste stream, other than incinerator ash, for which the permit to operate is sought.

Ash Characterization/Untimely Offer of Proof

The ALJ ruled that no issue had been raised regarding ash characterization. He stated that whether municipal waste incinerator ash is hazardous waste and must be disposed of as such is determined through a testing protocol established by the United States Environmental Protection Agency. See, EPA's May 25, 1994 Guidance. The ash generated by the Hempstead Resource Recovery Facility, which is to be landfilled in Cell 5, has been tested according to the EPA protocol and has tested non-hazardous. The permit applied for would not authorize the disposal of hazardous waste in Cell 5.

For the first time, in its appeal, Horizon makes an offer of proof purporting to show that the ash from the Hempstead facility does in fact test hazardous according to the Applicant's test results. This offer of proof should have been made at the issues conference and is therefore untimely raised on appeal. Nonetheless, if this offer of proof is considered on the merits, it must be rejected because Horizon did not follow EPA's testing protocol. Accepting the results of tests conducted outside the approved and scientifically accepted testing protocols must be rejected in favor of regulatory methods specifically approved for ash characterization. Therefore, even had the offer been appropriately made at the issues conference, no adjudicable issue was raised.


Consolidated Petitioners sent two untimely letters offering additional argument on certain issues and attempting to raise new issues with regard to this application. They did not seek nor were they granted permission by the ALJ to do so. Although both the Staff and Town have responded to this information, I am rejecting the intervenors' submissions as untimely and unauthorized.


The ALJ's Ruling of April 25, 1995, is upheld, as modified by this Interim Decision. There is an adjudicable issue regarding fugitive dust; party status is granted to Consolidated Petitioners and to Horizon Village.

The Applicant is directed to supplement its application to address the fugitive dust issue by performing a six-month ambient air monitoring study of Cell 4's operations. The supplementation shall be designed to determine whether fugitive dust from Cell 5 is likely to travel off-site. Applicant shall submit its supplementation to the ALJ and Staff, with copies to Consolidated Petitioners and Horizon. Staff shall evaluate the Applicant's data and submit its evaluation to the ALJ and Intervenors, copy to the Applicant, within 30 days of receipt of the supplementation; Staff's response will also address the daily cover variance, which Staff shall reevaluate and justify based upon the air monitoring data. The Intervenors shall then have 20 additional days to respond to the supplementation and Staff's evaluation. The ALJ will review the information and determine whether adjudication is necessary, subject to appeals; alternatively, I may intercede and, upon review of the filings, decide the matter directly in the first instance.

The permit to construct may be issued; the permit to operate is granted with respect to those elements of the waste stream, other than incinerator ash, for which the permit to operate is sought. The permit to operate shall remain contingent upon an adequate showing by the Applicant that fugitive dust will not leave the site.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Interim Decision to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York this 27th day of July, 1995

For the New York State Department
of Environmental Conservation


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