This petition is timely filed pursuant to KRS 224.10-420(2) since it is filed with thirty (30) days after receipt of notice of the permit determination.
KRS 224.10-420(2) provides that:
Any person not previously heard in connection with the . . . making of any 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 therefore, and demand a hearing. . . . The right to demand a hearing pursuant to this section shall be limited to a period of thirty (3) days after the petitioner has had actual notice of the order or final determination complained of, or could reasonably have had such notice.
The person requesting the hearing on the above-mentioned permit determination(s) is the Kentucky Resources Council, Inc. (KRC), a non-profit, environmental advocacy organization incorporated under the laws of the Commonwealth of Kentucky and dedicated to prudent use and conservation of the natural resources of the state. KRC requests this hearing on behalf of members of KRC who own property adjacent or near to the Paducah Gaseous Diffusion Plant, and whose use and enjoyment of their property and of the water resources downstream of the plant property has been and will be adversely affected by the failure of the facility to properly control, manage, treat and dispose of leachate generated by the landfills whose permits were renewed or modified by the permitting action complained of. Specifically and without limitation, KRCs members who are adversely affected and aggrieved by the Cabinets final determination include:
a. Ron Lamb, a landowner whose property is adjacent to the Paducah Gaseous Diffusion Plant (PGDP) facility and who resides at 10970 Ogden Landing Road, Kevil, Kentucky 42053. Mr. Lambs property has been contaminated with what Mr. Lamb believes to be releases of hazardous substances, pollutants and contaminants that have migrated from the facility onto the land and into the groundwater beneath the Lamb property. To the extent that the discharges from the proposed treatment plant do not effectively control contaminants and pollutants in the leachate, Mr. Lambs continued use and enjoyment of the downstream water resources will be adversely affected.
b. Mark Donham, RR #1, Box 308, Brookport, IL, 62910, is a former member of the PGDP Citizens Advisory Board, and resides some sixteen miles downwind of the PGDP facility. Mr. Donham previously enjoyed the use of local streams, including Little and Big Bayou Creeks. He has visited the western Kentucky wildlife management area and has hiked Big Bayou Creek, and intends to do so again within the next year. He uses and enjoys the aquatic resources near the facility, and his past and future use and enjoyment would be adversely affected by the releases of hazardous substances, pollutants and contaminants from the leachate treatment plant if, as KRC believes, it is not capable of managing the leachate as required by law.
ERRORS ALLEGED AND GROUNDS FOR HEARING
Specifically, and without limitation, Petitioner KRC states these grounds and reasons for requesting a formal adjudicatory administrative hearing pursuant to KRS 224.10-420(2):
1. The Cabinets action approving the construction and use of a treatment plant for treatment and surface disposal of leachate from the landfill was arbitrary, capricious, and otherwise contrary to and inconsistent with law and fact.
Specifically, the Cabinet approved the use of a leachate treatment plant for treatment and disposal of collected leachate from the landfill(s) without requesting sufficient information and without conducting appropriate analyses to assure that the plant would function in a manner so as to effectively treat the generated leachate and meet the design and operating requirements and the environmental performance standards of 401 KAR Chapters 47 and 48, and 401 KAR 5:026-031.
It is clear that more information is needed than was provided in the permit application concerning the effectiveness of the proposed wastewater treatment facility. In reviewing the rudimentary process flow diagram provided for the New Leachate Collection System, and the Site Plan there were a number of unanswered questions that needed to be addressed:
(i) The applicant failed to demonstrate that the proposed treatment facility can effectively treat the maximum flow in order to assure that both numerical and narrative effluent limits and in stream water quality standards are met. This required:
a. A thorough characterization of the wastewater influent for all pollutants, both for qualitative pollutant loading and maximum flow
b. A review of the capability of the proposed equipment and appropriate literature or other support for the proposition that the proposed treatment train can effectively reduce pollutants of concern, including radionuclides, ,
c. Appropriate influent monitoring from each source of wastewater, and appropriate effluent monitoring as well as in stream background and downstream biological and chemical monitoring to assure that the discharged wastewater meets all appropriate standards;
d. Imposition of permit limits and monitoring parameters and frequencies for each constituent that is identified in the leachate, and for degradation byproducts of such constituents as necessary, and appropriate background biological and chemical sampling should be conducted prior to the proposed discharge in order to establish baseline conditions in light of existing stream impacts so as to assure water quality standards are met; and
e. a demonstration that the proposed facility has the capacity, under design storm conditions, to treat the commingled waste stream without bypassing.
The Cabinet failed to require such information and to engage in such a review, instead assuming that the KPDES permit review would undertake such analyses, even though the Cabinet was aware that no construction permit would be required under 401 KAR 5:005 Section 1(3)(b) for the proposed industrial wastewater treatment plant.
In sum, the Division of Waste Management failed to thoroughly review the proposed leachate management proposal in order to assure that it will be effective at meeting KPDES and water quality requirements and in satisfying the environmental performance standards of 401 KAR Chapters 30 and 48, and in so failing, acted in a manner that is contrary to law and fact.
For these reasons, KRC respectfully requests that a formal adjudicative hearing be scheduled in order to review the Cabinets final determination, that the determination be reversed and the approval of the proposed leachate treatment plant be set aside and vacated, and for any and all other relief to which Petitioner may appear entitled.
Tom FitzGerald, Esq.
Kentucky Resources Council, Inc.
P.O. Box 1070
213 St. Clair Street Suite 200
Frankfort, Kentucky 40602