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CWM Chemical Services - Hearing Report, October 13, 1993

Hearing Report October 13, 1993

50 Wolf Road
Albany, New York 12233-1550

In the Matter of
the Application
- of -


for permits to construct and operate a 47.1 acre hazardous waste landfill at
1550 Balmer Road, Model City, New York.

DEC Project No. 9-2934-00022/00036-0


- by -

Edward Buhrmaster
Administrative Law Judge

Background and Brief Project Description

CWM Chemical Services, Inc. ("the Applicant") is seeking permits to construct and operate a 47.1-acre landfill for 2.8 million cubic yards of solid/hazardous waste. Referred to as Residuals Management Unit No. 1 (or "RMU-1"), the project would be located at 1550 Balmer Road, Model City, New York, in the Towns of Porter and Lewiston, Niagara County.

As proposed, the project includes a double composite bottom liner; two leachate collection systems; a leachate lift station; air, surface water and groundwater monitoring; a stormwater retention basin, with ditching; soil/gravel stockpiles; and compensatory wetlands and flood water storage. Varying amounts of settled stormwater would be batched and discharged to a ditch on Twelve Mile Creek. Air emissions would be vented at the lift station and leachate manways. A 7.1-acre federally regulated wetland would be filled. Waste transporters would reach the site by means of N.Y. Route 104, N.Y. Route 18, and then Balmer Road for a distance of 2.25 miles.

To proceed, the Applicant seeks the following permits and approvals from the State of New York:

(1) A certificate of environmental safety and public necessity from an Industrial Hazardous Waste Facility Siting Board, which has been constituted pursuant to Title 11 of Environmental Conservation Law ("ECL") Article 27;

(2) A New York State permit to construct and operate a hazardous waste management facility, pursuant to ECL Article 27, Title 9, and 6 NYCRR Part 373;

(3) A permit to construct a process, exhaust or ventilation system, in relation to the venting of air emissions, pursuant to ECL Article 19 and 6 NYCRR Parts 201, 203 and 212;

(4) A modification of the Applicant's existing industrial State Pollutant Discharge Elimination System (SPDES) permit, pursuant to ECL Article 17, Titles 7 and 8, and 6 NYCRR Parts 750-758; and

(5) A water quality certification, pursuant to Section 401 of the Clean Water Act and 6 NYCRR Part 608.

In addition, the Applicant requires a federal permit to construct and operate a hazardous waste management unit, pursuant to the Hazardous and Solid Waste Amendments (HSWA) of 1984. The Applicant is seeking this permit from the U.S. Environmental Protection Agency. This permit, in conjunction with the state's hazardous waste management facility permit, would constitute the Resource Conservation and Recovery Act ("RCRA") permit for RMU-1.

Pursuant to the State Environmental Quality Review Act ("SEQRA", ECL Article 8), Staff of the Department of Environmental Conservation ("the Department", or "DEC") determined that the proposed project may have a significant effect on the environment. A Draft Environmental Impact Statement ("DEIS") was prepared on behalf of the Applicant and accepted by DEC Staff. The DEIS addresses environmental impacts of the project, including impacts on geologic resources, water resources, air resources, ecological communities, human resources, state and community services, ambient noise levels, and solid waste management and planning. Also addressed are visual and exposure impacts as well as the cumulative effects of RMU-1 and the Applicant's other projects that are either now under way or planned to occur in the vicinity of the landfill unit.

Legislative Public Hearing Sessions

An industrial hazardous waste facility siting board was constituted by the Governor pursuant to ECL Article 27, Title 11. A joint hearing to determine (1) whether DEC should issue permits for this project and (2) whether the siting board should issue a certificate of environmental safety and public necessity (a "siting certificate") was scheduled by Administrative Law Judge ("ALJ") Edward Buhrmaster of DEC's Office of Hearings.

A Notice of Public Hearing, dated June 10, 1993, was published on June 15, 1993, in both the Buffalo News and the Niagara Gazette. The notice was published on June 16, 1993, in DEC's Environmental Notice Bulletin.

As announced in the hearing notice, a legislative hearing to receive oral comments on the project application was held on July 27, 1993, at the fire hall of the Youngstown Volunteer Fire Company, 625 Third Street, Youngstown, New York. The hearing was held in two sessions, one at 2 p.m. and the other at 7 p.m. Eleven people made oral comments and another nine people submitted letters prior to a deadline set in the hearing notice.

One speaker was R. Nils Olsen, chairperson of the Community Advisory Committee ("CAC") for RMU-1. Pursuant to statute, the CAC was organized by Niagara County "for the purpose of entering into a dialogue with the applicant to develop mutually acceptable solutions to problems which may be created by the siting of the facility in the community" [ECL 27-1113(1)]. An agreement dated July 21, 1993, was reached among the CAC, the Applicant, the Applicant's parent company, Chemical Waste Management, Inc., the Towns of Lewiston and Porter, Niagara County, and a citizens' group, Residents Organized for Lewiston-Porter's Environment, Inc. ("ROLE").

As outlined by Mr. Olsen, the agreement provides that if permits are issued for RMU-1, the Applicant and its parent company, Chemical Waste Management, Inc., agree that at no time prior to July 21, 2003 will either or both submit an application for a permit or siting certificate to construct or operate a commercial hazardous waste incinerator at the Model City facility or at any other location partly or wholly within Niagara County. Among other matters, the agreement also addresses truck traffic restrictions, especially in relation to the Lewiston-Porter school district.

At the legislative hearing and in letters submitted to the ALJ, the Applicant was described, mostly by companies with whom it deals, as being safety-conscious and environmentally-concerned. The company was praised for its contributions to the local tax base and for competence in the handling and disposal of wastes. One company, Engineering Science, Inc., provides professional environmental engineering services to the Applicant, and has also worked with it as an agent of DEC. According to James H. Kyles, manager of the company's Buffalo operations, the Applicant's Model City facility offers cost-competitive landfill disposal for New York manufacturers. It facilitates the management of wastes generated during the clean-up of state hazardous waste disposal sites and is important to the continued functioning of the state's Superfund program.

Project opponents were largely local residents concerned about the diminution of property values they attributed to proximity to the Model City facility. Several residents complained about safety risks, road wear and tear, air pollution and noise generated by truck traffic to and from the facility. Concerns were expressed about possible landfill leakage and the potential effects of airborne toxic emissions upon farmlands east of the project site.

One speaker, Lisa Aug of Niagara Falls, said the CAC agreement did not represent the feelings of community residents, although it was signed by the governments of Lewiston, Porter, and Niagara County. She said local elected officials had been "muzzled" by the Applicant, and that the DEC had "written off" Niagara County except as a "dump" for hazardous wastes.

Ms. Aug and other speakers suggested approval of the project would be inconsistent with a DEC policy discouraging hazardous waste landfilling. One letter from a Lewiston resident, Mary Ohanessian, proposed that the landfill's size be cut in half, and that the Department impose an annual cap on receipts, rather than allow receipts to be regulated by market demand, which she said would overburden the community.

Issues Conference

As announced in the Notice of Public Hearing, an issues conference was held at 10 a.m. on July 27, 1993, also at the fire hall of the Youngstown Volunteer Fire Company. The conference was held to determine party status for any person who properly filed for it, and to define the scope of issues, if any, which would require adjudication with regard to either the DEC permits or the siting board certificate.

The ALJ was accompanied at the issues conference by the siting board chairman, DEC Region 8 Director Peter Bush, and members of the siting board. Also present were representatives of the Applicant and DEC Staff.

At the issues conference and throughout all subsequent proceedings the Applicant was represented by Daniel M. Darragh, Esq., of Eckert, Seamans, Cherin and Mellott, 42nd Floor, 60 Grant Street, Pittsburgh, Pa., 15219. Counsel for Department Staff were Abby Snyder and David Stever, Esqs., of DEC's Region 9 Office, 270 Michigan Avenue, Buffalo, New York, 14203-2999.

Based on the Applicant's concessions (including its pledge not to seek permitting of a commercial hazardous waste incinerator) the Towns of Lewiston and Porter, Niagara County, and the citizens' group ROLE concurred as part of the CAC agreement (1) not to seek party status in this matter and (2) not to oppose issuance of the RMU-1 permits and siting certificate. They did not appear at the issues conference, and no other party status filings were received.

At the time the hearing notice was issued, DEC Staff had already decided that it was appropriate to issue permits for the construction and operation of RMU-1 as a hazardous waste landfill. In addition, Staff had made a tentative determination to modify the Applicant's existing sitewide permit (No. 90-87-0476) in order to update certain facility information, incorporate new regulatory requirements, and replace a few attachments due to revisions made by the Applicant which reflected current or planned operations, including construction of RMU-1.

The sitewide permit was issued on July 3, 1989, and addresses the operation of all of the Applicant's active hazardous waste storage and treatment units with the exception of a currently operating landfill, known as Secure Landfill No. 12 (DEC Permit No. 90-86-1137). The Department had determined that portions of the sitewide permit should be modified now rather than next year, when the permit term expires.

Prior to the issues conference DEC Staff prepared draft permits and sent them to the Applicant. In a document dated July, 1993, the Applicant answered with comments and objections. At the time of the issues conference Staff and the Applicant were negotiating changes in the permits for both RMU-1 and the entire Model City site. Some of the Applicant's concerns had been withdrawn and others had been addressed by modified permit language. Some issues remained outstanding, although the parties had not reached an impasse, and asked for more time to talk. This request was granted and the issues conference adjourned pending completion of discussions and a report to the ALJ.

Subsequent DEC Proceedings

Since the issues conference DEC Staff and the Applicant have completed negotiations of new permits for RMU-1 and a modified permit for the entire Model City facility. All changes to the draft permits are noted in a "responsiveness summary" prepared by DEC Staff and dated September 10, 1993. This summary identifies all permit changes proposed by the Applicant, the alleged justification for each permit change, and the response of DEC Staff, including changes it has accepted or negotiated.

In a letter dated September 29, 1993, the Applicant's counsel, Mr. Darragh, writes that his client has reviewed Staff's summary and has determined that it has no objection to the revised draft permits. In a conference call with the ALJ, Mr. Darragh and Abby Snyder, DEC Staff Counsel, said the permit revisions do not alter the project as described either in the application or the notice announcing the hearing in this matter. As the Applicant accepts all permit terms, there are no issues between it and DEC Staff.

Subsequent Siting Board Proceeding

Since the issues conference the siting board has met to decide whether it is appropriate to issue a certificate of environmental safety and public necessity. It has reviewed the project application and the answers to questions it has posed in writing to the Applicant.

Based on its deliberations, the board has tentatively decided that a certificate may be issued provided that the permits for this project contain one additional condition not included in Staff's permit drafts. The text of this condition is attached as Appendix "A" to this report. It was conveyed to the Applicant on September 29, 1993, under a letter from Robert H. Feller, siting board counsel, and accepted by the Applicant, according to a letter from Mr. Darragh.

As the board is prepared to issue a certificate, and the Applicant is willing to accept the board's one condition attached to this approval, there are no issues between the board and the Applicant.

Order of Disposition

No issues are proposed for adjudication; therefore, no issues rulings are necessary, nor is there any need to schedule an adjudicatory hearing.

The matter is hereby remanded to the Department Staff to complete the Final Environmental Impact Statement ("FEIS") for this project. This FEIS shall form the basis for DEC's and the siting board's SEQRA findings when final approvals are granted.

For the New York State Department
of Environmental Conservation

By: Edward Buhrmaster
Administrative Law Judge

Dated: Albany, New York
October 13, 1993

TO: Service List

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