Waste Management of New York (Towpath) - Ruling, December 31, 1999

Ruling, December 31, 1999

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Application of
WASTE MANAGEMENT OF NEW YORK, LLC
for permits to operate a solid waste
management facility, the Towpath
Environmental & Recycling Center, in
the Town of Albion, Orleans County.
(DEC Application No. 8-3420-00019/00005)

RULINGS OF THE
ADMINISTRATIVE LAW JUDGE ON
PARTY STATUS AND ISSUES

TABLE OF CONTENTS

Background and Brief Project Description

Legislative Public Hearing

Issues Conference

Issues for Adjudication

Fitness

Hydrogeology

Noise

No Issue for Adjudication

Variance from Requirements for Unconsolidated Deposits

Construction Quality Assurance/Construction Quality Control

Survey of Groundwater Wells

Groundwater Separation

Soil Limitations

Anomalous Features

Structural Integrity

Seismic Risk

Property Values

Local Permitting of Sedimentation Basin

Host Community Agreement

Agricultural Impacts

Ownership of Yager Road

Traffic

Burden on Municipal Services

Monitorability of Gas Emissions

Impacts to Federally Regulated Wetlands

Water Quality Certification

Site Access to Verify Wetland Delineation

Seagull Control

Visual Impacts

National Historic Preservation Act

Other Issues

Rulings on Party Status

Appeals

Transcript Corrections

BACKGROUND AND BRIEF PROJECT DESCRIPTION

Waste Management of New York, LLC ("WMNY," or "the Applicant") proposes to expand the closed Orleans Sanitary Landfill ("OSL") facilities at 3511 Densmore Road in the Town of Albion, Orleans County. The new facility, to be known as the Towpath Environmental & Recycling Center ("Towpath"), would be located south of the New York State Erie Canal, east of Densmore Road, west of Transit Road, and north of the Conrail tracks. [See Appendix "A" of this report, a map of the site and adjacent area, and Appendix "B", a site plan map, both of which are part of the application documents.]

The approximately 204-acre parcel upon which the landfill would be developed includes the existing OSL site and previously disturbed land to the north and east. It is adjacent to the McKenna Landfill ("McKenna"), which is immediately to the northeast. The site property is owned by the Estate of the Orleans Sanitary Landfill, Inc. and Irene M. Smith. Under the terms of a 48-year lease agreement, the estate bankruptcy trustee and Ms. Smith conveyed certain rights and obligations to WMNY. As a condition of the lease, WMNY is obligated to obtain all required permits to construct and operate a landfill on the site and thereby create a revenue stream, a portion of which is to be distributed to creditors of the Estate.

The proposed site includes an area of about one acre in the northwest portion that was used by the Village of Albion for waste disposal in the 1950s. It also includes the approximately 40-acre closed OSL site in the southwest portion. The closed OSL site was operated from 1983 to 1991. Initial closure activities were performed in 1991, but in August of that year, Orleans Sanitary Landfill, Inc. filed for bankruptcy. Closure and post-closure of the OSL site since the bankruptcy filing has been managed by the bankruptcy trustee, who contracted with WMNY for implementation of a closure plan and post-closure activities.

The proposed landfill footprint is 73 acres in the eastern portion of the 204-acre parcel. The westernmost four acres of the landfill would overlay the existing eastern slope of the closed OSL site, forming one contiguous landform. Most of the property where the proposed landfill would be constructed was mined in the past for overburden soil used in support of operations at the closed OSL site.

The adjacent privately-owned McKenna Landfill site, which was operated from 1968 to 1983, is now closed. It is listed as a Class 2 site on the New York State Registry of Inactive Hazardous Disposal Sites. WMNY has entered into a consent order with the New York State Department of Environmental Conservation ("the Department," or "DEC") for the development of a closure remedial program for the site, which includes the installation of a landfill cap, a leachate and groundwater collection system, off-site leachate/groundwater treatment, and an improved gas-venting system.

As proposed, the Towpath landfill would have a design capacity of 1,800 tons of solid waste per day. According to an activity schedule timeline provided by WMNY, the project would last about 18 years, 16 of which would involve the placement of waste. At full capacity, the landfill would be about 200 feet above the existing ground level and about 90 feet higher than the existing OSL. All construction for the Towpath landfill would include a double composite liner system beneath the solid waste, collection and treatment of both landfill gas and leachate, storm water management, and groundwater, leachate, landfill gas, surface water, and sediment monitoring.

To move ahead with its project, WMNY requests a permit to construct and operate a solid waste management facility, the issuance of which is controlled by the Department pursuant to Title 7 of Article 27 of the Environmental Conservation Law ("ECL") and Part 360 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR Part 360"). Also, WMNY requests a dam safety permit under Title 5 of Article 15 of the ECL (for the construction of a sedimentation basin), an air pollution control permit under Article 19 of the ECL (addressing the release of landfill gases), and a water quality certification under Section 401 of the Clean Water Act (related to impacts to federally regulated wetland).

In conjunction with the solid waste management facility permit, WMNY is seeking two variances. One is from the requirement of 6 NYCRR 360-2.7(b)(9)(iv) that two separately functioning subcells be maintained so that a non-functioning subcell could be made inoperable to allow for investigation and remediation while another subcell could continue to receive solid waste. WMNY intends to operate the first landfill cell before the second is constructed, and in the event the first cell must become inoperable prior to the second one's availability, WMNY would divert the inbound solid waste stream to alternate authorized transfer and/or disposal facilities.

The second variance sought is from the requirements of 6 NYCRR 360-2.12(a)(1)(v) and (vi) that unconsolidated deposits underlying the proposed landfill either exist or be constructed to be 20 feet or greater in thickness as measured from the base of the constructed liner system. WMNY intends to provide a subgrade that would be no less than 10 feet thick, one that would exhibit performance at least equivalent to that contemplated by the 20-foot layer prescribed by the regulations. Because of this, WMNY concludes that filling with an additional 10 feet of soil would unduly increase construction costs and raise the liner elevation, thereby eliminating air space and the revenue associated with it.

As lead agency under the State Environmental Quality Review Act ("SEQRA," ECL Article 8), DEC determined that the proposed Towpath project is a Type I action and issued a Positive Declaration on May 6, 1994. The Applicant prepared a three-volume Draft Environmental Impact Statement ("DEIS"), which DEC Staff accepted for review on March 24, 1999.

A Notice of Complete Application, dated March 24, 1999, was published in the Department's Environmental Notice Bulletin (ENB) and the Albion Advertiser on March 31, 1999.

LEGISLATIVE PUBLIC HEARING

A Notice of Public Hearing, dated May 26, 1999, was published in the ENB and as a legal notice in the Albion Advertiser on June 2, 1999. The notice announced a hearing, to be held pursuant to 6 NYCRR 617.9(a)(4) and 624.4(a), to receive unsworn statements on the application and DEIS.

The hearing went forward as scheduled during the evening of July 1, 1999, at the Sheret Post #35 of the American Legion, 131 S. Main Street, Albion. More than 200 people attended, and 45 spoke. Oral and written comments made in response to the Department's notices were overwhelmingly negative about the project and its impact on the surrounding community.

Public officials speaking against the project included State Senator George D. Maziarz (61st District), Marcia Tuohey, chairperson of the Orleans County Legislature, Orleans County Legislator George Bower, and Barre Town Board member Shirley A. Walter. Also speaking against the project were the New York Parks and Conservation Association, which said the landfill would be incompatible with the development of recreation and tourism along the Erie Canal, and the statewide Citizens' Environmental Coalition, which voiced concerns about impacts to public health and safety, as well as the environmental compliance record of the Applicant's parent company, Waste Management, Inc., which it said warranted permit denial or, at the least, heightened monitoring if the project goes forward.

Community opposition to the landfill centers on the following concerns:

• Noise, odor, visual, vector and other environmental impacts along the Erie Canal corridor, which is used for boating, hiking and biking;
• Diminished property values and lost canal-related tourismopportunities;
• Visual impacts affecting local landmarks like the observation tower at the Mount Albion Cemetery;
• The impact of landfill-related traffic on public safety, particularly at the intersection of Routes 31 and 98 and along Route 31 near public schools;
• Monitorability of the Towpath facility given its proximity to the OSL and McKenna landfill;
• The potential for escaped leachate to contaminate groundwater and drinking water wells, and to escape detection in bedrock fractures; and
• Potential waste mass instability given the possibility of earthquakes along a nearby fault.

Opponents questioned the need for the landfill, arguing that the community already has adequate disposal capacity and should not have to take responsibility for others' waste. Some opponents said landfills are archaic ways to dispose of waste and a disincentive to recycling. Citing the OSL and the McKenna facility, others said Albion had "had its turn" with landfills, and any new ones should be located in other places. Some questioned whether the Applicant can be trusted to comply with relevant laws, given its record of compliance history; others doubted whether DEC has sufficient staff to provide adequate surveillance.

Though expressed public opinion was mostly against the project, there were some letters of support from local residents. Proponents of the project applauded WMNY's efforts to remediate the existing on-site landfills, one calling the Applicant a good company that had been attentive to neighbors' concerns, and another saying an open, monitored landfill like Towpath would be better than a closed, abandoned one like OSL. Proponents said an expected package of host community benefits could help keep property taxes down while providing valuable local services.

ISSUES CONFERENCE

As announced in the hearing notice, an issues conference began on July 20, 1999, at the Albion Town Hall. It continued there on July 21 and 22, and August 17, 18, 19, and 20.

The purpose of the conference was to determine which proposed issues bearing on DEC's permitting decisions would require adjudication, and who, among the petitioners for party status, would participate in an adjudicatory hearing, should one be required.

- - Conference Participants

Participants at the issues conference were the Applicant, DEC Staff, and various prospective intervenors.

The Applicant was represented by Kevin M. Bernstein and Joseph Zagraniczny, Esqs., of Bond, Schoeneck & King, LLP, in Syracuse.

DEC Staff was represented by Paul D'Amato, Esq., of the Department's Region 8 office in Avon.

Filing in a timely manner for full party status were the Towns of Albion and Murray, the New York State Canal Corporation, citizens' groups Stop Polluting Orleans County and the Albion Coalition, and Edward R. (Ted) Scharping, a real estate agent. Another individual, Alan J. McKenna, Sr., made a late filing for amicus status.

The Town of Albion was represented by Daniel A. Spitzer and Michael J. Kotin, Esqs., of Hodgson, Russ, Andrews, Woods & Goodyear, LLP, in Buffalo.

The Town of Murray was represented by Mindy L. Zoghlin, Esq., of Bansbach, Zoghlin, Wicks & Wahl, P.C., in Rochester.

The New York State Canal Corporation was represented by John R. Dergosits, P.E., of its Office of Canal Maintenance and Operations in Albany.

Stop Polluting Orleans County was represented by its director, Patricia J. Wood of Fancher.

The Albion Coalition was represented by its chairperson, Peggy Theodorakos of Albion.

Mr. Scharping represented himself, and Mr. McKenna was represented by Mark H. Klafehn, Esq., of Brockport. Both Mr. Scharping and Mr. McKenna are from Albion.

- - Conference Proceedings

As the conference began, WMNY was directed to provide a list of documents which constitute the application. The list submitted by WMNY was received as Exhibit No. 5 and supplemented as new documents were added. Also, Staff's initial draft permits were marked as Exhibits No. 6-A (the landfill permit), 6-B (the dam safety permit), and 6-C (the air permit).

At the start of the conference, Staff said that it had identified no issues of its own that were likely to require adjudication, adding that a few matters remained under negotiation with the Applicant, and that additional permit conditions were contemplated. Staff also said that the Applicant had just provided it with additional information on visual, noise, traffic and other potential impacts, which still required review.

The Applicant proposed various changes to Staff's draft permits, and I responded that Staff and the Applicant should discuss these informally, outside the conference record. I said that to the extent Staff accepted the changes, Staff could revise the permits; to the extent Staff rejected them, the Applicant could bring them to my attention as potential matters for adjudication.

Finally, the Town of Murray moved to adjourn the issues conference, saying it was premature. However, I said the conference would proceed, addressing, as best it could, proposed issues whose consideration would not appear to be affected by contemplated changes in the project or the draft permit. Addressing Murray's argument that petitioners for party status should not have had to file before Staff took a position on the project and released a draft permit, I reminded the Town that a petition could be prepared solely on the basis of review of the project application, and that Staff was not obliged to state its position, which at any rate is tentative, until the issues conference began.

Between the July and August conference dates, Staff made various revisions to its draft permits and announced them to the participants. (The revised draft landfill permit is Exhibit No. 20-A, and Exhibit No. 20 is Staff's letter detailing changes to the draft dam safety and air permits.)

Also, the Applicant volunteered even more information on the project's visual impacts, and, as required by a ruling I made in July, it updated its disclosure concerning WMNY's environmental compliance history. Finally, the Applicant negotiated an agreement resolving all of the Canal Corporation's issues, which pertained to impacts the project might have on the Erie Canal corridor. When the conference resumed on August 17, a copy of that agreement was received as conference exhibit No. 19, and a cover letter attached to the agreement confirmed that the Canal Corporation had withdrawn its request for party status.

The agreement addresses concerns the Canal Corporation had with regard to the project's visual impact, as well as impacts from landfill-derived methane gas, vectors, and litter. The agreement also provides that McKenna landfill waste which encroaches onto Canal Corporation property will remain in place. WMNY agrees to indemnify, protect, defend and hold harmless both the Canal Corporation and its parent entity, the New York State Thruway Authority, with regard to claims and obligations they may face in regard to the waste and its non-removal.

Because of the new information provided by the Applicant after the issues conference commenced, coupled with changes to Staff's draft permits, all petitioners for party status were given an opportunity to supplement their filings prior to the resumption of the conference in August. As supplemented during the course of the issues conference, the Town of Albion's filing consists of Exhibits No. 7 A - G, the Town of Murray's filing consists of Exhibits No. 8 and 8A - C, SPOC's filing consists of Exhibits No. 9 A - D, the Albion Coalition's filing consists of Exhibits No. 10 and 10A - H, and Mr. Scharping's filing consists of Exhibits No. 12 A - C. Mr. McKenna's late filing is Exhibit No. 21.

When the conference resumed on August 17, 1999, DEC Staff said it was not proposing any issues for adjudication. Also, having reviewed Staff's revised draft permits, the Applicant indicated it had no objection to any of their terms. Therefore, as between the Applicant and Department Staff, nothing requires litigation, and the burden is on the potential intervenors to demonstrate that there exist "substantive" and "significant" issues which require adjudication. [6 NYCRR 624.4(c)(4).]

According to the Department's permit hearing regulations, an issue is "substantive" if there is sufficient doubt about the Applicant's ability to meet the statutory or regulatory criteria applicable to the project, such that a reasonable person would require further inquiry. In determining whether such a demonstration has been made, the ALJ must consider the proposed issue in light of the application and related documents, the draft permit, the content of any petitions for party status, the record of the issues conference and any subsequent written arguments authorized by the ALJ. [6 NYCRR 624.4(c)(2).]

An issue is "significant" if it has the potential to result in the denial of a permit, a major modification to the proposed project or the imposition of significant permit conditions in addition to those proposed in the draft permit. [6 NYCRR 624.4(c)(3).]

- - Post-Conference Proceedings

Since the conference ended, a number of additional submissions have been made. Because of new information provided by the Applicant during the conference, the Town of Albion was allowed to make an additional written submission on an issue concerning landfill noise, which was received here on August 30. Pursuant to my ruling on August 18, the Applicant sent a letter dated October 5, 1999, attached to which was compliance history information for its parent company, Waste Management, Inc. Department Staff provided a letter dated October 19, 1999, announcing changes to its draft landfill permit and discussing other permit-related matters.

By a memorandum of October 22, I requested that the parties make additional submissions addressing the new information provided since the conference. These submissions were made in two rounds, the first in early November and the second in mid-November. Department Staff provided new information about the delineation of on-site wetlands in a letter dated November 30, 1999, to which the Towns of Albion and Murray responded in early December. A complete record of the correspondence to and from the ALJ is maintained separate and apart from the record of hearing exhibits.

ISSUES FOR ADJUDICATION

Issues for adjudication exist with regard to the fitness of the Applicant, site hydrogeology, and noise that would be generated by project operations. Each of these issues is discussed separately below.

FITNESS

An issue exists as to whether the Applicant is suitably fit to receive the permits requested from the Department. This issue concerns the environmental compliance record of Waste Management of New York, LLC, as well as its parent company, Waste Management, Inc. ("WMI"), over the last ten years.

These companies' compliance history is relevant because it bears upon the Applicant's ability and trustworthiness to meet the requirements of the ECL, DEC regulation, and any permit that is ultimately issued. The compliance history of WMNY is especially important because its name is on the application. However, the compliance history of WMI is also relevant because WMI holds a substantial interest in WMNY. In fact, WMNY is a wholly-owned subsidiary of WMI.

The fitness issue has been proposed by the intervenor group Stop Polluting Orleans County as a basis for permit denial or, at the least, some unspecified additional conditions beyond those in Staff's draft permits. While they did not propose the issue in their own petitions, the Towns of Albion and Murray join SPOC in requesting further disclosure by the Applicant, this time for USA Waste, which merged with WMI in 1998. The need for such disclosure is challenged by the Applicant and DEC Staff, and is addressed as part of these rulings so the issue may be appealed by any dissatisfied conference participant.

- - WMNY Record of Compliance

As a required supplement to its application, WMNY (then known as Waste Management of New York, Inc.) completed a record of compliance form identifying other permits it had been issued under the ECL as well as various administrative law violations committed within the last 10 years. (See Exhibit No. 13 - A.) Because the list of violations had not been updated since August, 1997, I directed that the Applicant furnish a supplement, which it did on July 30, 1999. (See Exhibit No. 13 - B, which also includes a list, current as of July 22, 1999, of various WMNY facilities permitted under the ECL as landfills, mines or transfer stations.) In addition, DEC Staff, in a submission of November 2, 1999, identified two more Region 8 consent orders which for some reason had not been referenced in WMNY's disclosure.

All combined, the identified violations of the ECL and Department regulations, permits and consent orders raise enough doubt about the Applicant's fitness that a reasonable person would inquire further into the circumstances of those that appear most significant. Such inquiry is warranted under terms of the Department's Record of Compliance Enforcement Guidance Memorandum (EGM) issued August 8, 1991, as revised in February of 1993 (a copy of which was received as Exhibit No. 14). According to that memorandum, the Department should consider as a basis for using its discretion to deny a permit whether an Applicant in the last 10 years "has been determined in an administrative, civil or criminal proceeding to have violated any provision of the ECL, any related order or determination of the Commissioner, any regulation of the Department, any condition or term of any permit issued by the Department . . . on one or more occasions and in the opinion of the Department, the violation that was the basis for the action posed a significant potential threat to the environment or human health, or is part of a pattern of non-compliance." (EGM, pages 4 and 5.)

The information already available indicates various violations the circumstances of which need to be explored. For instance, according to DEC Staff, WMNY's compliance record in Region 8 includes a 1991 order (modified in 1992) assessing a $71,000 penalty for placing waste at a not yet permitted location at the High Acres Landfill in Fairport, as well as a 1991 order assessing a $4,500 penalty for installing gas recovery wells at the Monroe Livingston Landfill prior to receiving a DEC permit to do so. Apparently neither of these orders was mentioned by WMNY as part of its record of compliance disclosure, which raises a second ground for inquiry under the EGM: whether the Applicant made materially false or inaccurate statements in the permit application. (EGM, page 5.)

Also requiring further scrutiny are various more recent DEC violations related to waste handling by WMNY and its former subsidiary Waste Management of New York City, which is now part of the parent company. Acknowledged by the Applicant, many of these violations resulted in substantial penalties:

• $50,000 for 1999 violations including operating over permitted tonnage limits and beyond authorized hours, at a Goshen recycling facility (Northern Recycling);
• $50,000 for 1998 violations including exceeding operating hours, at an Averill Park transfer station (Poestenkill);
• $20,000 for 1999 violations including acceptance of unauthorized materials, at a Brooklyn transfer station (NYC Hauling);
• $20,000 for 1998 violations including alterations to the physical plant and facility operations beyond those authorized by permit, at another Brooklyn transfer station (Varick 1);
• $20,000 for 1998 violations involving physical plant modifications which resulted in changes to plans, at a third Brooklyn transfer station (BQE);
• $40,000 for a 1998 violation of operating beyond the borders of the permitted area, at a fourth Brooklyn transfer station (Woodyard).

Finally, it appears from WMNY's disclosure that it and Waste Management of Virginia, a sister corporation, were penalized $150,000 by a Virginia Court in 1999, and enjoined from transporting or receiving loads of solid waste that include regulated medical waste. Also, Virginia imposed a $125,000 penalty after blood, bloody fluids and "sharps" were found in waste bales from a WMNY facility in East Rochester, which were to be disposed of at a Virginia solid waste management facility.

To properly consider the matters identified above, the Applicant needs to produce the underlying documentation, including the consent orders in matters involving penalties assessed by DEC. Matters not explicitly mentioned above shall not be pursued further, to narrow the focus of inquiry. (For these matters, the Applicant's disclosure summary shall suffice.)

Once the factual record is developed, the parties will be allowed an opportunity to make written arguments about the relevance and weight of the violations, consistent with the EGM's mandates.

Also, the Applicant shall be considered under a continuing duty to update all demanded summaries of compliance information, so that the final permitting decision can account for the most recent information.

- - Waste Management, Inc. Record of Compliance

The fitness issue in this case shall encompass a review of the compliance history not only of WMNY, but also its parent company, Waste Management, Inc. ("WMI"). This is necessary to conform with the EGM, which provides that its guidelines should be applicable not only to the "immediate entity" (WMNY) but to any corporation which "holds a substantial interest" in the permittee or applicant. WMI holds a substantial interest in WMNY because it owns it; WMNY is its subsidiary.

The compliance record of WMI is the principal concern of SPOC, as is clear from its filing for party status (Exhibit No. 9 A -D). WMNY did not make any disclosure for WMI as part of its application, nor was such disclosure requested by DEC Staff, despite the mandate of the EGM.

On August 18, 1999, in a verbal ruling (T: 748-757), I determined that record of compliance information for WMI, consistent with that covered by the EGM, would have to be provided by the Applicant, basically granting SPOC's request in this regard. Such information was provided by the Applicant under a cover letter of Kevin Bernstein dated October 5, 1999.

By a memorandum of October 22, 1999, I allowed an opportunity for all conference participants to comment on the new information, whether it represented an adequate disclosure, and what bearing it should have on fitness considerations. Comments on these points were received from DEC Staff (a letter of November 2, 1999, from Paul D'Amato), SPOC (a November 2, 1999, letter from Patricia Wood), and the Town of Albion (a letter of November 3, 1999, from Daniel Spitzer.) By a letter of November 12, 1999, Mr. Bernstein responded to the comments on behalf of the Applicant.

According to the Applicant's disclosure, WMI is a large company in the waste management business, with over 70,000 employees and 292 landfills, 295 transfer stations, 104 material recycling facilities, and 615 collection companies in the United States.

Consistent with my directive, the 16-page disclosure summarizes 37 incidents resulting in criminal convictions or civil penalties of $25,000 or more. Among the most serious is a 1991 incident in which Waste Management of Pennsylvania, a WMI subsidiary, paid a $3.8 million civil penalty for its employees' creating inaccurate records about the volume of waste received at the Lake View Landfill in Erie, which resulted in the acceptance of waste in excess of the permitted maximum and average daily tonnages. According to the disclosure, Chemical Waste Management, Inc., another WMI subsidiary, has also been the subject of substantial assessments: $10.1 million in penalties, costs, restitution and contributions for a 1992 guilty plea in a federal case involving failure to report hazardous waste spills during the clean-up of a Pennsylvania Superfund site, and a $1.9 million civil penalty for unspecified 1991 "permit interpretation issues and alleged violations of Illinois Environmental Law."

The incidents described in the preceding paragraph are of sufficient gravity that the underlying documentation must be brought into the hearing record. As for the other incidents included in the WMI disclosure, no one has challenged the accuracy of the Applicant's accounting, so the disclosure can come into the record without further explanation, except with regard to some incidents for which I may request clarification, to reconcile the Applicant's descriptions with those from news accounts referenced in SPOC's filing for party status.

Though not challenging the WMI disclosure as far as it goes, SPOC writes in its November 2 letter that the disclosure is incomplete, based on a 1999 newspaper article which allegedly states that, in the past six years, WMI has been cited for nearly 1100 violations of law and paid hundreds of millions of dollars in fines. Even if this is true, SPOC's contention fails to recognize that I did not ask the Applicant for WMI's entire compliance history, but only that information which would require disclosure under the EGM.

If the Applicant omitted information of the type I required be disclosed (as an example, SPOC cites a $1.5 million fine paid by WMI for improperly reporting landfill waste volumes and failing to manage gas and odors), then the burden will be on SPOC to bring the underlying documentation forward as part of the hearing. Then, if it appears it should have been disclosed by WMNY in the first instance, WMNY will have the burden to explain why it was not. At any rate, there is no formula by which a certain number of violations - - or a certain amount of total penalties - - decides the issue of fitness.

As part of its request for party status, SPOC has offered a 1992 investigatory report on WMI (Exhibit No. 9 - D) prepared by the San Diego (California) District Attorney at the request of the county's board of supervisors, when the board was considering a WMI landfill development application. The 58-page report concluded that the company's history required "extreme caution" by the board, as it presented "a combination of environmental and anti-trust violations and public corruption cases which must be viewed with considerable concern." Within two months of the report's release, WMI put out its own 106-page analysis of the report (Exhibit No. 16), calling it "unfairly and misleadingly critical" and claiming it gives a "harsh, one-sided and inaccurate" picture of the company.

SPOC proposes that the District Attorney's report be considered in its entirety as part of the fitness evaluation of WMI. However, I will decline to receive it, since its allegations are for the most part too dated to be relevant to the company's expected future conduct. The EGM creates a 10-year window of review, and the report itself is already more than seven years old. The report, though, may have some limited value to SPOC to the extent it suggests whether the disclosure I ordered for WMI is accurate and complete. Furthermore, the Department may take notice of the board's actual decision denying the permit, if SPOC wants to present it.

SPOC also proposes that DEC consider a 1999 decision by San Luis Obispo County (California) to reject WMI's attempt to take over a hauling operation, allegedly due to WMI's compliance history. If SPOC can produce the decision, I will look at it, since the EGM allows for consideration of instances in which an applicant has been denied a permit for the same or a substantially similar activity, even if by another state. However, while the decision itself is admissible, DEC should be more interested in the evidence used to reach it.

The Applicant contends that the decision is not relevant because it is not in the strict sense a permit denial, but a determination not to transfer an existing hauling contract. This distinction is insignificant because, in any case, the decision would contain fitness-related information. I will also look at the 1997 decision of the Indiana Department of Environmental Management which SPOC characterizes (on page 2 of Exhibit No. 9 - B) as turning down WMI's application to operate a hazardous waste landfill in Fort Wayne, due to the company's "poor" environmental track record.

Finally, SPOC proposes that DEC consider various civil court lawsuits involving the business affairs of WMI and various subsidiaries. These include a shareholder lawsuit alleging that WMI inflated its stock prices and overstated earnings between 1994 and 1997, which resulted in a $220 million settlement, and other matters involving alleged fraud, price-fixing, and conspiracy to allocate customers for waste disposal services.

These matters shall not be considered as they do not relate to WMI's environmental compliance record, which is the limited concern of this hearing. Also, many of the matters involve incidents that occurred more than 10 years ago, too far back to reflect on the company's current operating culture.

- - USA Waste Record of Compliance

In 1998, WMI merged with another company, USA Waste, with the new company retaining WMI's name. The prospective intervenors refer to what happened as a "purchase" or "merger by acquisition" on the part of USA Waste, allegedly the larger of the two corporations.

The Applicant's disclosure addresses matters that relate to the former USA Waste since it merged with WMI and took its name. The Applicant claims this is the only relevant information, but the prospective intervenors maintain that USA Waste's record prior to the merger is also relevant and must be disclosed.

Having reviewed the arguments on this issue in the parties' recent submissions, I agree with the intervenors. USA Waste is now part of WMI, and its record of environmental compliance over the last 10 years bears on the fitness issue here at least as much as the record of the pre-merger WMI.

DEC Staff notes correctly that SPOC has made no offer of proof regarding USA Waste's compliance history that is comparable to its offer for WMI. However, it is up to the Applicant to make an adequate disclosure in the first instance. As with the record of compliance information for WMI, comparable information for USA Waste is "reasonably necessary" to make a fitness determination in this matter. [See 6 NYCRR 621.15(b), which provides authority for requesting additional disclosure.]

Staff also argues that USA Waste changed so drastically after its merger with WMI - - USA Waste being much smaller pre-merger - -that any conclusions about future conduct based on pre-merger activity would be so speculative as to be of little utility. However, USA Waste is now fully subsumed within the new WMI, so its operating history is important to know. Also, as the Applicant concedes, WMI's current 12-member board includes four members from the pre-merger USA Waste as well as seven from the pre-merger WMI, so USA Waste maintains some measure of control at the highest level of the new company.

Because of this, the Applicant must furnish environmental compliance information on the pre-merger USA Waste to the same extent previously ordered for WMI. Once the information is furnished, an opportunity for the other parties to comment shall be provided, and I will then determine the extent to which the new information should be incorporated into the record.

- - Objections to Fitness as a Hearing Issue

The Applicant and DEC Staff object to the inclusion of fitness as a hearing issue, and contend that fitness should be evaluated only with regard to WMNY's record of environmental compliance. According to Staff, WMNY has had no "significant" compliance issues and has never been denied a permit - - or had one revoked or suspended - - under the ECL. To Staff and the Applicant, it would be merely speculative to draw conclusions about WMNY's fitness to operate the Towpath facility from the compliance history of its parent company.

To buttress its point that fitness should be evaluated on WMNY's record alone, the Applicant provided two affidavits with its October 5, 1999, submission: one from Richard Burke, president of its local operating division, and the other from Jeffrey Kocian, its district manager who oversees day-to-day operations at the nearby High Acres Landfill in Fairport. The affidavits are meant to show that decisions about the day-to-day operations of the Towpath facility would be made by WMNY's local managers, not by higher officials of the company or its corporate parent. On the other hand, the prospective intervenors argue reasonably that the larger corporate culture of of WMNY and WMI would inevitably affect how the landfill runs, at least to some small degree.

The Applicant's affidavits provide relevant information bearing on the weight one should give to WMI's compliance record, but by the terms of the EGM itself, that record must be laid out, and the affiants need to testify before their statements can be credited. Also, evidence confirming WMNY's assertion that it has its own officers and corporate structure, separate from WMI, bears on the relationship between the two, and the extent of influence WMI could be expected to have over environmental compliance matters.

To the extent one could conclude that WMNY's compliance activities and policies would be substantially controlled by WMI, WMI's record becomes more and more important. [See In the Matter of SES Environmental Systems, Fifth Interim Decision of the Commissioner, September 9, 1993, page 8; and In the Matter of Laidlaw Environmental Services, Inc. and BDT, Inc., Interim Decision of the Commissioner, December 21, 1993, pages 2 and 3.]

Other relevant factors bearing on fitness, which the Applicant may want to develop, would include the size of WMNY's and WMI's operations (to put its compliance problems in perspective), steps that were taken to correct past problems and prevent their recurrence, the extent to which those problems threatened or actually harmed the environment, and whether the problems were isolated or part of a pattern. The Applicant may also want to explain its internal policies and controls which are designed to assure compliance at the Towpath facility. Because it already has mentioned them, Staff may also want to explain how its draft permit provisions addressing financial assurance and on-site environmental monitors - - to be paid for by WMNY, but employed by and answerable to DEC - - would help allay fitness concerns.

WMNY contends that it would set a dangerous precedent to find a fitness issue based on the intervenors' "innuendo and speculation" where Staff has stated that it trusts the Applicant, the Applicant has complied with all permits issued to it by DEC, and none of these permits has ever been revoked. However, it is not my intent to adjudicate fitness on anything other than the documented record, which for WMNY does include some findings of DEC permit violations. Also, a fitness issue need not be advanced by Staff in order for it to be certified; in fact, I have found such an issue in many cases where Staff did not propose it. [See, for instance, In the Matter of American Transfer Co., ALJ Rulings, December 17, 1990, affirmed by Commissioner's Interim Decision, February 4, 1991; In the Matter of Conover Transfer Station and Recycling Corp., ALJ rulings, July 6, 1992, affirmed by Commissioner's Interim Decision, August 21, 1992; and In the Matter of All-City Paper Fibers, ALJ Rulings, September 11, 1992, affirmed by Commissioner's Interim Decision, October 27, 1992.]

- - Summary

The Applicant's fitness is a substantive issue since its and its parent company's past environmental compliance histories raise sufficient doubt about its ability and trustworthiness to comply with the requested permits. It is a significant issue because the permits can be conditioned or denied based on the outcome of the issue's adjudication, given DEC's implicit discretion in this area, which all parties have acknowledged.

HYDROGEOLOGY

Issues exist with regard to the hydrogeologic investigation conducted as part of the application, the reliability of the conclusions in the hydrogeologic report, the effectiveness of the environmental monitoring plan, and the ability to monitor and remediate any escape of leachate from the Towpath landfill.

These issues exist due to offers of expert testimony by the Towns of Albion and Murray. This proposed testimony challenges assertions by the Applicant that Staff have accepted in its review of the project application.

- - Monitorability

The main issue here concerns the requirement of 6 NYCRR 360-2.12(c)(5) that "new landfills must not be located in areas where environmental monitoring and site remediation cannot be conducted." According to the regulation, the ability to perform environmental monitoring and site remediation depends upon "ability to sufficiently characterize groundwater and surface water flow to locate upgradient and downgradient directions; ability to place environmental monitoring points which will detect releases from the landfill; ability to characterize and define a release from the landfill and determine what corrective actions may be necessary; and the ability to carry out those corrective actions."

Section 360-2.12(c)(5) allows for lateral expansions adjacent to existing landfills which are already contaminating groundwater, provided that the proposed expansion area can be constructed in a way that demonstrates compliance with the regulations. Therefore, as the Department has noted, this provision "hardly suggests that the monitorability requirement should be interpreted as discouraging the construction of landfills adjacent to each other on monitorability grounds. It simply requires that a reasonable and prudent system be engineered to be able to detect and identify releases, and to provide for such remedial action as may be warranted in the event of leakage." [See In the Matter of the Saratoga County Landfill, Second Interim Decision, October 3, 1995, page 7.]

As noted above, the proposed Towpath landfill is regarded as an expansion of the closed OSL, and its westernmost four acres would actually overlay the eastern slope of that landfill. In addition, the Towpath landfill would be adjacent to the closed McKenna Landfill, which is listed as a Class 2 inactive hazardous waste disposal site. The proximity of these two other landfills complicates the monitorability issue for the Towpath landfill, heightening concerns as to whether any escape of leachate could be traced to its source.

- - Hydrogeologic Investigation and Report

As the regulation makes clear, the monitorability of a site depends in part on the ability to characterize groundwater flow and thereby locate appropriate monitoring points. This in turn is related to the quality of the hydrogeologic investigation and the reliability of conclusions in the hydrogeologic report. According to Section 360-2.11, "The hydrogeologic report must define the landfill site geology and hydrology and relate these factors to regional and local hydrogeologic patterns; define the critical stratigraphic section for the site; provide an understanding of groundwater and surface water flow at the site sufficient to determine the suitability of the site for a landfill; establish an environmental monitoring system capable of readily detecting a contaminant release from the facility and determining whether the site is contaminating surface or subsurface waters; and form the basis for the design of the facility and contingency plans related to ground or surface water contamination or gas migration as required in section 360-2.10 of this Subpart."

Section 360-2.11 recognizes that the scope and extent of investigations necessary in the hydrogeologic report will vary based upon the hydrogeologic complexity of the site and the ability of the site to restrict contaminant migration. This relates to a particular concern of the Towns of Murray and Albion: that the site may have more hydrogeologic complexity than the Applicant contends as the result of its studies.

The Applicant's hydrogeologic investigation is detailed in a nine-volume report that is part of the Part 360 application. Many investigative techniques were used, and the collected information was evaluated to interpret site conditions.

Fracture and joint orientations were determined from geologic mapping, aerial photo interpretation, and azimuthal resistivity. Forty-seven exploratory test pits were dug to locate the top of bedrock. Twenty locations were chosen for the installation of monitoring wells and/or piezometers, and two locations were chosen for the advancement of angle boring sets. Surface geophysical techniques were employed to evaluate potential groundwater quality impacts associated with the OSL and the McKenna landfill, and a borehole geophysical program was designed to assess the presence of horizontal (i.e. bedding plane) fractures, potential water-bearing zones, and stratigraphic correlations from borehole to borehole. Using slug tests, packer testing within open bedrock coreholes, and pump tests, hydraulic conductivities were measured to determine the pathways and volumetric rates of groundwater flow beneath the site. Water levels were monitored to determine representative seasonal fluctuations within each identified geologic unit, and groundwater was sampled to establish existing water quality conditions and to understand the site's hydrogeochemistry.

Finally, a numerical groundwater flow model was constructed in order to interpret and evaluate the hydrogeologic conditions that were noted in the field investigation, and to predict the impacts the Towpath project would have on the existing groundwater flow processes. Generally speaking, groundwater modeling (which, in this case, employed MODFLOW computer software) was used to test the conceptual model of hydrogeologic conditions that was developed based on the interpretation of field measurements.

- - Applicant's Conclusions

As a result of its hydrogeologic investigation, the Applicant concluded that the site is situated on a local mesa, about two miles wide in the north-south direction, and is underlain by the Medina Group, which consists of six formations comprised primarily of fine-grained sandstone with occasional interbeds of siltstone and shale.

According to the hydrogeologic report, there are two water-bearing zones below the surface, and they are separated by an aquitard (or low-permeability deposit. The uppermost water-bearing zone is contained within discontinuous glacial till deposits which range up to 10 feet deep, underlain by a "top of rock" water-bearing zone which occurs within the upper 15 to 30 feet of the Medina Group. According to the report, these two units generally act as a single water-bearing zone during various times of the year, with groundwater flowing generally to the north with an overall hydraulic conductivity of 6 x 10^-4 centimeters per second.

The report concludes that the "top of rock" zone is underlain by 20 to 60 feet of relatively unfractured sandstone known as the Intermediate Medina Aquitard. This area is figured to have a very low vertical hydraulic conductivity in the range of 6 x 10^-9 to 5 x 10^-7 centimeters per second, meaning that water would have a hard time penetrating downward through this formation. According to the report, the aquitard extends throughout the project area, but thins to the north such that it is absent in the vicinity of the canal.

Below the Intermediate Medina Aquitard, the report concludes, is another water-bearing area known as the Medina/Queenston zone. The report says that while this zone is laterally extensive, groundwater flow within the zone is controlled by a series of localized vertical fractures. Groundwater flows primarily to the north, with localized changes in response to the fracturing.

Finally, below the Medina/Queenston zone, the report concludes there is another aquitard (the Queenston Formation Aquitard), with a low vertical hydraulic conductivity estimated at 6 x 10^-8 centimeters per second.

According to the hydrogeologic report, groundwater flow is primarily horizontal (to the north) in the "top of rock" and Medina Queenston water-bearing zones, and primarily vertical within the two aquitards. However, a localized groundwater flow reversal is noted immediately south of the McKenna Landfill within the "top of rock" water-bearing zone. This reversal, attributed to mounding within the landfill, is believed to extend about 150 feet south of the landfill, with indications that the landfill has impacted the groundwater in this area. (The report finds no apparent water quality impacts associated with the eastern half of the OSL, though a limited potential impact is discerned northwest of the landfill, away from the Towpath expansion area.)

The report concludes that the intermediate Medina aquitard would prevent contamination from the Towpath site from penetrating from the "top of rock" water-bearing zone to the Medina/Queenston water-bearing zone within the expansion area. However, because the aquitard thins out to the north and then disappears in the vicinity of the canal, the critical stratigraphic section - - defined [at 6 NYCRR 360-1.2(b)(47)] as the area into which escaping facility-derived contaminants might reasonably be expected to enter and cause contamination during the active life or within 30 years following closure of the facility - - has been defined for the purpose of the hydrogeologic investigation as extending from the ground surface all the way down to the Queenston Formation Aquitard, the lower of the two aquitards discussed in the report.

- - Offers of Proof by Towns of Albion and Murray

The Towns' proposed issues bearing on site hydrogeology are set out in the initial and supplemental petitions of the Town of Murray (Exhibits No. 8 and 8-C) and the initial petition of the Town of Albion (Exhibit No. 7-A). These issues were amplified during an extensive discussion as part of the issues conference, as the Towns' attorneys made various offers of expert proof.

The Town of Murray's chief expert is Mark R. Noll, Ph.D., an assistant professor of geochemistry at SUNY Brockport. The Town of Albion's expert is Kevin Phelan, a hydrogeologist with twenty years of consulting experience in the fields of environmental and engineering geology.

- - Groundwater Flow Model

Murray's main issue bearing on site hydrogeology pertains to the Applicant's use of the MODFLOW groundwater flow model. In its hydrogeologic report, the Applicant explains the use of MODFLOW - -a porous media flow model - - to simulate groundwater flow in fractured bedrock in relation to the concept of "porous media equivalency." (See report, pages 4-33 and 4-34.) In other words, at the scale at which the model is applied, the density of the fractures within the bedrock is sufficient to allow groundwater flow to behave as if it were in a true porous media.

According to the Applicant, porous media equivalency in fractured rock is well documented in the literature cited in its report, and is supported in this case by field data which include the response to pumping during the aquifer test in the Medina/Queenston water-bearing zone and the relatively smooth groundwater elevation contours that can be drawn through water level data points in the "top of rock" zone.

According to the Town of Murray, the MODLFOW model should not have been used in this case, and a fracture flow model should have been used instead. The Town says that while it may be possible to use a porous media equivalency model for highly fractured bedrock, such a model does not necessarily produce a valid representation of the site hydrogeology, because it generates a weighted average of flow through high-conductivity, high-flow velocity fractures and lower-conductivity, lower-flow velocity pores. This possible pitfall, says the Town, may be avoided with a grid that is sufficiently scaled to separate highly and poorly fractured zones, so they may then be assigned their own values for hydraulic parameters.

According to the Town, the grid spacing used in the Applicant's model (which incorporates cells ranging from 50 to 200 feet across) is likely too large to account for discrete zones of high or low fracture occurrence, as evidenced by the model's failure to account for the southerly groundwater flow in the "top of rock" aquifer in the area near the toe of the McKenna Landfill. [See hydrogeologic report, page 4-39.]

The Town says that the evidence of fractures with various orientations precludes the use of a porous media equivalency model, though the Applicant says that so long as the fracture system is areally extensive, such a model is acceptable. Also, the Town argues that the ranges of hydraulic conductivity values within each of the water-bearing zones and the intervening aquitard are too great to warrant using a porous media approach. Finally, the Town says that the Applicant's use of tritium to evaluate the hydraulic conductivity of the Intermediate Medina Aquitard acknowledges that groundwater flow is controlled by fractures, which further confirms that a fracture flow model should have been used.

In apparent agreement with the Town of Murray, the Town of Albion says the MODFLOW model is "very simplistic" and "not the kind of highly sophisticated program that is appropriate" for use in a fractured rock zone. However, Staff says it was satisfied with the use of the MODFLOW model to make predictions based on the field data accumulated from the hydrogeologic investigation.

An issue exists with regard to the appropriateness of the MODFLOW model - - and whether a fracture flow model should have been used instead - - because there is a conflict of expert opinion concerning its use in this case. Because of the role the model plays in assessing site hydrogeology, this issue requires adjudication to confirm the validity of the conclusions drawn from it.

The Applicant contends that Murray's claims regarding the groundwater model, as made in its supplemental petition, should be barred from consideration as untimely, since they were not raised in the original petition, and because the allowance to supplement was limited to issues alleged to arise from information provided by the Applicant after the issues conference began. However, as Murray notes, while the groundwater model is not addressed specifically in its original petition, that petition does propose as an issue whether the Applicant properly analyzed groundwater flow through the site, which relates directly to the modeling concern. Also, the Applicant did provide new information bearing on site hydrogeology after the conference began, though not about the groundwater model specifically. Given these considerations, the Town's refinement of its concerns in the supplemental petition is not objectionable, especially since the Applicant was given adequate notice of the new material and an opportunity to address it during the issues conference.

- - Monitoring Well Spacing

Apart from the issue of modeling, which relates to the conclusions of the hydrogeologic report, a broader issue exists with regard to the ability to perform groundwater monitoring. Generally speaking, both Towns question the ability of the Applicant to locate groundwater contamination, determine its origin and forecast its movement.

As a component of a Part 360 landfill application, an environmental monitoring system must be established that is capable of readily detecting a contaminant release from the facility. As part of the environmental monitoring plan, there must be a network of groundwater monitoring wells capable of detecting landfill-derived groundwater contamination within the critical stratigraphic section. [6 NYCRR 360-2.11(c)(1).] In the first water-bearing unit of this section, monitoring well spacing must not exceed 500 feet along the downgradient perimeter of the facility, and in sensitive or geologically complex environments, closer well spacing may be required. Also, subsequent water-bearing units must be monitored, as required by the Department, based upon the potential for contaminant migration to them. [6 NYCRR 360-2.11(c)(1)(b).]

As outlined in section 1.3 of the environmental monitoring plan, the Applicant has located monitoring wells in both the "top of rock" water-bearing zone and the "deep rock" water-bearing zone. Five monitoring wells, which the Applicant says meet the above-referenced spacing requirements, are located immediately downgradient of the facility in the "top of rock" zone, assuming a generally northward flow toward the canal. The Applicant acknowledges groundwater flow directions are more varied in the "deep rock" zone, but contends it has located wells in that zone along preferential flow paths associated with identified groundwater divides.

The Applicant contends that its monitoring wells are actually less than 500 feet apart, and therefore exceed minimum regulatory requirements. However, the Town of Albion contends that they are still not close enough, given the difficulties of groundwater monitoring in fractured rock. The Town says it would offer expert testimony and literature that groundwater monitoring in fractured rock is a "nightmare" and should be avoided, as well as testimony that was provided to Congress that landfills should not be placed in areas such as the Towpath site, where the Town says there is complex groundwater mixing.

The Town says that, in the case of the Towpath landfill, a contaminant plume would tend to come from a liner seam, and be thin ("feet or tens of feet across") rather than wide-spreading. The Town contends it would be prudent to insist that monitoring wells be no more than 150 feet apart, but would accept a permit condition requiring that they be no more than 200 feet apart. Its testimony supporting close spacing of the wells would come from Mr. Phelan, according to the Town's initial petition. The Town of Albion also joins Murray's challenge of the groundwater modeling performed by the Applicant, and contends that field data do not fit the model in a significant number of instances, suggesting that groundwater flow is much more complicated than the Applicant thinks.

Department Staff contend that the well spacing now proposed by the Applicant is supported by field work done as part of the hydrogeologic investigation, noting that, during the course of its review, Staff ensured that extra clusters were added where deemed necessary for monitorability. The location and spacing of the wells, then, is an issue that puts the Applicant and Staff on one side, and the Town of Albion on the other. The issue requires adjudication given the offer of expert proof by the Town, and the possibility that the application may not meet the requirement of Section 360-2.11(c)(1) that monitoring wells be capable of detecting all landfill-derived contamination.

- - Interrelationship of Towpath with Other Landfills

Another issue bearing upon monitorability concerns the interrelationship between the proposed Towpath landfill and the existing OSL and the McKenna landfill. The Town of Albion has raised concerns regarding both of these other facilities, and how groundwater contamination attributable to either of them could be isolated from that attributable to Towpath.

- - McKenna Landfill

According to the Town's initial petition, no water quality monitoring issue - - or any other issue in the application review - - is as important as the proper separation between the McKenna and Towpath landfills. As planned, the Towpath landfill would be separated from the McKenna Landfill, a class 2 hazardous waste site, by about 200 feet. According to the Town, the existing groundwater chemistry data indicate the distribution of McKenna contaminants vertically throughout the bedrock formations on the south side of the McKenna Landfill, in the direction of the Towpath footprint. A groundwater mound has been identified in this area, and the Town argues that rock core logs also indicate the potential for bedrock fracturing throughout the bedrock.

Due to the bedrock conditions and the existing groundwater contamination in this area, the Town contends that the northern limit of the Towpath footprint should be moved to the south in this area, thereby opening a greater buffer between Towpath and McKenna. How far the footprint needs to be moved, the Town says, depends on determining the precise location of the existing groundwater divide and the southernmost extent of McKenna contamination, which the Town says is still unknown.

The Applicant acknowledges that leachate mounding within the McKenna Landfill has resulted in a localized groundwater flow reversal immediately south of the landfill, but claims that it extends only about 150 feet, so that the northernmost extent of any Towpath cell is still 50 feet away. Also, the Applicant says that remedial work it is performing at the McKenna Landfill (which includes capping the facility) should eliminate the mound and end the flow reversal well before construction of Towpath cells in the vicinity of the existing contamination. By the time that construction begins, the Applicant anticipates that groundwater (and any associated contamination) will be flowing generally northward, as it does elsewhere in the area, and away from the Towpath site.

The Applicant has a monitoring well cluster (MW-2) between McKenna and the proposed Towpath footprint, and water quality data from that cluster have indicated elevated levels of leachate indicator parameters and low levels of some volatile organic compounds. According to the application, this well cluster would be monitored quarterly beginning with the operation of the Towpath facility to confirm an anticipated water quality improvement resulting from the capping of the McKenna Landfill.

If there is no improvement, the application provides, new monitoring wells would be installed south of MW-2 and any groundwater divide that remains, such that the new wells would not be affected by McKenna.

The Applicant says the location of the divide has been fixed by piezometer data. It rejects both Towns' contentions that the divide is subject to periodic shifts that already may have contaminated the subsurface south of its present location with dense non-aqueous phase liquids (referred to at the hearing as DNAPLs), which do not necessarily travel with the groundwater.

The Towns of Albion and Murray insist that Towpath monitoring wells cannot be placed in areas of existing McKenna contamination because this would allow the Applicant to claim that impacts attributable to the Towpath landfill are instead due to McKenna. The Town of Albion claims there is no evidence to back up the Applicant's claim that, once McKenna is capped, the southward migration of leachate from that landfill will stop. Therefore, it argues that to protect the public health, the project should be deferred until the capping is completed and the groundwater flow reversal is verified.

DEC Staff basically accepts the Applicant's contention that the southern boundary of McKenna contamination has been identified, and is satisfied that if the McKenna capping does not address contamination at the MW-2 location, new monitoring wells can be set up further south, in a non-contaminated area, before Towpath cells begin filling in that vicinity. Staff and the Applicant agree that monitoring for the Towpath landfill may be completed within the landfill's toe of slope, which because of the generally northward flow of groundwater, is upgradient of the area impacted by McKenna.

- - Orleans Sanitary Landfill

The issue of monitorability is affected not only by the proximity of the McKenna Landfill, but by the fact that the Towpath expansion will involve placing waste over the Orleans Sanitary Landfill ("OSL"). The Applicant acknowledges that, based on groundwater flow paths, wells located downgradient of the OSL overfill area may be in a location at which detected contaminants could originate from either the Towpath facility or OSL. However, according to its environmental monitoring plan, a potential contaminant release from the Towpath facility would be obvious through the monitoring capabilities built into the design of its eight individually monitorable landfill cells. In the event a release was identified, the Applicant says additional field investigations could be done to determine its source and develop necessary remedial actions. Such investigations might involve installing additional monitoring wells, examining waste mass to determine leachate head levels and geochemistry, and collecting and analyzing isotope data.

The Town of Albion questions whether Towpath can be monitored separately from OSL, or from McKenna for that matter, because all three landfills will contain basically the same type of waste, thereby distinguishing this situation from the one presented in the Saratoga County Landfill permitting matter, where a monitorability issue was decided in the County's favor in a September 3, 1996, Commissioner's decision. (In the Saratoga County matter, a municipal waste landfill was proposed to be sited next to a landfill taking paper sludge.)

Because of the similarity of waste streams, the Town argues that it will be hard to determine which of the three landfills is the cause of any groundwater contamination. The situation is further complicated, says the Town, for the portion of Towpath that would be built over OSL, since if a leak occurs there, "it will go into OSL before it hits a monitoring well," and the mixing of the leachate with the underlying waste will give it the characteristics of both facilities.

The Town says it will provide expert testimony that the Applicant's plan to monitor Towpath separately from OSL and McKenna is not prudent, and more particularly, that chemical fingerprinting cannot be relied on to determine the source of any contamination that is detected. To accept chemical fingerprinting for monitorability purposes, the Town says that Towpath must be separated from OSL, meaning that no overlaying of waste would be allowed.

The Applicant notes that it is responsible for the closure and post-closure of OSL, and that information generated from those activities will be incorporated into Towpath's environmental monitoring program. Also, the Applicant says that because OSL and Towpath will have separate leachate collection systems, that too will help identify the source of a leachate break.

Staff accepts the Applicant's analysis, arguing further that since the Applicant has essentially accepted responsibility for OSL, a leak from OSL will be considered a leak from Towpath as far as the Department is concerned. With regard to leachate fingerprinting, Staff says it is just one of several tools that would be used to locate a contamination source.

- - Summary

The claims raised by the Towns raise sufficient doubt about the monitorability of the Towpath landfill separate from OSL and McKenna, that the issue requires adjudication to determine whether the Applicant's environmental monitoring plans are reasonable and prudent, and whether the application satisfies the requirement of Section 360-2.12(c)(5).

- - Landfill Siting

Apart from the issues bearing on hydrogeology that are outlined above, there is a separate issue whether the application complies with the siting restriction of 6 NYCRR 360-2.12(a)(1)(iii), which prohibits the location of landfills in areas where bedrock is subject to rapid or unpredictable groundwater flow, unless it can be demonstrated that a containment failure would not result in contamination entering the bedrock system. The Applicant contends that it complies with this provision, and DEC Staff accepts the Applicant's analysis.

According to the Applicant, rapid or unpredictable groundwater flow is typically associated with carbonaceous geologic deposits such as limestone in which dissolution channels or karst may form. According to the Applicant's studies, such deposits do not exist at this site; instead, the bedrock is considered to be generally comprised of fine- to coarse-grained sandstone, shale and siltstone. Packer testing done within coreholes as part of the hydrogeologic investigation indicates that groundwater flow is primarily restricted to the bedding planes and/or joints within the rock, which generally have a hydraulic conductivity on the order of 1 x 10^-6 to 1 x 10^-5 centimeters per second.

To the extent that issues of groundwater flow and the modeling used to assess it are subject to adjudication, compliance with this section remains open to question, and will require further consideration as part of this hearing.

- - Matters Eliminated from Consideration

One aspect of the hydrogeology issue, as proposed by the Town of Murray, may be eliminated at this time, and that relates to the influence of the Erie Canal on groundwater patterns.

The Town's expert, Mr. Pike, an engineering geologist, asserts that highly fluctuating, rapid and unpredictable changes in the water table may be expected near the canal, and that management of the canal is likely to affect groundwater tables and flow processes beneath and adjacent to the site. However, the Applicant's hydrogeologic report (at Section 5.5.5.1) concludes, on the basis of periodic water level monitoring, that the canal's influence on surrounding water-bearing zones is limited to less than 50 feet in either direction, and its presence does not impact the regional northward flow of groundwater.

According to the report, the water level of the canal is artificially maintained during the summer months at an elevation of about 512 feet, and during the winter, when the water level is not artificially maintained, it recedes to an elevation of about 501 feet, leaving just a small, shallow trickle at the center of the channel. The report notes that the filling of the canal produces a corresponding increase in water levels within the wells adjacent to the canal, but that the most pronounced and immediate response is noted in the overburden and "top of rock" wells, which go up an average of 1.5 to 3 feet, and that a much more subdued and somewhat delayed response is noted in bedrock contact wells adjacent to the canal.

Dr. Pike's offer of proof does not call into question or, for that matter, even reference the information provided as part of the application. Therefore, it does not create an issue for further pursuit.

Nor is there an issue related to the canal's influence on the model used by the Applicant to determine groundwater flow. In its supplemental petition, the Town notes that the groundwater model was developed for a canal-drained situation at the end of a drought year, and may not be useful for a canal-filled situation in a year with average or above average rainfall. However, as the Applicant points out, a canal-drained scenario allows for the greatest possible canal influence, due to the larger head gradient between the canal and the surrounding groundwater. As the Applicant also notes, the fact that changes in groundwater levels associated with the filling and draining of the canal were not observed south of Yager Road (north of Towpath) even under dry conditions, further supports the conclusion that operation of the canal would not affect the flow of water beneath the Towpath site.

NOISE

An issue exists concerning the impact of noise from Towpath operations. This issue concerns the reliability of the Applicant's noise analyses and the effectiveness of various planned measures to mitigate noise so that Part 360 noise standards are met at the facility's property boundaries.

- - Background

The Applicant acknowledges that noise is expected to be generated by the project from landfilling and construction activities and from vehicle traffic on and around the property. To determine the effect this noise would have on off-site receptors, the Applicant retained Angevine Acoustical Consultants, Inc., to perform a noise impact analysis (Appendix "E" of the DEIS) the results of which are addressed in DEIS Section 4.12.

The Applicant's noise analysis began with a survey at various locations around the site and within the Village of Albion, to define existing noise conditions. Attempts were then made to estimate noise to be generated during the facility's construction and operation, and to project how this would change off-site noise levels.

According to the Applicant, the main noise sources at the facility would include diesel-powered heavy equipment commonly used to construct landfill cells, deposit and compact waste in the cells, and transport and spread cover materials over previously filled areas. Other sources of on-site noise would include vehicles entering the site with construction materials and solid waste, and the vehicles of employees and contractors.

Predictions of environmental sound propagation from site equipment were made using NOISECALC, a computer program developed by the NYS Department of Public Service. Predictions of noise produced by vehicle traffic were based upon current prediction methods of the Federal Highway Administration. For equipment noise, the analysis assumed a spreading loss attenuation of 6 decibels (db) for each doubling of distance from the noise source.

- - Applicable Noise Standards

The Applicant performed its noise analysis to determine whether the project would comply with 6 NYCRR 360-1.14(p), which establishes noise level requirements for solid waste management facilities. Pursuant to this section, allowable noise levels vary depending on whether the community character is rural, suburban or urban. Here there is no question that the community has a rural character, and therefore, according to regulation, noise levels resulting from equipment or operations of the facility must be controlled to prevent transmission of sound levels beyond the property line at locations zoned or otherwise authorized for residential purposes from exceeding 57 dbA between the hours of 7 a.m. and 10 p.m., and 47 dbA between the hours of 10 p.m. and 7 a.m.

Applying this standard at all property boundaries, the noise analysis found only two locations where noise exceedences would occur. (See Table 4.12-2 of the DEIS.) One was at Transit Road, south of the facility entrance, where the noise was projected to be 55 dbA during the 10 p.m. - 7 a.m. period, and the other was along the north property line, where the landfill would border the canal property, where the noise was projected to be 52 dbA during the 10 p.m. - 7 a.m. period. (No exceedences were projected for the 7 a.m. to 10 p.m. period, though at the two locations noted above, noise levels were projected to be within several decibels of the legal limit.)

To eliminate the exceedence along Transit Road, the Applicant has accepted a permit condition that would change the start time for facility operations from 6 a.m. (which was the assumption of the noise study) to 7 a.m. at the start of construction of landfill cell No. 7. This change would remain in effect during the construction, operation and closure of cells No. 7 and No. 8, which are at the easternmost part of the facility, closest to Transit Road. (See confirmation of this revision to Condition No. 35(a) of the draft landfill permit in a letter to me from Paul D'Amato, dated October 19, 1999.)

To eliminate the exceedence along the canal property line, and to generally lower noise levels at all locations, the Applicant committed verbally during the issues conference to:

1. Put "smart" back-up alarms on all WMNY-owned landfill equipment;
2. Put a silencer on the gas flare blower;
3. Erect an on-site noise fence or barrier (as described in Exhibits No. 30 and 30-A) between the gas flare blower and the canal property; and
4. Eliminate a chipper (also known as a tub grinder) that had been proposed for processing yard waste.

I requested during the conference that Staff confirm these last four items as draft permit conditions, to which the Applicant could then confirm its assent. However, that has not yet occurred, and there remains some dispute among the parties whether these commitments should be implemented through permit conditions (the position of the Town of Albion) or changes to the application documents (the position of the Applicant and DEC Staff).

The Applicant claims that its noise analysis is conservative because it does not credit noise-attenuating factors such as porous earth terrain, vegetation, air absorption, and the shielding of equipment by the landfill plateau. However, since most of the noise sources would be elevated, it concedes that not much attenuation would be provided by terrain and vegetation, and the Town argues that other features like the McKenna Landfill may hinder noise attenuation from some sources, reflecting and amplifying noises at certain locations.

Department Staff acknowledges no particular noise expertise, but is satisfied that with the mitigation proposed by the Applicant (as outlined above) the issue of compliance with Section 360-1.14(p) is "off the table."

Section 360-1.14(p) is written to restrict noise only "at locations zoned or otherwise authorized for residential purposes," though the Applicant, in its noise analysis, deemed it "practical" to employ it even in terms of the non-residential receptors it considered, such as the Erie Canal, the Sportsmans Association on Keitel Road, and the Mount Albion Cemetery.

The property to the immediate east, west and south of the landfill site is zoned for residences. Staff says that, for the area north of the landfill site, the Part 360 noise standard should apply at the northernmost property line of the Canal Corporation's property, since no houses could be constructed in the canal corridor itself, regardless of how it is zoned. [The Town claims that the Erie Canal corridor is zoned Agricultural-Residential (though a zoning map meant to confirm this has not been provided, contrary to a representation on page 6 of its second supplemental petition), and the DEIS (Section 4.8.1.2) says that the corridor is part of a Canal Overlay District, the rules for which it does not explain.]

For the canal corridor, Staff says there is no regulatory noise limit, so only SEQRA could justify noise controls beyond those proposed by the Applicant. Staff diminishes the impact noise would have on canal users, noting that, unlike residents of a house, they would be passing by the site, most likely during weekends, holidays and evenings, when the landfill would be closed.

I conclude that a noise issue exists, and that it involves compliance with the Part 360 noise standard. Whether or not the canal corridor can properly be considered a "residential" zone, I agree with the Applicant's noise study that the Part 360 standard is "practical" to use in relation to its boundary with the corridor, since if the noise there would meet standards the Department would accept for a fixed residence, it should be acceptable for transient canal users, and not require further mitigation under SEQRA.

The Town of Albion contends that given its rural nature, WMNY should be obligated to operate at no more than a 6 dB increase over existing ambient sound levels in the community. However, there is no legal support for this position, and I hereby reject it.

The Town notes that in an interim decision in the Matter of Sour Mountain Realty (July 18, 1996, page 11), the Commissioner found that SEQRA could be used to fashion numerical noise limits, and to apply such limits even if they are more restrictive than those in the mining regulations. However, the mining regulations do not set numerical noise limits, whereas the landfill regulations do. Also, Section 360-1.14(p) already takes account of Albion's rural nature by setting different limits based on whether a community's character is rural, suburban or urban. I agree that SEQRA could warrant some additional protection beyond that provided by Part 360, based on the impacts noise would have on a particularly sensitive receptor. However, in my opinion, the Town has not made a case for such additional protection here.

The noise issue is substantive since there is a conflict of expert opinion about the reliability of the Applicant's noise analysis, which raises doubts whether the project will comply with all permitting criteria. While the Applicant presented at the issues conference its noise expert, Daniel Prusinowski (whose resume is Exhibit No. 28), the Town of Albion has its own expert, Robert Andres (whose resume is Exhibit "A" to the Town's second supplemental petition, Exhibit No. 7 - F). The issue is largely framed by their conflicting expert opinions.

For instance, the Town contends that it will introduce evidence that the 6 dB sound decay rate used by the Applicant for point sources is too high; if true, this would mean that the noise at property boundaries would be greater than now projected. Among other criticisms, the Town says that the Applicant may have overstated the noise attenuation attributable to atmospheric effects, and that its noise study omitted noise generators such as the propane cannon that would be used to disperse gulls. The Town also notes that, at least so far, there is some ambiguity about the gas blower and silencer that the Applicant intends to use; one would need to know more about the equipment to make projections about the noise it would generate.

Another aspect of the noise issue concerns the conservatism of the vehicle traffic figures used by the Applicant. This issue does not relate to the noise analysis itself, but to the assumptions on which it is based. Mr. Prusinowski says that the numbers he used for vehicle trips were taken from peak-hour site traffic predictions supplied to him by another consultant. The Applicant needs to show that these predictions are reliable and do not underestimate the amount of traffic for the facility operating at peak hours under its permitted maximum capacity.

Finally, adjudication of the noise issue must consider whether the Applicant has analyzed noise for the locations where project impacts are most likely to result in regulatory violations.

The noise issue is significant because it has the potential to result in the denial of the permit, a major modification of the project or the imposition of permit conditions or other mitigation measures beyond those already accepted by the Applicant. Absent a serious flaw in the Applicant's noise analysis or its underlying assumptions though, it would seem that regulatory compliance could be achieved by permit conditions, since noise is an environmental impact readily amenable to mitigation.

In fact, as noted above, the Applicant already has accepted certain measures to mitigate noise impacts, which I understood would be formalized as permit conditions (T: 1246), so that the other parties could comment on them. Staff now apparently thinks that these commitments can be handled by amending the project plans prior to permit issuance. However, to gauge impacts as part of the noise issue's adjudication, it is necessary to confirm these commitments now. In this regard, one needs to have details about the blower and silencer that would actually be employed, and a commitment as to the height and location of the noise barrier to be erected between the blower and the canal.

All parties concede that the noise study performed as part of the DEIS does not reflect the project as it has since evolved, though they differ as to how overall impacts have been altered by project changes. To litigate the issue, the Applicant should be prepared to present through testimony and supporting documentation an updated noise analysis that accounts for the project as it now stands. Also, the reasonableness of the noise study's assumptions, especially in terms of vehicle traffic, needs to be verified.

The Town of Murray has no expert on the noise issue, but in its petition (Exhibit No. 8, page 11), it references the "noise pollution" of trucks, bulldozers and other heavy machinery as well as its negative impact upon "the canal experience." Standing alone, Murray's petition would not raise an issue for adjudication. Therefore, if Murray wants to litigate the noise issue, its role shall be limited to any assistance it can provide to the counsel for Albion.

NO ISSUE FOR ADJUDICATION

VARIANCE FROM REQUIREMENTS FOR UNCONSOLIDATED DEPOSITS

The Towns of Albion and Murray seek to raise issues in opposition to the Applicant's requested variance from the requirements of 6 NYCRR 360-2.12(a)(1)(v) and (vi). As a matter of law, they claim that a variance to these requirements is not an available option. Assuming it is an option, they also claim that, as a matter of adjudicable fact, the Applicant fails to satisfy the regulatory standards for granting the variance.

- - Background

The Applicant seeks a variance from regulatory requirements governing the minimum depth of unconsolidated deposits underlying the proposed landfill. Section 360-2.12(a) requires that new landfills be located on a site where:

1. Unconsolidated deposits underlying the proposed landfill either exist or will be constructed to be 20 feet or greater in thickness as measured from the base of the constructed liner system [6 NYCRR 360-2.12(a)(1)(v)]; and
2. The upper 20 feet of the unconsolidated deposits on the site consist predominantly (greater than 50 percent) of soils throughout the vertical section, with a maximum in situ coefficient of permeability of 5 x 10^-6 centimeters per second (cm/sec), with no appreciable continuous deposits having a maximum coefficient of permeability of 5 x 10^-4 cm/sec.

The regulation provides for an exception to these requirements if certain other requirements, which are outlined in Section 360-2.12(b), are met. These other requirements include identification of the proposed landfill in the local solid waste management plan approved by the Department, and the performance of a site selection study and submission of a site selection report as part of the complete permit application. These other requirements are not met in this case, and the Applicant is seeking a variance rather than an exception.

- - Availability of Variance

The Towns of Albion and Murray claim that, as a matter of law, the requested variance cannot be granted because the Applicant has only two choices: to meet the 20-foot requirement or qualify for the exception outlined in the regulation. I disagree, and find that the unavailability of the exception does not preclude an application for a variance.

Section 360-1.7(c) provides that "unless otherwise precluded by law," the Department may grant a variance from any provision of Part 360, provided the standards for granting the variance (discussed below) are met. The Towns have cited no law that precludes consideration of this variance request; instead, their argument is based on an interpretation of the regulatory framework.

According to the Towns, one cannot get a variance from a regulation that already provides for exceptions, since that would abrogate the exception standards. They argue that a variance is by definition an exception, and if the Applicant wants an exception to the 20-foot requirement, it must meet the standards already established for it. However, according to the Applicant and DEC Staff, exceptions and variances are two different things, and if the Applicant cannot qualify for an exception, it can still seek a variance.

This latter approach - - distinguishing exceptions and variances - - has support from a recent administrative proceeding involving an application to expand a landfill in Orange County. In that case, I directed that the Applicant, Al Turi Landfill Inc., seek a variance from the same requirement [6 NYCRR 360-2.12(a)(1)(v)] from which WMNY now also seeks relief: 20 feet of underlying unconsolidated deposits. I did this despite finding that Al Turi could not be excepted from this requirement under Section 360-2.12(b). In essence, I found that, while an exception could not be allowed, a variance was still possible, thereby distinguishing the two options. On appeal, my ruling was affirmed by the Commissioner. [See In the Matter of Al Turi Landfill, Inc., ALJ's Issues Rulings of June 19, 1998, pages 50 - 54, and Commissioner's Interim Decision of September 14, 1998, pages 4 and 5.]

The Al Turi case shows that, as far as the Department is concerned, the variance requested by WMNY is not precluded as a matter of law. The Towns have cited no case precedent to the contrary. The question then becomes whether, as a matter of fact, there are adjudicable issues with regard to the variance request. I find that there are not.

- - No Significant Adverse Impact

According to Section 360-1.7(c)(2), every application for a variance must demonstrate that the proposed activity will have no significant adverse impact on the public health, safety or welfare, the environment or natural resources, and that it will be consistent with the provisions of the ECL and the performance expected from application of Part 360. This demonstration is offered on pages 4-1 and 4-2 of the variance application, which is Part III-D of Volume I of the permit application.

As confirmed in these pages, WMNY intends to provide an engineered subgrade layer that is at least equivalent in performance to the unconsolidated deposits defined by Sections 360-2.12(a)(1)(v) and (vi). According to special condition No. 14 of the draft landfill permit (Exhibit No. 20-A), that layer would consist of a minimum of 10 feet of compacted low-permeability soils exhibiting a maximum in-place permeability of 2.5 x 10^-6 cm/sec.

As shown in Attachment 3 to the variance request, it would take water as much time to infiltrate through a layer of that depth and permeability as it would to infiltrate a layer of 20 feet having a permeability of 5 x 10^-6 centimeters per second. In fact, one could argue that the subgrade layer proposed by the Applicant goes beyond what is required by Section 360-2.12(a)(1)(vi), since that section requires only that most of the top 20 feet of unconsolidated deposits have a maximum permeability of 5 x 10^-6 cm/sec, and allows for the inclusion of appreciable continuous deposits having a much higher permeability of 5 x 10^-4 cm/sec.

In summary, there is no issue whether the subgrade proposed by the Applicant would have a significant adverse impact on the public health, safety or welfare, the environment or natural resources, or whether it would be consistent with the ECL and the performance expected from application of Part 360. The Applicant intends to build a subgrade that would provide a performance at least as good as the unconsolidated deposits anticipated by Section 360-2.12(a)(1)(v) and (vi). The analysis confirming that conclusion is part of the variance application, and has been ratified by DEC Staff, who note that, even with the variance, WMNY will still meet the landfill construction requirement [at 6 NYCRR 360-2.13(e)] that a minimum of ten feet vertical separation be maintained between the base of the constructed liner and bedrock.

Overall, the Towns offer nothing to refute the Applicant's analysis except general claims that the thicker the subgrade, the more protection that is provided. However, the issue is not just the depth of the materials, but their permeability, and it is the combination of the two that reflects the safety of the subgrade design.

In its petition, the Town of Albion asserts that it would present an engineer, David Myers, to demonstrate that the variance would not provide adequate environmental protection. However, the grounds for this assertion are not stated, and therefore it cannot be credited as raising an issue of fact.

In a separate comment letter, Albion claims that freeze-thaw and wet-dry cycles would likely have an impact on the in-place permeability of the subgrade unless protective measures are taken. However, as the Applicant responds, protection would be afforded by the constructed liner system overlying the subgrade. This system, consisting of various soil and geosynthetic layers, is designed to have a minimum thickness of 5 feet on the landfill floor and 4 feet on the side slopes. Albion's offer fails to address the effect of the liner, and therefore provides no basis for further inquiry.

In its petition, the Town of Murray notes that while the Applicant has listed several commercial quarries as potential sources for subgrade materials, it has not demonstrated that it can obtain adequate quantities of off-site fill to implement its design. On the other hand, Murray does not suggest that the fill is not available, and it stands to reason that it is, so the only question is how far the Applicant will have to go to get it. Of course, if adequate fill cannot be provided, the project cannot be realized.

- - Unreasonable Economic Burden

To receive a variance, the Applicant must also demonstrate that compliance with the provision from which the variance is sought would, on the basis of conditions unique to its particular situation, "tend to impose an unreasonable economic, technological or safety burden" on it or the public. WMNY contends that compliance with Section 360-2.12(a)(1)(v) and (vi) would tend to impose an unreasonable economic burden due to the cost of providing an additional 10 feet of unconsolidated deposits, and the loss of revenue attributable to the resulting loss of air space.

According to the variance application, the additional 10 feet of deposits would cost about $17 million to construct, based on an assumed unit cost for soil fill of $14.75 per cubic yard. This extra construction would consume more than 1 million cubic yards of airspace within the existing landfill design configuration. Based on an assumed tipping fee of $31.50 per ton and a conversion factor of 0.67 tons of waste per cubic yard of airspace, WMNY concludes it would lose about $24.5 million in revenues if the variance is not granted. Therefore, according to WMNY, the total financial impact would be about $41.5 million.

The Town of Albion contends that the variance cannot be granted because the claimed economic burden is not based on circumstances unique to WMNY. I disagree. The regulation does not require that the burden be based on conditions that would not similarly affect other applicants. What the regulation intends is simply that the burden be shown in relation to the facts of the particular situation, which the Applicant, through its project-specific calculations, has done.

The Town also claims that the variance cannot be granted because there is no technical problem with providing 20 feet of unconsolidated deposits. Of course, if required, WMNY could provide the additional 10 feet, but that does not defeat the variance request, since the claimed burden can be demonstrated on the grounds of economics, technology or safety. In other words, even if meeting the requirement would not present an unreasonable technological burden, if it presents an unreasonable economic burden, that alone may be sufficient.

Finally, the Town claims that the variance cannot be granted because, even at $41.5 million, the alleged burden of providing the additional 10 feet of deposits is only three-tenths of one percent of the alleged 1998 operating revenues of the Applicant's parent company, Waste Management, Inc. In light of this, the Town claims the burden cannot be considered unreasonable, though again I disagree.

The reasonableness of the economic burden must be considered in light of any extra benefit that compliance with the regulation would afford. In this case, as noted above, compliance with Section 360-2.12(a)(1)(v) and (vi) would provide no greater environmental benefit than that afforded by what the Applicant proposes. In fact, what the Applicant proposes would likely afford more of a benefit than compliance with the regulation, since the greater impermeability of the constructed deposits would more than compensate for their decreased depth. Therefore, any extra cost to comply with the regulation would be unreasonable under the facts of this case.

Granted, this analysis conflicts with the one advanced by both the Applicant and DEC Staff. The Applicant contends that even if it can show its engineered subgrade would be more protective than what the regulation requires, it must still make a separate case on the economic burden. Staff agrees, saying that while such a demonstration would make the economic burden of compliance less of a concern, the concern would not go away entirely.

The Applicant contends that it has calculated its economic burden in a manner consistent with precedent established in prior landfill cases where variances were requested. This is true. In a case involving the application of Scott Paper Co. and Finch, Pruyn & Co., Inc. to build a landfill in Saratoga County, the Applicant calculated the economic burden of complying with a Part 360 regulation governing the minimum separation distance between the base of the constructed liner and the seasonally high groundwater table, and did so in relation to the additional construction costs that would be incurred by regulatory compliance as a percentage of total construction costs for the project. On pages 4 and 5 of an interim decision dated December 22, 1994, the Commissioner found that compliance with the regulation would add 18 percent to the project's construction costs, and accepted this as an adequate economic hardship.

Similarly, in a case involving Saratoga County's application for its own landfill, the County's analysis of compliance with the same regulation involved determining increased costs of construction as a percentage of the overall landfill cost, as well as the cost of lost air space that would be available if the variance was granted. Satisfied with the analysis, the Commissioner, on pages 4 and 5 of an interim decision dated October 3, 1995, determined that the economic burden of not granting the requested variance was well within the cost savings normally considered in determining economic burden under Section 360-1.7(c), citing the prior decision in the Scott Paper/Finch Pruyn matter.

The decisions in the matters involving the Scott Paper/Finch Pruyn and Saratoga County landfills both demonstrate the relevance of the factors claimed by WMNY to support its claim of unreasonable economic burden. The Town objects to determining variance requests based on lost profit estimates, saying this would open every regulation to review. However, at least in the Saratoga County Landfill matter, an analysis comparable to WMNY's was ratified by the Department.

WMNY claims that when its estimated $41.5 million in increased costs to comply with Section 360-2.12(a)(1)(v) and (vi) are considered against the landfill's total construction cost of $105 million (as stated in Section 4.13.2.5 of the DEIS) the increased costs of compliance are clearly unreasonable. Challenging this, the Town claims that the $105 million figure first appeared in a draft of the EIS from 1995 or 1996, and that the project's cost has risen since due to increased environmental protections required by DEC through its draft permit. The Town also notes that the $105 million estimate is not broken down by element in the DEIS, and that, with the project's subsequent refinements, it is, at any rate, outdated.

In addition, the Town points out that WMNY's added construction costs of regulatory compliance are based on a $14.75 per cubic yard unit cost of fill, the basis for which is not demonstrated. In the variance application, WMNY notes relevant factors such as the costs of supply and compaction, as well as costs of construction quality and assurance. But these costs are not broken down, so it is unclear how the $14.75 estimate was calculated. As the Town notes, the estimate is not based on stated figures for labor and equipment, and there is no indication where the additional soil would come from, or what the supplier would charge.

The Town also notes that WMNY's calculated $24 million revenue loss if the variance is denied, is based on lost tipping fees, and represents a loss of gross income. The Town claims that the actual loss must be measured in terms of net income, subtracting the costs involved in the disposal of the additional waste. (These costs are not identified or calculated in the variance application.)

The Town claims that the economic analysis must include things such as the engineering costs of developing the engineered 10-foot subgrade and the economy of scale in using the same contractor to bring in 20 feet of soil, rather than the 10 feet now proposed. Finally, the Town says that the cost of providing the additional 10 feet must be spread over the anticipated life of the facility, and evaluated on a present value basis, using a discount rate such as the Applicant's own internal rate of return on projects.

WMNY defends its economic analysis by claiming that the information provided in the variance application is based on the input of its own officials and the calculations of experienced landfill engineers. Even so, the basis for and reasonableness of assumptions critical to determining economic burden are not explained. WMNY claims that the Town has not made an adequate challenge to its construction cost estimates. But, as the Town correctly notes, these estimates are not adequately explained in the first place, which puts the Town in a Catch-22 situation.

Proof of economic burden need not be highly detailed or complex, as the Commissioner ruled in relation to the groundwater separation variance sought by Saratoga County (Second Interim Decision, October 3, 1995, page 4). However, there must be enough to substantiate cost calculations so that prospective intervenors, and ultimately the Department, can be assured of their reliability.

This situation could be addressed by having the Applicant supplement its variance application or, as the Town notes, by making the economic burden of compliance an issue for adjudication. I am not recommending either course of action because, as I have noted above, there is no apparent question that what the Applicant is proposing in terms of an engineered 10-foot subgrade is at least as good as what would be provided through compliance with the Part 360 regulation. Therefore, whatever its associated economic burden, compliance with Part 360 provides no extra benefit in this case.

Parenthetically, the Town of Albion also claims that the variance cannot be granted as a matter of law because the economic burden claimed by WMNY is a self-created hardship attributable to the Applicant's decision to cut the acreage of the proposed landfill in half, which was made in 1994, after the effective date of the 20-foot requirement. Whatever the merits of this argument, Part 360 does not preclude a variance simply because the Applicant induced its own burden of compliance.

Furthermore, the Town's reliance on the 1997 New York State Court of Appeals decision in the Matter of Joseph F. Gazza v. DEC (89 NY2d 603, 657 NYS2d 555) is misplaced. As the Applicant points out, Gazza is basically a "takings" case, with no bearing here. Gazza involved a property owner's appeal of DEC's decision to deny him a building variance pursuant to the agency's tidal wetlands land use regulations. The Court upheld the denial and found that it did not effect an unconstitutional taking, since the development restriction from which the variance was sought was fully enacted and in force when the landowner purchased the property.

The Town reads Gazza as somehow preventing WMNY from alleging that Part 360 compliance would be unfair. However, no such allegation is being made. WMNY is claiming that, with regard to the 20-foot requirement for unconsolidated deposits, compliance would be unreasonable. Part 360 expressly allows such a claim to be advanced in the context of a variance request, and nothing in the Gazza decision suggests otherwise.

Ruling: No issue exists with regard to the request for a variance from the Part 360 requirements governing thickness and permeability of unconsolidated deposits underlying the proposed landfill.

CONSTRUCTION QUALITY ASSURANCE/CONSTRUCTION QUALITY CONTROL

The following proposed issues relate to the Construction Quality Assurance/Construction Quality Control (CQA/CQC) plan that is required by Part 360.

- - Engineering Independence

Even if the Department grants the variance from the requirements of Sections 360-2.12(a)(1)(v) and (vi), the Town of Albion wants adequate assurances that the constructed subgrade will meet the specifications established for it in the application. Such assurances are provided by the CQA/CQC plan required by Section 360-2.8, which sets out minimum testing frequencies for the subgrade materials. The plan also requires that the soils construction quality assurance engineer (who observes, tests and documents activities related to earthwork at the site) be "independent" of WMNY, though how that independence would be assured is not spelled out.

The Town of Albion proposes a condition to the variance requiring that the engineer be someone who has never worked for Waste Management, Inc. or any of its subsidiaries, and who agrees not to take any contract work from them for a period of no less than five years after construction is completed.

The Applicant points out that this condition goes beyond what the regulations expressly require. Even so, Part 360 allows the Department to approve variances subject to specific conditions "necessary to assure that the subject activity will have no significant adverse impact on the health, safety or welfare, the environment or natural resources" [6 NYCRR 360-1.7(c)(3)].

Whether such a condition is warranted in this case cannot be determined on the existing record. However, I agree with the Town that some measure has to be established to assure the engineer's independence. Therefore, I refer the matter to Staff to propose an appropriate definition, which hopefully all parties can accept.

Otherwise, I will fix the definition myself after hearing arguments from all sides.

- - Availability of Off-Site Fill

The Town of Murray contends that the Applicant has not demonstrated as part of its CQA/CQC plan that the off-site soil needed for subgrade fill, cover and capping is available. The Town claims that while several quarries are listed as potential sources of materials, the application does not provide specific parameters for compacted permeabilities or physical properties soil testing data.

Ruling: No issue exists for adjudication. As Department Staff point out, the main concern of DEC is that the material brought to the site meets required specifications. Where the material comes from is not the Department's concern, provided the specifications are met. Section 2.3 of the CQA/CQC plan provides that each proposed source of project soil materials (regardless of whether the source is on-site or off-site) will undergo pre-qualification testing to confirm that it will meet the project specifications. Of course, if needed material is not available at any quarry referenced in the application, WMNY will have to use another source.

- - Compliance with Permit Condition

The Town of Murray contends that the CQA/CQC plan does not ensure that the Applicant would comply with special permit condition No. 19 of Staff's draft landfill permit (Exhibit No. 20-A), which requires that all stones larger than one inch in largest dimension or which may cause damage to the overlying liner be removed from the material used as the low-permeability soil and primary soil components in the construction of the liner system.

The Town says the CQA/CQC plan is that only one of every 1250 truckloads of subbase material would be tested for permeability and sizing, and that the constructed subgrade material would be tested only once per acre. My own review of the plan did not verify these assertions.

Ruling: No issue exists for adjudication. Appendix B of the CQA/CQC plan contains various tables listing the property requirements and minimum testing frequencies for the various materials to be used in the landfill's construction. The frequencies and types of conformance testing set out in Table B-2.9 for low-permeability soil material appear to meet the requirements of 6 NYCRR 360-2.13(j)(3)(i) and (ii), and the frequencies and types of testing for the same material during construction, as set out in Table B-2.16, appear to meet the requirements of Section 360-2.13(i)(3)(iii), contrary to assertions the Town made during the issues conference. These testing requirements are binding upon the Applicant through special condition No. 14 of Staff's draft landfill permit (Exhibit No. 20-A). The Town proposed no expert testimony from an engineer in support of its assertion that the CQA/CQC plan does not provide adequate screening of subgrade material. (Its proposed expert, Kenneth R. Pike, is a geologist.) Of course, the Department may also make its own site inspections to help assure compliance with special condition No. 19.

SURVEY OF GROUNDWATER WELLS

The Town of Murray says there is no way to measure the completeness or accuracy of the Applicant's inventory of groundwater wells, which was based on sending questionnaires to adjacent landowners. According to the Town, the Applicant should contact appropriate local, state and federal agencies that have groundwater resources data, and should conduct a field survey to verify the accuracy of its inventory.

Ruling: No issue exists for adjudication, nor is any further investigation required. Section 360-2.11(a)(5) requires that a survey of public and private water wells within one mile downgradient and one-quarter mile upgradient of the proposed landfill site be conducted. According to Section 3.6 of the hydrogeologic report, the well survey consisted of a questionnaire which was mailed (with a postage paid return envelope) to available property owners within the designated area. In the event that a mailed questionnaire was not returned, a second questionnaire was sent via certified mail.

No wells were located directly downgradient of the proposed facility as most of this land is for agricultural use; however, 10 wells were located cross-gradient to the proposed facility or the existing OSL, and another 31 wells were located upgradient of the project site.

The survey was performed in a customary manner. The Town makes no offer that particular wells were overlooked, and the type of follow-up it would like is not required by Part 360. Therefore, no basis exists to pursue this matter further.

GROUNDWATER SEPARATION

The Town of Murray questions whether the Applicant can assure compliance with 6 NYCRR 360-2.13(d), which requires maintenance of a minimum separation of five feet between the base of the constructed liner system and the seasonal high groundwater elevation.

According to Murray, the Applicant assumes that the seasonal high groundwater table is on the top of the bedrock, but a 1977 U.S. Department of Agriculture soil survey states that, for certain of the site's predominant soil types, it is within two feet of the soil surface. Murray also cites a 1982 engineering report (Exhibit No. 8 - B) prepared on behalf of Orleans County, which considering basically the same site as a possible county landfill, found the seasonally high groundwater table to be within five feet of the ground surface, based on data from observation wells.

The Applicant and DEC Staff say that the anticipated construction of the 10-foot low-permeability subgrade beneath the base of the liner eliminates compliance with Section 360-2.13(d) as a matter of concern.

Ruling: No issue is raised with regard to compliance with the five-foot groundwater separation requirement. As Staff points out, the base of the liner system rests on top of the constructed subgrade, so even if the seasonal high groundwater table is on the ground surface, the subgrade construction to a depth of 10 feet assures that there will be a five-foot separation between the water table and the liner system base. Also, as the Applicant notes, the 1977 soil survey is not specific to this site, but for Orleans County generally. Finally, the Applicant's determination of the seasonal high groundwater elevation is based not on assumptions, but on monthly water level monitoring as part of its hydrogeologic study.

SOIL LIMITATIONS

The Town of Murray contends that the soils at the site are unsuitable for landfill use, citing the above-referenced 1977 soil survey, which notes the "severe" limitations that soil types the Town says predominate have for the construction of sanitary landfill trenches. According to the soil survey, these limitations are related to the location of the seasonal high groundwater table (discussed above) and a depth to bedrock of between 3.5 and 6 feet, which the Town considers shallow.

Ruling: No issue is raised with regard to the existing site soils. As noted in the DEIS (Section 4.1.1.2), construction of the project would permanently alter the site's surficial soil substrate, particularly through the importation of substantial amounts of subgrade fill. Even if this were not the case, the limitations referenced in the soil survey are for unlined landfill trenches that, as the Applicant and Staff both point out, are no longer allowed by law. These limitations are not relevant to the landfill proposed by the Applicant, which would have a double composite liner system beneath the solid waste.

ANOMALOUS FEATURES

The Town of Murray contends that the application does not comply with 6 NYCRR Section 360-2.12(a)(1)(iv), which prohibits landfill siting proximate to any mines, caves or other anomalous features that may alter groundwater flow. According to the Town, relevant features include an on-site abandoned quarry and the Erie Canal, which the Town equates to a quarry since it is a man-made trench. The Applicant contends that its project complies with the siting restriction, and DEC Staff accepts the Applicant's analysis.

Ruling: No issue is raised with regard to Section 360-2.12(a)(1)(iv). As the DEIS acknowledges (Section 3.2.4), a small surface quarry, which now appears as a pond, is at the far northwest portion of the landfill site. Now abandoned, it was reportedly a source for stone used to build the Erie Canal, which runs close to the quarry's northern border.

The DEIS (Section 4.2.1) also notes that groundwater flows generally to the north in both the overburden and bedrock underlying the site, with discharge to local streams and small creeks or directly to Lake Ontario. The installation of piezometers as part of the Applicant's hydrogeologic investigation indicates that groundwater flow is consistent across the site and responds to precipitation and the rise and fall of the canal, as would be expected in an area with no anomalous features.

The siting report also notes that mine shafts were not constructed in the area of the facility (the abandoned quarry was a surface mine) and that no voids or caves were encountered during the Applicant's drilling and coring activities.

The Town's offer of proof fails to address the findings and conclusions in the application, or to explain how either the canal or the abandoned quarry might alter groundwater flow, even if one considers them anomalous in the same way as a cave or mine, two features explicitly referenced in the regulation.

In fairness to the Applicant, one must also note that this proposed issue was raised for the first time at the issues conference, without having first been proposed in the Town's petition. While I have considered it on the merits and found it does not require adjudication, one could also argue that it was not raised in a timely manner, and should be disregarded for that reason as well.

STRUCTURAL INTEGRITY

The Town of Murray contends that the placement of waste atop the old Orleans Sanitary Landfill as part of the Towpath project would threaten the structural stability of the OSL, requiring significant stabilization of both the new and old waste mass.

According to the Town, structural landfill failure has been documented at other sites, where older cells catastrophically "slumped" along structural weaknesses due to overburden pressure from new cell construction. The Town maintains that geologic slumping is common in sloped unconsolidated materials where moisture reduces the friction necessary to hold the materials in place. The Town says that the OSL outer membrane liner would act as a reduced friction plane where slumping would preferentially occur, and that the anchor trench would effectively embed the new material through the outer membrane and into the side slope of the OSL, "anchoring" the new landfill material to the old landfill material.

The Town seeks to raise an issue principally pursuant to 6 NYCRR 360-2.7(b)(6), which requires that the project's engineering report contain an analysis of the structural integrity and overall stability of the landfill, and that the landfill design achieve certain factors of safety. Also, pursuant to 6 NYCRR 360-2.12(c)(4), landfills cannot be located in unstable areas where there would be inadequate support for their structural components.

Ruling: No issue exists for adjudication. As the Applicant points out, Section 6 of its engineering report describes the detailed stability analysis that was completed for the landfill, and Appendix "F" of the report documents supporting calculations.

The Applicant evaluated the stability of the liner system for various stages of landfill development: prior to waste placement, during active filling operations, and after final development. In all cases, the Applicant concluded, the liner system would be stable without development of any significant tensile stresses in the geosynthetic components. That is, the interface friction between the liner system components would be enough to provide stability, and therefore the anchor trench would simply provide a way to physically terminate the geosynthetic components of the sideslope liner system.

The Applicant's analysis shows how the landfill design achieves the minimum safety factors required by regulation. Staff has accepted this analysis, and the Town has offered no effective challenge to it. In fact, the Town's offer fails to address the specific claims of the engineering report, or even reference what review of the report was undertaken.

The Town claims that other landfill sites have suffered catastrophic slumpage due to the layering of a new cell on top of an old one. However, when pressed to give examples, the Town's counsel did not offer any.

Finally, the Town's proposed witness on this issue, Dr. Autin, is a geologist, and therefore arguably incompetent to address what is in essence an engineering issue.

Because the required analysis was undertaken to Staff's satisfaction, and because of inadequacies in the Town's offer of proof, no further inquiry is warranted.

SEISMIC RISK

The Town of Murray claims that both the structural integrity of the landfill and the management of groundwater and surface water at the site could be adversely impacted by earthquake activity like that which has previously occurred in western New York.

According to the Town's petition, lack of adequate design criteria and suitable protection from seismic risk could result in a "worst case scenario" of landfill failure. This is proposed as an issue under 6 NYCRR 360-2.7(b)(7), which requires that, for landfills in seismic impact zones, there must be a seismic analysis demonstrating that all long-term containment structures are designed to meet a certain minimum safety factor. [See also the landfill siting restriction for seismic impact zones, located at 6 NYCRR 360-2.12(c)(7).]

Ruling: No issue exists for adjudication. The Applicant acknowledges that the landfill would be in a seismic impact zone, and Section 6.5 of its engineering report contains the analysis required by regulation. The Town's offer of proof is inadequate because it fails to reference and account for the analysis that already has been performed. That analysis shows that the regulatory safety standard has been met in this case.

PROPERTY VALUES

Mr. Scharping, a local resident and real estate agent, says that the landfill expansion would diminish property values in the surrounding area, whereas the Applicant contends there is no evidence that such values would be affected. To support his claim, Mr. Scharping makes an offer of proof regarding the sales history of a nearby home built in 1970 on Densmore Road, trying to draw connections between sale prices and the status of previous landfill operations, and claiming that property value impacts should be considered under SEQRA as "environmental" in nature.

The Applicant contends that under a long line of DEC administrative decisions, impacts to property values are not considered "environmental," and that since this is Mr. Scharping's only issue, he has not shown any environmental interest that would warrant granting him party status. The Applicant also says the information in Mr. Scharping's filing does not rebut the substantial information on property value impacts it has provided in the DEIS, including a project-specific study (Appendix F) and a nationally-focused study (Appendix G).

DEC Staff agrees with the Applicant that property value impacts do not warrant adjudication, but also contends that Mr. Scharping's filing deserves a substantive rebuttal as part of the required responsiveness summary, which would be part of the final EIS.

Ruling: Repeating a ruling I made orally during the July 21 session of the issues conference, property value impacts shall not be adjudicated as part of this proceeding. It is well-established by agency case precedent that such impacts are not considered to be "environmental" impacts under SEQRA. Quoting from the Commissioner's January 20, 1989, interim decision in the Matter of Red Wing Properties, Inc., one of the first cases to face this issue directly: "To the extent that the underlying causes of potential property value changes may be related to the environmental impacts of [a] project, they are reviewable under SEQRA . . . The reduction of property values, considered in isolation, cannot, however, be considered an environmental impact even under the broad definition of "environment" contained in ECL Article 8." [Red Wing Properties, pages 1 and 2.]

At most, property value impacts could be considered as an "economic, social or other essential consideration" pursuant to ECL 8-0109, to be taken into account if adverse environmental impacts cannot be completely mitigated or avoided. [Red Wing Properties, Inc., page 2.] Because it is still unclear to what extent this project's environmental impacts can be addressed, it is not clear what, if any, role economic, social or other non-environmental considerations will play in the SEQRA determinations to be made in this case.

Even assuming, for the sake of argument, that the landfill expansion would diminish property values (since no one argues that it would enhance them), such impacts are economic, not environmental, because they relate to the value (or worth) people place in a thing, not to the thing itself. And certainly the worth of properties might decline based on people's perception of the landfill as a community nuisance. However, the Department, in the its review, must look beyond perceptions to consider what actual changes would occur in the project's environmental setting, and make permitting decisions based on the extent to which environmental impacts can be avoided or mitigated to the maximum extent practicable.

While impacts to property values shall not be considered as environmental impacts in this hearing, the Applicant shall treat Mr. Scharping's entire submission as a substantive comment on the DEIS. As such, it will require a response as part of the final EIS.

The Applicant shall be expected to draft responses to all public comments made since the application was noticed as complete, including comments made in letters and in oral statements at the July 1 legislative hearing. However, Department Staff shall be ultimately responsible to review for sufficiency (and revise as necessary) the responses that are drafted by the Applicant, to help ensure completion of the final EIS.

Of course, for any issues that are actually adjudicated, the hearing record, my report, and the Commissioner's decision will stand as the Department's response, and for those issues, no responsiveness summary shall be required.

LOCAL PERMITTING OF SEDIMENTATION BASIN

The Towns of Albion and Murray contend that the DEIS fails to recognize that a permit may be required from the Town of Murray to excavate a project-related sedimentation basin. The Towns request that the table of permits for the DEIS be amended to reflect this fact, and that the DEIS also consider the reasonably foreseeable impacts that would result from permit denial. Murray's petition indicates that excavation of the sedimentation basin would violate its local laws, though the Applicant is confident it can gain all required approvals.

Ruling: The extent to which aspects of the Applicant's project require local permits - - and the likelihood of such permits being granted - - shall not be considered as issues for adjudication. As all the parties appear to acknowledge and general condition no. 8 of the draft landfill permit confirms, the Applicant is responsible for obtaining all permits and approvals that may be required for its project.

Our hearing is concerned only with whether the permits requested from DEC should be granted. It is not the appropriate forum to determine what other permits might be needed, since this would involve DEC in interpreting local law. Also, it is not the appropriate forum to determine how likely it would be that any other permit would be granted.

The Applicant proceeds at its own peril if certain aspects of its project are not allowed by local law. Should necessary local approvals for its sedimentation basins be denied, the Applicant has conceded that it would have to seek a modification of its DEC permits and show that it would be able to accommodate storm water volume in some manner other than what has now been proposed. This is the correct approach to address any problem that may later develop. For now, the environmental review must consider the impacts of the project as it currently stands.

As for the accuracy of the table of permits, the Applicant shall address the Towns' comments in its draft responsiveness summary, but as it is not an appropriate subject for adjudication, there will be no hearing on the matter.

HOST COMMUNITY AGREEMENT

The Town of Albion claims that, in its DEIS and other commentaries, WMNY is trying to win approval of its DEC permit application in part by reference to host benefits that it has offered the community. The Town wants to ensure that the record is clear that no host community benefit agreement exists, either with Albion or any other town that would be affected by the project.

Ruling: No issue exists with regard to host community benefits. As all the parties agree, DEC permits should be granted or denied based on the project's compliance with legal requirements, not in relation to host community benefit packages that might be offered or accepted.

The DEIS (Section 2.4) states that the project offers a number of benefits, including those of a "draft" community benefits program featuring an annual host community fee paid to the Town of Albion, free solid waste collection and disposal for the town and village of Albion, and a program to preserve the market value of property adjacent to the site. According to the DEIS, other aspects of the program might include investments related to fire protection, school district needs, public recreation, and Erie Canal improvements.

The Applicant says the language concerning host benefits was included in the DEIS as a requirement arising from the public scoping of the document. The Applicant acknowledged during the issues conference that there is no actual agreement with Albion or any other locality concerning host community benefits, and the information contained in the DEIS is merely a proposal.

AGRICULTURAL IMPACTS

The Town contends that the DEIS ignores the impact of the proposed landfill on surrounding agricultural resources, particularly with regard to possible groundwater contamination, but also in relation to litter and infestations by vermin and other vectors. The Town notes that the area to the north of the project site, across the Erie Canal, is part of a state agricultural district, and that agriculture is Orleans County's main industry. According to the Town, agricultural impacts need to be examined by way of a supplemental EIS.

The Applicant and DEC Staff consider the discussion of agricultural resources in the DEIS (Section 4.6) to be sufficient, and argue that the possible off-site impacts of concern to the Town are already addressed generally throughout the document, though not under an agricultural heading.

Ruling: No supplementation of the DEIS is required. None of the grounds for requiring a supplemental EIS, as identified in 6 NYCRR 617.9(a)(7)(i)(a)-(c), has been established, nor has the Town suggested any.

Generally speaking, a supplemental EIS would only be required for specific significant adverse environmental impacts not addressed or inadequately addressed in the DEIS. However, the DEIS already addresses the matters of concern to the Town.

The project site itself is not located in an agricultural district and is unable to support agricultural activities due to past land practices associated with earlier landfills (DEIS Sections 4.6.1 and 4.6.2). Soils needed for landfill construction and operation would come from existing commercial mines, and not from agricultural lands (DEIS Sections 1.4 and 4.6.2). No impacts to groundwater quality are expected due to the construction of a double-composite liner system, use of daily and intermediate cover, and construction of a low-permeability final cover system at the Towpath facility (DEIS Section 4.2.2.1). Windblown debris would be controlled by prompt compaction and covering of unloaded wastes, fencing and litter patrols by facility staff (DEIS Section 1.4). Vermin, particularly gulls and rodents, would be controlled by keeping the working face as small as possible (DEIS Section 1.4).

It is not necessary that the impacts of concern to the Town be segregated in a special supplement addressing agricultural lands, since they are already covered in the DEIS. These impacts have not been overlooked, and therefore the DEIS does not require supplementation.

OWNERSHIP OF YAGER ROAD

In his late filing for amicus status, Mr. McKenna, through his attorney, Mark Klafehn, asserts that he is the legal owner of a 4,839-foot section of the former Yager Road located between Densmore and Transit roads. That, he says, would include what is shown in the Applicant's site plan as the "landfill site entrance road," which is needed to access facilities for leachate storage and containment, landfill gas management and general maintenance, as well as business and staff offices, from the landfill footprint.

According to Mr. McKenna, the Applicant does not have his permission or authority to trespass upon his property. However, he acknowledges that, by easement, the Applicant has permission to use his section of the road. Mr. McKenna says he is neither for nor against the landfill project, but that any permit issued by the Department must take into consideration his ownership rights, and ensure that such rights, as protected by the local zoning ordinance, are protected.

In its initial filing, the Town of Murray also proposed an issue related to Mr. McKenna's alleged ownership of a portion of Yager Road. However, it withdrew the issue when the conference began in July, leading to Mr. McKenna's own filing, which was presented when the conference resumed in August.

The Town of Murray claimed that because the Applicant lacked the authority of all site landowners to apply for the landfill permit, DEC has no jurisdiction to issue the permit, and the permit application should be denied. Also, Murray argued that it made no sense to continue these proceedings because, by virtue of Mr. McKenna's ownership rights, the Applicant could not gain control over the site and build the landfill facility.

The Applicant does not dispute Mr. McKenna's ownership and continued use of that portion of the former Yager Road running along the southern boundary of what is presently the McKenna Landfill, an inactive hazardous waste site controlled by Mr. McKenna and in relation to which he has had certain post-closure remedial obligations. However, the Applicant claims that it has an easement from Mr. McKenna allowing its use of that portion of the road for traffic access. The Applicant also claims that Mr. McKenna deeded away other portions of the road he now still claims to own.

DEC Staff say that, to the extent there is a dispute as to ownership of any portion of the former Yager Road, it could not be resolved in this hearing, and would have to be decided in a State Supreme Court action to quiet title under the Real Property Actions and Proceedings Law. However, because all parties concede there is an easement allowing the Applicant use of Mr. McKenna's portion of the road, Staff contend there is no issue for adjudication.

Ruling: No issue exists with regard to Mr. McKenna's ownership of a portion of Yager Road. The furnishing of an easement allowing WMNY use of any part of the road owned by Mr. McKenna assures the Applicant adequate control over the site to proceed with the application.

In his petition, Mr. McKenna cites 6 NYCRR 360-1.2(b)(7), which says the applicant (meaning the person applying for a Part 360 permit) "must be the owner or operator of the solid waste management facility." Even if WMNY does not, strictly speaking, own the entire project site, it would own and operate the landfill facility, which is all the regulations require in terms of its status as permit applicant. Also, as Staff points out, DEC lacks authority to determine claims of property ownership. These claims must be resolved in the state's civil courts.

While this proposed issue is hereby eliminated on its merits, one should also note that the Applicant objected to Mr. McKenna's filing on procedural grounds, arguing principally that there was no good cause for its lateness. [See 6 NYCRR 624.5(c)(2)(i)]. I find good cause in that basically the same claim was lodged by the Town of Murray in its initial petition. After Murray withdrew the claim from its petition, Mr. McKenna sought to intervene, if only to maintain his claim of ownership.

The Applicant also objected to Mr. McKenna's environmental interest, but given his continuing involvement with the closed McKenna Landfill, which is adjacent to the proposed Towpath landfill, I find that his interest is adequately demonstrated. Mr. McKenna's petition for amicus status is hereby denied not on procedural grounds, but because it fails to identify a substantive and significant issue.

TRAFFIC

The Towns of Albion and Murray as well as the Albion Coalition seek to raise various issues about impacts of project-related traffic. Their concerns relate to alleged flaws in the traffic impact study, as well as matters involving public safety and highway maintenance. To understand these points, one needs to look at the studies the Applicant has performed, the reasons for which they were done, and how they were reviewed.

- - Background

In February, 1996, the Applicant furnished DEC with its "site impact traffic study" prepared by SRF & Associates. The study (Appendix I to the DEIS) looked at existing conditions along the major access routes to the proposed facility, then projected changes in those conditions based on new traffic that the facility would generate.

To study project-generated traffic, the Applicant considered both the traffic related to construction and everyday operations, as well as the traffic resulting from waste coming into the facility. For the latter, the Applicant assumed an average of 1500 tons per day of waste, half of it arriving on 8-ton collection trucks and the other half arriving on 20-ton transfer trucks. This resulted in, on average, 110 trucks per day: 55 collection trucks and 55 transfer trucks. Because garbage deliveries fluctuate throughout the year, the study then offered projections for the number of trucks per day for each of the 12 months, using historical data from Monroe County. According to this analysis, the fewest garbage trucks (87 per day) would be expected in January and February, and the most (130) could be expected in May.

To figure the total site-generated traffic, the garbage truck traffic was added to the other operations-related traffic, and then that total was combined with the traffic related to construction of the landfill's liner and cap, since construction of one or the other is expected, at scheduled intervals, to proceed at the same time as waste placement.

According to Table 4A of the traffic study (received as Exhibit No. 10 - B), the most traffic (570 vehicles entering and exiting the site per day) could be expected in August during periods when landfill operation is proceeding at the same time as liner construction. Even so, the study's analysis is based on the condition of September operations with liner construction, when 425 vehicles would be expected.

According to the study, this condition was selected because it represents higher than average trip generation rates, and September is the month of highest project-generated traffic during the local school year. (The campus of the Albion school district is located on Route 31, a principal traffic route for the landfill, and the safety of schoolchildren, pedestrians, and drivers along this road is a main concern of the prospective intervenors.)

The Applicant performed its analysis by assigning project-generated traffic to the adjacent road network based upon anticipated sources of refuse and soil materials, and the most likely travel routes to the facility. (Eighty percent of approaching vehicles are expected to use NYS Route 98 northbound to NYS Route 31 eastbound through the Village of Albion.) Growth in background traffic over the life of the landfill was also estimated, and then levels of service during peak traffic hours were calculated for key intersections.

The study concluded that, over the operational life of the landfill, the existing and planned area roadways and intersections could adequately accommodate the added traffic generated by the project. According to the study, no roadway improvements beyond those already scheduled by the NYS Department of Transportation (DOT) would be necessary to achieve acceptable peak hour operating conditions at the site access and nearby study intersections. Furthermore, the study found, traffic on all study roadways adjacent to the landfill would continue to operate at acceptable levels of service, well under the roadway network's capacity.

The traffic study was reviewed by DOT, which responded in a letter dated April 8, 1996, stating its agreement that the project would not significantly impact the state highway system. However, DOT recommended that an eastbound left turn lane be constructed at the intersection of Route 31 and Densmore Road, to enhance the safety of vehicles on Route 31, and that a left turn lane also be developed in the westbound direction. The Applicant has accepted these recommendations, the implementation of which will require a highway work permit from DOT.

In reviewing the DEIS, DEC Staff requested that the Applicant look at the traffic impacts associated with shortening the life of the facility. The Applicant did this in 1997 by evaluating an alternative scenario in which the rate of waste disposal would be increased, thereby shortening the facility life from 18 years (as still proposed) to 15 years. Under this scenario, the Applicant concluded, project-generated traffic would increase by four vehicles during the a.m. peak hour, and 9 vehicles during the p.m. peak hour, for the same September condition analyzed in the traffic study. [See addendum to traffic generation report, included as part of Appendix I to the DEIS.] According to the DEIS, these increases "are considered inconsequential" and would not affect the levels of service previously determined in the traffic study for the roadways surrounding the site. [See DEIS, Section 5.8.2.]

In correspondence dated August 17, 1999, DOT agreed that if the facility lifespan were shortened from 18 to 15 years, it "would not significantly change the results" of the analysis in the 1996 traffic impact study. [See Exhibit No. 23, letter of Larry R. Sherman, DOT regional traffic engineer, to Al Butkas of DEC.]

- - Discussion

The Applicant's traffic impact study was done, in large part, to determine whether area roads have the capacity to absorb the extra traffic that would be generated by this project. "There is no question that an increase in traffic levels is a potential effect that must be considered in review of a SEQRA action," the Commissioner said in the Matter of William E. Dailey, Inc. [Interim Decision, June 20, 1995, page 4.] In fact, the traffic issues are proposed here in relation to DEC's role as lead agency in review of the DEIS.

The Dailey decision recognizes that, in traffic matters, DEC lacks expertise, and therefore, to fulfill its lead agency duties, must look outside itself for guidance. For matters like this one, which involve state highways, that guidance is provided by DOT. In its letter of August 17, 1999 (Exhibit No. 23), DOT notes that its role as a reviewing agency in responding to private development "is to protect the public through the orderly flow of traffic movements onto and from the highway, to preserve the public's investment in highway capacity, and to assure uniform design and construction of entrances and exits statewide. It is in regard to these factors that we determined that the highway system will not be significantly impacted with the installation of left turn lanes (eastbound and westbound) at the intersection of Route 31 and Densmore Road."

DOT's August 1999 letter is the second time it has indicated that the project would not significantly impact the state's highway system. While DOT has not reviewed the entire record of the issues conference, it has reviewed the relevant portions of the DEIS. Also, Staff ensured that DOT received the initial petition of the Town of Albion, as well as Waste Management's response to it. (See Exhibit No. 20 - B, letter of Albert Butkas, regional permit administrator.)

In Dailey, the Commissioner eliminated a proposed traffic safety issue concerning another state highway, finding that "SEQRA does not require the Department to use the adjudicatory forum for purposes of resolving all comments related to the DEIS. Thus, where the agency with the traffic expertise and jurisdiction over impacts related to a State highway has provided its analysis in the SEQRA process, an adjudicatory hearing on this issue is not required."

Because here, as in Dailey, DOT has provided its analysis as part of DEC's SEQRA review, there is likewise no requirement to proceed further. Adjudicating traffic issues is not only unnecessary, it is also unwarranted in light of the prospective intervenors' petitions, which fail to raise doubts about the traffic study's conclusions.

According to both the Town of Albion and the Albion Coalition, the traffic study must be redone because it is based on an assumed 1500 tons per day of waste, rather than the 1800 tons per day reflected in the approved design capacity established by Staff's draft permit [Exhibit No. 20-A, special condition No. 34.] However, the 1500 figure, as used in the traffic study, reflects an average daily tonnage to be received during the year, whereas the 1800 figure reflects "the average daily tonnage to be received . . . during the quarter in which the most waste is anticipated to be received, as approved by the Department." [See 6 NYCRR 360-1.2(b)(8), DEC's definition of "approved design capacity." Emphasis added.]

As the Applicant points out, one would not expect the facility to receive 1500 tons of waste each and every day; instead, the amount likely would fluctuate seasonally, which is why the traffic study varies by month the number of garbage trucks expected. The 1800 figure represents an average daily tonnage only for the busiest period of operations, and therefore does not signify a project change warranting a new traffic study.

As noted above, the Applicant did generate an addendum to its traffic generation report, which figured the increase in traffic one would expect by shortening the facility lifespan from 18 to 15 years. However, contrary to suggestions of the prospective intervenors, this was not done because such a shortening was proposed, or to support increasing the average daily tonnage. In fact, as the Applicant explains, the project's proposed lifespan (including operations and closure activities) continues to be 18 years.

The report addendum was done not at the Applicant's initiative, but at DEC's request, to back up the DEIS analysis of project alternatives. The addendum does not affect the validity of the traffic study and, because it addresses a scenario that is not actually proposed, it is not particularly relevant to the issue of expected traffic impacts.

In its supplemental petition, the Town of Albion offers as its proposed expert Robert A. Krohn of the EMS Consulting Firm, who has 13 years of traffic engineering experience. According to the Town, Mr. Krohn would testify that the Applicant's traffic study fails to reflect the likely, foreseeable impact of traffic on the surrounding community.

The Town agrees with the Applicant that it was appropriate to analyze September conditions since that is the month with the greatest amount of site-generated traffic when school is in session. However, the Town contends that an analysis also should have been performed for August, because that month represents peak site-generated traffic, which the Town says could affect summer tourism, especially that related to the Erie Canal.

According to the traffic study, the Institute of Transportation Engineers' (ITE) standard practice in determining the impact of a project includes evaluating and designing for the average amount of site-generated traffic volumes anticipated. Because, on an annual basis, the September traffic volumes projected over the life of the facility represent 90 percent of the highest monthly volume condition, the study concludes that evaluating and designing for September trip generation estimates is well in excess of standard practice.

The Town of Albion contends that its engineer, Mr. Krohn, would say that the ITE actually requires designing for "busier than average, much higher than average" traffic volume, and that the proper way to do this is to analyze worst-case conditions, which here would mean those in August. However, the Town does not contend that if August conditions were evaluated, one would find unacceptable levels of service. For that reason, its offer casts no doubt on any conclusion of the traffic study.

The Town of Albion also contends that Mr. Krohn would say that the traffic study is deficient because it fails to analyze the mid-day hours when traffic entering and exiting the site would be the highest. However, as the Applicant points out, traffic impacts are based on adding the site-generated traffic to the pre-existing traffic on the surrounding roadways.

According to the traffic study, the Applicant selected for analysis AM and PM peak hour traffic periods that would correspond to the heavy school-related vehicular traffic on Route 31, the main access road to the facility. To confirm that those hours represented appropriate peak hour volume conditions, DOT machine count printouts were reviewed for NYS Route 31 within the vicinity of the site.

The Town of Albion says it is prepared to offer testimony from Mr. Krohn that the increase in traffic attributable to this project would in turn increase the number of accidents on roads near the site. However, its offer in this regard was conclusory and therefore inadequate for the purpose of raising a hearing issue. Similarly, the Albion Coalition claims that, due to heavier traffic, more accidents will occur along Routes 31 and 98. However, the Coalition offered no study to back this up, and offered no witness to testify.

The issue of accidents was not ignored by the traffic study; in fact, traffic accident information for the years 1991 to 1994, as compiled by DOT, was reviewed to identify locations near the site with a high accident frequency. According to the study, many of these locations were slated for highway improvements.

The Albion Coalition is especially concerned about accidents that might occur on Route 31 near the school buildings. The Applicant's review of accident data for this stretch of road yielded no identifiable accident pattern at the nearby intersections with McKinstry and Clarendon streets, except for rear-end type collisions at the McKinstry Street intersection, which were attributed primarily to driver inattention.

The Albion Coalition and the Town of Murray contend that large trucks accessing the landfill will tear up the roads and damage historic buildings. Again, no testimony was offered to back up these assertions. As the Applicant points out, its major access roads - - Routes 31 and 98 - - are state highways and therefore designed for heavy truck traffic.

The Albion Coalition also contends that, in the last several years, traffic has increased along Route 31 east of the village of Albion, as new businesses have been established, something that could not be recognized by a 1996 traffic study. However, nothing was presented to back this up, and the available evidence, gathered by the Applicant during the issues conference, suggests that, if anything, daily traffic actually decreased almost 2 percent along this stretch of road between 1994 and 1998. [See page 2 of the July 14, 1999 letter of Stephen Ferranti to Albert Butkas, part of Exhibit No. 5-24.] Because the Applicant's traffic study projected a 1.2 percent per year growth in background traffic, this tends, if anything, to confirm the conservatism of its underlying assumptions.

Finally, the Town of Albion questions certain assumptions of the traffic study, including those involving the mix of transfer and collection trucks. For the purpose of its study, the Applicant assumed an even split between the two types of vehicles, with the smaller compactor trucks bringing waste from Genesee, Livingston, Orleans and Wyoming counties, and the larger transfer trucks bringing waste from seven counties farther away.

The Applicant admits that its assumptions on the split between transfer and collection trucks could be off quite a bit, but says that, if anything, the mix would change in the direction of more transfer trucks and fewer collection trucks, resulting in less vehicles overall. However, the Town's attorney, Mr. Spitzer, states that during its own licensing hearing on July 1, the Applicant said the mix of collection and transfer trucks could swing either way, so that there could be more collection trucks and therefore greater road congestion.

Unfortunately, neither the Town nor the Applicant offered the transcript of the July 1 hearing as part of this proceeding, so I am not in a position to determine what was actually said, and how it might change the assumptions on which the traffic study is based.

BURDEN ON MUNICIPAL SERVICES

The Town of Murray contends that the landfill expansion will directly impact and burden municipal services such as police, fire, road maintenance and snow plowing. It proposes that this burden be adjudicated as an issue under SEQRA, claiming that it relates to whether the Department can make the requisite finding that environmental impacts have been mitigated to the maximum extent practicable.

According to the Town, the burden on municipal services is an aspect of the environment given the definition of environment as including "resources of . . . aesthetic significance, existing patterns of population concentration, distribution or growth," and especially "existing community or neighborhood character" [6 NYCRR 617.2(l)]. The Town is willing to present its supervisor and other officials as witnesses on this issue, but what they would say is unknown.

Ruling: No issue exists with regard to the burden this project would place on the delivery of municipal services. Such a burden would be economic in nature, not environmental. Also, the Town's petition fails to set out an offer of proof for its witnesses. Finally, Section 4.9 of the DEIS addresses community services such as fire and police protection provided by the town and village of Albion, as well as Orleans County, that could be affected by the project, as well as suggested measures to mitigate such impacts.

While there is no discussion concerning the Town of Murray, the Applicant denies there would be an adverse impact on its municipal services. As the Applicant points out, the main access route is a county road, Densmore Road, in the Town of Albion, and the back-up rote, Transit Road, is also a county road, though it is on the border between Albion and Murray. Fire protection would be provided by the Albion Fire Department, and police services by the Village of Albion Police Department, the Orleans County Sheriff's Department, and the New York State Police, all of which have offices in Albion.

MONITORABILITY OF GAS EMISSIONS

The Town of Albion proposes to raise as a hearing issue the ability to monitor gas emissions from the Towpath landfill, given the close proximity of the McKenna Landfill, which generates the same gases. At the Towpath landfill, gas emissions would be collected and burned using a flare. (See DEIS Section 4.4.5.) McKenna has no similar system; instead, gas vents have been installed, and they release the gas directly to the air.

According to the Town, its monitorability concern is an issue under 6 NYCRR 360-2.12(c)(5), which forbids locating new landfills where environmental monitoring cannot be conducted, and 6 NYCRR 360-1.11(a)(1), which requires that provisions of a solid waste management facility permit "assure, to the maximum extent practicable, that the permitted activity will pose no significant adverse impact on public health, safety, the environment or natural resources."

The Town says the landfill permit should be denied pursuant to Section 360-2.12(c)(5) because of problems the Department would have determining whether McKenna or Towpath is the source of off-site odors. If the permit is not denied, the Town says it could be further conditioned pursuant to Section 360-1.11(a)(1) to require more monitoring points around Towpath.

Ruling: No issue exists for adjudication. Section 360-2.12(c)(5) is inapposite because it apparently refers to monitoring for water contamination only. While the Town interprets the word "release" in this section as encompassing a release of gas to the air, the provision, viewed as a whole, is written in relation to water resources. In fact, the sentence that refers to the detection, characterization and definition of "releases" from the landfill begins with the assertion that the identification of areas where environmental monitoring and site remediation cannot be conducted "must be based upon ability to sufficiently characterize groundwater and surface water flow to locate upgradient and downgradient directions."

The Town cited no cases in which an air issue has been certified for adjudication pursuant to Section 360-2.12(c)(5), and I am familiar with this section only in relation to the ability to monitor and remediate water contamination, which was an adjudicated issue, for instance, in the permitting hearing for the Saratoga County Landfill.

Also, no issue exists under Section 360-1.11(a)(1) because the Town acknowledges that Towpath's gas collection system appears to comply with all relevant requirements and is a common technology that is "very successful" when designed and operated properly. Therefore, as a permit requirement, the system would tend to assure that landfill gas would have no significant adverse impact on public health or safety.

The Town acknowledges that, under normal circumstances, inadequacies or breakdowns in the gas collection system could be detected by monitoring for odors, but says that the nearness of the McKenna Landfill would make it difficult if not impossible to determine here whether an odor problem is attributable to McKenna or Towpath. The Town says it would call three expert witnesses on this point: Brian Jacot, Dave Meyer and Colin J. High. However, its offer is entirely conclusory, and therefore inadequate when weighed against Staff's position that, by checking pipes and flares, one could determine rather easily whether the Towpath system is working.

Staff also points out that 6 NYCRR 360-2.17(f) requires that an ongoing gas monitoring program be initiated upon initial operation of the Towpath landfill to ensure that the concentration of methane and other explosive gases generated by the facility do not exceed certain levels. If the project is approved, methane sensors would be installed along the landfill's boundary with the Erie Canal and at other on-site locations, and an odor response plan has been incorporated into the draft air permit.

IMPACTS TO FEDERALLY REGULATED WETLANDS

The Town of Albion contends that the application cannot be approved because it violates federal and state regulations controlling the destruction of federally regulated wetlands.

A wetland delineation investigation conducted in 1993 on behalf of the Applicant identified a total of 0.31 acres of federally regulated wetland areas which would be filled as part of the facility's development. (See Landfill Siting Report, Section 3.8.) Another delineation performed on the Applicant's behalf this past August raised the total to 1.32 acres. (See August 19, 1999, letter from John Hecklau of Environmental Design and Research, P.C., to Joseph Kassler of the U.S. Army Corps of Engineers, which is appended to an October 19, 1999, letter to me from Paul J. D'Amato of DEC Staff.) The total was raised again, to 2.35 acres, after a site inspection on October 27, 1999, by the U.S. Army Corps of Engineers. (See November 4, 1999, letter from Mr. Kassler to Mr. Hecklau, which is appended to a November 30, 1999, letter to me from Mr. D'Amato.) The Army Corps' site inspection verified federal wetland boundaries that shall remain valid until November 4, 2004, on which date a new wetland delineation will be required if the project has not yet been completed.

According to the Applicant, all of the seven wetland areas that, combined, comprise the 2.35 acres are within or adjacent to the landfill footprint, which is located entirely within the Town of Albion. (See letter to me from Kevin Bernstein, dated December 6, 1999.) Staff agrees with the Applicant that these wetlands are the result of previous landfilling and grading activities on historically upland areas.

In its initial petition for party status, the Town of Albion said that the filling of the wetlands as part of this project would violate Section 258.12 of Title 40 of the Code of Federal Regulations ("CFR"), as incorporated into 6 NYCRR 360-2.12(c)(8). One of many landfill siting restrictions, Section 360-2.12(c)(8) states that new landfills and lateral expansions shall not be located in federally regulated wetlands, unless the appropriate permits are obtained from the U.S. Army Corps of Engineers, and unless the owner or operator can make certain demonstrations to the Department, to the extent required under federal or state law.

In its petition, the Town claimed that the Applicant had not obtained the appropriate Army Corps permit, and had not made the following demonstrations:

• That a practicable alternative to the proposed landfill, which would not involve federally regulated wetlands, is not available [Section 360-2.12(c)(8)(i)];
• That the landfill will not cause or contribute to significant degradation of federally regulated wetlands [Section 360-2.12(c)(8)(iii)];
• That steps have been taken to attempt to achieve no net loss of federally regulated wetlands [Section 360-2.12(c)(8)(iv)]; and
• That sufficient information is available to make a reasonable determination with respect to these demonstrations [Section 360-2.12(c)(8)(v)].

The Town said sufficient information was not available because the Applicant's initial wetland delineation had expired. However, as noted above, a new wetland delineation, which remains valid until 2004, was recently completed.

Ruling: No issue exists with regard to the filling of federally regulated wetlands. As the Applicant points out, DEC incorporated the wetland provisions of 40 CFR Part 258 in the siting restriction set forth in 6 NYCRR 360-2.12(c)(8) when its landfill regulations were revised in 1993. Section 360-2.12(c)(8) does not prohibit the filling of federally regulated wetlands for landfill development in all instances, but says that if the landfill will be located in such wetlands, appropriate Army Corps permits must be obtained, and certain demonstrations made "to the extent required under federal or state law."

When the federally regulated wetlands at the site were understood to total 0.31 acres, the Applicant received Nationwide Permit No. 26 from the Army Corps, which authorized the wetlands' filling. Even with the recent upward revision of affected wetland area to 2.35 acres, the project remains covered by Nationwide Permit No. 26, since such permit authorizes the filling of up to 3 acres of "isolated waters," meaning non-tidal waters that are not part of a surface tributary system to interstate or navigable waters of the United States, and are not adjacent to interstate or navigable waters.

Nationwide Permit No. 26 is issued in instances where wetland filling is deemed to have minimal adverse effects on the aquatic environment. The permit is set to expire no later than January 5, 2000, by which date the Army Corps expects to start a new system of activity-specific permits. However, as these rulings were written, Nationwide Permit No. 26 remained in effect. Whatever permit may be required in the future, WMNY will be responsible for obtaining it, as confirmed by general condition No. 8 of Staff's draft landfill permit (Exhibit No. 20-A).

As for the demonstrations set out in 6 NYCRR 360-2.12(c)(8)(i)-(v), they were not made as part of the DEC permit application. However, such demonstrations are not required for Nationwide Permit No. 26. As the Applicant points out, requiring such demonstrations here would stand the relationship between state and federal wetland jurisdiction on its head. Incidentally, the amount of wetland acreage affected by this project is too small to require a DEC freshwater wetland permit.

WATER QUALITY CERTIFICATION

Once the amount of federally regulated wetland was found to be more than one third of an acre, DEC Staff determined that an individual Clean Water Act Section 401 water quality certification likely would be needed for wetland filling. (See letter to me from Paul D'Amato, dated October 19, 1999.) In letters from their counsel dated November 3, 1999, the Towns of Albion and Murray contend that the Department should not grant the certification due to the project's alleged failure to comply with the siting restriction of 6 NYCRR 360-2.12(c)(8), which is discussed above.

Ruling: No issue exists for adjudication. As noted above, the demonstrations identified in Section 360-2.12(c)(8)(i)-(v) need not be made in this case, due to the filling's eligibility for Nationwide Permit No. 26.

An individual Section 401 water quality certification likely will be required in this case because, with the recent redelineation of the wetlands by the Army Corps, the Applicant will not be eligible for the state's blanket certification for filling of up to one third of an acre. An application for an individual certification (Exhibit No. 5, Document No. 7) was made as part of the initial DEC application due to uncertainty as to the amount of wetlands a redelineation would establish. Water quality certifications are governed by 6 NYCRR 608.9.

Staff maintains that water quality would not be impaired by filling the isolated on-site wetland areas and that no DEC-promulgated water quality standard would be violated by the proposed activity. No offer of proof to the contrary has been made. Therefore, an individual water quality certification, if needed for the project, may be issued.

SITE ACCESS TO VERIFY WETLAND DELINEATION

At the issues conference on August 19, 1999, the Town of Albion requested access to the landfill site to "double check the validity" of any subsequent federal wetland delineation, using the services of the LA Group (T: 996). If this request still stands in light of the Army Corps' own redelineation of the wetland area, such access would remain warranted since it would provide relevant information about the extent of wetland area and the type of review required for the proposed filling. However, the information collected from any site access would appear to be useful to the Town only to the extent it could persuade the Army Corps to reconsider its findings.

As the assigned ALJ, pursuant to 6 NYCRR 624.7(c)(4), I may allow access to the project site, in this case for wetland inspection, provided that the Applicant and DEC Staff are given notice and allowed to observe all activities. If access is still sought, the Town should attempt to secure it informally with the Applicant, and if unsuccessful, make a formal motion to me, to which the Applicant and DEC Staff may respond.

SEAGULL CONTROL

The Town of Albion contends that the DEIS is deficient because it fails to estimate the number of seagulls that would be drawn to the landfill both with and without mitigation measures. According to the Town, the DEIS also fails to account for the full range of impacts the gull population would have on people using the Erie Canal and town residents generally. While measures have been proposed to combat the congregation of gulls at the landfill, the Town says there is no meaningful commitment as to when certain of these measures would be implemented.

The Town has retained an ornithologist and seagull specialist, Dr. Robert Andrle, who the Town says would testify that the landfill's seagull population would be at least 15,000 without mitigation, and at least 5,000 even if mitigation measures are used. The Applicant contends that these numbers are too high, and that the landfill would not draw seagulls from as wide a range as the Town claims. The Town is willing to litigate this issue, and wants assurances that mitigation measures will be started immediately upon the first receipt of waste, so that gulls do not become accustomed to feeding at the landfill.

Ruling: No issue exists for adjudication. Concerns about seagulls becoming a nuisance already have been recognized in the DEIS (see Section 3.6.3.10) and addressed adequately by a vector control plan that is part of an agreement (Exhibit No. 19) that the Applicant reached with the New York State Canal Corporation, and which can be incorporated to the application documents so that it becomes enforceable by DEC.

To minimize the attraction of birds, the DEIS and the vector control plan provide that the working face would be limited to as small a size as practicable [as is required, at any rate, by 6 NYCRR 360-2.17(b)(1)] and all exposed refuse would be covered on a daily basis [as is also required by 6 NYCRR 360-2.17(c)]. Litter would be controlled to limit the availability of food, and vegetation would be managed to make roosting difficult.

Should basic operational procedures prove ineffective, the vector control plan offers additional measures including use of Rejex-it repellent to make the food supply distasteful, a wire grid system that would disrupt flight paths over the working face, and pyrotechnics (either propane cannons or other noise makers) to scare birds away. These additional measures would be used "if necessary," though not necessarily upon the first receipt of waste. Since there are financial and environmental costs attached to their use, I agree with the Applicant that they should not be employed until one can first determine how effective basic operational procedures are in preventing a nuisance situation. [See 6 NYCRR 360-1.14(l), which requires that the facility be maintained so as to prevent the facility from becoming a vector breeding area.]

As the Town points out, the application does not forecast how many seagulls might be attracted by the landfill either with or without the various control measures. However, it would be wasteful to adjudicate this issue when the Applicant already has committed itself to all measures typically undertaken to address seagull congregation.

The Town points out that, in the Saratoga County Landfill permitting matter, testimony was taken on the number of gulls the landfill might expect, and the range from which they would be drawn. [See pages 35 - 62 of my hearing report, attached to the Decision of the Commissioner, September 3, 1996.] However, in that matter, the testimony was received in relation to an issue that does not exist here: whether the Applicant should receive a variance from a siting restriction for separation of putrescible-waste landfills from airports.

Department Staff is prepared to take the vector control plan that is appended to the Canal Corporation agreement and make it part of the DEC application by requiring that the "basic operational procedures" on page 2 of the plan become part of the facility's operations and maintenance manual, and that the additional measures on page 5 of the plan become part of the facility's contingency plan. I direct that this be done to make the plan's requirements enforceable by the Department.

The vector control plan states that "[a]t other facilities comparable to the proposed Towpath landfill, Waste Management generally confines the open working face to an area no larger than 150 x 50 feet." However, the Applicant is unwilling to fix a maximum dimension for the Towpath working face, saying in the DEIS only that it would be maintained "as small as practicable . . . to minimize the attraction of birds." Though Staff prefers more specificity, I find the language of the DEIS to be acceptable since the size of the working face would depend on a number of factors, including the amount of waste received on any particular day. Part 360 does not require that the working face of a landfill not exceed any prescribed dimension, and until the extent of any gull problem becomes apparent, it is not necessary for the Department to establish such a requirement by permit condition.

Finally, to the extent that the DEIS does not identify the full range of health, safety or quality of life concerns associated with congregating gulls, the introduction to the vector control plan (on page 1) provides a comprehensive list which eliminates any alleged need to supplement the application materials.

VISUAL IMPACTS

The Towns of Albion and Murray seek to raise issues under SEQRA with regard to the visual impact of the Towpath project on the surrounding community. Particular concerns are expressed about the impact from viewpoints along the Erie Canal and from the observation tower at the Mount Albion Cemetery, resources of recognized historic significance.

The Towns say that the visual impact analyses performed on behalf of the Applicant to date are incomplete and require supplementation as part of the hearing. As for the simulations already provided by the Applicant, the Towns say they mischaracterize significant adverse impacts affecting their ability to encourage tourism along the canal. The Towns say that the existing studies place too much emphasis on the visual impact of the completed, closed facility, and too little emphasis on the impact of the operating facility at midlife and just prior to its closure.

The Town of Albion proposes to present testimony from two experts on visual assessment, Holly Elmer and Russell Pittenger of the LA Group, a planning and design firm with experience performing environmental assessment studies and viewshed analyses. According to the Town, the adverse impacts its experts would delineate could form the basis for permit denial or, at the least, permit conditions that might include limiting the height of the facility to that of the lower of the existing OSL or McKenna landfills, to mitigate visual impacts to the maximum extent practicable.

Should this issue be adjudicated, the Town of Murray would intend to rely largely on Albion's experts, but would also offer testimony from Kenneth Pike, one of its consultants, concerning visual impacts particular to Murray, as well as various town officials who could describe efforts the Town is making to promote tourism along the canal corridor.

Claiming no special expertise on the issue of visual impacts, Department Staff defers to the New York State Canal Corporation with regard to impacts upon users of the Erie Canal, noting that the corporation has negotiated terms of a screening plan with the Applicant to create a vegetative buffer between the canal and the landfill. Staff does not join in the request that visual impacts be adjudicated, but concedes that if they are, such impacts could form the basis under SEQRA for further conditioning or even denying the requested permits.

The Applicant contends that the visual impact analyses it has already performed provide an adequate basis for decisionmaking, and that the Towns' offers of proof are inadequate to raise an issue for adjudication.

Ruling: No issue exists for adjudication. When considered against the backdrop of the analyses already performed on the Applicant's behalf, the Towns' offers of proof on this issue are inadequate. While witnesses are identified, the statements attributed to them are basically conclusory in nature. They do not address the methodology used by the Applicant to evaluate impacts, or identify particular points of disagreement with any rating assigned by its experts.

Needless to say, the visual impact study could be supplemented with additional simulations. However, the Applicant appears to have considered views from the most visually sensitive sites (including the canal and the cemetery tower) and those offering the most open, unobstructed views of its project.

- - Background

The application in this matter includes an assessment of impacts to visual and aesthetic resources (Section 4.11 of the DEIS) based on a 1995 visual impacts analysis performed on WMNY's behalf by Environmental Design & Research, Inc. (Appendix "D" of the DEIS). As the Applicant points out, its visual study considers impacts that might occur within a four-mile radius of the site, with particular attention to recreational users of the Erie Canal and visitors to the observation tower at the Mount Albion Cemetery, a Civil War memorial that includes a public viewing platform. The DEIS thoroughly describes the methodology used to locate and evaluate significant viewpoints and the process by which photographic simulations of the proposed facility from these locations were developed and assessed by landscape architects.

The study found that the most important visual impact would be along the Erie Canal, but that this impact could be mitigated effectively with foreground tree plantings. The study also acknowledged that although the operating landfill would be less visible than the closed facility (due to its reduced height and/or area of coverage), views of the working cells would present the most significant adverse visual impacts, due to the level of activity that operations entail, the elevated position of the activity relative to potential viewers, the contrast of landfilling activity with surrounding land use, and the sharp contrast in color, texture, and form created by this activity.

- - Erie Canal

The project's visual impact upon users of the Erie Canal has been a particular concern of the New York State Canal Corporation, which initially sought to intervene on this issue. However, after negotiations with the Applicant, the two parties reached an agreement resolving all the Canal Corporation's issues and resulting in the withdrawal of its petition for party status. As part of this agreement (Exhibit No. 19), WMNY has agreed to prepare and implement, at its sole expense, a screening plan substantially consistent with one prepared by Environmental Design and Research, the Applicant's consultant, dated July 29, 1999. That plan, which would require the Canal Corporation's approval, would involve creation of a vegetative buffer on Canal Corporation property between the canal and the landfill. A planting schedule would be developed, and WMNY would have to replace, at its expense, any plant in the buffer that dies or is damaged.

The preservation of existing vegetation and the planting of a thick vegetative screen between the landfill and the Erie Canal have also been identified as important mitigation measures by the New York State Office of Parks, Recreation and Historic Preservation, with regard to impacts on the Erie Canal and the Transit Road Bridge. [See letter of OPRHP program analyst Elisabeth A. Johnson to John Hecklau of Environmental Design & Research, dated June 11, 1996, part of Appendix "D" of the DEIS.]

The Towns argue that visual impacts along the Erie Canal have not been comprehensively studied, arguing that the evaluation has been limited to the area between Densmore and Transit roads. However, this is the area closest to the project, so it makes sense that most attention would be focused there. With regard to views from the canal east of Transit Road, in the Town of Murray, the Applicant argues that they are well screened by existing vegetation. The Town has made no showing to the contrary, and its proffered expert, Kenneth Pike, has no apparent background in visual analysis.

Due to the concerns of Department Staff and the Canal Corporation about visual impacts along the canal corridor, the Applicant conducted additional field work and developed additional simulations, line-of-sight cross sections, and the planting plan to supplement existing screening along the canal. [See Exhibits 5-24 and 5-26, which supplement the application, for this additional information.]

The fact that the Canal Corporation, as resource custodian, has resolved its concerns in an agreement with the Applicant weighs heavily in my determination not to adjudicate visual impacts along the canal corridor. I agree with Department Staff that the Canal Corporation, as a sister state agency, should be accorded some deference in this area, since its interests are most directly at stake. However, another factor in my determination is the Towns' poor offers of proof, which fail to demonstrate that some significant view toward the Towpath project has been omitted from consideration.

- - Mount Albion Cemetery

The DEIS acknowledges that the 75-foot-tall cemetery tower, about 1.5 miles southwest of the landfill, is a major attraction, and that the landfill would be seen from its observation platform on top. The application includes a photograph of the existing view from the tower and a simulated view of the proposed project at completion. (See DEIS Figure 8.) As noted by the Applicant, the simulated view from the tower was evaluated by a rating panel as part of the visual impact study, and it was determined not to represent a significant adverse impact, since the project did not result in major changes to vegetation, water resources, land use or user activity.

The Town of Albion acknowledges that the visual impact from the cemetery tower cannot be mitigated. While the Town suggests that the record of the impact is incomplete, it appears instead that the simulation adequately shows what the impact would be. While the parties may disagree about the aesthetic significance of the impact, or whether it requires permit denial, there is already a record on which a decision can be made. Therefore, no factual adjudication is required, especially when the Town's petition fails to delineate why the impact would be significant, or what its experts would say in that regard.

- - Impact of Operating Landfill

The Town of Albion would like additional visual simulations showing the impact from the Erie Canal and the Mount Albion Cemetery at the midlife of the facility and just prior to closing.

Most of the simulations performed by the Applicant show the completed landfill, since, as the Applicant argues, that is when the facility would be most visible. However, the Applicant's visual impact study includes one mid-life simulation of the landfill as seen from Densmore Road, about one mile northwest of the site, since that viewpoint allows observation of the full length of the project. Also, because it offers the closest unobstructed view from a sensitive foreground location, a simulation of the working landfill at about 10 years into the operation was prepared from a location on the Erie Canal.

Finally, in light of the Town's concerns, the Applicant prepared additional simulations during the course of the issues conference which show the view of the proposed project two months prior to completion from both the canal towpath and the Mount Albion Cemetery tower. These last two simulations (which are part of Exhibit 5-24) address the Town's petition directly. Additional simulations from these same points at the project's midlife would now seem unnecessary because the magnitude of impacts would tend to be greatest as the facility nears completion.

SEQRA Considerations

The Town of Albion asserts in its petition that the landfill permit must be denied or that, at a minimum, its height must be restricted to that of the lower of the OSL or McKenna existing landfills, to prevent to the maximum extent possible significant visual and aesthetic deterioration at and along the Erie Canal and atop the Mount Albion Cemetery tower. This argument need not be further pursued because the basis for it (that the landfill would have a significant adverse impact even with the proposed mitigation) has not been explained in terms of an adequately detailed offer of proof.

Furthermore, if the issue were pursued, the Town misstates the applicable standard, since under SEQRA, environmental impacts are not mitigated or avoided to the maximum extent possible, but to the maximum extent practicable, consistent with social, economic and other essential considerations [ECL Section 8-0109(1)]. The alternatives discussion in the Applicant's DEIS addresses the consequences of reducing the height of the landfill (Section 5.3, Alternative Size, which notes the cost considerations involved as well as its effect on visual impacts) as well as not building it at all (Section 5.11, No-Action Alternative). Were the Department to entertain denying the permit or restricting the landfill height, this would necessarily involve looking at more than just the project's visual impacts.

NATIONAL HISTORIC PRESERVATION ACT

The Town of Albion argues that the National Historic Preservation Act (NHPA) provides a basis for the Department to deny permits for the Towpath project, given its impact on cultural resources such as the Erie Canal, the Mount Albion Cemetery and the Transit Street Bridge, which are on or eligible for inclusion on the National Historic Register.

The NHPA, 16 U.S.C.A. Section 470, et. seq., states in relevant part that the head of any federal agency having direct or indirect jurisdiction over a proposed federal or federally assisted undertaking in any state and the head of any federal department or independent agency having authority to license any undertaking, shall, prior to the approval of the expenditure of any federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in the National Register.

The Town argues that the Department incurs obligations under the NHPA because New York State has accepted significant federal funding for the Erie Canal, including $42 million in 1997 and 1998, some of which went to the Town and Village of Albion. However, by its terms, the NHPA applies to the licensing authority of federal authorities, not state authorities. Therefore, it does not apply in this matter.

This is not to say that the Department does not recognize the significance of the Erie Canal as an historic resource. Pursuant to Section 14.09 of the New York State Parks, Recreation and Historic Preservation Law, the Department has worked with the Office of Parks, Recreation and Historic Preservation (OPRHP) to ensure that environmental impacts along the canal corridor are addressed. By letter of August 30, 1999, OPRHP has concluded that the project would have no adverse impact upon the canal corridor provided OPRHP has certain input and control with regard to the screening plan that is worked out between the Applicant and the Canal Corporation. (See letter of Robert D. Kuhn of OPRHP to Albert Butkas of DEC, dated August 30, 1999, attached to an October 19, 1999, letter to me from Paul D'Amato.)

The Towns of Albion and Murray contend that they should also have some control over the screening plan, but I agree with the Applicant that this would be unwarranted, since only OPRHP has jurisdiction in this area.

OTHER ISSUES

All other proposed issues not explicitly addressed by these rulings have been considered and found not to raise matters for adjudication or to require the provision of additional information at this time.

RULINGS ON PARTY STATUS

To secure full party status, a prospective intervenor must:

1. file an acceptable petition pursuant to 6 NYCRR 624.5(b)(1) and (2);
2. raise a substantive and significant issue or be able to make a meaningful contribution to the record regarding a substantive and significant issue raised by another party; and
3. demonstrate adequate environmental interest. [6 NYCRR 624.5(d)(1).]

Of all the petitioners for full party status, the three that meet these requirements are the Towns of Albion and Murray, and Stop Polluting Orleans County (SPOC). Their petitions have the contents required by 6 NYCRR 624.5(b)(1) and (2). They each have raised substantive and significant issues: The Town of Albion has raised issues with regard to hydrogeology and noise; the Town of Murray has also raised the issue of hydrogeology, and may be able to assist the Town of Albion on the noise issue; and SPOC has raised the issue of Applicant fitness.

Finally, all three of these petitioners have an adequate environmental interest: the Town of Albion because the project is located in the Town; the Town of Murray because it borders the project site, and SPOC because of its history of activism concerning the site, and the fact that it draws its membership from people who live in the surrounding community.

The remaining petitioners for party status, the Albion Coalition and Edward R. Scharping, have not raised an issue for adjudication and have not shown they could meaningfully contribute to the record on issues that I have found should be adjudicated.

Therefore, full party status is hereby granted to the Towns of Albion and Murray, and to SPOC, and denied to the Albion Coalition and Mr. Scharping.

The one petition for amicus status, from Alan J. McKenna, is also denied, because the issue he proposes to litigate (ownership of Yager Road) is not a legal or policy issue which needs to be resolved by the hearing. [See 6 NYCRR 624.5(d)(2)(ii), among the requirements for amicus status.]

APPEALS

A ruling of the ALJ to include or exclude any issue for adjudication, a ruling on the merits of any legal issue made as part of an issues ruling, or a ruling affecting party status may be appealed to the Commissioner on an expedited basis [6 NYCRR 624.8(d)(2)]. Ordinarily, expedited appeals must be filed to the Commissioner in writing within five days of the disputed ruling [6 NYCRR 624.6(e)(1)].

Allowing extra time due to the number and length of these rulings, any appeals must be sent to the attention of Commissioner John Cahill and received at the Office of the Commissioner (NYSDEC, 50 Wolf Road, Albany, New York, 12233-1010) before 2 p.m. on January 31, 2000. Any responses to any appeals must be received before 2 p.m. on February 22, 2000.

The parties shall ensure that transmittal of all papers is made to the ALJ and all others on the service list at the same time and in the same manner as transmittal is made to the Commissioner. No submittals by telecopier will be allowed or accepted.

Appeals should address the ALJ's rulings directly, rather than merely restate a party's contentions. To the extent practicable, appeals should also include citations to transcript pages and exhibit numbers.

TRANSCRIPT CORRECTIONS

While reviewing the issues conference transcript, I corrected various apparent transcription errors. I shortly will be circulating a list of the corrections, which shall be considered made if there are no objections to them. My list is not meant to be comprehensive, and if the parties find other important errors, they may submit their own lists. If there are any objections to the corrections I propose, the parties will be allowed an opportunity to state them in writing so I can rule on them and the record can be settled.

/s/
Edward Buhrmaster
Administrative Law Judge

Albany, New York
December 31, 1999

TO: Attached Service List

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