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Albion Recycling & Recovery, LLC

July 7, 2014


Date: July 7, 2014

APPLICANT: Albion Recycling & Recovery, LLC, P.O. Box 1113, Orchard Park, NY 14127


PROJECT DESCRIPTION AND LOCATION:Albion Recycling & Recovery, LLC ("ARR" or "applicant") has submitted an application to the New York State Department of Environmental Conservation ("DEC") to renew the Solid Waste Management Permit ("Part 360 Permit") for the Towpath Environmental & Recycling Center originally issued to Waste Management of NY, LLC ("WMNY") on November 20, 2003. The renewal application was received on May 24, 2013, and, after subsequent DEC notices and applicant responses, was denied by the DEC on April 9, 2014. In response to the denial, applicant requested a hearing under the regulatory provisions of the New York State Uniform Procedures Act (ECL article 70) (see 6 NYCRR 621.11(g)).

PERMIT REQUESTED: Applicant requests the renewal of a Solid Waste Management permit from the DEC pursuant to Environmental Conservation Law ("ECL") Article 27, Title 7, and provisions of implementing regulations (6 NYCRR Part 360 and 6 NYCRR Part 621).

STATE ENVIRONMENTAL QUALITY REVIEW ACT ("SEQRA") DETERMINATION:DEC, as lead agency for the review of the original permit application by WMNY, required the preparation of a Draft Environmental Impact Statement ("DEIS"), which was accepted on March 24, 1999. Subsequently, a Final EIS and SEQR Findings were prepared to support the DEC's issuance of the Part 360 Permit to WMNY on November 20, 2003. The Department has not made a determination regarding the applicability of SEQR to the renewal application filed by ARR, but would apply the criteria set forth in 6 NYCRR 617.9(a)(7) in the event it was required make a determination.

DEC STAFF POSITION: The DEC, by its letter dated April 9, 2014, denied the renewal application on the grounds that ARR failed to demonstrate its legal capacity to apply to renew the Part 360 Permit issued to WMNY.

BRIEFING PRIOR TO HEARING: This matter will proceed with respect to the issue whether ARR has or lacks the legal capacity to apply for renewal of the Part 360 Permit issued in 2003 to WMNY. ARR will serve and file its initial motion papers in support of its position that ARR does have such legal capacity on or before August 11, 2014, consisting, as appropriate, of:

(i) Affidavit(s) and other proof in admissible form;

(ii) A statement of material facts as to which ARR claims there is no genuine issue;

(iii) A brief addressing legal issues; and

(iv) An attorney's affirmation, which shall not contain legal argument.

In addition to addressing the issue of ARR's legal capacity, the parties' briefings shall also address how the matter should proceed upon the Commissioner's determination of the legal capacity issue.

On or before September 3, 2014, Department staff shall serve and file papers in response to ARR's papers. Department staff and ARR may also serve and file papers upon each other and the Administrative Law Judge in response to any petition for party status. Also on or before September 3, 2014, any person(s) who timely submitted a petition seeking party status may serve and file papers upon the Administrative Law Judge, ARR and Department staff in response to ARR's papers.

LEGISLATIVE HEARING: A legislative hearing will be held pursuant to 6 NYCRR Part 624 to hear and receive unsworn statements of the public concerning the issues of: (i) ARR's legal capacity to apply to renew the Part 360 Permit issued to WMNY; and (ii) how the matter should proceed following the Commissioner's decision on this issue. The hearing will be conducted by DEC Administrative Law Judge ("ALJ") D. Scott Bassinson at 6:00 p.m. on September 16, 2014, at Hickory Ridge Golf & CC, located at 15816 Lynch Road, Holley, NY 14470. All persons, organizations, corporations or government agencies that may be affected by the project are invited to attend the hearing and to submit oral or written comments regarding the issues of: (i) ARR's legal capacity to apply to renew the Part 360 Permit issued to WMNY; and (ii) how the matter should proceed following the Commissioner's decision on this issue. While it is not necessary to file in advance to speak at the hearing, lengthy comments should be submitted in writing and summarized for oral presentation. Reasonable time limits may be set for each speaker as necessary to afford all attendees an opportunity to be heard. The hearing location is fully accessible to persons with mobility impairment. Interpreter services shall be made available to deaf persons at no charge upon request to the ALJ at least 10 days prior to the hearing.

WRITTEN PUBLIC COMMENTS:Written comments concerning the issues of: (i) ARR's legal capacity to apply to renew the Part 360 Permit issued to WMNY; and (ii) how the matter should proceed following the Commissioner's decision on this issue may be mailed to ALJ Bassinson at DEC's Office of Hearings and Mediation Services, 1st Floor, 625 Broadway, Albany, New York, 12233-1550, and will be considered equally with oral statements delivered at the legislative hearing, provided they are received by September 16, 2014.

ISSUES CONFERENCE: Pursuant to 6 NYCRR 624.4(b), an issues conference will be conducted by ALJ Bassinson at Hickory Ridge Golf & CC, located at 15816 Lynch Road, Holley, NY 14470. The conference will begin at 10:00 a.m. on September 17, 2014. The conference will be held to determine party status for any person or organization that has properly filed (as indicated below) and to narrow and define those issues, if any, that will require adjudication in this matter. Participation at the issues conference shall be limited to DEC staff, applicant, and those persons or organizations requesting party status. Following the issues conference, the participants will be advised of the ALJ's rulings as to issues and party status, and whether an adjudicatory hearing will be scheduled for a later date. The ALJ's determination whether to conduct an adjudicatory hearing shall be based on whether the parties raise questions of fact relating to the issues that will require a hearing. Only those persons granted party status may participate in any adjudicatory hearing that takes place. If no petitions for party status are filed with respect to the issues, or if any filed objections are withdrawn and the issues are satisfactorily resolved before the issues conference, the conference will be canceled and no adjudicatory hearing will be necessary.

FILINGS FOR PARTY STATUS WITH RESPECT TO ISSUES: Party status to participate at the issues conference and any subsequent adjudicatory hearing concerning the issues of: (i) ARR's legal capacity to apply to renew the Part 360 Permit issued to WMNY; and (ii) how the matter should proceed following the Commissioner's decision on this issue will be accorded only to those persons who file a written petition meeting the requirements of 6 NYCRR 624.5(b)(1) and (2). To determine whether an issue is substantive, see 6 NYCRR 624.4(c)(2), and to determine whether an issue is significant, see 6 NYCRR 624.4(c)(3). Mere opposition to the project is not a sufficient basis to be granted party status. A petition must fully identify the proposed party and the name(s) of the person or persons who will represent the party, the petitioner's environmental interest in the proceeding, any interest relating to statutes administered by DEC that are relevant to the project, whether the petition is for full party or amicus status, and the precise grounds for opposition or support.

If a petitioner seeks full party status at this stage of the proceedings, its petition must identify an issue which could result in permit denial, major modification of the project or the imposition of significant permit conditions in addition to those proposed by DEC staff. Petitioners must identify specific legal requirements they assert would not be met and fully set forth the reasons for their conclusions. Also, petitioners must identify the witnesses they would present at an adjudicatory hearing and the nature of the evidence each witness would present. If a petitioner intends to rely upon expert testimony, the petitioner must identify the name of each expert, that expert's qualifications, a summary of the subject matter on which the expert is offered, and a summary of the expert's opinions as well as the facts upon which those opinions are based.

If a petitioner seeks amicus status, its petition must identify a legal or policy issue that needs to be resolved by the hearing, indicate the petitioner's interest in the resolution of the issue, and explain how through expertise, special knowledge or unique perspective, the petitioner may contribute materially to the record on the issue. Persons having similar interests are encouraged to consolidate their filings.

ALL PETITIONS REQUESTING PARTY STATUS TO PARTICIPATE AT AN ADJUDICATORY HEARING WITH RESPECT TO THE ISSUES IDENTIFIED ABOVE MUST BE RECEIVED AT DEC'S OFFICE OF HEARINGS AND MEDIATION SERVICES NO LATER THAN 3:00 P.M. ON AUGUST 11, 2014. IN ADDITION, ON OR BEFORE SEPTEMBER 3, 2014, ANY PERSON(S) SEEKING PARTY STATUS MAY SERVE AND FILE PAPERS IN RESPONSE TO ARR's PAPERS. Address all petitions and responses to D. Scott Bassinson, Administrative Law Judge, New York State Department of Environmental Conservation, Office of Hearings and Mediation Services, 1st Floor, 625 Broadway, Albany, New York, 12233-1550. At the same time and in the same manner that the petition or response is furnished to the ALJ, a copy of the petition or response must be furnished to applicant's attorney, Anthony M. Nosek, Esq., Cohen & Lombardo P.C., 343 Elmwood Ave, P.O. Box 5204, Buffalo, NY, 14213-5204; and to DEC staff's attorney, Lisa Schwartz, Esq., NYSDEC Region 8, Office of General Counsel, 6274 East Avon-Lima Road, Avon, New York, 14414-9516. Electronic filings and service by fax will not be accepted. Any questions about filing requirements or other hearing procedures may be addressed to ALJ Bassinson by telephone at (518)-402-9003. Also, DEC's hearing procedures may be found at, Hearings and Mediation Services, Guide to Permit Hearings.

DOCUMENT AVAILABILITY: The permit application and supporting materials are available in electronic format upon request to DEC, and for review at the following locations during normal business hours:

NYS Department of Environmental Conservation Region 8
6274 East Avon-Lima Road, Avon, New York 14414
Contact Scott Sheeley at (585)-226-5382

Town of Albion Administrative Offices
3665 Clarendon Road, Albion, NY 14411
Contact Town Clerk at (585) 589-7048 ext. 10

APPLICABLE STATUTES AND REGULATIONS: This application is being processed pursuant to ECL Article 1 (General Provisions), Article 3 (General Functions), Article 27 (Solid Waste Management) and Article 70 (Uniform Procedures), as well as 6 NYCRR Part 360 (Solid Waste Management), Part 621 (Uniform Procedures) and Part 624 (Permit Hearing Procedures).

James T. McClymonds
Chief Administrative Law Judge

Albany, New York
July 7, 2014

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