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4-C's Development Corporation - Interim Decision 2, April 7, 1997

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

50 Wolf Road

Albany, New York 12233-1010 In the Matter of the

Application for permits to operate and construct a
Construction and Demolition Debris (C&D) Landfill pursuant to
Environmental Conservation Law of the State of New York (ECL) Article 27 and Title 6 of the
Official Compilation of Codes, Rules and Regulations of
the State of New York (6 NYCRR) Part 360
in the Town of East Greenbush, Rensselaer County

- by -

4-C'S DEVELOPMENT CORPORATION

DEC Application No. 4-3824-00045/00001-0

INTERIM DECISION

April 7, 1997

INTERIM DECISION OF THE ACTING DEPUTY COMMISSIONER

This Interim Decision is in response to certain appeals taken from the Rulings of Administrative Law Judge ("ALJ") Daniel P. O'Connell dated December 10, 1996 and February 27, 1997 in this proceeding. Because the two Rulings interrelate, and because the February 27, 1997 Ruling modified a part of the December 10, 1996 Ruling, the appeals from both Rulings are considered together in this Interim Decision.

Because the Acting Commissioner served as the Department's General Counsel during the time that adjudicatory hearings took place in this case, responsibility to make this Interim Decision has been delegated to the Acting Deputy Commissioner for Natural Resources.

Background

The Applicant, 4-C's Development Corporation, seeks a solid waste facility permit authorizing it to construct and operate a landfill for the disposal of construction and demolition debris ("C&D debris") at a site in the Town of East Greenbush ("Town"). The site is adjacent to the boundary of the City of Rensselaer ("City"). At the issues conference held on January 17, 1996 and February 13, 1996, the ALJ found that three substantive and significant issues for adjudicationSee 6 NYCRR 624.4(c). had been raised. Among these was an issue with respect to the potential for hydrogen sulfide gas (H2S) to be generated and emitted to the surrounding area. A major portion of the adjudicatory hearings in this case have addressed the proposed project's design with respect to H2S including whether an H2S gas collection system should be installed. Related to this question is whether materials proven to create H2S can reasonably be excluded from the landfill, and whether an H2S collection system could be installed in the future in the event that a collection system is not installed in connection with initial construction, but is later determined to be necessary. With this background, I turn to the Rulings which are the subject of the appeals now before me.

February 27, 1997 Rulings

The ALJ's February 27 Ruling established a process by which the ALJ will consider information contained in documents subpoenaed from the files of the Department's solid waste management staff by the City. Those documents pertain to another C&D landfill in Dutchess County, the "FICA Landfill." The documents deal with the presence and treatment of H2S at that landfill. The documents were produced by Department Staff member Joseph Yavonditte. The ALJ's February 27, 1997 Ruling provides that the so called "FICA" documents will be considered at a hearing in which Mr. Yavonditte, as a witness called by the ALJ, will identify and describe each of the FICA documents, and will be available for cross examination. Thereupon the ALJ will make a determination as to relevance and admissibility of the FICA documents. I affirm that Ruling of the ALJ.

In connection with the February 27 Ruling, the City moved for a determination that those portions of 4-C's permit application which had not been received as an exhibit in evidence would not be considered in connection with the final decision in this proceeding. The ALJ correctly declined to make such a determination.

The City's point apparently was that if the FICA documents could not be received as "business records" of the Department, and required witness sponsorship and cross examination, then the same should hold true for the Application and related application documents. But the City overlooks the obvious distinction between an application and the FICA documents. The 4-C's Application was submitted by 4-C's and accepted for filing as complete by Staff. In essence, the application constitutes a request for relief, in this case, issuance of a permit. Public notice of the application was given, a public hearing held, followed by an issues conference. The issues conference established that with the exception of identified adjudicable issues 4-C's Application together with the general and special conditions of the draft permit was potentially approvable--subject to the Commissioner's final review and approval after the record is closed and complete. Moreover, subject to the Commissioner's final approval based on the entire record (including the application documents), the issues ruling determined that the only matters that need to be evaluated at the adjudicatory hearing were those identified as issues for adjudication. The record of the adjudicatory hearing focuses on such issues. But, the final decision of the Commissioner must be based on the entire record, including the documents which made up the entire application package, notwithstanding that only a portion of that package is within the scope of issues found to warrant a fact-finding adjudication process.

December 10, 1996 Rulings

The AlJ's February 27 Ruling, which is affirmed above, modified Section II of the ALJ's December 10 Ruling. Appeals from that section of the December 10 Ruling are therefore moot. I therefore now turn to the parties' appeals from Section I and III of the ALJ's December 10, 1996 Rulings. These are requests for additional discovery on H2S abatement, and requests to adjudicate the Applicant's compliance history.

Additional Discovery: The December 10, 1996 Rulings denied the City's motion for additional discovery about H2S abatement. As originally framed, the motion would have required the Department to conduct a wide-scale file search for H2S abatement information. The motion was denied by the ALJ as overly broad and as untimely. I concur with the ALJ's Ruling on this point.

On appeal, the City narrowed its request to one for information on only one specific landfill. However, the H2S abatement portion of the adjudicatory hearing was concluded over six months ago. Moreover, the ALJ's Ruling of June 12, 1996 determined that the information which the City now seeks to discover was not in dispute and repetitive. The ALJ's determination on this point is clearly reasonable and is affirmed.

Compliance History: The ALJ denied motions by the City and others to adjudicate the Applicant's compliance history. The City and CAN DO appeals are supported by the Town and RCEMC. The ALJ's decision on the point is correct, and is upheld for the reasons given by the ALJ. I add that the record suggests that there is no factual dispute as to the consent orders entered into between Applicant and Staff and other events reported. In the absence of a factual dispute, no adjudicatory issue is raised.

On the other hand, an applicant's undisputed enforcement history may be considered by the Commissioner in connection with the final decision. The weight to be given will depend on the specific circumstances, which have been provided and are part of the record. Accordingly, the parties should not assume that Applicant's compliance history will not be considered in reaching a final decision simply because there was no issue for adjudication with respect to compliance history. The parties may state their positions on this point in their closing arguments and briefs.

Conclusion

For the foregoing reasons, the appeals are denied. This matter is remanded to ALJ O'Connell for further proceedings consistent with the foregoing.

For the New York State Department
of Environmental Conservation
/s/
By: Frank M. Dunstan
Acting Deputy Commissioner

Albany, New York
April 7, 1997

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