These comments are submitted for agency consideration on the draft permit authorizing a horizontal expansion of the Benson Valley Landfill in Franklin County. The comments are submitted on behalf of KRC members who live, work, and recreate in Franklin County, and are tendered in response to the public notice soliciting public comment on the proposed agency action.
After reviewing the draft permit, the permit application, and correspondence between the applicant and the agency provided to KRC in response to an Open Records Act Request, KRC offers these comments and concerns:
1. Application Incorporation By Reference Should Be More Explicit And Precise
The draft permit relies in large part on the proposed conditions and commitments contained in the permit expansion application in order to establish performance and design requirements for the landfill.
On the draft permit face, it is stated that:
No deviation from the plans and specifications submitted with your application or any condition specified herein is allowed, unless authorized in writing from the Division.
Yet, while this language purports to make the “plans and specifications submitted with your application,” the permit does not explicitly incorporate the plans and specifications into the permit, nor does the draft permit identify which plans and specifications are intended to be incorporated. Where the agency rejected or found deficient portions of the permit and required them to be modified or changed, the proposed draft permit language is vague enough to allow the applicant to argue that compliance with the rejected or deficient plans or specifications is sufficient.
The draft permit should explicitly incorporate the approved plans and specifications and make specific reference to those plans and specifications by appropriate identifier, and any other portions of the permit application on which the agency intends to rely to set conditions of performance, and should collate those approved plans, specification and conditions in order to assure that the applicant, inspectors and permit review branch are all working from the same set of plans.
2. Clarification Is Needed Concerning The Trigger For Groundwater Assessment
On p. 9 of 15, Standard Requirement 10 indicates that “[I]f the analysis of groundwater sample results indicates contamination (i.e. a statistical or MCL exceedance …..” The parenthetic language does not accurately reflect what triggers notification. Standard Requirement 11 properly reflects that it is either an exceedance of the MCL or a statistically significant increase over background levels for those parameters lacking MCLs. The language in Section 10 should either eliminate the paranthetic or spell out that it is an MCL exceedance or statistically significant increase over background, not a MCL or statistical exceedance (since there is nothing to “exceed” in the case of those parameters without MCL standards).
3. Standard Requirement 13 Should Be Revised
As written, Standard Requirement 13 appears to authorize the Cabinet to approve groundwater contamination assessment and corrective action activity that would not be in compliance with all provisions of 401 KAR 48:300. KRC believes what is intended is that if groundwater contamination assessment and corrective action is required then it shall be performed in full compliance with the regulation, rather than that full compliance is expected only if the Cabinet so demands. The Cabinet has neither the discretion to allow the permittee to perform either activity in a manner inconsistent with Section 8, nor to waive such activity where it is required by Section 8(1). The agency should consider revising the sentence to read
Groundwater contamination assessment and corrective action, if required by the 401 KAR 48:300 Section 8(1), shall be performed in full compliance with all provisions of 401 KAR 48:300 Section 8.
4. Methane Monitoring Points Should Be Specified
As written, Standard requirement 1 of GMP0001-Methane Monitoring, requires quarterly monitoring “at locations . . . as shown in the permit.” The specific map and attachment should be referenced in order to assure that the obligation is clear and enforceable.
Standard Requirements 7 through 9, p. 11, contain a typo – “exceedances” should read “exceedances”.
5. Compliance With 401 KAR 47:180
All deeds and leases must be scrutinized to assure that the documents show a thirty (30) year right of reentry following closure of the facility. A lease or other document short of fee simple title, that provides for termination of the lease for any reason prior to thirty years after closure, is insufficient to assure that if corrective action is necessary, access is available to the permittee.
6. Vadose Zone Monitoring Or Other Leak Detection Should be Evaluated
Rather than approve groundwater monitoring wells at a location greater than 250 feet, if monitoring of any groundwater aquifer is problematic because of TDS content, (which could confound values respecting conductivity but not necessarily any other values, such as TOC or metals), alternative methods of determining whether the liner system had been compromised and leachate had migrated from the landfill should be evaluated, including vadose zone monitoring.
Thank you for your consideration of these concerns.