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Brookhaven, Town of - Second Interim Decision, August 30, 1996

Second Interim Decision, August 30, 1996

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


August 30, 1996



This Interim Decision relates to appeals filed with respect to Administrative Law Judge (ALJ) Kevin Casutto's August 1, 1996 Issues Ruling in the matter of application of the Town of Brookhaven to construct a solid waste management facility pursuant to Environmental Conservation Law (ECL) Article 27. The application submitted by the Town of Brookhaven (the Town) is to construct and operate a landfill expansion area known as "Cell 5" which is intended to receive sewage sludge, sludge ash and unprocessible residues and downtime wastes from other solid waste management facilities.

My prior Interim Decision of July 27, 1995 granted approval for use of Cell 5 for landburial and disposal of all intended refuse except non-hazardous incinerator ash. The non-hazardous incinerator ash component of the project was held in abeyance pending the outcome of a fugitive dust study that I required the Town to conduct. That study used data generated on existing and permitted Cell 4 and modeled it to predict impacts if Cell 5 were permitted for non-hazardous incinerator ash. The study was completed in early 1996. Both the Staff of the Department and the Town agree that all projected impacts are smaller than those allowed under applicable federal and state standards, and where no standards exist, below guidance levels. The ALJ reconvened the issues conference on July 16, 1996 to determine if any issues existed to warrant an adjudicatory hearing with respect to health related impacts due to fugitive dust. The ALJ's August 1, 1996 ruling found no adjudicable issues.

This second Interim Decision addresses the appeals relating to the fugitive dust study. Fugitive dust is required to be controlled pursuant to 6 NYCRR .360-1.14(k) which states:

"Dust must be effectively controlled so that it does not constitute a nuisance or hazard to health, safety, or property. The facility owner or operator must undertake any and all measures as required by the department to maintain and control dust at and emanating from the facility."

Following the reconvened conference the ALJ issued his ruling and summarized the Intervenor's proposed issues as follows:

  1. The Commissioner ordered a six-month study, but the study conducted by Applicant comprised little more than a month and a half of sampling.
  2. Sampling to predict the effect of wind erosion was not adequate, because Applicant obtained only one sample at "high wind speed" during non-active filling sampling events.
  3. In data results reported in Applicant's study Table 4.1-A, Applicant has arbitrarily subtracted 50 mcg/m3 from some upwind data measurements.
  4. Issues related to the location of sample collection points: a) Applicant erred in location of upwind and downwind samplers; b) upwind sample data should be lower than downwind sample data; c) Cell 4 boundary samples and off-site samples should have been obtained. Such sampling was contemplated by the proposed WMI study described in the FEIS, and is required by the Commissioner's July 27, 1995 Interim Decision.

An appeal was filed by Nanette Essel on behalf of James Vaz and Arthur Governali, acting on behalf of themselves and the residents of Horizon Village, and on behalf of Nanette Essel and Betty Gundlach, acting on behalf of themselves and the Consolidated Petitioners (collectively hereafter as the Intervenors). Replies were filed by the Department's Region 1 Staff (Lori Riley, Esq., of Counsel) and by the Town (Dexter Ewel, Esq.).

Standard for Adjudicable Issues

Under the Department's hearing rules, a party must demonstrate that an issue is both substantive and significant. 6 NYCRR .624.4(c)(1)(iii). Where, as here, the staff has determined that a project will conform to all applicable statutory and requirements, the burden of persuasion is on the proposed party to raise doubts about the applicants ability to meet such criteria that a reasonable person would inquire further. 6 NYCRR .624.4(c)(2).

I find the ALJ correctly applied this standard. The ALJ's analysis is thorough and complete and his application of the standard is well balanced in considering the Intervenor's offers of proof. The Intervenors appeal does not rebut the ALJ's analysis or show misapplication of the substantive and significant standard. Rather, the Intervenors appeal inserts new information into the review process. Such information should have been brought before the ALJ, whose charge it is to sift and evaluate the merits of the offers of proof. Since the Intervenors raise these matters for the first time on appeal, they are untimely.

The matter before the ALJ involves ambient air modeling to predict health related impacts. The modeling follows sophisticated protocols employed by the US Environmental Protection Agency, the NY State Department of Health and Staff of the Department. I concur with the ALJ's observation that the Intervenor's have failed to present an offer of proof which rebuts the protocols used or the results obtained by the modeling.

Three of the four issues raised by the Intervenors at the reconvened issues conference were not appealed. These are proposed adjudicable issues 2, 3 & 4, summarized above, which the ALJ rejected. As the ALJ's rulings on these issues were not appealed they will not be addressed further. Proposed issue number 1, although not directly appealed, relates to matters presented on appeal.

Intervenors' first proposed issue is that I ordered a six-month air monitoring study but the study conducted by the Applicant comprised little more that a month and a half of sampling. Intervenors, on appeal, raise concerns about the number and type of samples taken for the study and that the length of the study was abbreviated. Although the Intervenors new issues are untimely, I will treat them summarily below. Both the Staff and the Town have rebutted the Intervenors assertions regarding the number and type of samples in their replies to the appeal.

Adequacy of the Study

The Intervenors are concerned about adverse health related impacts that they believe might arise from the disposal of non-hazardous incinerator ash landfill. That concern manifests itself in the appeal by criticizing the number and type of samples collected as well as raising concerns about additional study phases that are as yet, incomplete. As noted by the Staff and Town, study Phases II and III were not at issue for purposes of this review.

The number and type of sampling conducted by the Town in fact exceed that which would have been collected under the initially proposed Waste Management Institute study for the site. The Waste Management Institute study proposal was presented by the Town in the Final EIS. Since that time, because of these proceedings, the Town revisited the Institute study and improved upon it. For example, the study conducted by the Town accounts for variability in wind patterns by taking samples from mobile and not fixed stations to add to the number of data points, whereas the Institutes proposal contemplated fixed sampling stations. In addition, the sample collection time was reduced from a 24 hour to a 8 hour sampling which is more conservative (worst case) and more accurately estimates the amount of fugitive dust predicted to leave the site by concentrating the sample.

The collected data was reviewed and modeled independently by qualified employee's of the Department who agreed with the Town's sampling, found that the protocols used were appropriate, and who ran their own computer modeling to check the validity of the results reported by the Town. The Staff review verifies the validity of the Town's approach and the various computer modeling used to produce the quantitative results. Although opposing various aspects of the study, the Intervenors expert concurred that the Town's study was more than adequate.

The ALJ found the Staff's analysis very conservative, that is, it assumed worst case factors as an extra margin of safety, and the modeling results fell below applicable standards and below guideline levels of concern.

The regulatory review process in this matter identified health related impacts from fugitive dust as an area requiring further inquiry. That inquiry was initiated and completed. It is clear that the concerns of the public were addressed through the imposition of the fugitive dust study and the results of the study provide assurances that public health-related impacts are below levels of concern.


The ALJ correctly applied the substantive and significant standard in determining no adjudicable issues were raised.

The project to dispose of non-hazardous incinerator ash in Cell 5 is approvable, consistent with the conditions imposed by Staff in the permit on the project. This matter is remanded to Staff to complete the involved agency SEQRA findings and to issue a revised permit to the Town authorizing all proposed Cell 5 activities including landburial and disposal of non-hazardous incinerator ash.

For the New York State Department
of Environmental Conservation

By: Michael D. Zagata, Commissioner

Dated: Albany, New York
August 30, 1996

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