Universal Waste, Inc.
July 21, 2004
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
NOTICE OF LEGISLATIVE HEARING,
ISSUES CONFERENCE, AND ADJUDICATORY HEARING
Petitioners: Universal Waste, Inc. and Clearview Acres, Ltd. ("Petitioners") Leland and Wurz Avenues, Utica, New York 13503
Site Identification No.: 0633009 (Universal Waste, Inc.)
Description and Location: Pursuant to section 375-1.9 of title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"), Universal Waste, Inc. and Clearview Acres, Ltd. petitioned the New York State Department of Environmental Conservation ("Department") to delete an inactive hazardous waste site, Universal Waste, Inc., located at Leland and Wurz Avenue, Utica, New York 13503 (the "Site") from the New York State Registry of Inactive Hazardous Waste Sites (the "Registry"). In the alternative, petitioners sought reclassification of the Site from Class 2 to Class 3. Petitioners contended that the contamination at the Site, specifically, the presence of polychlorinated biphenyls ("PCBs"), does not present a significant threat to the environment, and that delisting or reclassification is warranted. The petition was originally dated January 8, 2003. The corrected version is dated June 23, 2003.
The property where the Site is located was listed in the Registry as a Class 2 site until approximately 1999, when the property was subdivided, at petitioners' request, into the Utica Alloys and Universal Waste sites, respectively. The Utica Alloys parcel remained as a Class 2 site, and the Universal Waste property was reclassified 2a, until petitioners undertook a Preliminary Site Assessment ("PSA") pursuant to a May 2000 Order on Consent. Following the submission of the PSA, Department staff notified petitioners by letter dated July 24, 2002 of the Universal Waste parcel's reclassification as a Class 2 site.
By letter dated September 5, 2003, the Department summarily denied the petition pursuant to section 375-1.9 of 6 NYCRR. According to the Department, even if the Department accepted the factual allegations advanced in the petition as true, those allegations were insufficient to support the grant of relief sought or any other proper relief.
Petitioners sought judicial review, pursuant to article 78 of the New York Civil Practice Law and Rules, of the Department's summary denial. In a decision dated May 26, 2004, and entered June 3, 2004, Supreme Court, Oneida County, vacated the Department's summary denial, and ordered that an administrative hearing be held (see Matter of Universal Waste, Inc. v. New York State Dept. of Envtl. Conservation, Julian, J., Index No. CA-2003-002781).
Applicable Statutes and Regulations: Environmental Conservation Law ("ECL") article 27, title 13, and 6 NYCRR part 375 (Inactive Hazardous Waste Disposal Sites). Section 375-1.9(d)(2)(ii) provides that the procedures set forth in 6 NYCRR part 624 shall be used in any hearing held pursuant to that section, except to the extent that any provision of Part 624 is contrary to the statute, in which event the statutory provision controls.
SEQRA Status: This action is classified as a Type II action and, thus, not subject to review under the State Environmental Quality Review Act ("SEQRA,"), ECL article 8. Specifically, the action is exempt pursuant to section 617.5(c)(18), (21), (29), and (31) of 6 NYCRR.
Legislative Hearing: In accordance with the provisions of 6 NYCRR Part 624, a legislative hearing will be held to receive unsworn statements from the public on the petition, at 7:00 p.m. on Tuesday, August 31, 2004 at the State Office Building, Conference Room A, 207 Genesee Street, Utica, New York 13501, telephone number 315-793-2201. All persons, organizations, corporations or government agencies that may be affected by the proposed de-listing or reclassification are invited to attend the hearing and to submit oral or written comments. It is not necessary to file in advance to speak at the legislative hearing. Lengthy statements should be submitted in writing and summarized for oral presentation. Reasonable time limits may be set for each speaker to afford everyone an opportunity to be heard. Equal weight will be given to both oral and written statements. The hearing location is fully accessible to persons with a mobility impairment. Pursuant to the State Administrative Procedure Act ("SAPA"), interpreter services shall be made available to deaf persons, at no charge, upon written request to the Administrative Law Judge, at the address below, at least ten days prior to the hearing.
Written Comments: In addition to, or in lieu of, providing oral comments at the legislative hearing, all interested persons may submit written comments at the hearing or mail those comments so that they are postmarked by Friday, September 3, 2004. Address comments to Maria E. Villa, Administrative Law Judge, New York State Department of Environmental Conservation, Office of Hearings and Mediation Services, 625 Broadway, First Floor, Albany, New York 12233-1550. As noted above, written comments will be given weight equal to oral comments made at the legislative hearing.
Issues Conference: A pre-adjudicatory hearing issues conference will be held at 10:00 a.m. on Wednesday, September 22, 2004 at the State Office Building, Room 103D, 207 Genesee Street, Utica, New York 13501, telephone number 315-793-2201, and will continue on succeeding days as necessary. The purpose of the issues conference will be to define, narrow, and resolve, if possible, the issues raised concerning the petition. Participation at the issues conference will be limited to Department staff, petitioners, and those persons requesting party status pursuant to 6 NYCRR sections 624.4 and 624.5 in advance of the issues conference.
IT IS EXTREMELY IMPORTANT THAT ANY PERSONS REQUESTING PARTY STATUS APPEAR OR BE REPRESENTED AT THE ISSUES CONFERENCE IN ORDER THAT ALL VALID ISSUES MAY BE THOROUGHLY DISCUSSED.
The known issues include whether the Department correctly determined that the Site poses a significant threat to the environment, such that delisting or reclassification is not warranted.
Filing for Party Status and Proposed Issues: To participate at the issues conference, potential parties must file a written petition requesting party status. The petition must satisfy the requirements provided for in 6 NYCRR sections 624.4(c) and 624.5(b). Any petition must fully identify the proposed party and the name(s) of the person(s) who will act as the proposed party's representative(s), the proposed party's environmental interests, the statutory considerations relevant to the delisting or reclassification, whether the request is for full party status or amicus status, and the precise grounds for opposing or supporting the delisting or reclassification. Mere opposition to the delisting or reclassification is not a sufficient basis to be granted party status.
A petition for full party status must identify all statutory and regulatory requirements that may not be met, and explain why those requirements may not be met. If a proposed party intends to rely upon expert testimony, the petition must also include an offer of proof that specifies the witness(es), the nature of the arguments and documentary evidence that the proposed party intends to present at the hearing, and the basis for the assertions regarding the proposed issues.
For amicus status, the filing must identify the nature of the legal or policy issues to be briefed, and provide a statement explaining why a proposed amicus is in a special position with respect to those issues, as required by 6 NYCRR section 624.5(b)(3).
Persons having similar interests of concern are encouraged to file as a consolidated party.
All petitions requesting either full party or amicus status must be received at the Department's Office of Hearings and Mediation Services by 4:00 p.m. on Friday, September 17, 2004. Such filings must be submitted to the following: Maria E. Villa, Administrative Law Judge, New York State Department of Environmental Conservation, Office of Hearings and Mediation Services, 625 Broadway, First Floor, Albany, New York, 12233-1550; Dolores A. Tuohy, Esq., Associate Attorney, Division of Environmental Enforcement, Central Field Unit, New York State Department of Environmental Conservation, 625 Broadway, Albany, New York 12233-5500; and Michael B. Gerrard, Esq., Arnold & Porter, 399 Park Avenue, New York, New York 10022-4690. Electronic filings and service by telefacsimile will NOT be accepted.
Adjudicatory Hearing: An adjudicatory hearing will commence at 10:00 a.m. on Tuesday, October 26, 2004 at the State Office Building, Conference Room B, 207 Genesee Street, Utica, New York 13501, telephone number 315-793-2201, and will continue on succeeding days as necessary. All persons or groups seeking party status and their witnesses must be prepared to meet this schedule and to participate fully at the adjudicatory hearing.
Statutory and Regulatory Provisions: Environmental Conservation Law article 1 ("General Provisions"); article 3, title 3 ("General Functions"); article 8 ("Environmental Quality Review"); article 27, title 13 ("Inactive Hazardous Waste Disposal Sites"); article 70 ("Uniform Procedures"); 6 NYCRR part 375 ("Inactive Hazardous Waste Disposal Sites"); part 617 ("SEQRA"); and part 624 ("Permit Hearing Procedures").
Document Availability: Information concerning the delisting or reclassification is available for review at the Department's Office of Hearings and Mediation Services, 625 Broadway, First Floor, Albany, New York 12233-1550 (telephone 518-402-9003) (contact Administrative Law Judge Maria E. Villa), and at the Department's Central Office at 625 Broadway, Albany, New York 12233-5500, telephone number 518-402-9507 (contact Dolores A. Tuohy, Esq., Associate Attorney, Division of Environmental Enforcement).
Chief Administrative Law Judge
Albany, New York
July 21, 2004