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Petition & Appdx NYSDEC OHMS Document No. 201469232-00112 STATE OF NEW YORK DEPARTMENT OF ENVIRONMENTAL CONSERVATION ___________________________________________________________X IN THE MATTER OF THE APPLICATIONS OF CWM CHEMICAL SERVICES, LLC Pursuant to Titles 7 and 11 of Article 27 of the Environmental Conservation PETITION FOR FULL Law, for required permits and approvals for the RMU-2 PARTY STATUS Project in the Towns of Porter and Lewiston, New York Project Application Nos. 9-2934-00022/00225, 9-2934-00022/00231, 9-2934-00022/00232, 9-2934-00022/00049, and a Hazardous Waste Facility Siting Application ___________________________________________________________X THIS PETITION is submitted on behalf of Niagara County, the Town and Village of Lewiston, and the Village of Youngstown (hereafter, the “Municipal Stakeholders”) in accordance with 6 N.Y.C.R.R. § 624.5. The Municipal Stakeholders are municipalities within which the proposed RMU-2 Project would be located, or are within close proximity to the project site.1 The following expert reports are incorporated and provided herewith: M. Resnikoff, Ph.D, Radioactive Waste Management Associates (RWMA), Review of CWM Radioactive Sampling Program In the Proposed RMU-2 Development Areas (November 2014). A. Michalski, Ph.D., CGWP, PG, LSRP, Michalski & Associates, Inc., Report on Groundwater Flow and Contamination at Chemical Waste Management, LLC, Model City, New York, and Proposed RMU-2 Permitting and Siting Issues (November 2014).2 A. De, Ph.D., P.E., Report on RMU-2 Project Engineering Issues (October 2014). R. Sahu, Ph.D., QEP, CEM, Report on RMU-2 Project Air Emissions Impacts (November 2014). 1 The Town of Porter, principally hosting the project, is precluded from submitting adverse comments or a petition in opposition to the project as proposed under a host benefit agreement with CWM. 2 Drs. Resnikoff and Michalski offer to testify in support of both their expert reports and all assertions of fact made in Petitioners’ July 16, 2014 public hearing statement in this matter. NYSDEC OHMS Document No. 201469232-00112 TABLE OF CONTENTS I. IDENTIFICATION OF PROPOSED PARTIES AND THEIR OFFICIAL REPRESENTATIVES AT THE HEARING....................................1 II. BRIEF FACTUAL BACKGROUND. ............................................4 1. The community has consistently identified adverse economic impacts as the basis for its opposition. ........................................5 2. The 2010 Siting Plan finds no need for RMU-2. 6 III. LEGAL BACKGROUND: THE APPLICANT’S BURDEN OF PROOF. ...............8 A. Under 6 NYCRR Part 624. ...............................................8 B. Under 6 NYCRR Part 373. ...............................................8 C. Under DEC Decisional Law. ............................................11 D. Under SEQRA. .......................................................14 E. Under 6 NYCRR Part 361. ..............................................17 IV. SPECIFIC GROUNDS FOR OPPOSITION. .....................................20 A. POOR HYDROGEOLOGY MAKES THE SITE UNACCEPTABLY INSECURE. 21 1. Summary of the Issues. ...........................................21 2. Failure to correctly identify ground water flow direction and rate. 25 3. Failure to identify the regulatory “point of compliance” for groundwater monitoring. ................................................28 4. Failure to meet the minimum vertical hydraulic conductivity required beneath the RMU-2 landfill...........................................28 5. Failure to identify sufficient information to establish groundwater detection, monitoring, characterization and corrective action programs. 30 6. Failure to describe contaminant plumes in the deep aquifer west of the RMU-2 landfill footprint.............................................35 7. Conclusion. ....................................................38 B. RMU-2 PROJECT ENGINEERING PLANS ARE DEFICIENT.. 39 1. Sufficient information to demonstrate the RMU-2 landfill and Fac Pond 5 will avoid hydraulic uplift has not been provided.. 39 2. Sufficient information to demonstrate the RMU-2 landfill will avoid a slope failure has not been provided...................................40 3. Proposed Fac Pond 5 does not comply with the required minimum depth to groundwater. ...............................................40 4. Proposed RMU-2 landfill does not comply with the required minimum depth to groundwater. ...............................................41 ii NYSDEC OHMS Document No. 201469232-00112 5. Storage capacity of proposed Fac Ponds is insufficient.. 41 6. Pore water drainage beneath the RMU-2 landfill would not be effective... 42 C. POTENTIAL DISPERSAL OF RADIOLOGICAL CONTAMINATION MAKES PROJECT EXCAVATION UNSAFE ................................................................42 1. Brief history of site management of radioactive wastes. 43 2. Major excavation at Model City without NYSDOH approval is prohibited. 45 3. The RMU-2 Project would depart from the safety standard established for small excavations.. ...............................................52 4. CWM has resisted appropriate surface and subsurface investigation of proposed areas of disturbance...........................................53 5. The soil excavation plan accompanying the RMU-2 application is unsafe.. 60 6. Failed remediation of Fac Pond 8. ..................................65 7. Uncertainty regarding radiological contaminants in Fac Pond 3. 72 8. Conclusion. ....................................................73 D. RMU-2 PROJECT DISCHARGES OF PCBs DISQUALIFIES THE PROJECT FOR A STATE WATER QUALITY CERTIFICATION. 74 1. The Siting Board should consider RMU-2’s contribution to the degradation of the Great Lakes. ............................................74 2. CWM is subject to a virtually zero discharge limit for PCBs discharged to the Great Lakes Basin. ..........................................76 3. RMU-2 cannot meet the virtually zero discharge limit for PCBs. 81 4. CWM does not recognize the virtual zero discharge limit for PCBs.. 83 5. CWM cannot obtain a Water Quality Certification for the proposed Drum Management Building. .......................................91 E. AIR IMPACTS HAVE NOT BEEN ADEQUATELY ASSESSED.. 92 F. OTHER SPECIFIC DEFICIENCIES IN CWM’S APPLICATIONS. 96 1. No Stormwater Pollution Prevention Plan.. 96 2. No Application to Modify CWM’s Sitewide Discharge Permit. 96 3. No demonstration of site suitability and safety. ........................97 4. Inadequate compliance history disclosure. 107 5. The RMU-2 Project is not consistent with Town of Porter zoning. 114 V. CONCLUSION. ...........................................................115 APPENDIX: History and Present Status of Radiological Investigations of the Model City Site. .............................................................117 iii NYSDEC OHMS Document No. 201469232-00112 I. IDENTIFICATION OF PROPOSED PARTIES AND THEIR OFFICIAL REPRESENTATIVES AT THE HEARING Information required by 6 NYCRR Part 624.5(b)(1) Part 624.5(b)(1)(i) The Municipal Stakeholders are represented by: Gary A. Abraham, Esq. Law Office of Gary A. Abraham 170 No. Second St. Allegany, New York 14706 Telephone (716) 372-1913 Fax (716) 372-1913 Part 624.5(b)(1)(ii) The environmental interest of the Municipal Stakeholders in this proceeding is basic to their role as municipalities, with primary responsibility for the protection of the health, welfare and safety of their citizens and visitors. The Municipal Stakeholders’ residents include a substantial number of people who live and work near the site proposed for the RMU-2 landfill project. Part 624.5(b)(1)(iii) The Municipal Stakeholders’ primary interest relating to statutes administered by the Department is in the proper implementation and enforcement of New York’s Environmental Conservation Law (“ECL”), Article 1; Article 3; Article 27, Titles 7, 9 and 11; Article 15; Article 19; and Article 70; and the Department’s regulations that implement these statutes, specifically 6 NYCRR Parts 200, 201, 202, 208, 212, 231, 360, 361, 373, 608, 617, 621 and 624. To the extent 1 NYSDEC OHMS Document No. 201469232-00112 administered by the New York State Department of Environmental Conservation (“DEC”, “the Department”) , the federal Solid Waste Disposal Act, also called the Resource Conservation and Recovery Act (RCRA), the federal Clean Air Act, the federal Clean Water Act, and the federal Toxic Substances Control Act (TSCA) are relevant to the proposed project because they include environmental permitting programs that apply to the project.3 In addition, the State Environmental Quality Review Act (SEQRA), ECL Article 8, governs the environmental review of these applications. Among other things, SEQRA requires a major new project such as this to show that significant impacts on the environment, including impacts to the existing character of the community in which the project is located, have been avoided or reduced as far as is practically possible, and to mitigate unavoidable impacts. Accordingly, the Municipal Stakeholders have a substantial interest in the manner in which the Department carries out its responsibilities under SEQRA and its implementation of the state and federal environmental statutes noted above. Part 624.5(b)(1)(iv) The Municipal Stakeholders are requesting full party status, in opposition to the permits and permit modifications proposed by CWM Chemical Services, LLC (“CWM”) and drafted by the Department. 3 The Model City facility is currently permitted under TSCA as a PCB
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