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Hyland Facility Associates - Interim Decision 3, August 20, 1992

Interim Decision 3, August 20, 1992

ALBANY, NEW YORK 12233-1550

In the Matter of

the Application of HYLAND FACILITY ASSOCIATES for Permits to Construct and Operate
an Incinerator Ash Monofill pursuant to Parts 360 and 420 through 423 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York


DEC Application No. 9-0232-3/1-0

August 20, 1992

Interim Decision

This Interim Decision is in relation to appeals filed to the June 23, 1992 ruling (the "Ruling") of Administrative Law Judge ("ALJ") Susan J. DuBois. Appeals have been filed by the Hyland Facility Associates (the "Applicant") and Department Staff urging that I find no issues for adjudication and by several intervening parties to the hearing (collectively referred to as the Intervenors) who urge that the issues for adjudication be expanded.

Applicant and Department Staff Appeal

A fundamental question that is raised by the appeals is the issue of the standard for raising an issue for adjudication. Prior decisions have addressed this question numerous times but there is an apparent need to offer guidance on how the standard should be implemented by ALJs and on my role in reviewing ALJ determinations based on that standard.

The purpose of the issues conference and the subsequent issues rulings is to narrow the focus of the hearing to those issues that are genuinely in dispute and which may affect the outcome of the permitting decision. Given the resources that must be brought to bear in litigation, this approach was adopted in order to use the technical and legal resources of all parties as efficiently as possible.

On the other hand, the issues conference is not a substitute for adjudication where genuine issues exist. The Department I s issues conference process often involves multiple exchanges of information and responses. While this iterative process may be necessary where complicated questions are at issue, a point may be reached where this process begins to substitute for adjudication. The ALJ must guard against this possibility. In this case, it appears that there has been more than adequate opportunity to present offers of proof and rebuttal argument. Any remaining doubts should be resolved through the adjudicatory process.

The rulings that result from the issues conference can be analogized to summary judgment in civil practice which likewise is intended to avoid litigation where no genuine fact issues exist. However, in the case of issues that are heard before the Department, the potential fact disputes are often quite complicated and encompass the opinions of environmental and health professionals as well as technical reports and documentation. This is a dimension which is generally not present in motions for summary judgment in civil "Litigation. In response to it, the agency has attempted to better guide the ALJs I-n their task of issues delineation. They have been instructed to find issues only where they have sufficient doubt about an applicant's ability to meet all statutory and regulatory criteria (In the Matter of Hvdra-Co. Generations, Inc., Interim Decision of the Commissioner, April 1, 1988) and where, in their judgment, there is a reasonable likelihood that adjudication would result in amended permit conditions or project denial (In the Matter of Jay Giardina, Interim Decision of the Commissioner, September 21, 1990). This type of analysis cannot be reduced to a formula and necessarily involves a level of subjectivity.

The complicated task of sifting through the offers of proof and responses is the responsibility of the ALJ. It is the ALJ and not the Commissioner who is the primary fact finder and therefore the ALJ must remain the primary determiner of whether fact issues exist. The rules which allow for an appeal of an issues ruling to the commissioner are not intended to provide an opportunity for a de novo review of the party's submittals nor are they intended to elicit an independent judgment on whether further inquiry into an issue is prudent. Where the question is one of whether a factual dispute requires adjudication, substantial deference must be given to the ALJ's judgment. In contrast, where the appeal involves issue of law or policy, a more probing review is called for. My review of rulings that are based on an ALJ's assessment of whether a factual dispute is substantive and significant will therefore be limited to whether or not the ALJ has properly applied that standard; I will not independently judge whether the dispute is substantive and significant unless the ALJ has not applied the standard.

In large measure, the offers of proof in this case consist of criticism by experts retained by the Intervenors concerning the adequacy of the analysis of impacts in the application and associated studies. In rebuttal, the Applicant and Staff for the most part argue that their evidence is far weightier, that the Intervenors' offers of proof are based on mere speculation and that the Intervenors' potential witnesses lack adequate credentials.

The Intervenors have convinced ALJ DuBois that these offers are substantive and significant in nature. She was convinced that they showed inconsistencies or ambiguities in the application, pointed out situations where additional information was reasonably required and put into question assumptions made in studies that were performed by the Applicant. Based on the background of the Intervenors' witnesses, their analyses and the logic of the arguments presented, she concluded that the Intervenors' offers of proof were not based on mere speculation and that there was a reasonable possibility that the Intervenors would prevail in the adjudication, at least to the extent that the now proposed permit conditions would be modified in some substantial way. It is also clear that she placed the burden of persuasion on the intervening parties and that only when that initial burden was met did she examine whether adequate rebuttal was provided by either the Applicant or the Department Staff.

While there may be room for another to examine the identical offers of proof and come to a different conclusion by weighing them differently, a review of the Rulings and the record on appeal demonstrates that ALJ DuBois has based them on the established criteria for finding substantive and significant issues. Her Rulings should be upheld and it is appropriate, therefore, to devote the remainder of this Interim Decision only to legal and policy issues raised by the appeals.

Soil Tests and Acceptability of On-Site Soil Materials

The Applicant contends that one of the regulations cited in the Rulings, 6 NYCRR 360-2.4(c), is an informational requirement and cannot be subject to any meaningful adjudication. Upon review of the Ruling, it is apparent that the ALJ's concern relates to whether the conforming material exists in sufficient quantity on the project site so that imported materials will not need to be used. This is a legitimate area of inquiry under the solid waste regulations.

Liner System

The Applicant argues that 6 NYCRR 360-2.13(k)(3)(ii) is a construction certification requirement and cannot therefore be adjudicated. I concur and therefore the issue described by ALJ DuBois will not include the adjudication of compliance with this provision.

Ash Fugitivity

The Applicant has questioned the authority for examining this issue in light of the fact that no regulations were cited. Regardless of whether 6 NYCRR Part 360 has specific standards related to the control of fugitive ash emissions, the Department has a duty under the State Environmental Quality Review Act ("SEQRA") to minimize potential adverse environmental impacts to the maximum extent practicable. Given the potential adverse impacts that have been identified, there is more than adequate authority to require further examination of this question.

I do find, however, that the issue has been drawn overbroadly. The record already demonstrates the need to control fugitive ash to the maximum extent practicable. The only issue is whether the measures proposed by the Applicant will effectively do so. While it would be helpful to know the extent of the potential health effects of fugitive ash on humans, there is no basis to believe that such information could be ascertained with sufficient certainty to be useful in the permit decision. The issue will therefore be so limited.

Plant Species Conservation

Applicant and Staff both urge the exclusion of this issue. The Staff contends that the issue cannot be considered because there has been no showing that the site constitutes "critical habitat." The Applicant argues that only impacts to threatened or endangered can be considered under SEQRA.

Siting a solid waste facility is prohibited in areas of critical habitat to endangered and threatened species (6 NYCRR 360-1.14(c)(3)) . If inquiry were to proceed concerning compliance with the above cited regulation, it would be necessary to establish the existence of critical habitat. However, ALJ DuBois was clear in her Ruling that the authority for the inquiry was not the prohibition under 6 NYCRR Part 360 but rather the minimization of adverse environmental impacts under SEQRA. The latter basis need not relate to an area of critical habitat but merely requires a substantive showing of a potential adverse environmental impact.

Similarly, if the issue proceeds on a SEQRA basis, it is not necessary to show that the affected species is endangered or threatened. The citation to the SEQRA regulations provided by the Applicant, 6 NYCRR 617.11(a)(2), which references threatened and endangered species is not controlling because it is intended to be used only as an indicator criterion for initial determinations of significance. Once that threshold is met, as it was here, the environmental impact statement must address any potentially significant adverse environmental impact. The fact that the species in question is one protected under New York law may be used with other information to conclude that actions which might adversely affect it are significant and are therefore entitled to consideration under SEQRA. However, such consideration would most likely be limited to mitigation measures rather than the permit denial that would follow as a consequence of the siting prohibition.

Angelica Booster Citizens' Appeal

The Angelica Booster Citizens appeal the ALJ's exclusion of the issues labeled "Community Character" and "Traffic" in the Rulings. The ALJ excluded these issues because she found that other governmental entities had jurisdiction over them and that dealing with them in this proceeding would run afoul of the principal that SEQRA does not alter jurisdiction among involved agencies. The Angelica Booster Citizens maintains that the Department, as lead agency under SEQRA, has an obligation to deal with all SEQRA issues in the hearing forum.

The Department is not required to discharge its obligations as SEQRA lead agency through the adjudicatory hearing process. It need do so only where adjudication of issues might result in the Department either imposing additional substantive permit conditions or modifying or denying the application. Those elements are not present in the proposed issues.

While the first issue is labeled "community character," it is, in fact, not an issue of community character but rather an economic one related to the potential loss of revenue derived from tourism. The offers of proof contain no credible showing of how the character of the community would change. The mere fact that fewer tourists may seek out the Village of Angelica, does not imply that the historic character of the community will be altered.

There has been no showing that the potential impacts found by ALJ DuBois fall within the SEQRA definition of environment (ECL 8-0105(6)). SEQRA review is a vehicle to address adverse environmental impacts and consideration of adverse economic impacts that are unrelated to environmental impacts is not within its purview (In the Matter of William E. Dailey, Inc. , Interim Decision of the Commissioner, May 14, 1992).

Additionally, even if one were to accept the characterization of the potential impact, the offers of proof emphasize the project's potential impact on future plans to derive revenue from tourism. Only existing community character falls within the SEQRA definition of "environment" (ECL 8-0105(6)).

Likewise, the traffic issue is not one that would result in any of the Department actions discussed above. The roads in question are away from the proposed site and under the jurisdiction of other government entities. There is no reasonable condition that the Department could impose on the Applicant that could resolve this issue. Since other agencies have both the expertise and jurisdiction over traffic restrictions on these roads, any action in response to these concerns must be taken by them rather than the Department (see Matter of A-1 Recycling and Salvage, Interim Decision of the Commissioner, March 19, 1992; Matter of Empire Bricks, Interim Decision of the Commissioner, August 1, 1990; and Matter of Red Wing Properties, Inc., Interim Decision of the Commissioner, January 20, 1989) . While conditions may be imposed, the fact that they would in no event be imposed by the Department means that the Department need not adjudicate them in its hearing.

Concerned Citizens of Allegany County Appeal

Concerned Citizens of Allegany County appeal the ALJ'S elimination of the issue related to the screening of the first layer of ash and the placement of a limitation on the issue related to plant species conservation. Review of the appeal reveals that the determination to adjudicate these questions hinges on whether there exists a substantive and significant factual dispute. As stated above, I f ind that the ALJ has adequately applied the standard for finding adjudicatory issues and therefore, her Ruling will be sustained.


The rulings are upheld in whole except for the minor modifications made in this Interim Decision. In light of this conclusion, no modification of party status is required.

While some parties have asked that the issues be better defined, I conclude that they are well enough defined for this stage of the proceeding. ALJ DuBois is directed to further define the areas of legitimate dispute as the hearing progresses and to ensure that the hearing focuses on the areas most critical to the adjudication. In light of the length of time this proceeding has been pending, ALJ DuBois is further directed to use available administrative techniques to handle this proceeding as efficiently as possible.

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 20th day of August, 1992.


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