1. This petition is filed pursuant to KRS 224.10-420(2), which provides in relevant part that:
(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, but does not include the issuance of a letter identifying deficiencies in an application for a permit, a registration or certification, or other nonfinal determinations. . . The right to demand a hearing pursuant to this section shall be limited to thirty (30) days after the petitioner has had actual notice of the order or final determination complained of, or could reasonably have had such notice.
2. This request for hearing is filed in a timely manner, since it is within thirty (30) days of the date of the rendering of the determination on December 13, 2005.
3. Petitioner Kentucky Resources Council is a membership organization incorporated under the laws of the Commonwealth of Kentucky and dedicated to prudent use and conservation of the resources of the Commonwealth. KRC members include individuals who live, own property, and work within Hopkins County, and who have interests in the protection of the groundwater resources in the area underlying the site of the Hopkins County Regional Landfill that may be adversely affected by the determination of the agency to accept the construction report, grant the construction/operation permit to the facility and to approve placement of waste within the first constructed cell.
More specifically and without limitation, the Cabinet?s final determination to accept the construction report and to issue the construction/operation permit authorized the use of a crushed limestone material for the protective layer of the landfill liner system in apparent violation of the requirement imposed on November 17, 2000 on all contained landfills pursuant to 401 KAR 47:130 Section 2, and in apparent violation of the requirements of 401 KAR 48:080 Section 6(3). To the extent that the crushed limestone material is not appropriate for the intended use, the possibility of liner failure is made greater, and the possibility of contamination of a local aquifer that is used for domestic and other beneficial uses by county residents, including KRC members, is increased.
Additionally, to the extent that as Hopkins County residents or landfill users, KRC members in Hopkins County may incur additional expenses or environmental liability from the disposal of their solid wastes in a cell whose liner system does not function as intended and which results in releases to the environment, KRC members will be adversely affected and are aggrieved.
4. The determinations to accept the construction report, approve waste placement and to issue the construction/operation permit were contrary to law. Specifically, the Cabinets actions were in apparent violation of the Cabinets construction requirements for contained landfills, including 401 KAR 48:080 Section 6(3), which requires that the physical and chemical properties of the granular material and pipe shall not be adversely affected by the loads or leachate generated by the operations of the landfill.
On November 17, 2000, the Kentucky Division of Waste Management issued a Notice to All Contained Solid Waste Landfills which indicated that bottom liners whose design allows intimate contact between solid waste or cover materials and any geosynthetic component of the liner system are at significant risk for penetrations of the protective geomembrane. The KDWM has further determination that contained landfills that re-circulate any portion of their leachate are at significant risk from clogging of the drainage layer from biologic activity and infiltration of fines. These problems are in contravention to solid waste regulations including 401 KAR 48:080 Section 2(3) (c) & (d) and Section 11 that require protection of the drainage layer and equivalence of performance for substitute materials.
The Notice requires all owners and operators of applicable permitted solid waste facilities to reflect compliance with the following three statement of consideration. Liner and Drainage Layer Protection: General Provisions (Revised 11-14-00; Liner and Drainage Layer Protection: Tire Chips (Revised 11-14-00) and Liner and Drainage Layer Protection: Initial Lift (Revised 11-14-00).
The General Provisions Notice required, among other things, that
Protection of the liner and drainage layer shall be provided by a granular material with a permeability of greater than or equal to 1 x 10 2 cm/sec. This granular material shall consist of a minimum of 12 inches of uniform-sized, well-rounded, silica-based material with a total carbonate content of less than or equal to 50% of the total aggregate material as per ASTM D-4373 or equivalent approved material or method.
The Notice reflects the Cabinets best judgment as to the test methods and material specification required to properly comply with the applicable regulations.
On information and belief, the material utilized by the applicant was a crushed limestone that does not conform to the specifications contained in the Liner Notice either physically or chemically. According to available information, the material has a total carbonate content higher than 50% of the total aggregate material, making it presumptively unsuitable under the Liner Notice and applicable regulation.
Additionally, the testing results reported for the carbonate content reflect a significant range and substantive results that are inconsistent with the nature of the material, raising a question as to whether the method used (which was not the method specified in the Liner Notice) was equivalent and was run using appropriate protocols for that test method.
Finally, based on available information, the crushed limestone material is not a well-rounded material and thus may present a physical puncture hazard to the liner system. Crushed limestone tends to be very angular and may puncture the liner, especially after loading with compressed waste material.
For these reasons, KRC respectfully demands a hearing, and requests that the agency determination to approve the construction report, issue the construction and operation permit and to approve waste placement, be reversed and remanded for further consideration and for a decision in conformity with applicable regulation and the November 17, 2000 Notice of requirement to modify permits, issued pursuant to 401 KAR 47:130 Section 2.
Tom FitzGerald, Esq.
Director & Counsel