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Brookhaven, Town of - Issues Ruling, April 26, 1995

Issues Ruling, April 26, 1995


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 -


(Suffolk County)





On February 1, 1995 a legislative hearing was held before Administrative Law Judge ("ALJ") Kevin J. Casutto, at the Brookhaven Town Office Complex, 3233 Route 112, Medford, New York, with sessions convened at 2:00 p.m. and 7:00 p.m. An issues conference was held on February 2, 1995 at 10:00 a.m., at the same location, and was continued on February 3, 1995. The complete stenographic record of the proceedings was received by the ALJ on February 15, 1995.

The issues conference record was closed on March 14, 1995 following receipt of filings authorized by the ALJ.

The Town of Brookhaven ("Town" or "Applicant") appeared at both legislative hearing sessions and at the issues conference by Nixon, Hargrave, Devans & Doyle, Attorneys At Law, 1 Keycorp Plaza, Albany, New York 12207, Richard M. Cogen, Esq., of counsel. Appearing with counsel at the legislative hearing was James Heil, Commissioner, Town of Brookhaven Department of Waste Management; and at the issues conference, Ruth Leistensnider, Esq., Nixon, Hargrave, Devans & Doyle.

Department Staff ("Staff") appeared at both legislative hearing sessions and at the issues conference by Regional Attorney Lori Riley, New York State Department of Environmental Conservation ("NYSDEC" or "Department") Region 1, SUNY Campus, Loop Road, Building 40, Stony Brook, New York 11790-2356. Appearing with counsel at the issues conference were Andrew Wilson, Environmental Engineer, George Hammarth, Deputy Regional Permit Administrator, and Robert Bazarnick, Engineering Geologist II.

At the afternoon legislative hearing session, twenty-seven members of the public offered comments on the permit application, and at the evening legislative hearing session, thirty-seven members of the public offered comments. At the legislative hearing sessions, both written and oral comments were received. The majority of the speakers during the legislative sessions were residents of the Town of Brookhaven expressing their opposition to the project. More specifically, the concerns identified by various speakers included: (1) statements that the existing landfill Cell 4 has caused a variety of health-related problems, and that the proposed expansion of Cell 5 will exacerbate those problems; (2) that the Town's solid waste management plan ("SWMP") is not aggressive enough in complying with the State's solid waste management hierarchy, and that more can be done by the Town to reduce, reuse and recycle waste materials produced by Town residents; (3) that the existing Cell 4 liner has been breached, causing a groundwater leachate plume, and that construction and operation of the proposed Cell 5 will adversely impact the aquifer and the existing plume. These matters were explored at the issues conference, in the context of Petitioners' proposed issues for adjudication.

The deadline for receipt of petitions for party status was January 25, 1995. Three timely petitions and one late petition seeking full party status were received. No petitions seeking amicus status were received. Timely petitions for full party status were received from Sierra Club Long Island Group ("Sierra Club"), Arthur Governali and James Vaz, individually and on behalf of the homeowners of the Horizon Village Community ("Horizon Village" or "Horizon") and a consolidated petition on behalf of 15 community groups and individuals, including the South Country and Longwood School Districts, five Parent-Teacher Associations, the Bellport Teacher's Association and several environmental and other civic citizen groups ("Consolidated Petitioners"; "Consolidated Petition"). The late petition seeking full party status was received from the Environmental Defense Fund ("EDF"), on January 30, 1995, and was supplemented by EDF's February 17, 1995 filing.


Applicant has applied to the New York State Department of Environmental Conservation ("the Department" or "DEC") for a Solid Waste Management Facility ("SWMF") permit pursuant to Environmental Conservation Law ("ECL") Article 27, Title 7 and Part 360 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"). Applicant proposes to construct and operate a landfill expansion known as "Cell 5" at the western portion of the existing Town of Brookhaven Waste Management Facility. The landfill is located north of Sunrise Highway and south of Woodside Avenue and Horseblock Road in South Yaphank, Town of Brookhaven, Suffolk County. The 78 acre landfill expansion will include construction of a new 56 acre landfill cell (to be constructed in nine incremental phases), installation of a double composite liner system, a leachate collection and storage system and a landfill gas recovery system. The new cell will accept ash from the Town of Hempstead Resource Recovery Facility (the "Hempstead facility") pursuant to an intermunicipality agreement, and will also accept sewage sludge, sludge ash and unprocessible residues and downtime waste from other solid waste management facilities. The final proposed elevation of Cell 5 is 232 feet MSL (mean sea level).

Pursuant to the intermunicipality agreement, for a term of twenty years the Town of Brookhaven will send to the Town of Hempstead, for incineration at Hempstead's Resource Recovery Facility, all waste generated or originated within the Town of Brookhaven that remains after any waste reduction, recycling, composting or processing efforts, to a maximum of two hundred thousand tons per year. However, Brookhaven is not required to deliver any minimal tonnage or volume of waste to the Hempstead facility. In return, Brookhaven agrees to accept all incinerator ash generated by the Hempstead facility, subject to the Towns' agreement on pricing for receipt of ash; pricing is periodically renegotiated under the agreement.

The agreement is of mutual benefit to the Towns of Hempstead and Brookhaven, since Brookhaven is provided municipal waste disposal at the Hempstead Resource Recovery Facility, and in return, Hempstead is provided with a facility for its non-hazardous municipal solid waste ash disposal.

Regional Staff, after review of the application, made a tentative determination to grant a permit for the project as proposed. Staff prepared a draft permit which has been available for public review since November 17, 1994. Applicant has accepted all terms and conditions of the draft permit.

The Town was the lead agency for purposes of State Environmental Quality Review ("SEQR"). ECL Article 8; 6 NYCRR 617. A final environmental impact statement ("FEIS") was filed on August 10, 1993.

At the issues conference, Sierra Club Long Island Group appeared and was represented by Laurie Farber, Conservation Chair. Appearing with Ms. Farber was Guy Jacob, Vice-Chair, Sierra Club Long Island Group.

Horizon Village appeared and was represented by Keegan & Keegan, Attorneys at Law, 147 North Ocean Avenue, Patchogue, New York 11772, Thomas Keegan, Jr., Esq., of counsel. Appearing with Mr. Keegan were Arthur Governali and Samuel J. Kearing, Esq.

The Consolidated Petitioners appeared and were represented by Nanette Essel, P.O. Box 392, Yaphank, New York 11980. Appearing with Ms. Essel was Betty Gundlach, P.O. Box 392, Yaphank, New York 11980.

It was established during the issues conference sessions that Applicant had revised portions of the permit application during the notice period for this hearing. Staff's Regulatory Affairs Office received those revisions on January 5, 1995. Applicant explained that the revisions were minor in nature. However, to assure that Petitioners would have an adequate opportunity to review the current permit application, the issues conference record was held open and Petitioners were granted permission to submit additional proposed issues for adjudication, based solely upon revisions to the permit application, by February 14, 1995. The Consolidated Petitioners were the only petitioners to propose an additional issue during the extension period. That issue, concerning use of a tracer element as a component of the leachate detection system, is addressed below with the Petitioners' other proposed issues.

In deference to those Petitioners unrepresented by counsel, the Consolidated Petitioners and Sierra Club were granted permission to supplement their Petitions with additional documentation which they referred to during the issues conference sessions, but which had not been included with their filings. Following receipt of those documents, Applicant and Staff were afforded an opportunity to respond in writing.

Upon review of all filings the issues conference record was closed by an Order dated March 14, 1994. The additional filings are discussed below in the context of relevant proposed adjudicable issues presented in the petitions for party status.

The Petitions for Party Status

Horizon Village proposes eight enumerated issues for adjudication. However, Horizon's second proposed issue raises concerns addressed by its seven other proposed issues, and therefore has been discussed in the context of those other issues.

The Sierra Club proposes four adjudicable issues.

The Consolidated Petitioners' Petition is organized in eight sections, and proposes six areas of concern or proposed issues, some of which overlap.

Standard of Review

A petitioner seeking full party status must demonstrate an environmental interest in the proceeding (6 NYCRR 624.5[b][1][ii]) and must demonstrate that a substantive and significant issue exists regarding the permit application (6 NYCRR 624.4[c]). Both Staff and Applicant assert that, although the Petitioners have demonstrated adequate environmental interest in the project, no Petitioner has identified a substantive and significant issue requiring adjudication.

6 NYCRR 624.4(c) outlines standards for identifying an adjudicable issue. When Staff has determined that a project, as conditioned by the draft permit, will conform to all applicable statutory and regulatory requirements (as is the case here), the burden of persuasion is on the petitioner for party status to show that the proposed issue is both substantive and significant. 6 NYCRR 624.4(c)(4). See, In the Matter of Bonded Concrete, Inc., Interim Decision of the Commissioner (June 4, 1990); In the Matter of the Town of Huntington, Interim Decision of the Commissioner (December 22, 1988); and In the Matter of Halfmoon Water Improvement Area No. 1, Decision of the Commissioner (April 2, 1982).

An issue is substantive if 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). To determine whether an issue is substantive, the ALJ must consider the proposed issue in light of the permit application and related documents including the draft permit, the content of any petitions for party status, the record of the issues conference and any subsequent written arguments authorized by the ALJ. 6 NYCRR 624.4(c)(2); See, In the Matter of the International Business Machines Corporation, Interim Decision of the Commissioner, July 3, 1990. In proposing an issue for adjudication, an offer of proof must go beyond an expression of concern, and provide a basis upon which those concerns can be judged. In the Matter of the Applications of Ogden Martin Systems of Onondaga, Inc., et al., Interim Decision of the Commissioner, May 4, 1992; Halfmoon Water Improvement Area No. 1, supra. A substantive issue cannot merely be based upon speculation, but must be based upon on facts that can be subjected to adjudication. In the Matter of Concerned Citizens Against Crossgates v. Flacke, 89 AD2d 759 (3rd Dept., 1982), aff'd., 58 NY2d 919 (1983).

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

For reasons discussed below, Petitioners have failed to identify any issue for adjudication in this matter. Following is a discussion of Petitioners' proposed issues.

Federal Issues

  1. Ash Characterization

    Horizon presents two proposed issues within its first enumerated issue. First, it asserts that pursuant to the recent U.S. Supreme Court decision in City of Chicago v. Environmental Defense Fund, 114 S. Ct. 1588 (1994), the Town's permit application should be for a hazardous waste landfill permit, and not, as it is, for a solid waste landfill permit. City of Chicago held that municipal solid waste incinerator ash is not within the blanket exemption provided by the federal Resource Conservation and Recovery Act ("RCRA"), Section 3001[i]. Prior to City of Chicago, municipal solid waste incinerator ash was deemed exempt from hazardous waste management requirements.

    Under City of Chicago, management of such waste as municipal solid waste or as hazardous waste is dependent upon the characteristics of that waste. This means that municipal solid waste incinerator ash is no longer deemed non-hazardous as a matter of law, but instead must be tested to determine whether it is hazardous. As such, Horizon has misconstrued City of Chicago as deeming all municipal solid waste incinerator ash to be hazardous waste. See, In the Matter of Onondaga County Resource Recovery Agency ("OCRRA"), Interim Decision of the Commissioner (December 30, 1994).

    The hazardous waste management system established under both state and federal law requires that the determination of whether a solid waste is hazardous be performed by the generator of the waste at the site at which the waste is generated. 6 NYCRR 372.2(a)(2); 40 CFR 262.11; See, also, OCRRA, Interim Decision, supra. In the present matter, the Town of Hempstead is the generator of the ash.

    The proposed permit does not authorize ash that is hazardous waste to be disposed of at the landfill. However, in the event the ash testing shows the waste is hazardous, the generator may further treat the ash to render it non-hazardous (and modify its operation to render subsequently generated ash non-hazardous) or in the alternative, dispose of the ash as hazardous waste. In any event, the waste generator is required to comply with state and federal hazardous waste disposal law. The proposed Cell 5 is not authorized to receive hazardous waste.

    A second issue raised by Horizon concerns the testing protocols applied to determine whether the ash is hazardous. Horizon asserts that fly ash is generally recognized to have a higher level of contaminants than bottom ash, and therefore each should be tested separately. However, the protocol followed by the Hempstead Resource Recovery Facility is the protocol authorized by the U.S. Environmental Protection Agency and the Department, a point Horizon concedes. Therefore, the testing protocol utilized by the Hempstead facility meets existing legal requirements.

    Ruling [1]: Municipal solid waste incinerator ash is no longer deemed non-hazardous as a matter of law, but instead must be tested to determine whether it is hazardous. City of Chicago v. Environmental Defense Fund, 114 S. Ct. 1588 (1994). Horizon has misconstrued City of Chicago as deeming all municipal solid waste incinerator ash to be hazardous waste. The proposed permit does not authorize ash that tests as hazardous waste to be disposed of at the landfill. The protocol followed by the Hempstead Resource Recovery Facility to test its incinerator ash is authorized by the U.S. Environmental Protection Agency and the Department. Therefore, the protocol meets existing legal requirements.

  2. Taking Without Just Compensation

    Horizon Village asserts as its third issue that the Town's proposed Cell 5 landfill expansion will be constructed between the existing landfill cells and Horizon Village Community, rendering Horizon residents' property valueless. Horizon essentially poses a claim of inverse condemnation. That is, Horizon does not assert that its property will physically be taken by the Town, nor does Horizon assert that the Town will regulate the Horizon property to the extent that it is valueless. Instead, Horizon claims that the mere existence of the proposed Cell on Town property, near the Horizon Village Community properties, constitutes an unconstitutional taking without just compensation of Horizon Village property, in violation of the Fifth and Fourteenth Amendments of the U.S. Constitution and Article 1, Section 6 of the New York State Constitution.

    Ruling [2]: Generally, constitutional issues may not be resolved in the administrative forum, but instead must be submitted to a judicial tribunal. See, In the Matter of Seaboard, Supplemental Decision of the Commissioner [July 22, 1992], citing, Matter of Di Maggio v Brown, 19 NY2d 283, 291-292, 279 NYS2d 161, 225 NE2d 871 [1967]. Due to agency expertise, the courts have afforded great deference to administrative agencies regarding statutory and regulatory construction. This judicial deference has also been applied to administrative construction of a constitutional provision. 2 NY Jur 2d, Administrative Law 78, and 20 NY Jur 2d, Constitutional Law, 35, citing, Kolb v Holling, 285 NY 104, 112 [1941]. In my view, the issue of whether operation of Cell 5 under a Departmental permit rises to the level of an unconstitutional taking in the present matter is not within the expertise of this agency, and therefore is not properly addressed in the administrative forum.

    Horizon must pursue this constitutional claim, if Horizon so desires, in a court of competent jurisdiction. The litigants have indicated that Horizon has in fact brought a private tort claim in New York Supreme Court (Suffolk County), asserting such a claim. The Court's January 26, 1995 Order on Defendants' motion to dismiss the complaint, dismissed Horizon's constitutional claim as time barred pursuant to CPLR 213(1). James Vaz, et al. v Town of Brookhaven, et al., Order, Supreme Court, Suffolk County [Newmark, J.S.C.; January 26, 1995].

  3. Environmental Discrimination

    Both Horizon and the Consolidated Petitioners have raised environmental discrimination as a proposed issue for adjudication. Petitioners rely upon federal authority of the Civil Rights Act (42 USC 1983) and the Fourteenth Amendment Equal Protection Clause of the U.S. Constitution.

    - Fourteenth Amendment

    Insofar as this issue is based upon constitutional grounds, the courts are the appropriate forum for adjudication, as discussed above regarding the takings issue.

    - Federal Civil Rights Act

    Insofar as the claim is based upon the federal Civil Rights Act, this issue could possibly have been raised during the SEQRA process, or in the alternative, in a court of competent jurisdiction. Regarding SEQRA, the Town, in its capacity as lead agency, filed a Final EIS on August 10, 1993. The issue, however, was not raised during the SEQRA review (FEIS filed, August 10, 1993).

    In any event, when an agency other than the Department serves as the SEQRA lead agency and has required preparation of a Draft EIS, issues based solely upon SEQRA will not be considered issues for adjudication in the Department's permit hearing, except under limited circumstances, as described in 6 NYCRR 624.4(c)(6)(ii)(b). Such circumstances do not exist in this case.

    Lastly, I note that the Federal Executive Order on Environmental Justice relied upon by Horizon, (Exhibit 7), is not an applicable standard in this proceeding because it applies only to federal agencies.

    Ruling [3]: In the context of this permit action, the issue of environmental discrimination is not amenable to determination. Pursuant to 6 NYCRR 624.4(c)(6)(ii)(b), issues based solely upon SEQRA will not be considered issues for adjudication in the Department's permit hearing when the Department is not the lead agency and compliance does not relate to a permit criteria.

  4. Health-Related Impacts

    Horizon Village's sixth issue, and the Consolidated Petitioners' fourth section of their Petition, raise health-related issues. These issues concern fugitive dust emissions and Staff's proposed grant of a variance from the daily cover requirement. Petitioners assert that the FEIS and the draft permit do not adequately address the effects of the proposed ashfill on ambient air quality off-site. Since the issues of variance from daily cover requirement and fugitive dust emissions are related, they are discussed together as health-related impacts.

    - Background

    The Horizon Village Community is located approximately 800 feet from proposed Cell 5, which will be located adjacent to existing Cell 2, between Cell 2 and the Horizon Village Community. This area of Long Island is relatively flat, sparsely vegetated with mainly low-growing shrubs, and often windy. The final elevation of proposed Cell 5 is 232 feet MSL. Applicant proposes in the DEIS to maintain a 500 foot vegetated area of open space between Horizon and the landfill.

    Both Horizon and the Consolidated Petitioners have complained of health impacts resulting from the existing landfill cells. The Brookhaven community has expressed longstanding concern over health issues related to the previously constructed Cells 1 through 4. A review of the FEIS, permit application and Petitions for Party Status (including transcripts of various public meetings convened to discuss potential public health effects) reveals that the community is deeply concerned about a wide range of alleged adverse health effects stemming from the operation of the existing landfill. Over the last few years, various local and State government officials have proposed health studies to examine complaints of health impacts allegedly stemming from the landfill, but no action has followed. (See, FEIS, pp. 3-8,9).

    Those concerns include impacts resulting from the Town's operation of an ashfill in Cell 4. Cell 5 is intended to provide additional capacity for the Town to receive municipal solid waste incinerator ash, downtime waste, residential construction and demolition debris, construction and demolition process residue, yard waste and sewage sludge currently received by Cell 4. Therefore, Petitioners are concerned that adverse health impacts will be exacerbated by the proposed Cell 5 landfill expansion. However, the design of Cell 5 differs substantially from design of the existing cells. Health issues regarding the existing landfill cells are reportedly being remedied by the Town (See, discussion of hydrogen sulfide decomposition gas, below). Since this proceeding is limited to review of the proposed Cell 5 expansion permit, such issues are not relevant to this proceeding except insofar as those issues may be predictive of Cell 5 impacts, or affected by Cell 5.

    The history of health-related impacts of the existing landfill are addressed in the FEIS. FEIS 7 indicates the Town was considering a long term health impact study on the currently operating landfill Cell 4. The study was to be conducted for a one year period, and depending upon the findings, could be extended for a second year. The study was to focus on ambient air quality, measuring impacts of fugitive ash dust emissions, as the primary source of potential health-related impacts. FEIS Appendix 11. For reasons unexplained, the Town failed to implement this proposed study of Cell 4. Applicant and Staff propose that a similar study be conducted of Cell 5 operation as a permit condition for the Cell 5 SWMF permit.

    Both Horizon and Consolidated Petitioners assert that a major deficiency in the permit application concerning health-related impacts, is that a site-specific study is necessary. However, in lieu of the site-specific Cell 4 study, the Town commissioned the Strauss report (FEIS Appendix 10) and Wehran reports (FEIS Appendix 12), and relied upon these reports in its permit application concerning potential health-related impacts of Cell 5.

    The Strauss report predicted fugitive dust emissions for Cell 5 based upon comparison with measured fugitive dust levels reported in a Haverhill, Massachusetts landfill study (Hahn, et al., 1990). Based upon this comparative analysis, Strauss concluded that it is unlikely fugitive ash dust will reach the Cell 5 landfill boundary. The Wehran report compared the Hahn study and the MRI survey study (which compiled data on 139 municipal waste combustion facilities) with the Cell 5 proposal. Wehran concluded that conditions at the Brookhaven landfill are similar to, and should correspond to, the low risk scenario in the MRI model.

    Subsequent to filing the FEIS on this project, the Town authorized a site-specific one-day study of ambient air quality in the vicinity of Cell 4 (the "Holstein one-day study"). That study was conducted on September 30, 1993 and October 1, 1993. Not surprisingly, in light of the brief length of the study, results were inconclusive.

    - Fugitive Dust Emissions

    Both the Consolidated Petitioners and Horizon assert that the proposed site is very windy, and that incinerator ash dust will migrate off-site to the nearby residential Horizon Village Community and other nearby residential communities. They assert that this will result in poor ambient air quality and adverse health-related impacts. Consolidated Petitioners cite 6 NYCRR 360-2.12(a)(2)(iii), for the proposition that Applicant must demonstrate that the expansion site will have no significant adverse impacts on human health. Horizon modified its position at the issues conference, to rely upon the regulatory provision cited by Consolidated Petitioners.

    Consolidated Petitioners proposed three expert witnesses, Dr. Berman, Dr. Parkinson and Dr. Goldfarb. Dr. Berman appeared at the issues conference and made an offer of proof, stating his conclusion that the reports and studies relied upon by Applicant were not adequate to assess health risks to the nearby residential areas. Consolidated Petitioners made no offer of proof for Dr. Parkinson or Dr. Goldfarb.

    In view of the limited record on the health-related impact issue, it is necessary to address the comparative analysis and the proposed fugitive ash dust mitigation plan to determine whether further inquiry is necessary through adjudication.

    - The Strauss Report

    The Strauss report purports to address potential health impacts of ash-related fugitive dust in the neighboring residential areas and potential health impacts of ash-related dust upon landfill workers. Strauss examines heavy metals, stating that the comparison of the mean metal content of MSW ash and of soils in the Eastern U.S. shows that the ash has approximately 10-100 times the soil concentration of antimony, cadmium, calcium, copper, lead, mercury, nickel, tin and zinc. The arsenic concentration in the ash is approximately 3 times the mean soil concentration. The level of dioxin found was equivalent to 10-50% of the level the CDC deems acceptable for backyard soils. This report also discusses a guinea pig study on short term exposure to fly ash. That study concluded that such exposure was not likely to induce acute pulmonary effects. However, the guinea pig study also found higher tissue content of heavy metals in the animals 45 days after the last exposure.

    Evaluating respirable dust only, Strauss concluded that based upon accepted EPA and DEC methodology, a fugitive dust dose of 300 g/m3 for short term exposure and 20 g/m3 for annual average concentrations should be sufficient to prevent adverse health-related impacts. Total fugitive dust concentrations must also remain in compliance with federal particulate standards of 150 g/m3 of respirable dust for a 24 hour period and 50 g/m3 of respirable dust as an annual average.

    Strauss concludes from the fugitive dust emission test results at Haverhill, Massachusetts, that, if fugitive dust levels off-site are kept at an exposure rate of 20 g/m3 of annual exposure and 300 g/m3 of short term incident exposure, then there will not be any adverse public health impacts. Strauss further cites federal particulate standards of 150 g/m3 of respirable dust for a 24-hour period (short-term incident concentration) and 50 g/m3 of respirable dust as an annual average which the ashfill must meet.

    The Strauss study does not address non-respirable particulates, particles which may also contain toxic constituents of MSW ash, such as chromium, cadmium, mercury and lead, which may be ingested rather than inhaled. The Consolidated Petitioners' proposed witness, Dr. Berman, made an offer of proof regarding human health impacts from ingestion of such constituents. Ingestion of dust particulates must be addressed because of the proximity of the Horizon neighborhood and the likelihood of ingestion of dust and dirt particulates by residents, including children, in neighborhoods nearby.

    The Town primarily relies on the Strauss report in support of its conclusions on predicted health impact of fugitive dust emissions. I find many obvious deficiencies in relying upon this report to predict whether there will be adverse public health impacts from operation of Cell 5. These deficiencies are, in fact, set forth in the Strauss report itself. First, ash moisture levels at Haverhill ranged from 22 to 31%. Strauss states that the ash moisture level at Brookhaven will be above 20%.

    Second, the Haverhill ashfill has 8 foot berms on three sides of the active ash dumping cell. There is no provision for such berms at the Brookhaven site, where "... ash is dumped directly onto a flat area on top of a hill." (Strauss, at page 6).

    Third, it is not clear whether the Haverhill ashfill is elevated, as is proposed for Cell 5, and if so whether the Haverhill elevation is comparable. It is reasonable that this factor would affect any comparison of the two landfills.

    Fourth, a daily soil cover was placed on working face of the Haverhill ashfill, whereas a variance from daily cover is proposed for Cell 5, apparently premised solely upon financial savings which will accrue to the Town.

    Fifth, the Haverhill facility accepts 380 tons of ash per day, whereas Cell 5 is to accept 630 tons a day.

    Finally, there was no discussion at all in the Strauss study as to whether the wind speeds, frequency and duration at Haverhill are comparable to the wind conditions at Brookhaven.

    While not conceding any deficiencies in its permit application, the Town has offered to begin the air monitoring program immediately on Cell 4, to resolve Petitioners' expressed concerns regarding health impacts.

    - - Petitioners' Scientific Studies

    Additionally, in support of this proposed issue, the Consolidated Petitioners, joined by Horizon, filed various other studies including Effects of Inhaled Municipal Refuse Incinerator Fly Ash in the Guinea Pig (Alarie, et al, 1989), Small Area Analysis of Breast Cancer Incidence Rates in Nassau and Suffolk Counties, New York, 1978-1987 (NYSDOH 1990), Residence Near Industries and High Traffic Areas and the Risk of Breast Cancer on Long Island (NYSDOH 1994) and Risk of Congenital Malformations Associated with Proximity to Hazardous Waste Sites (Geschwind, et al 1992). Consolidated also presented an analysis by Environmental Standards, dated January 20, 1995, of the Environmental Health Associates' one-day air study.

    Petitioners offer these studies as a basis for denial of the permit application. They assert these studies demonstrate local residents will suffer adverse health impacts if the Cell 5 expansion permit is granted.

    - The Daily Cover Variance

    The Town has sought an exemption from the daily cover regulatory requirement for the 100 x 40 foot working face of the ashfill. The sole purpose of the variance, as explained in the FEIS, is to conserve landfill space and thereby provide the Town with more economical use of Cell 5. See, FEIS page 8-17; Engineering Design Report (Application for Variance from 6 NYCRR Part 360, p. 1, Reference 3). The issue of the daily cover variance is related to the issue of fugitive dust emissions because the determination whether to require daily cover of the working face may affect fugitive ash dust emission levels.

    Draft permit condition II-15 provides for a variance from the daily cover requirement of 6 NYCRR 360-2.17(c) for the working face of the landfill. Such a variance may be granted pursuant to the provisions of 6 NYCRR 360-1.7(c). 6 NYCRR 360-2.17(c) provides that a minimum of six inches of compacted cover material must be applied on all exposed surfaces of solid waste at the close of each business day in order to control vectors, fires, odors, blowing litter and scavenging.

    The Consolidated Petitioners assert that the variance should be denied due to the history of off-site migration of odors from the existing cells and their health-related complaints. However, as discussed below, these problems are primarily attributable to migration of hydrogen sulfide decomposition gas off-site.

    In response, Applicant cites the Strauss report, which concludes that particulates in excess of levels that would affect ambient air quality will not reach the facility's property boundaries or beyond. The Strauss report cites data from the Hahn study, supra, which suggests that daily soil cover or temporary cover such as a tarp, may actually increase fugitive dust emissions. Finally, Applicant cites the operational requirements intended to control fugitive ash dust. Draft Permit Condition II-15(c) provides that if a dust problem occurs, the ash shall be wet down to eliminate the dust problem. Additionally, the Draft Permit requires an on site monitor to assure compliance with permit conditions, including Draft Permit Condition II-15.

    - - Hydrogen Sulfide Gas

    During the issues conference, Horizon Village raised the issue of Applicant's control of hydrogen sulfide gas. Horizon detailed the history of hydrogen sulfide gas and odor problems which have occurred with respect to the Town's operation of the existing landfill cells and the remedial measures being implemented by the Town to minimize those impacts. This gas is produced as a result of decomposition of construction and demolition debris intended for Cell 5 1Although Horizon claims this issue is broadly within its sixth proposed issue, that issue raises concerns about air quality related to fugitive ash dust emissions, not hydrogen sulfide gas. Even though this issue was not identified in Horizon's Petition, Petitioners were allowed to present an explanation of this proposed issue during the issues conference. .

    Control of odors and decomposition gases produced by the existing landfill is addressed in FEIS 3.1 and 3.2.1. Gas collection from operating areas was not part of the original plan for the existing landfill. For instance, the original plan did not require gas collection via a leachate collection system. To remedy problems with decomposition gases and odors, the Town has installed wells at various times during the operation. In the past two years, the Town has capped the landfill and a temporary flare has been set at the top of the landfill to burn off decomposition gases as they are generated. Most gas collection at the existing landfill is

    accomplished only under the capped area. The Town is in the process of constructing a permanent flare at the base of the landfill.

    The design of Cell 5 differs from the design of the existing cells, in that gas collection will be available in operating cells, and the gas collection system is also a part of the final cover system. Cell 5 design includes gas collection systems that will be operable at the time waste is deposited in the cells and utilizes the leachate collection system as a gas collection device. Whatever hydrogen sulfide gas problems Petitioners identified with respect to the existing landfill cells are irrelevant to the permit for the proposed Cell 5.

    Lastly, Applicant asserts that 6 NYCRR 360-2.17(f) specifically addresses control of decomposition gases, and since Horizon does not assert that the project will violate any aspect of that regulatory provision, no issue exists regarding control of decomposition gases. Further, although Horizon identifies two proposed expert witnesses in their Petition, Horizon made no offer of proof for either expert's testimony on this issue.

    - Proposed Cell 4 Monitoring

    The Consolidated Petitioners, joined by Horizon, assert that in FEIS 7, the Town proposed to implement the air monitoring system submitted by the Waste Management Institute ("WMI") in December 1992, comprising FEIS Appendix 11. Appendix 11 was the Town's proposal for ambient air monitoring of existing Cell 4, which currently receives ash from the Hempstead facility. WMI postulated that ambient air monitoring results of Cell 4 would be predictive of Cell 5 air impacts. However, the Town has not implemented the proposed Cell 4 monitoring program. Instead, a Cell 5 monitoring program, similar to that proposed in the FEIS for Cell 4, would be required for Cell 5, as a condition of the current proposed landfill expansion.

    Petitioners' general claims regarding predicted adverse health impacts from proposed Cell 5 are unsupported and do not constitute an issue for adjudication. These claims allude to circumstances such as the higher incidence of breast cancer on Long Island as a basis for further health studies prior to issuance of a permit to the landfill.

    Based upon the offer of proof submitted by Petitioners, these claims are unfounded. For example, the two Department of Health studies, supra, relied upon by Petitioners regarding incidence of breast cancer on Long Island, do not draw a clear link between breast cancer and environmental contamination. Moreover, as cancer has a long latency period, operation of the Cell 4 ashfill certainly cannot be a causal factor in breast cancer occurrences reported in these studies.

    However, the specific claims regarding potential adverse health effects on the nearby residents from inhaling or otherwise ingesting fugitive ash from the landfill do raise very legitimate public health concerns which should be addressed in a thoughtful and careful manner. Although it is likely that these adverse effects are primarily attributable to control of decomposition gases (as discussed above), it is the Town's burden to present adequate scientific assurance that fugitive dust from the ashfill will not have negative health effects on the community.

    There is no dispute between the parties that the residents of Horizon will live in close proximity to Cell 5. The landfill, as proposed, will gradually rise to a height of 232 feet MSL. While the sides will be covered, the working face of the ashfill will not receive daily cover pursuant to the variance Staff proposes to grant the Town. The Town has not adequately demonstrated that it would be rational to conclude that there will be no off-site fugitive dust impacts.

    In this regard, the Town had a unique opportunity to do so in that it has, in effect, a fugitive dust impact laboratory on-site in the form of existing Cell 4. Had it commenced the WMI-proposed study or one like it at the time it was proposed, the results would have been available by now, and there would be a high level of certainty about the impacts Cell 5 may have on the health of persons living in close proximity to the facility. Adverse impacts, if they had been shown, could have been addressed in the design or operational plan. As it is, because of the lack of persuasive data presented by the Town concerning fugitive dust, determining the advisability of approving the facility as proposed is too uncertain.

    One way the Town could remedy its omission is by immediately commencing the process of preparing, submitting and implementing a air monitoring plan for Cell 4. Draft Permit Condition II-2 only requires that the final monitoring plan be submitted to Staff at least 90 days prior to the planned initial operation date of Cell 5. However, to allay Petitioners' health-related concerns and resolve potential adjudicable health-related issues, Applicant has offered to implement immediately the air monitoring plan proposed in FEIS Appendix 11. (Tr. 215-216, 264). Such a course would provide the site-specific data that Petitioners claim is essential to a reasoned evaluation of health impacts, and will also provide data that will remedy deficiencies concerning health-related issues in the Town's permit application.

    Ruling [4]: In proposing an issue for adjudication, an offer of proof must go beyond an expression of concern, and provide a basis upon which those concerns can be adjudged. A substantive issue cannot merely be based upon speculation, but must be based upon on facts that can be subjected to adjudication. Ogden Martin Systems, supra; Concerned Citizens Against Crossgates, supra. I am, therefore, compelled to find no adjudicable issue regarding health-related concerns. Although Petitioners' proposed issues are significant, the issues are speculative and consequently, not substantive.

    However, the Town's permit application, relying primarily on the Strauss report, does not adequately show that no adverse health impacts will result from operation of Cell 5. Nor does the draft permit require that the WMI-proposed monitoring program of the fugitive dust emissions from Cell 4 be conducted in order to develop proper operating conditions for Cell 5, prior to commencing operation of Cell 5.

    Even though Petitioners have not identified an adjudicable issue, they have identified concerns which point to deficiencies in the permit application with respect to health-related issues. In reviewing the permit application in its entirety, it is highly questionable whether the information provided by the Town in its FEIS is sufficient to address the issue of health impacts of proposed Cell 5. Many important distinctions exist between the Haverhill ashfill and the proposed Brookhaven Cell 5 landfill expansion.

    Therefore, to remedy deficiencies in the application and allay Petitioners' health-related concerns, I direct that implementation of the air monitoring plan and evaluation of monitoring data occur as a pre-condition to operation of Cell 5, as described below.

    Staff is directed to modify the draft permit to require that an ambient air monitoring plan similar to the WMI plan proposed in FEIS Appendix 11, be implemented immediately. Staff is directed to review and approve the monitoring plan prior to the Town's implementation, and closely monitor implementation of the air monitoring plan to assure strict compliance.

    Staff is directed to modify the permit to require that the Town provide the first year's air monitoring data to Horizon and Consolidated Petitioners at the same time data is provided to Staff. Upon receipt of the first year monitoring data, Staff is directed to expeditiously evaluate the air monitoring data, and provide its written evaluation of the data to Applicant, Horizon and Consolidated Petitioners. That evaluation should state, with explanation, whether the monitoring plan is required to be continued for a second year and whether Staff is requiring modification or revocation of the Cell 5 permit based upon its evaluation of the data.

    Staff should further state, with explanation, whether, in light of the air monitoring data, the application for variance from daily cover should be granted. Therefore, the draft permit should be modified to reflect that the variance application will remain pending until results of the air monitoring plan have been obtained and evaluated by Staff.

    Staff is directed to modify the permit to state that operation of Cell 5 will not commence absent Staff's evaluation of data from the air monitoring program and written approval authorizing operation of Cell 5.

    Finally, the intermunicipal agreement specifies a minimal ash moisture content of 18%. However, Applicant has subsequently modified its permit application to require a minimal ash moisture content of 20%. Therefore, Staff is directed to modify the permit to explicitly require a minimal ash moisture content of 20%.

    Review of revised permit language will occur as part of the appeal process from this issues ruling. Therefore, Staff is directed to file a revised draft permit by the date indicated below for filing appeals. Comments on the revised portions of the draft permit may be filed by the date indicated below for replies to appeals. Final permit language will be determined by the Commissioner in the context of review of issues on appeal of this issues ruling.

  5. Solid Waste Management Plan Issues

    Sierra Club has raised two concerns regarding the Town's SWMP. ECL Article 27, Title 1. First, Sierra Club asserts that the Town's SWMP does not address the entire waste stream to be received into Cell 5. Secondly, Sierra Club asserts that the Town's SWMP does not address the State's solid waste hierarchy. This second issue has also been raised by Horizon Village (in their eighth proposed issue) and the Consolidated Petitioners (in the seventh section of their Petition).

    A preliminary matter to be addressed is whether alleged inadequacies of the Town's SWMP are properly raised in the context of this permit proceeding. 6 NYCRR 360-1.11, entitled "Permit provisions", requires at subdivision (h), that:

    "Recyclables recovery. In the case of a permit relating to a landfill (other than one used exclusively for ash residue . . . , the permit must contain a condition that the permittee must not accept at the facility solid waste which was generated within a municipality that has either not completed a comprehensive recycling analysis or is not included in another municipality's comprehensive recycling analysis satisfying the requirements of subdivision 360-1.9(f) of this Part which has been approved by the department and implemented the recyclables recovery program determined to be feasible by the analysis."

    Petitioners have not alleged that the municipalities generating waste intended for Cell 5 do not have a SWMP. In fact, at the issues conference, Sierra Club did not dispute Applicant's assertion that the Town of Hempstead and the Town of Babylon, both of which will provide a waste stream for Cell 5, each have completed a comprehensive recycling analysis and have adopted a SWMP which has been approved by the Department.

    Following the issues conference sessions, Sierra Club submitted additional documents to supplement its Petition. Among those documents is a Ruling and Memorandum issued by the ALJ in another Departmental permit matter. In the Matter of American Ref-Fuel, et al., Ruling, August 13, 1991; Memorandum to the Parties, September 4, 1991. The Ruling and Memorandum are offered by Sierra Club to show that SWMP issues may appropriately be considered in the present permit action. However, the Ruling and Memorandum never reach the issue of whether the Comprehensive Recycling Analysis presented an adjudicable issue in that case. Therefore, the Ruling and Memorandum cited by Sierra Club provide no precedential authority in the present action.

    As Applicant and Staff point out, the Town's SWMP and Comprehensive Recycling Analysis are not part of this permit application. Further, as noted by Staff at the issues conference, the Town of Brookhaven has completed a comprehensive recycling analysis and adopted a SWMP which has been approved by the Department. That Plan was most recently modified on February 1, 1994. Petitioners' proposals for increased and more comprehensive reuse, recycling and waste reduction may be meritorious. However, Petitioners have not explained why adequacy of the Town's SWMP is relevant in the context of this permit proceeding. The intermunicipal agreement provides no disincentive or prohibition to more aggressive waste management practices and consequently does not function to limit the Town's prerogatives for more aggressive waste management.

    - Environmental Defense Fund's Untimely Petition

    By letter dated January 30, 1995, the Environmental Defense Fund filed a late petition for party status. In its filing, EDF states that Art Cooley, one of the 15 persons comprising the Consolidated Petitioners, is a member of the EDF Board of Directors, and is a founding Trustee of EDF. Mr. Cooley is a proposed witness for both the Consolidated Petitioners and Sierra Club on the SWMP/Solid Waste Management Hierarchy issue. EDF therefore seeks party status to represent Mr. Cooley for purposes of his direct examination and also for purposes of cross-examination of any opposing witnesses who may provide testimony on the subject matter which Mr. Cooley will address. Unilaterally, EDF filed a supplemental Petition for party status by letter dated February 17, 1995.

    For reasons set forth above, I find that the SWMP issues proposed by Sierra Club, Horizon Village and Consolidated Petitioners are not properly raised in the context of this solid waste management facility permit application.

    Ruling [5]: Adequacy of the Town's SWMP is not a relevant issue in this permit proceeding. If the intermunicipal agreement required the Town to provide a specified quantity of waste to the Hempstead facility, then issues of adequacy of the Town's SWMP might raise adjudicable issues. However, because the intermunicipal agreement does not require the Town to provide a specified quantity of waste to the Hempstead facility, the Town's ability or incentive to implement a more aggressive waste management plan is not affected by this project. The Ruling and Memorandum cited by Sierra Club provides no precedential value in the present action. Petitioners' proposed issues regarding adequacy of the Town's SWMP are not adjudicable issues.

    Since no issues exist regarding inadequacies of the Town's SWMP, Mr. Cooley's testimony will not be presented. Therefore, EDF's late filing for party status is denied, both because EDF provided no good cause explanation for its late filing and also because EDF has not presented an adjudicable issue.

    Siting and Design Deficiencies

  6. Defacto Regional Ashfill

    In 1985, the New York Legislature created a Long Island Regional Ashfill Board, to recommend a regional ashfill site (L. 1985, chs. 358, 359). That law has since expired and no regional ashfill has been constructed. Horizon's second and fifth issues raise concern that the proposed project is a defacto regional landfill. The Consolidated Petitioners have also raised this issue in the second section of their filing.

    Petitioners assert that Cell 5 is not an expansion of the existing local landfill, but instead converts the Brookhaven Town Landfill into a regional ashfill for the general Long Island community and areas beyond Long Island. Petitioners point out that the Hempstead facility, which will send incinerator ash to the proposed Cell 5, receives waste streams from New Jersey, Florida, Georgia, Delaware and foreign countries.

    Applicant and Staff deny that Cell 5 will be a regional ashfill. Further, Applicant states that ash from the Hempstead waste to energy facility has been accepted by the Town of Brookhaven since January 1991. Draft Permit Operating Condition II-1 requires that Cell 5 be operated in strict conformance with the Engineering Design Report ("EDR"). Volume 1 of the EDR states that only Hempstead ash is being proposed for Cell 5. EDR, 2.10 (p. 2-17) and Figure 2.10-1.

    The Town distinguishes proposed Cell 5 from the 1985 Regional Ashfill proposal in a number of ways, including that the Regional Ashfill was to service all towns of Nassau and Suffolk counties, whereas Cell 5 will not do so. The Town asserts that even if it accepted ash residue from one of the other five existing waste-to-energy facilities on Long Island, the Landfill Expansion Area would still not be the Regional Ashfill contemplated by the Long Island Ashfill Law, because it would still not be serving all of Long Island. FEIS 7.1.2. Draft Permit Operating Condition II-3 imposes a limit of 1825 tons per day for receipt of solid waste at Cell 5.

    Draft Permit Conditions II-1 and II-3 assure that the facility will not be operated as a regional ashfill. Finally, even if Cell 5 was proposed to function as a regional ashfill, no statutory or regulatory authority exists to preclude such a project.

    Ruling [6]: Whether proposed Cell 5 is a regional ashfill, is not an adjudicable issue. Petitioners concede, regarding this issue, that no law or regulation would be violated in the event the proposed project were authorized. Therefore, this proposed issue is neither substantive nor significant.

  7. The Cell 5 Design Does Not Use Best Available Technology To Protect Against Toxins

    Sierra Club Long Island Group asserts in its fourth issue that use of best available technology to protect against toxins requires use of Portland cement to stabilize the landfill ash. In support of this proposed issue, Sierra Club cites 6 NYCRR 360-1.11(a)(1). That regulatory provision requires, that permits issued pursuant to 6 NYCRR Part 360, assure, to the extent practicable, that the permitted activity will pose no significant adverse impact on public health, safety or welfare, the environment or natural resources. Although "best available technology" is a term that appears in other regulatory programs administered by the Department, it does not appear within the solid waste management facility regulations. 6 NYCRR, Part 360.

    6 NYCRR 360-1.11(a)(1) is a general provision of Part 360, and does not contain a specific standard requiring use of Portland cement. With respect to this proposed issue, Applicant has demonstrated compliance with standards contained in 6 NYCRR, Part 360. Sierra Club does not challenge any specific standard or design feature of the project.

    As discussed above, it is a well accepted principle of statutory and regulatory construction that potentially conflicting provisions must be interpreted in a manner that will render the provisions in harmony, rather than conflict. See, generally,2 Administrative Law Treatise 8.7, Davis (1979). In this instance, the general provision is interpreted to be satisfied when the specific provisions within Part 360 have been shown to be satisfied. Here, Sierra Club does not assert that the specific standards contained within 6 NYCRR, Part 360 regarding ash landfills have not been met.

    Sierra Club also relies upon studies that were done at the Waste Management Institute of Stony Brook ("WMISB"), where incinerator ash was used to make blocks, which might be used for construction purposes. Staff clarified that the purpose of those studies was to determine whether other uses could be found for the ash. The studies did not address landfilling of the blocks. The DEIS addresses the issues of ash re-use and stabilization at pages 7 through 10, and incorporates a review of that subject in the 1991 solid waste management plan and also in the FEIS, pages 7-16 and 7-17. These issues are distinct from the proposed issue of landfilling ash encased in Portland cement. The WMISB study does not provide a basis for the Sierra Club's proposed adjudicable issue.

    Ruling [7]: Sierra Club has not raised sufficient doubt about the Applicant's ability to meet the regulatory criteria of 6 NYCRR 360-1.11(a)(1). The project, as proposed, does reasonably comply with applicable regulatory standards. Moreover, the regulatory standard does not specifically require use of Portland cement. Therefore, this issue is not substantive, and consequently is not an adjudicable issue.

  8. Leachate Detection System Tracer Element Hazardous Substance

    As summarized above, the Applicant revised its permit application during the notice period for the public hearing. The revisions were received by Staff's Region 1 Regulatory Affairs Office on January 5, 1995. Petitioners were afforded the opportunity to raise additional proposed adjudicatory issues after the issues conference sessions, arising solely out of the revisions to the permit application. The issues conference record was held open for this purpose, and the Consolidated Petitioners were the only petitioners to identify such an issue.

    In their supplemental filing, the Consolidated Petitioners assert that sodium fluoride is not an appropriate tracer element for use in the leachate detection system, because it is a listed hazardous substance pursuant to 6 NYCRR 597.2. They assert that such substances should not be discharged into groundwater. The Consolidated Petitioners further assert that oxidation of sodium fluoride may possibly harm the landfill liner.

    The use of a tracer element for the leachate detection system is referenced in Draft Permit Condition II-4. Use of sodium fluoride as the tracer element was proposed by Applicant as early as November, 1993, in the Engineering Design Report which is part of the permit application, as revised. Engineering Design Report, Volume I, 3.3.4 (p. 3-6) [November, 1993]. Staff has approved use of this tracer element in the leachate detection system.

    Revisions to the EDR indicate that the sodium fluoride tracer will only be used on a contingent basis, and will not be used continuously, as originally proposed. Therefore, use of sodium fluoride as a tracer element is an issue that could have been raised in the Consolidated Petitioners' initial Petition. It is not an issue arising solely out of the revisions to the permit application. The Consolidated Petitioners are therefore untimely in raising this proposed issue and are barred from raising the issue.

    In any event, even if the Consolidated Petitioners were not untimely in raising this issue, no adjudicable issue is presented. Petitioners have made no offer of proof that New York State drinking water standards would be violated by use of this tracer element.

    The Consolidated Petitioners cite 6 NYCRR 597.2 (Chemical Bulk Storage Regulations), which indicates reportable quantities for each substance listed. However, the reportable quantity for sodium fluoride is 100 pounds, far in excess of quantities proposed for Applicant's proposed leachate detection system. Further, pursuant to 6 NYCRR 595.1(c)(7), a solution containing less than 1%, by volume or weight, of a hazardous substance is not regulated as a hazardous substance. The current proposal calls for sodium fluoride in solution in amounts between 0.01% and 0.0025% by volume.

    Regarding possible oxidation of the liner, the Consolidated Petitioners' concern is unsupported by any theoretical or factual basis. The liner manufacturers' literature documents that HDPE liners will be unaffected by fluoride containing solutions.

    Ruling [8]: The additional proposed issue regarding use of sodium fluoride as a tracer element in the leachate detection system is not an issue arising solely from the revisions to the permit application. The proposed issue is untimely and therefore, barred from consideration.

    Further, even if considered on the merits, the quantity of sodium fluoride proposed as a tracer is not a hazardous substance by definition. 6 NYCRR 595.1(c)(7). Therefore, no adjudicable issue is presented.

    Site Hydrogeology

    Horizon, Sierra Club and the Consolidated Petitioners proposed issues related to site hydrogeology.

  9. Deep Flow Recharge Area

    Horizon asserts in its seventh proposed issue that the Cell 5 site is in a deep flow recharge area ("DFRA"), and that such siting is prohibited by ECL 27-0704(3). However, Horizon's sole evidence to show that the site is in a DFRA is a Complaint filed by the Town in a judicial proceeding in 1985, in which the Town alleges that the site is within a DFRA.

    Horizon asserts that because the Town previously alleged that the site was within a DFRA, the Town should now be bound by its allegations as if the allegations were fact. Horizon stated its offer of proof on this issue is limited to allegations contained in the Town's Complaint, and it did not intend to offer any technical testimony or evidence such as a hydrogeologic map of the area, in support of this issue. Further, Horizon does not contest the accuracy of the official hydrogeologic map, created pursuant to ECL 27-0704(2), which identifies the Cell 5 location as being in Zone 6, outside the DFRA.

    Ruling [9]: Horizon's offer of proof on this proposed issue, consisting solely of allegations contained in the Town's Complaint, is facially inadequate as a matter of law. No issue for adjudication is presented.

  10. The Existing Contamination Plume

    The litigants agree that the aquifer is contaminated by a plume deriving from existing landfill cells. Sierra Club's first issue raises concerns about this contamination plume. Horizon Village also makes a reference to its concern about contamination of the aquifer in its second issue. Sierra Club asserts that proposed Cell 5 will violate the National Wildlife Refuge System Act of 1966, in that the existing plume has already impacted the nearby Wertheim National Wildlife Refuge. They assert that contaminants found in the existing plume would be of the same kind expected in leachate from Cell 5; and the Town, by putting more of the same kind of materials into Cell 5 as its design is proposed to do, would exacerbate this problem and continue to put the Town in further violation of the National Wildlife Refuge Systems Act of 1966.

    Sierra Club relies upon a U.S. Fish & Wildlife Service ("USFWS") study entitled Preliminary Assessment of Long Island National Wildlife Refuge Complex, Environmental Contaminants Background Survey (dated June 1991) 2Following the issues conference sessions, Sierra Club supplemented its Petition by filing "Second Year Results" for this report. to show elevated levels of certain metals as compared to levels of those metals at two upstate New York wildlife refuges. However, the report itself only recommends further study and reaches no conclusion as to the sources of contaminant levels identified at the wildlife refuge. More importantly, the study does not identify the Town's landfill as a possible source of these contaminants among the possible sources listed.

    Ruling [10]: Claims under the National Wildlife Refuge Systems Act are not amenable to administrative adjudication in the context of this permit action 3Such a claim could possibly be pursued in a SEQRA review. However, as discussed above, an FEIS has already been filed in this permit action.. Further, Sierra Club has not challenged any particular aspect of the leachate containment system design as being inadequate to meet a regulatory standard. Its offer of proof, relying primarily upon the USFWS study, is speculative and therefore the proposed issue is not substantive. Therefore, no adjudicable issue exists regarding impacts of Cell 5 on the existing contamination plume.

    Since this Ruling identifies no issues for adjudication, all requests for party status are denied.


Pursuant to 6 NYCRR 624.8(d), these Rulings on party status and issues may be appealed in writing to the Commissioner by May 12, 1995. Reply briefs to any such appeals must be filed by May 17, 1995. All appeals and replies must be addressed to the office of the Commissioner, NYSDEC, Room 604, 50 Wolf Road, Albany, New York 12233-1010, and must be received by that office by the dates indicated herein. A copy of all such appeals, replies, briefs, and other related filings must also be sent to the ALJ's attention at the Department's Office of Hearings, and to all persons indicated on the current Distribution List. Transmittal of documents must be made at substantially the same time and in the same manner to all persons.
For the New York State Department
of Environmental Conservation

Kevin J. Casutto
Administrative Law Judge

By: April 26, 1995
Albany, New York

TO: Distribution List

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