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MPM Silicones, LLC - Summary Report and Order of Disposition, December 21, 2015

Summary Report and Order of Disposition, December 21, 2015

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the New York State Department of Environmental Conservation Hazardous Waste Management Facility Renewal Permit, Issued Pursuant to Article 27 of the Environmental Conservation Law (ECL) and Part 373 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR),

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MPM SILICONES, L.L.C.
260 Hudson River Road
Waterford, New York
Permittee.

SUMMARY REPORT AND ORDER
OF DISPOSITION

DEC Permit Application ID No.
5-4154-00002/00357 |
EPA ID No. NYD002080034

Appearances of Counsel:

-- Thomas S. Berkman, Deputy Commissioner and General Counsel (Benjamin Conlon of counsel), for staff of the Department of Environmental Conservation

-- Whiteman Osterman & Hanna, LLP (Scott N. Fein of counsel), for permittee MPM Silicones, L.L.C. (MPM)

Proceedings

MPM applied to the Department of Environmental Conservation (DEC or Department) to renew its 6 NYCRR part 373 hazardous waste management facility permit. A notice of complete application was published in the DEC's Environmental Notice Bulletin (ENB) on September 3, 2014 and in local newspapers during the week of September 1, 2014.[1]A legislative hearing was held on October 8, 2014 at the Waterford Town Hall, and written comments on the draft renewal permit were received through October 20, 2014.

DEC staff revised the draft renewal permit in response to comments received and issued the final permit on April 2, 2015. MPM requested a hearing on the permit on May 1, 2015 pursuant to 6 NYCRR 621.11(g). MPM included a list of issues concerning the modified renewal permit with its request for hearing.

Pursuant to a notice dated June 30, 2015, and published in the ENB on July 8, 2015, in local papers during the week of July 13, 2015, and announced on local radio on July 17, 2015, a public statement hearing was held before me at the Waterford Town Hall, 65 Broad Street, Waterford, New York on August 25, 2015 at 1:00 p.m.[2]The notice also stated that written comments must be received by September 1, 2015 and petitions for party status must be received by 3:00 p.m., September 11, 2015. No members of the public appeared at the public statement hearing, and I received no written comments or petitions for party status.

No issues conference was scheduled as Department staff and MPM Silicones, L.L.C. were the only parties, and resolved all issues raised in MPM's request for hearing except two issues that remained for adjudication. On November 11, 2015, a notice of adjudicatory hearing was published in the ENB.[3] The adjudicatory hearing was scheduled to begin on December 14, 2015 at 9:00 a.m. at the Waterford Town Hall, 65 Broad Street, Waterford, New York. On December 7, 2015, Department staff and MPM advised me that they had resolved the remaining two issues and that MPM was withdrawing its request for a hearing. Accordingly, on December 8, 2015 I caused a notice of cancellation of the adjudicatory hearing to be published in the ENB, and directed MPM to post the notice at the Waterford Town Hall.[4]

Discussion

A stipulation executed by all the parties to the proceeding resolving any or all issues removes those issues from further consideration in the hearing (see 6 NYCRR 624.13[d]). Where the parties' agreement resolves all issues, such as the case here, the agreement must be incorporated into a draft permit and accepted by all parties. The draft permit must then be submitted to the administrative law judge to be included in the hearing record, along with written statements, signed by the parties or their representatives, stating that the draft permit conditions resolve all issues between the parties (see DEC Organization and Delegation Memorandum 94-13, Effect of Stipulations on Decision-Making in Permit and Enforcement Hearings, May 5, 1994 at 2).

In this proceeding, I have received into the record a modified draft Hazardous Waste Facility Management Renewal Permit incorporating the agreement of the parties together with signed statements from the parties indicating that the revised permit resolves all issues between the parties.

Order of Disposition

ACCORDINGLY, IT IS HEREBY ORDERED that the hearing record in this proceeding is closed, and the matter is remanded to Department staff for final processing of the modified draft permit in accordance with the agreement of the parties.

/s/

Michael S. Caruso
Administrative Law Judge

Dated: December 21, 2015
Albany, New York


[1] See ENB notice at http://www.dec.ny.gov/enb/20140903_not5.html. The ENB notice included staff's determination that pursuant to article 8 of the ECL and 6 NYCRR part 617, the proposed modifications associated with permit renewal constituted an "Unlisted Action," and that the modifications would not have a significant effect on the environment. Staff issued a negative declaration.

[2] See ENB notice at http://www.dec.ny.gov/enb/102536.html.

[3] See ENB notice at http://www.dec.ny.gov/enb/103979.html.

[4] See ENB notice at http://www.dec.ny.gov/enb/104308.html.

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