Renewal of Landfaming Permit to Triple M Land Farms, Inc. Is Challenged Posted: May 28, 2014
COMMONWEALTH OF KENTUCKY
ENERGY AND ENVIRONMENT CABINET
FILE NO. ____________
PERMIT NO. SW10700009
BONNIE SWAYZE and BRUCE SWAYZE,
MARK APPLE and AMY APPLE,
CARROLL SMILEY and SUSAN SMILEY,
JAMES ROBERT WADE JR. and JUDY WADE
V. PETITION FOR REVIEW
ENERGY AND ENVIRONMENT CABINET
TRIPLE M LAND FARMS, INC. RESPONDENTS
* * * *
Come the Petitioners, by counsel, and herewith file this Petition for Review of the final determination of the Energy and Environment Cabinet, Department for Environmental Protection, Division of Waste Management (Cabinet), to issue a permit to Triple M Land Farms, Inc. (Triple M) to construct and operate a “Landfarm Class II under Permit No. SW 10700009 on property located in Simpson County, Kentucky.
1. This petition for hearing arises under the authority of KRS 224.10-420(2), and challenges the issuance of a Class II Landfarm permit to Triple M to operate a Landfarm Class II-SW on land located in Simpson County, Kentucky, under Permit No. SW10700009, Agency Interest ID 3981.
2. According to Numerical Paragraph 1 of page 4 of the issued permit, the facility is approved to accept the following waste streams:
Petroleum contaminated soil and petroleum contaminated water from Underground Storage Tank (UST) corrective action; petroleum contaminated soil and petroleum contaminated water from spills that are not hazardous wastes; petroleum contaminated solids and water from oil/water separators that are not hazardous wastes.
Additionally, according to Numerical Paragraph 22, the facility is approved to accept “water treatment residuals from publicly-owned water treatment or industrial water treatment plants” and “grease trap and food industry wastes.”
“Soil,” “as allowed to be accepted by the facility” is defined in the permit to include:
silt, sand, clay, gravel, concrete and asphalt; fiber, clay or polymeric absorbent media; bulking agents including clean, preservative and paint-free mulch, wood chips, sawdust or approved coal-combustion byproducts; and incidental contaminants including plastic, piping and other extraneous materials commonly encountered in leaking underground storage tank remediation or spill response wastes.
3. KRS 224.10-420 authorizes the filing of a petition for administrative review of any final determinations of the Respondent Cabinet arising under KRS Chapter 224. In relevant part, the statute provides as follows:
(2) Any person not previously heard in connection with the issuance of any order or the making of any final determination arising under this chapter by which he considers himself aggrieved may file with the cabinet a petition alleging that the order or final determination is contrary to law or fact and is injurious to him, alleging the grounds and reasons therefor, and demand a hearing. An order or final determination includes, but is not limited to, the issuance, denial, modification, or revocation of a permit[.]..The right to demand a hearing pursuant to this section shall be limited to a period of thirty (30) days after the petitioner has had actual notice of the determination complained of, or could reasonably have had notice.
4. 401 KAR 47:140 Section 11 recognizes that, for permit issuance decisions other than those for a “waste disposal facility” under KRS 224.40-310 (which do not include landfarming facilities as a “waste disposal facility” is defined under that statute), “[a]ll other permitting determinations shall be subject to an adjudicative hearing only as provided in KRS 224.10-420(2).”
5. This petition for review is timely filed, since the Cabinet decision complained of occurred on April 25, 2014. The earliest that any of the Petitioners could have known or reasonably had notice of the final determination complained of herein was after April 25, 2014. The earliest date that the thirty-day period specified in KRS 224.10-420(2) could have ended was on Sunday, May 25, 2014, and this petition was filed on the first business day after that date.
6. The issuance of the Permit SW10700009 is a final determination subject to review under KRS 224.10-420(2).
7. Paragraphs 1 - 6 are incorporated herein by reference as if
set forth below.
8. Petitioners are each persons “aggrieved” within the meaning of the relevant statute, and have standing to maintain this administrative review proceeding. Petitioners are landowners who have ownership interests in and reside on property located in the immediate vicinity of the Triple M facility.
9. John Weidemann resides at and owns the property located at 1010 Schweizer Road, Franklin, Kentucky 42134.
10. Bonnie & Bruce Swayze reside at and own the property located at 1810 Kummer Road, Franklin, Kentucky 42134.
11. Mark & Amy Apple reside at and own the property located at 189 Wilburn Deasy Road, Franklin, Kentucky 42134.
12. Carroll & Susan Smiley reside at and own the property located at 40 Sulphur Spring Church Road, Franklin, Kentucky 42134.
13. James Robert & Judy Wade, Jr. reside at and own the property located at 4313 Springfield Road, Franklin, Ky. 42134.
14. Petitioners have property interests that are or may be adversely affected by the renewal and reissuance of a permit to the Triple M operation.
15. Petitioners also have interests in the peaceful use and enjoyment of their land and home that have been and may continue to be adversely affected by the continued operation of the Triple M facility, including economic, aesthetic and recreational interests which may be affected by the operation of the Triple M facility. Among the potential impacts that may adversely affect the interests of the Petitioner are potential nuisance, annoyance and discomfort associated with odors, noise and dust from the operation, as well as potential damage to surface and groundwater resources.
16. Petitioners have standing to maintain this administrative appeal of the issuance of the permit to Triple M. They are persons with legally cognizable interests that are or may be adversely affected by the operation of the facility, and are within the zone of interests sought to be protected by the state statute requiring the permitting of solid waste sites and facilities, including landfarms and facilities for treatment or disposal of petroleum-contaminated soils. A decision vacating the final determination of the Cabinet to issue the challenged permit will redress the injury, and the causal link between the threatened harm and the Cabinet’s action is beyond reasonable dispute.
III. GROUNDS AND REASONS FOR THE PETITION
17. The allegations in paragraphs 1-16 are incorporated herein by reference.
18. KRS 224.10-420(2) provides that the petition for review must allege that the determination “is contrary to law or fact and is injurious to him” (sic) and must assert “the grounds and reasons therefor” and “demand a hearing.”
19. Petitioners respectfully demand a hearing based on the grounds and errors alleged below.
20. Petitioners allege that the issuance of the permit to Triple M is injurious to their property, aesthetic, safety and recreational interests, and is contrary to both law and fact. The specific grounds and reasons upon which Petitioners rest the allegations that the determination of the agency was contrary to law or fact (or both) are set forth below:
A. The land application of petroleum-contaminated soils and petroleum-contaminated wastewaters does not fall within the scope of those activities for which a Class II “landfarming permit” can be issued under 401 KAR Chapter 47 and 48, and issuance of the Class II SW Landfarming permit was arbitrary, capricious and ultra vires.
401 KAR 47:005 defines "landfarming facility" to mean a “facility for land application of sludges or other solid waste by any method for purposes of disposal. It can be on any piece or pieces of land and may improve the physical and chemical qualities of the land for agricultural purposes, but does not alter the topography of the application area as revealed by contours and will not disturb the soil below three (3) feet from the surface.”
401 KAR 47:080 Section 2 divides solid waste permits into three classes, and provides in pertinent part as follows:
(4) Landfarming permit. Landfarming is a category of solid waste site or facility where solid waste is applied to the soil surface or injected into the upper layer of the soil to improve soil quality or provide plant nutrients. Solid wastes suitable for this purpose include, but are not limited to, food processing waste, municipal sewage treatment plant sludge, and municipal water treatment plant sludge. The technical requirements for landfarming facilities are found in 401 KAR 48:200.
Absent a demonstration that does not appear to be in the record, supported by sound scientific information, that UST and other soils and wastewaters contaminated by benzene, toluene, xylene, ethylbenzene, MTBE and other compounds typically found in gasoline and UST corrective action soils and wastewaters, “improve soil quality or provide plant nutrients,” and that each of the extraneous materials misclassified as “soil” by the Cabinet, (including but not limited to concrete, asphalt, and plastic piping) improve soil quality and provide plant nutrients, the facility cannot be issued a landfarming permit to land apply such wastes, and the permit was improperly issued as a matter of fact and law.
B. The land application of petroleum contaminated soils for the purpose of “treatment” of the contaminant levels, constitutes a “petroleum-contaminated soil facility” subject to regulation under 401 KAR 48:205, and the Cabinet erred as a matter of law in failing to require strict compliance with those provisions of that regulation that are applicable to all such facilities.
401 KAR 48:205 establishes the technical requirements for “site selection, design, operation, and closure of a petroleum-contaminated spoil treatment facility,” which is defined to be a “solid waste site or facility where petroleum-contaminated soil is treated to reduce contaminant concentrations to or below the levels established” by that regulation. Since the contaminated soils at the Triple M facility are being “treated” and then excavated for disposal elsewhere, the facility is not “landfarming” the wastes, which is defined as landspreading of wastes for disposal, but is instead engaging in “treatment” of the petroleum-contaminated soils. As such, the facility is required by law to comply with the technical standards of 401 KAR 48:205, which applies, according to Section 2 of that regulation, to “any person conducting treatment of excavated petroleum-contaminated soils” and which does not allow the Cabinet to grandfather or exempt in whole or in part those facilities in existence when the regulation was adopted. The operational, closure, post-closure, corrective action, and monitoring requirements of the facility must be upgraded to reflect the requirements of 401 KAR 48:205, and any additional land application of petroleum-contaminated soils permitted in the absence of excavation of existing cells containing such soils and proper installation of a composite liner, is contrary to the Cabinet’s regulations. Full compliance with 401 KAR 48:205 is mandated by the plain language of the “applicability” section of that regulation, and reissuance of the permit in the absence of conditions requiring strict compliance is contrary to law.
C. The allowance of land treatment of petroleum-contaminated soils by the Cabinet in cells that have nothing more than a compacted soil or clay liner, create a distinct probability that petroleum constituents will migrate into the ground and groundwater beneath the facility, in violation of Cabinet regulations. The Cabinet is or should be well-aware that clay liners do not attenuate the movement of benzene into the subsurface and potentially into groundwater systems. Richard L. Johnson, John A. Cherry and James F. Pankanow published a paper titled Diffusive Contaminant Transport in Natural Clay: A Field Example and Implications for Clay-Lined Waste Disposal Sites, in Environmental Science and Technology Vol. 23 (March 1989) pps. 340-349. In the article, the authors reflected on studies conducted on a five-year old landfill in southwestern Ontario by a Canadian-American team of scientists, to analyze the transport of organic chemicals in the subsurface. What the researchers found was that advective flow (which is the flow of fluids through the pore spaces in soil and which is the theory upon which the tight permeability clay liners are based and our landfills are designed) is not the dominant mode of migration of organic chemicals through clay liners. Rather, fickean diffusion was found to be an important mechanism by which substantial quantities of organic chemicals move through clay landfill liners. Among the findings of the team was that diffusion will transport chemicals through a double clay liner even if the leachate collection system between the clay layers is working properly.
The Cabinet is prohibited by regulation from permitting “the land application of a solid waste that may present a threat to human health and the environment” and is to base the decision on the suitability of a particular waste for land application based, among other things, on “the likelihood that waste constituents shall contaminate surface water or groundwater, the potential for nuisances from odors or unsightly conditions, and the potential for the waste to harm human health or the environment.” 401 KAR 48:200. Absent an adequate liner system, and absent sufficient characterization of the complex hydrologic regime in which the Triple M facility is located, it is likely that waste contaminant constituents such as benzene may contaminate surface and groundwater and may be undetected.
D. The characterization in of the “Type of Agency Interest” as “AGR-Cattle Ranching & Farming” is inaccurate, since neither appears to be occurring on the areas that have received land treatment for petroleum-contaminated soils. The activity being undertaken under this permit is not “agricultural” within any fair meaning of the word, but rather constitutes a treatment facility for petroleum-contaminated soil.
E. The definition of “soil” to include numerous materials that are in fact and under any fair legal definition not soil, such as concrete and asphalt, is quintessentially arbitrary, capricious, and contrary to law and fact.
F. The issuance of the permit was arbitrary and capricious, and contrary to law, in that the Cabinet failed to require the applicant to demonstrate that the release of airborne constituents from the volatilization of constituents contained in petroleum-contaminated soils and wastewaters would not constitute a violation of 401 KAR 63:020.
G. The categorization of the approved activity as eligible for a “landfarming permit” is contrary to law and fact, since the Cabinet acknowledges that the accepted wastes are not “applied to the soil surface or injected into the upper layer of the soil to improve soil quality or provide plant nutrients” as is required for a facility to be issued a “landfarming permit,” and the petroleum-contaminated soils and wastewaters are instead “treated” and then hauled off to other solid waste facilities for “reuse” (i.e. daily cover at a landfill). The Cabinet is without legal authority to ignore the restrictions on how wastes may be managed and disposed of at solid waste sites and facilities under 401 KAR Chapters 47 and 48, as it has done in this instance.
H. The Cabinet acted arbitrarily and capriciously in failing to provide adequate Response To Comments, including a comment questioning the ability of a clay-lined cell to prevent migration of benzene through the liner, and questioning whether such wastes should continue to be placed in cells lacking appropriate controls.
PRAYER FOR RELIEF
For the reasons stated above, Petitioners respectfully request:
1) that the final determination of the Cabinet to reissue and
renew Permit No. SW10700009 to Triple M, be determined to be inconsistent with the legal obligations of the Cabinet under KRS Chapters 224 and the regulations promulgated thereunder respecting such final determinations,
2) that this matter be remanded to the Cabinet with directions to withdraw the approval of Permit No. SW 10700009, and to direct that the facility begin closure or that compliance with the requirements of 401 KAR 48:205 be required prior to any further land treatment of petroleum-contaminated soils, and
3) for any and all other relief to which Petitioners may appear entitled.
Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
Counsel for Petitioners
Date: May 27, 2014