Washington County Board of Supervisors - Ruling, October 22, 1992

Ruling, October 22, 1992

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Application of
the WASHINGTON COUNTY BOARD
OF SUPERVISORS
for Conceptual Review of its Siting Study and
Resulting Proposal to Construct and Operate
a Solid Waste Management Facility in the Town
of Hartford, Washington County, New York.

RULINGS OF
ADMINISTRATIVE
LAW JUDGE

Project No. 5-5338-00003/00001-1

Project Description and Background

The Washington County Board of Supervisors, Upper Broadway, Fort Edward, New York (the "Applicant" or the "County") has applied to the Region 5 staff of the New York State Department of Environmental Conservation ("the Department Staff") for conceptual review of its site selection process which resulted in the County's proposal to construct and operate a municipal solid waste management facility in the Town of Hartford, Washington County (the "Project").

Applications for conceptual review are authorized by Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") 621.11. The Department's decision after conducting conceptual review is not a permit, but does provide the applicant with a binding decision on the specified components of the project, or on any issues addressed as part of the review. The applicant must apply for the actual permits for the project after receiving conceptual approval from the Department.

The County conducted a Solid Waste Management Facility Siting Study ("Siting Study") which recommended that the County pursue a further detailed subsurface and hydrogeological investigation, and seek purchase of the properties, at the preferred site in the Town of Hartford (the "Site"). The Site consists of approximately 475 acres located north of State Route 196 and west of a dirt road, Eldridge Lane, in the Town of Hartford, Washington County. The Siting Study describes the site selection process followed by the County, which encompassed the following main steps: elimination of unsuitable areas; identification of 11 individual contiguous sites within the suitable areas; solicitation of landowners of those sites plus a general solicitation, yielding a total of 15 sites; development of a site ranking model; ranking of each individual site based on a literature search and visual field inspection; pre-preliminary subsurface investigation of the top 8 sites; and final ranking of those sites.

The proposed Project is an integrated solid waste management facility which will include landfill cells, a recyclables storage area, a composting facility, and associated access roads, buildings and infrastructure. The landfill cells would receive ash residue from the Adirondack Resource Recovery Plant located in Hudson Falls, Washington County municipal waste which cannot be incinerated, paper mill sludge, and construction and demolition debris. The exact sources of paper mill sludge to be disposed of at the facility have not yet been finally determined. The County may also contract with Warren County to receive some of its waste. The projected operating life span of the facility is 50 years, although that can vary depending on the effectiveness of waste reduction and recycling, as well as on the ultimate sources of the waste.

The landfill cells will be designed to conform to the technical requirements for liners, leachate collection systems, and other applicable standards in the Environmental Conservation Law ("ECL") Article 27, Title 7, and 6 NYCRR Part 360. Part 360 also sets forth the requirements for recycling and composting facilities with which this Project must ultimately comply. The Project facilities would occupy approximately 200 acres of the Site, with the remaining 275 acres utilized for buffer areas and preserved wetlands.

Proceedings

The Draft Solid Waste Management Plan for Warren and Washington Counties identifies the need for at least one solid waste management facility ("SWMF") to landfill and dispose of solid waste remaining after waste reduction, reuse, recycling, and energy recovery. In accord with that recommendation, the Washington County Board of Supervisors initiated site selection for such a SWMF in the fall of 1988. Most of the work of the Siting Study was done in 1989 by the County's consultants. The County produced the main Siting Study document August 1990. A Siting Study Addendum #1 (the "Addendum") which included some corrections and responses to public comments was produced in April 1991.

- SEQRA

This Project was subject to the State Environmental Quality Review Act (ECL Article 8 or "SEQRA," implemented by 6 NYCRR Part 617). The County, as lead agency, issued a positive declaration that the Project was a Type I action which may have a significant effect on the environment, and required the preparation of the necessary environmental impact statements. A Draft Environmental Impact Statement for the Washington County SWMF, Hartford Site ("DEIS"), was accepted by the lead agency on May 17, 1991. The DEIS incorporated the Siting Study and Addendum by reference. The County held a public hearing on the DEIS on June 19, 1991 and accepted additional written comments until June 30, 1991. The County then accepted a final environmental impact statement ("FEIS") on this Project on October 18, 1991, which included revisions and additions to the DEIS as well as responses to comments. The County as lead agency issued a positive findings statement on November 19, 1991 pursuant to 6 NYCRR 617.9 determining to fund and undertake this Project at the Hartford Site.

- Processing of Application

The County's application for conceptual review was accepted as complete by the Department Staff on August 13, 1991. The application documents consist of the Siting Study, the Addendum, the DEIS and FEIS. The scope of the conceptual review was mutually agreed by the Applicant and Staff to be essentially limited to the site selection process which resulted in the selection of the Hartford Site for this Project.

During the Staff's review of the application documents, the County has also been conducting continuing further detailed hydrogeological investigations of the Site. It has submitted a 2-volume Hydrogeologic Report of those investigations dated June 1992. However, as further discussed below in these rulings, the Hydrogeologic Report is generally outside the scope of this application for conceptual review.

Pursuant to 6 NYCRR 621.11(f) and 621.7, the Department Staff determined that a public hearing should be held on the County's application for conceptual review of this Project. The Staff then referred the application to the Department's Office of Hearings on June 17, 1992, to conduct a hearing in accord with the procedures set forth in 6 NYCRR Part 624, as authorized by 6 NYCRR 621.11(g).

- Permit Hearing

Pursuant to the permit hearing procedures in 6 NYCRR Part 624, the Notice of Public Hearing in this matter was published in the Department's Environmental Notice Bulletin, the Glens Falls Post-Star, the Granville Sentinel, and the Cambridge Eagle, on July 15, 1992. An amendment to the Notice of Hearing was later published in those newspapers which indicated a change in the location of the legislative hearing session.

Pursuant to the amended Notice of Hearing, a legislative or public statement hearing session convened before Administrative Law Judge ("ALJ") Andrew S. Pearlstein at 7:00 P.M. on August 17, 1992 in the Hartford Central School, Routes 149 and 40, Hartford, New York. Approximately 150 persons attended the legislative hearing, and 27 spoke for the record. Several additional written comments were also received. Most speakers opposed the siting of the proposed SWMF at the Hartford Site for reasons that are discussed below in these rulings.

The issues conference convened at 10:00 A.M. on August 18, 1992 in the Washington County Office Building, Upper Broadway, Fort Edward, New York. Three parties appeared at the issues conference: the Applicant, the Department Staff, and the intervenor the Town of Hartford (the "Town"). The Applicant, the Washington County Board of Supervisors, was represented by Mark Schachner, Esq., of the firm of Miller, Mannix & Pratt, Glens Falls. The Department Staff was represented by Malcolm Coutant, Esq., Regional Attorney, Ray Brook. The Town was represented by Stanley Pritzker, Esq., Town Attorney, of the firm of Matte, Pritzker & Nenninger, Glens Falls. Each party had several associates, consultants, or co-counsel present, some of whom also participated in the issues conference.

The ALJ ruled early in the issues conference that the Town satisfied the threshold requirement for intervenor party status of having sufficient interest in the Project pursuant to 6 NYCRR 624.4(b)(1). The discussion therefore focused on the second requirement to maintain party status -- whether the intervenor presented issues appropriate for adjudication. The specific proposed issues are discussed in detail below in these rulings.

General Positions of the Parties

The Town disputed a number of aspects of the County's site selection process, primarily concerning certain of the ranking scores given the Hartford Site in the numerical site ranking model which led to the Site's ranking as the preferred site. The town sought to raise each of the disputed scores and several other aspects of the Siting Study as issues for adjudication. The Town contended that these alleged errors in the rankings, taken together, indicate that the Site was improperly selected and is not "the most appropriate alternative" as required by 6 NYCRR 360-2.12(a)(1).

The Applicant and Department Staff both took the position that the County's site selection process and selection of the Hartford Site for the Project was done properly and satisfied all applicable legal requirements. They defended the site selection process in general and the individual disputed scores for the Hartford Site in particular. The Staff and Applicant maintained that even if a few of the ranking scores could arguably be changed, the overall ranking which resulted in the selection of the Hartford Site would not be significantly affected. They therefore took the position that no substantive and significant issues for adjudication were presented by the Town in this proceeding.

DISCUSSION OF PROPOSED ISSUES

Standards for Raising an Issue for Adjudication

It is axiomatic that the ALJ's determination of the issues appropriate for adjudication "shall be based upon whether the issues raised are substantive and significant, and resolution of such issues may result in permit denial, require major modification to the project or the imposition of significant permit conditions." (6 NYCRR 624.6[c]). "Substantive" means that the issue is not based on mere speculation, but on facts that can be subjected to adjudication. "Significant" means that resolution of the issue could lead to permit denial or the imposition of significant permit conditions. These principles, further summarized in the following paragraph, are articulated in the following Interim Decisions of the Commissioner, among others: Matter of Halfmoon Water Improvement District No. 1, April 2, 1982; Matter of Hydra-Co. Generations, Inc., April 1, 1988; Matter of Bonded Concrete, Inc., June 4, 1990; and Matter of Jay Giardina, September 21, 1990.

In cases where the Department Staff and the Applicant agree that the project, with appropriate mitigation as proposed in a draft permit, will comply with all applicable standards, the intervenors bear the burden of persuasion that a substantive and significant issue exists. In order to meet that burden, the intervenors at the issues conference (or in subsequent written submissions if allowed by the ALJ) must present an offer of proof with factual support, generally in the form of proposed expert testimony, counter to the applicant's presentation of facts in support of the project. The applicant and Department Staff may rebut the intervenors' offer of proof with reference to the application documents, draft permit, and further factual analysis. An adjudicable issue is raised only where, in consideration of all offers of proof and referenced submittals, there remain sufficient doubts about an applicant's ability to satisfy applicable statutory and regulatory criteria such that reasonable minds would inquire further.

Some additional considerations pertain when the Department is not the lead agency under SEQRA, and when the lead agency is also the applicant for Department permits. Since SEQRA does not change jurisdiction among agencies, this Department will generally concern itself in a permit proceeding only with issues directly related to the statutory or regulatory standards in the ECL or 6 NYCRR with which the Project must comply. The Department will generally defer to the lead agency/applicant in other matters, including those primarily within the expertise or jurisdiction of the lead agency and those which constitute entrepreneurial or policy decisions by the applicant. (See Matter of the Development Authority of the North Country, Interim Decision of the Commissioner, July 24, 1990).

Overview of the Site Selection Process

Washington County's proposed SWMF will include a landfill as its most environmentally sensitive component. In undertaking its Siting Study the County therefore sought to comply with 6 NYCRR 360-2.12, entitled "Landfill siting." Applicants for permits to construct and operate a new landfill must submit a site selection study report. The main principles and requirements governing an applicant's site selection study and report are set forth in subdivision (a) of 360-2.12 as follows:

Section 360-2.12 further describes the main steps which must be followed in the site selection process. The applicant must initially exclude prohibited siting areas identified in 6 NYCRR 360-1.14(c) (prime agricultural land, floodplains, critical habitat, and regulated wetlands) and areas restricted for landfills identified in 360-2.12(c) (aquifers, floodplains, airports, unstable areas, and unmonitorable or unremediable areas).

The applicant must then identify potential sites which appear suitable according to the landfill siting criteria in subdivision (d) of 360-2.12. These siting criteria emphasize the preference for sites with thick sequences of low-permeability materials such as clay soils, which are most likely to minimize the migration of contaminants from the facility. The favorable siting criteria also include predictable patterns of bedrock groundwater flow, relatively flat natural topography, and distance from water supply sources.

The next step is to comparatively apply the landfill site evaluation criteria listed in subdivision (e) of 360-2.12 to the potential sites identified thus far. These evaluation criteria include such considerations as population density; transport routes; proximity to incompatible structures; community impacts; visual impacts, proximity to parks, open space and recreational resources; and impacts on agricultural land.

The Department Staff has interpreted the SWMF site selection process to assist municipalities and others seeking to site solid waste management facilities in a Department publication entitled Technical Assistance Guidance Document - Solid Waste Management Facility Siting (the "Guidance Document"), dated April 1990. Although this Guidance Document was not finalized until after the County's siting study was well under way, the County and Staff were in frequent communication and the County was privy to the principles set forth in the Guidance Document.

The Guidance Document (page 3) clarifies that the landfill site selection process should be concurrent with and actually be one and the same as the SEQRA consideration of alternatives. Under SEQRA and Part 360, the selected site need not be the perfect site or even the best known site. So long as the site is properly selected in good faith and meets all Part 360 requirements, it may be the proper alternative under SEQRA and "the most appropriate site" under 360-2.12(a)(1).

The Commissioner, in Organization and Delegation Memorandum #90-39, dated December 3, 1990 ("O & D Memorandum"), has stated a policy in favor of using the conceptual review procedure to review an applicant's site selection for a SWMF, as is being done in this proceeding. The Commissioner in this O & D Memorandum (page 3) states that the Department must seek "only enough information to reasonably determine the acceptability of a proposed site and compare the site to the most promising alternative sites identified in the siting study." The O & D Memorandum also recognizes that more detailed information may be necessary for final permitting than is required in order to obtain conceptual approval of the site selection.

The Staff has confirmed that the site selection process followed by the County was substantially in accord with the requirements of 360-2.12 and SEQRA. The intervening party in this proceeding, the Town, has not substantively challenged the overall siting process under Part 360 or the range of alternatives considered under SEQRA. The Town has primarily focused on the alleged erroneous results of the latter phase of the process -- the comparative site rankings, in particular the numerical ranking scores given the Hartford Site on the various site evaluation criteria.

The Town has, however, raised two interrelated potential issues which relate to the County's initial decisions on the scope or size of the Project. These are the projected sources of the waste to be managed by the Project, and the minimum size requirement for the site applied by the County in the Siting Study. These contentions will be discussed first below, followed by a discussion of the site ranking model and the proposed issues related to the numerical site evaluation criteria. All the Town's proposed issues are based on alleged non-compliance by the Applicant with the requirement of 6 NYCRR 360-2.12(a)(1) that the selected site be "the most appropriate site."

Sources of Waste and Minimum Site Size

The Town contends essentially that the ultimate minimum size criterion for the County SWMF of 400 acres is unnecessarily large if the facility will manage only municipal solid waste generated in Washington County. If a smaller minimum size of 200, or even 100 acres, was applied, a far greater range of available sites would have been available for consideration. The Town does not offer to produce its own expert on this issue or suggest a superior alternative site, but would seek to call the County's own consultants or use the County's own screening overlays in its presentation.

The County's application materials document the evolution in the formulation of the minimum appropriate site size criterion, depending on changes in the projected sources of waste. Originally, the project was intended to be a joint landfill for municipal waste and ash residue only for both Washington and Warren Counties, for which a minimum 200-acre size was set. The initial list of sites was based on this 200-acre minimum size. Then the two counties' boards of supervisors were contacted by paper mills which desired to use the facility for disposal of their sludge. The paper sludge would require at least as much capacity as the municipal waste; hence the minimum site size was increased for a short time to 750 acres. This size was never applied because the two counties then decided to site separate facilities, and updated information became available indicating reduced projections for population growth and waste generation rates. This led to the final minimum size criterion of 400 acres, including composting and recycling facilities, and buffer zone. The final list of preferred sites was based on a 400-acre minimum size, although the sites were initially chosen on the basis of a 200-acre minimum.

At the issues conference, the County admitted that it had not finalized any contracts with the paper mills, and that negotiations to receive some waste from Warren County were also possible. The County is taking a conservative approach by reserving enough space to pursue these options as the owner and operator of the SWMF. If the sources of waste expand beyond Washington County, the useful life of the facility may be shortened, but there will not be any significant changes in the Project's design and operation.

While one may question the County's decisions on the scope, size, and sources of wastes for its proposed SWMF, this is not the appropriate forum to do so. The decision to reserve enough capacity to accept paper sludge and some waste from outside Washington County was a County government policy decision made by an elected representative body, the County Board of Supervisors. It was presumably based on valid political and economic, as well as environmental considerations. The Town has not offered to prove that the minimum site size criterion based on these anticipated sources of waste contravenes the State's solid waste management plan, ECL 27-0101, or any other statute or regulation. The County has in fact shown the Project's consistency with its Draft Solid Waste Management Plan. The Department Staff has concurred. Therefore no valid issue for adjudication is presented on the County's anticipated sources of waste for the Project or the minimum site size criterion.

Site Ranking Process

The remaining issues for adjudication proposed by the Town all relate to specific numerical ranking scores assigned the Hartford Site in the County's comparative site ranking model. The County performed this ranking of 15 identified specific sites after eliminating unsuitable areas and identifying contiguous potential sites of at least 200 acres in the study area. The site ranking model was developed by including all the siting and site evaluation criteria from 6 NYCRR 360-2.12(c) and (d), plus two additional ones unique to Washington County, and having the members of the Boards of Supervisors prioritize each criterion on a scale of 1 to 10 in importance. The average weights were then assigned to each of the final 23 criteria on site location and geological characteristics.

For each criterion, the County developed a series of guidelines for suitability of the site on a scale of 1 to 5. For example, the first criterion, proximity to a primary or principal aquifer, was rated most suitable, or "5," the greater the distance from the aquifer (>2 miles) and least suitable, or "1," if adjacent to an aquifer. These ratings were then multiplied by the average weight factor for each criterion, and totalled to obtain the site ranking score. Thus, the highest scoring sites were deemed the most suitable for the proposed SWMF. The County's consultants derived these ratings based on a desktop literature search, followed by a visual drive-by observation of each site.

The Hartford Site was the highest ranked Site in the initial rankings, with a total ranking score of 502.7. The next highest scores were 492.9 and 483.1. The lowest was 378.1. The 10 highest ranking sites, all those scoring above 450, were selected for preliminary subsurface investigations. After two sites were eliminated, the 8 remaining sites were re-ranked based on the results of several subsurface borings and analyses at each site. The Hartford Site remained the highest ranked site, with a re-ranked score raised to 524.2. The initial ranking model for the Hartford Site, and the lists of the initial and modified rankings for the various sites, are attached to these rulings as an appendix.

The Town alleges that erroneous ratings given the Hartford Site would cumulatively reduce the Site's final score to the extent that it would not have been retained for further consideration and subsurface investigations. Thus, the Town is not challenging the ranking model or methodology itself, but is essentially following the same numerical ranking model developed by the Applicant. The Department Guidance Document cautions against relying too heavily on the illusory objectivity of a numerical matrix. Nevertheless, numerical models may be useful in comparing sites which are roughly equivalent in the most desirable factors (see Guidance Document, page 21).

The Applicant and Department Staff contended at the issues conference that the scope of review of the County's application of the ranking model should be limited. A Siting Study such as this must be done at a particular window in time. There is a degree of subjectivity in the assigning the suitability ratings for a number of the criteria. The sources of information for the initial rankings, a literature search and a drive-by visual observation, impose their own limitations. At this stage of the study it is neither appropriate nor practical to require more detailed investigations. The Applicant and Staff thus argue that so long as the ranking was carried out reasonably and consistently, in good faith, it serves no valid purpose to second-guess individual criteria scores based on information which was not then available or due to subsequent changes in conditions.

On the other hand, the selection of the Hartford Site was based primarily on the numerical ranking. If the Site was selected on this basis, it is only fair to allow the Town to challenge the numerical rankings in any substantive way it can. Some latitude should be allowed in raising issues in a proceeding for conceptual review. The purpose of this review at an early stage of the process is to ensure the most appropriate site is selected before costly site-specific investigations, design, and engineering is undertaken. However, the purposes and limitations of the ranking model must be considered to some extent in assessing the validity of challenges to the specific ranking scores. If the applicant articulates a reasonable basis for a particular ranking, the intervenors bear the burden of persuasion that it may be substantively erroneous.

For an issue to be appropriate for adjudication it must be both substantive and significant. In this proceeding the substantiveness of each proposed issue is determined by the whether the Town's offer of proof raises sufficient doubt to indicate that a particular ranking score may be erroneous. The significance of any such issue as well as the overall site ranking issue then depends on whether all the potentially erroneous scores, taken together, can add up to enough of a difference to have removed the Hartford Site from further consideration as the preferred site for the proposed Washington County SWMF.

In this latter connection, the key ranking is actually the modified re-ranking done after the preliminary subsurface investigations of the leading sites in the initial ranking. It wouldn't matter where a particular site was ranked initially if it ranked at the top after the re-ranking based on additional information which is subject to conceptual review as part of the site selection process.

The ranking scores on which the Town has attempted to raise issues for adjudication will be addressed individually below. Under the standards articulated above, the possible errors in the scores on which a sufficiently substantive offer of proof was presented is 36.2 points below the initial ranking of 502.7. If these issues were all resolved in the Town's favor, the Hartford Site could at worst have been lowered to sixth on the list of the 8 most suitable sites (third in Washington County). It would still have remained under consideration for the Project and subject to the next step, the preliminary subsurface investigations. Upon the modified re-ranking of the sites after the preliminary subsurface investigations, the Site would still have emerged as the highest ranked site in Washington County (second only to the Warrensburg site in Warren County which was also determined to be unsuitable for other reasons). Therefore, the maximum possible discrepancy in the total ranking score for the Hartford Site does not reach a magnitude sufficient to give rise to any significant issues for adjudication.

- Subsurface Hydrogeological Ratings

The following site ranking criteria are related to the site's subsurface hydrogeological suitability and monitorability: depth to high groundwater; depth to bedrock; proximity to poor foundation soils or faults; and soil permeability. Since the initial site ranking, the County has conducted a preliminary subsurface investigation, which resulted in an upward adjustment of the ranking for the Hartford Site on depth to groundwater (from 1 to 3) and on soil permeability (from 4 to 5). Since the preliminary subsurface investigation, the County has pursued detailed Phase I and Phase II hydrogeological site investigations intended to satisfy all the requirements for a hydrogeologic report for the landfill permit application as required by 6 NYCRR 360-2.11. While this investigation is not yet complete, the Applicant has produced an interim hydrogeological report in June 1992 which includes the findings of the site investigation undertaken thus far, encompassing most of the components required by 360-2.11.

The Town has challenged the scores given for these hydrogeological criteria for the Hartford Site in the ranking model. The Town has offered the testimony of an expert witness, George Putnam of Terran Research, Inc., and would use the data and findings gathered by the County itself in its hydrogeologic report to challenge certain of the hydrogeological criteria scores. The differences in the hydrogeological criteria scores between the Town and the County are actually quite minor. In any case, as discussed below, the Town's offers of proof were not sufficient, in the context of the Siting Study, to raise these hydrgoeological criteria as potential issues for adjudication, although they may be relevant at the permit hearing stage on the issue of groundwater monitorability.

The main thrust of Mr. Putnam's critique of the site selection process is actually focused beyond the Siting Study and would address the ultimate permittability of the site with respect to its hydrogeological monitorability. Mr. Putnam points to the artesian flow in at least one bedrock well as indicative of possible faulting with implications for preferential or possible unpredictable groundwater flow beneath the Site. He also asserted that groundwater would be difficult to monitor in the clay soils, and that those soils might be wet and unstable. With respect to the Siting Study in general, Mr. Putnam, on behalf of the Town, contends that areas or sites underlain by till, which were largely overlooked, have advantages at least equal to the favored lacustrine clay sites.

The Applicant and Department Staff have agreed and recognized that the issue of hydrogeological monitorability with reference to 6 NYCRR 360-2.12(c)(5) remains to be resolved and that it should be resolved in the later permit application stage of the approval process for this Project. More detailed investigation needs to be done with respect to defining the groundwater flow regime at the Site in view of the artesian conditions in several bedrock test wells on the Site, and also with respect to the monitorability of groundwater in the clay soils -- the problems cited by Mr. Putnam. The Phase II investigation is being oriented towards resolving these issues. Therefore, these rulings will recommend that the issues of hydrogeological monitorability of the Site, and adequacy of the final hydrogeologic report, be expressly reserved for resolution during the permitting phase of this application proceeding.

The proposed issues raised by the Town on the hydrogeological siting criteria ranking scores will be discussed in turn below.

-- Depth to High Groundwater

The County's initial score for this heavily weighted criterion was "1" for a depth to the high water table of 0-3 feet, the least favorable possible, based on generalized soils mapping information. Upon the preliminary subsurface investigation, the actual water table was not encountered until an average depth of 7.5 feet, leading the County to re-rate this criterion as "3." The Town contends the score should remain as "1," on the basis of the wetness or likelihood of perched water tables in the clay soils.

The County's position on depth to the high water table was not effectively countered by the Town and should therefore be upheld. In addition, the initial selection of the Hartford Site was made on the basis of this criterion having received a ranking score of "1," which would have required a waiver or variance from the required 5-foot separation of the landfill liner from high groundwater. The regulations recognize the likelihood of these conditions requiring such a waiver for landfills sited in the preferred low-permeability clay soils (see 360-2.13[d]).

By the County's definition of a discernible water table, the actual subsurface investigations indicated an average depth of 7.5 feet, for a score of "3." The Town's concern is actually directed toward the ultimate monitorability of the Site due to the difficulty in discerning or defining any water table in the clays. This issue will be resolved during the forthcoming permitting phase of this application proceeding, after completion of the final hydrogeologic report. The Town has not presented any substantive offer of proof tending to show that the actual scoring of the Site for the purposes of the Siting Study on this criterion was erroneous or arbitrary in comparison with the other sites considered. Therefore, there is no basis to question the ultimate "3" ranking given the Site for depth to high groundwater, and it will not be counted as a possible ranking error in the Siting Study.

-- Depth to Bedrock

Although the depth to bedrock criterion was mentioned by the Town as one it would challenge, the Town presented no substantive offer of proof. The Siting Study ranking score for this criterion is already "2," indicating moderately shallow bedrock (10 to 20 feet deep). This is supported by the soils data and preliminary borings which indicated bedrock at depths from 0 (outcrops at the Site margins) to 40 feet (in the center of the Site). Therefore the depth to bedrock criterion will not be counted as a possible ranking error in the Siting Study.

-- Proximity to Poor Foundation Soils/Faults

The Siting Study gave the Hartford Site the highest score, a "5," for this criterion, along with all the other sites. This means the Site was found to be more than 1 mile from poor foundation soils, faults or other unstable areas. This ranking was made on the basis of a literature search and available data on soil stability, as well as on geologically mapped or possible seismically active faults.

The Town has not challenged the ranking score on this basis, but points to the discovery of artesian conditions beneath the Site as indicative of faulting. This is being further defined by the continuing Phase II hydrogeologic investigation. Artesian flow in a well may indicate the presence of a fault or fracture with implications for groundwater flow, but not necessarily or likely a seismically active or unstable fault within the meaning of this criterion. Again, the effect on groundwater flow is included within the monitorability issue which is being reserved for the permitting phase of this proceeding. There is no substantive challenge to the ranking on this criterion for the purposes of the Siting Study, and no potential error will therefore be counted.

-- Soil Permeability

The Siting Study initially rated the permeability of the soils on the Site as a "4" (compact clay/silts). This was upgraded to a "5" after the preliminary soil borings were analyzed, indicating an average permeability of less than 5 x 10-6 cm/sec. The Town alleges that the average permeability is misleading due to the higher permeabilities under the proposed landfill footprint, compared to the avoided wetland buffer areas within the Site. However, the Town concedes that this contention is based solely on information derived from the Phase II Hydrogeologic Report, and it does not specifically dispute the ranking score given the Hartford Site for soil permeability. Therefore, this criterion was not shown to be a possible error in the Siting Study ranking.

- Proximity to Surface Waters and Wetlands

Areas within New York State regulated wetlands and significant bodies of surface water were excluded from consideration as potential sites for the County SWMF early in the siting process. This criterion focuses on distance to any such major surface waters or the presence of minor intermittent streams or non-State regulated wetlands within the site. The County gave the Hartford Site a score of "2" on this criterion, meaning such surface waters are 0 to 1/3 mile from the Site. The Town contends that the Site should have received a score of "1" for surface waters within site boundaries.

The County acknowledges that there are two small intermittent streams within the Site boundaries, as well as non-New York State-regulated wetlands. The Project has been designed to avoid filling any of the wetlands, thus obviating the need to obtain permits from the U.S. Army Corps of Engineers ("ACOE"). The Applicant notes that virtually all clay sites with low permeabilities, preferred for landfill siting, will contain ACOE-regulated wetlands. The County also explains the "2" ranking by stating that this was applied consistently if the intermittent streams and wetlands within the site did not represent an impediment to development, and impacts could easily be mitigated.

While on the face of this criterion, it would appear to merit a "1" since intermittent streams and federally regulated wetlands are within the Site boundaries, the Town has not shown that the County's ranking of "2" could be erroneous as applied. The County provided a reasonable explanation and stated it was consistently applied to all the sites. All the other top sites also received a "2" on proximity to surface waters, except one which received a "1." It was then incumbent on the Town to rebut the County's explanation with an offer of proof to show that the Hartford Site was erroneously or inconsistently ranked on this criterion relative to the other sites. The Town failed to do so, although this explanation by the County and the information on the other sites have been available for an ample time. In the absence of such an offer of proof, the Town failed to raise a substantive issue on the ranking score for proximity to surface waters. Hence it will not count as a possible error in the Siting Study.

- Proximity to Incompatible Uses

This criterion ranks the sites on distance from certain incompatible uses such as schools, churches, and hospitals. The County has conceded that it failed to recognize the presence of a church on Route 196 across from the Site area. The County thus concedes that the original ranking score of "4" should be changed to "2" due to the presence of the church 0 to 2 miles from the Site, on the haul route to the Site. The Town, however, contends that the score should be further lowered to "1," meaning the church is adjacent to the Site.

The County bases the "2" score on the fact that the church is that distance from, and is not adjacent to, the originally designated Site boundaries, which do not extend to Route 196. When property options were negotiated, the landowners along Route 196 desired to sell their entire properties; thus the Site property boundary will now extend to Route 196. The Town contends that this makes the church adjacent to the Site, meriting a "1" ranking score.

Here again the County has presented a reasonable explanation for its ranking which was not sufficiently rebutted by the Town. At the time of the ranking, the operative Site did not extend to Route 196. The Town has not offered to show that this criterion was not applied consistently to the original Site boundaries rather than the ultimate property boundaries resulting from land sale agreements. Hence the "2" rating was not shown to be potentially erroneous. However the difference between the "4" and "2" scores, multiplied by the weight for this criterion (7.6), or 15.2, must be subtracted from the initial ranking total and will count as an error in the Siting Study ranking for the purpose of determining the significance of any site ranking issue. There is no issue for adjudication presented under this criterion, however, as the facts are not in dispute.

- Proximity to Agricultural Land

Certain prime agricultural lands within designated agricultural districts were excluded from consideration early in the site selection process pursuant to 6 NYCRR 360-1.14(c)(1). Otherwise, siting a landfill on active agricultural land is not prohibited by the regulations, although the impact on agriculture must be considered as part of the siting process. The Hartford Site received a ranking score of "3" for this criterion, meaning the Site was within 1/2 mile of actively farmed land. The Town contends the Site should have received a score of "1," meaning the Site was actively farmed.

The County maintains that at the time of its visual observation of the Site in June 1989, the Site did not appear to be actively farmed. The County does admit that there was active farming on the Site in 1990, but contends that is not relevant to the observation made of all sites for the Siting Study in 1989. The Town offers to produce documentary and eyewitness evidence from farmers and residents to show that the Site was actively farmed at that time. To some degree, the resolution of this issue would depend on the definition of "actively farmed" lands, (i.e., whether it includes fallow fields, pasture, etc.), which is not clear in the Siting Study.

The Town has presented a sufficiently substantive offer of proof to raise a potential issue for adjudication on the Site ranking score for proximity to agricultural land (if the total discrepancy of potentially erroneous scores is of sufficient magnitude to be significant). The facts are in dispute concerning whether the Site was actively farmed in June 1989. If the Town is correct, the ranking score of "3" would be shown to be erroneous. The difference to the corrected score of "1" multiplied by the weight of this criterion (6.5) would result in a subtraction of 13 points from the Hartford Site's total ranking score. Thus this difference in the possible error in the ranking on proximity to agricultural land will be counted in determining the ultimate significance of this sub-issue within the overall issue of the conceptual approval of the site selection process.

The Town also made a vague offer to produce evidence that the Project's impacts on agriculture were not adequately considered by the County in the Siting Study. This was not supported by a substantive offer of proof. While the Town may have weighed the impacts on agriculture more heavily had it conducted the siting study, the County's Siting Study fulfilled the requirement of 6 NYCRR 360-2.12(e)(9) that "impacts on agriculture and agricultural land . . . be considered when evaluating the environmental suitability of potential landfill sites." Hence no issue for adjudication is raised.

- Proximity to Open Space, Cultural, Historic, and Recreational Resources

The County assigned a most favorable ranking score of "5" to the Site on this criterion, meaning the Site was located more than 4 miles from any significant parks, landmarks, cultural, historic or archaeological sites. The Town contends the Site should have received a score of "1" for two reasons. Across Eldridge Lane from the Site is a property leased privately by the Sandy Hill Corporation, known as Hartford Acres, which is made available to local organizations such as the Boy Scouts, garden clubs, and church groups for gatherings and picnics. This facility is adjacent to the Site, which would require a "1" rating according the Town. The Town also offers to present evidence of possible archaeological resources on the Site which it claims the County has failed to recognize as relevant to the ranking on this criterion.

The County responds that the alleged recreational facility was not marked on any maps and was not recognizable as such during the visual inspection of the Site. It appears to be a small residence with a basketball court. The County points out that this criterion was only intended to address proximity to public recreational facilities and to major private facilities.

The facts regarding the Hartford Acres facility are not in dispute. In light of the purposes and methods followed by the Applicant in the Siting Study, its failure to consider the Hartford Acres facility a recreational resource within the meaning of this criterion must be upheld. The Town did not offer to show that the County did not apply the definition of recreational facilities consistently to other sites throughout the study. The Hartford Acres property does not appear to be a significant recreational resource at the level of detail under which the Siting Study was conducted. Based on the information about the use of this facility which the Town has provided, the County was fully justified in not considering it under the ranking for proximity to recreational resources.

With regard to the alleged archaeological resources, the County has completed, after consultation with the New York State Office of Parks, Recreation and Historic Preservation ("OPRHP"), stage 1A and 1B archaeological surveys of the Site. No prehistoric cultural remains whatsoever were found. The Town has mentioned a "volunteer" witness who might appear to testify on this issue, but no substantive offer of proof was made. In light of the archaeological surveys completed by the Applicant, and the findings approved by OPRHP, no issue for adjudication is presented.

For these reasons, the Town has not made a sufficient offer of proof to indicate that the "5" ranking on the criterion for proximity to parks, recreational and historic resources could be erroneous. Therefore it will be upheld. No issue for adjudication is presented and no discrepancy will be counted in tallying the final total ranking score for the Site.

- Proximity to Endangered or Threatened Species

The Site received a most favorable "5" ranking score for the criterion of proximity to endangered or threatened species habitat. This means the County determined the Site was over one mile from critical habitat for such species as identified by the Department's Natural Heritage Program - Wildlife Resources Center. The Town contends that the northern harrier, a threatened species, is present on the Site, and that the score should therefore be changed to a "1" or the Site should be eliminated from consideration for the Project altogether.

6 NYCRR 360-1.14(c)(3) provides that "solid waste management facilities must not be constructed or operated in a manner which causes or contributes to the taking of any endangered or threatened species of plants, fish or wildlife; or to the destruction or adverse modification of their critical habitat." The available information used by the County in ranking this criterion did not indicate that the Site was critical habitat for any endangered or threatened species. During the later investigations of the Hartford Site, northern harriers were observed flying and hunting on and in the vicinity of the Site.

For the FEIS, the County retained a special consultant to study and prepare a report on endangered and threatened species at the Site, with particular focus on the northern harrier. The report, appended to the FEIS, found that 3 pairs of northern harriers nest in the vicinity of the Site (but not on the Site) and use the Site as part of their hunting territory. The report concludes that the Project could thus reduce those individual birds' hunting habitat and limit possible nesting sites, but that it would not affect the survival of those birds or the regional or State-wide population of northern harriers. This report thus shows that the Project could have an adverse effect on a few individual birds of a threatened species, but that it would not result in a taking of such species nor the destruction of any of their critical habitat.

The Department Staff agrees that the Site is not northern harrier critical habitat, i.e. habitat essential for the conservation of the species. The Department will however require the Applicant to prepare and follow a mitigation plan to enhance northern harrier habitat on the undeveloped wetland portions of the Site. The mitigation plan will be a permit condition binding on the Applicant. The northern harrier mitigation plan has not yet been formulated. It will therefore remain as a potential issue for the permit application stage of this proceeding, along with the groundwater monitorability issue described above.

The Town has named an expert witness who would testify on the northern harrier, but conceded that it did not yet know what position he might take. Although the Town claims it needs more information from the Department on this issue under a FOIL request, its offer of proof failed to raise a substantive issue for adjudication. There is no challenge to the finding that the Site is not critical habitat for this species. In addition, under the standards for reviewing the Siting Study, the ranking score of "5" based on a literature search was fully justified by the Applicant and will be upheld. Thus no potential issue for adjudication is presented under the criterion of proximity to threatened or endangered species, and no discrepancy in the total ranking score appears for this criterion.

- Distance from Resource Recovery Plant

The largest single source of waste to be disposed of at the Project is ash and bypass waste which must be transported from the Adirondack Resource Recovery Plant ("AARP") in Hudson Falls. The County Board of Supervisors therefore included distance from the AARP as a heavily weighted criterion in the Siting Study. The Hartford Site received a "4" ranking score, meaning it was between 5 and 10 miles from the AARP.

The Town contends that the actual road distance along Route 196 to the proposed Site entrance is over 10 miles, and that the Site should therefore have been scored a "3" for this criterion. The County responded to this contention by pointing out that for the purposes of the Siting Study, the distance was measured simply in a straight-line fashion (resulting in a distance of 7.5 miles from the AARP to the Site), not odometer distance along projected transport routes. This method seems quite arbitrary since the difference between the straight-line and road distance could vary significantly and it would have been a simple matter to measure the road distances along the projected routes.

Therefore, these rulings find that the straight-line method used by the Applicant to measure haul distance is not valid. The Applicant would be required (if it is determined there are issues for adjudication) to re-score this criterion by measuring the shortest paved road distances from the AARP to the various sites as the proper guideline. Since this will increase the haul distance for all sites, the re-ranking may well not have any relative effect on the scoring for the Hartford Site. Also there is some question, depending on the location of the actual access to the Site, whether the haul distance to the Site does exceed 10 miles on the road. Nevertheless, for the purposes of these rulings, it must be assumed that there is a potential error of one point in the County's ranking for this criterion. This could create a potential discrepancy in the total ranking score for the Site of 8 points.

- Availability of Adequate Transportation Routes

This criterion assessed the truck access to each of the sites in terms of two factors: jurisdiction over the projected transport route (state, county, or town roads), and quality of actual existing access to the site. The Hartford Site received a ranking score of "4" for a route on state roads with poor access to the Site. The route to the Site from the AARP is virtually entirely on State Route 196, but the planned entrance along Eldridge Lane will require substantial upgrading. A score of "3" would mean a route along state and county roads with good access. The County reasoned that state roads, even with poor access to the actual site, were preferable to county roads with good access due to the higher capacity of state roads and the better possibility for future upgrading of the site access.

The Town here does not contest the accuracy of the actual score for this criterion, but questions the scoring guidelines which would rank sites with poorer access on state roads higher than better access sites on county roads. Again, however, the ranking method must be upheld if it had a reasonable basis, and was fairly and consistently applied. The Town has not offered to prove to the contrary. For the purposes of the Siting Study, the ranking based on state or county roads, and access to the actual site, was reasonable. Hence no issue for adjudication is raised and no discrepancy will be counted in the total ranking score for the Site based on this criterion.

- Other Proposed Issues

At the issues conference, the Town objected to the Site's ranking score of "3" under the criterion of impact on land use and zoning. The objection was not, however, based on the guidelines for scoring this criterion, which only address proximity to residential zoning. Actually it appears that there is no zoning in the Town of Hartford and the Site could have received a score of "5" on this criterion.

The Town's disagreement was based on the Project's alleged inconsistency with a Town ordinance regulating solid waste management in the Town of Hartford. This law became effective in 1990 after the main work of the Siting Study was completed in which the Hartford Site was selected as the preferred site. A prior local law prohibited the importation of garbage into the Town. In any event, the consistency with the local law is not relevant to the criterion on land use and zoning. The applicability of the Town ordinance to the Project is a legal matter between the Town and the Applicant, outside the Department's permitting jurisdiction.

Any other potential issues sought to be raised by the Town have been considered and determined not to have any merit for the purpose of raising any additional issues for adjudication.

Conclusion

The Applicant here completed a Siting Study which complied with all the requirements of 6 NYCRR 360-2.12, as well as with the Department Staff's Guidance Document on landfill siting. The Applicant has exercised its discretion in determining the scope and size of the proposed solid waste management facility, as well as in providing enough capacity to accommodate some potential sources of waste generated outside Washington County. These decisions were factored into the site selection process in the initial screening of potential sites with an adequate minimum size. While it is apparent that the Town disagrees with some of the policy decisions made by the County, the Town has not alleged that those decisions violate any applicable law or regulation administered by this Department. Hence no issue for adjudication was raised concerning the general design of the Siting Study, the size of the Project, or the potential sources of solid waste.

The Town has also challenged a number of the specific ranking scores assigned the Hartford Site by the County in the Siting Study which resulted in the Hartford Site's designation as the preferred site for the Project. In reviewing such challenges, as stated above in these rulings, the purposes, methods and limitations of the Siting Study at the time it was undertaken must be taken into account. If the County articulates a reasonable basis for a ranking, it will be upheld unless it is sufficiently substantively challenged by the Town's offer of proof. Any particular score on a ranking criterion can thus form the basis for an issue for adjudication only if two conditions are met: (1) the Town has presented a substantive offer of proof raising sufficient doubt about the correctness of the ranking score in the context of the Siting Study; and (2) the total scoring discrepancy of all such potentially erroneous scores is significant, i.e., it is large enough so that the Hartford Site would not have been retained for further consideration as the preferred site.

The Town has raised several sufficiently substantive challenges to rankings given under several criteria for the Hartford Site. However, as seen below, the total scoring discrepancy for all such potentially erroneous rankings is not large enough to have removed the Hartford Site from further consideration as the preferred site for the Project. Therefore no substantive and significant issues are presented for adjudication in this proceeding. Even if the Town were to prevail on all its potential issues, the Hartford Site would still emerge as the preferred site after completion of the modified re-ranking in the Siting Study.

As summarized above in the discussion of each proposed issue, the Town succeeded in raising potentially substantive issues only with regard to the scoring on two criteria: proximity to agricultural land and haul distance. The County has conceded an error in the scoring of the criterion on proximity to incompatible uses. If the Town is proven correct that the Site was actively farmed at the time the Siting Study was conducted, the total initial ranking score for the Hartford Site would be reduced by 13 points. If the Town's position on the haul distance criterion is upheld, the total score for the Site would be reduced by another 8 points. The conceded error in missing the church in scoring the criterion for proximity to incompatible uses reduces the score another 15.2 points. Thus, the initial score of 502.7 would be reduced by 36.2 to 466.5 if these issues are all resolved in the Town's favor. The final modified score for the Site after re-ranking based on the preliminary subsurface investigations would then by 488 instead of 524.2.

With those score adjustments, the Hartford Site would have been at worst the sixth-highest scoring site in the initial ranking in the Siting Study, and the third-highest in Washington County. The Hartford Site would have been retained for further investigation and would still have emerged as the highest ranked site in Washington County after the preliminary subsurface investigations. Therefore, the Town's remaining substantive issues, concerning the scoring of the agricultural and haul distance criteria, are rendered not significant. Their resolution could not result in denial of the conceptual approval of the Applicant's site selection process and of the County's selection of the Hartford Site for the Project.

This entire exercise does however highlight just how quirky and even arbitrary it can be to rely so heavily on a numerical model such as this for landfill siting. For example, if the small private Hartford Acres facility were considered a significant recreational resource, the total score for the Site would be reduced another 25.6 points. This, in combination with the other potential errors, could have reduced the total score well below 450, which could have eliminated the Site from further consideration after the initial ranking. Yet, the Site has the highly desirable characteristics of low permeability soils as show by its substantially improved ranking as a result of the preliminary subsurface investigations. Another example is seen in the high ranking scores given the Warrensburg site. Despite being ranked second in both the initial and modified rankings, this site was found to be probably unpermittable upon further investigation due to rough topography and highly variable soil and bedrock conditions.

This type of siting study is however what is currently required by the regulations. Its end result in this case, the selection of the Hartford Site, has turned out to be an excellent one from the standpoint of the criteria most heavily emphasized by the Department Staff and the regulations: thick sequences of low permeability unconsolidated surface materials (see 6 NYCRR 360-2.12[d][1]). The Town has not offered to show that any particular alternative site may be superior from this or any other standpoint. The Town also did not attempt to compare the rankings for the Hartford Site with those given any of the other sites considered in the Siting Study. The County in this case followed the procedure prescribed by the regulations and the Department Staff, and did not make enough potential substantive errors to invalidate the Siting Study or to give rise to any significant issues for adjudication. The Hartford Site would have been selected as the preferred site even if the Town were to prevail on the substantive issues it raised relating to the specific siting criteria rankings.

The Town has therefore not presented any substantive and significant issues for adjudication in this proceeding for conceptual approval. Therefore, these rulings recommend that the conceptual approval sought by the Applicant for its site selection process and selection of the Hartford Site for a Washington County Solid Waste Management Facility be granted. The record of this proceeding shows that the site selection process followed by the County complies with the applicable requirements of 6 NYCRR 360-2.12. Based on the Siting Study and the information available in the record of this proceeding, the Site is the most appropriate site for the Project as required by 360-2.12(a)(1).

This conclusion is limited however to the conduct of the site selection process only. It does not address other potential issues which may arise concerning the Project's compliance with other specific requirements of Part 360 or other applicable laws or regulations. The Applicant must still apply for the actual solid waste management facility permit pursuant to 6 NYCRR Part 360 and any necessary related permits such as a waste transporter permit pursuant to Part 364.

One issue which remains to be resolved during the remaining processing of the application is whether the Site's hydrogeology can be sufficiently characterized to enable groundwater to be effectively monitored and remediated as required by 6 NYCRR 360-2.12(c)(5). The Applicant is in the process of providing additional hydrogeologic information towards resolving this issue. It will remain to be determined under the normal permit processing and hearing procedures, after the application is complete, whether a full adjudicatory hearing will be required to ultimately resolve the issue of hydrogeological monitorability of the Site.

At this time no other issue has been raised which can be identified as potentially adjudicable at the permit application or hearing stage. The habitat enhancement or mitigation plan for the northern harrier has yet to be formulated, but there is no reason to anticipate that this could lead to a substantive and significant disputed issue. No other potential issues concerning the construction, design, and operation of the Project itself have been raised by any party. Generally those matters were not considered within the scope of this request for conceptual review. Although it is not anticipated that any such issue will arise during the final permit processing, they are not precluded by this ruling which addresses only conceptual review of the site selection process. Future proceedings will be governed by the usual procedures and standards set forth in 6 NYCRR Parts 621 and 624.

Appeals

These rulings may be appealed to the Commissioner pursuant to 6 NYCRR 624.6(d). The time for filing any such appeals is extended to November 6, 1992, by which date appeals must be received in the offices of the Commissioner and the other parties. Responses to any appeals must be received no later than November 18, 1992. Copies of all appeals and responses must be sent to all parties, the ALJ, and the Commissioner, as shown on the attached distribution list.

Andrew S.Pearlstein
Administrative Law Judge

Dated: October 22, 1992
Albany, New York

TO: Attached Distribution List
(Via Federal Express)

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