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4-C's Development Corporation - Ruling 6, July 19, 1996

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

an 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
241 NORTH PEARL STREET
ALBANY, NY 12201

RULING ON MOTION TO SUSPEND HEARING

DEC APPLICATION No.

4-3824-00045/00001-0

Background

By letter dated June 20, 1996, the Applicant's attorney informed the Department Staff, the other Parties and me that because the New Options on Waste (NOW) facility has been intermittently closed, there have been delays in emptying the Applicant's dumpsters at the NOW facility. Consequently, Cristo Demolition was temporarily placing dumpsters filled with C&D debris at the 4-C's Landfill property overnight until the loaded dumpsters could be brought to the NOW facility the next morning. Mr. Engel emphasized that the Applicant is not, and does not intend to, use the 4-C's Landfill property as a debris storage area.

In a letter dated June 24, 1996, the Town's attorney asserted that local zoning prohibits the storage of C&D debris at the site even if the storage is temporary, and advised the Applicant to stop storing C&D debris on the site. CAN DO filed a letter dated June 26, 1996 that supported the Town's position, and which asked the Department Staff to direct the Applicant to stop storing C&D debris on the site. In a subsequent letter dated July 2, 1996, the Town asked the Applicant to confirm, in writing, that storing C&D debris on the 4-C's Landfill property had stopped.

RCEMC filed a letter dated June 27, 1996 that opposed Cristo Demolition's temporary storage of dumpsters filled with C&D debris at the 4-C's Landfill property. According to RCEMC, the Applicant was operating a transfer station. RCEMC alleged that the Applicant had violated Part 360 either by operating a transfer station without a permit from the Department, or by failing to register the transfer facility with the Department. RCEMC called on the Department Staff to initiate an enforcement action against the Applicant.

The Department Staff filed a letter dated June 28, 1996, and alleged that the Applicant's activities are violations of the ECL and Part 360. Mr. Keehn advised the Applicant to stop storing dumpsters filled with C&D debris on the site immediately. Otherwise, Mr. Keehn explained that the Staff would suspend the review of the Applicant's permit application.

Motion to Suspend Processing of the 4-C's Permit Application

RCEMC moved to suspend the processing of the 4-C's permit application in a letter dated July 2, 1996. RCEMC based its request on the Department Staff's June 28, 1996 letter which alleged that the Applicant had violated the ECL and Part 360. Subsequently, in a letter dated July 5, 1996, CAN DO also moved to suspend the processing of the captioned permit application. To support its motion to suspend, CAN DO has adopted the arguments presented by RCEMC.

The Applicant responded to RCEMC's and CAN DO's motion to suspend processing in letters dated July 3 and 9, 1996. The Applicant contended there has been no violation of the ECL or Part 360. According to the Applicant, .360-1.7(b)(7) provides a permit exemption for the storage of C&D debris for five days or less. The Applicant argued that the motion to suspend permit review should be denied. The Applicant wants RCEMC to pay the costs associated with responding to RCEMC's motion.

In letters dated July 5 and 9, 1996, RCEMC submitted additional arguments to support its motion. RCEMC also asked the Region 4 Department Staff to confirm whether the Applicant has registered the 4-C's Landfill property as a transfer station with the Department.

In letters dated July 5 and 9, 1996, the attorney for the City of Rensselaer and Capitol Apartments, LP asked the Department Staff to confirm whether the activities described in the Applicant's June 20, 1996 letter had violated the ECL and Part 360.

Discussion and Ruling

According to RCEMC, two provisions in 6 NYCRR Part 621 [Uniform Procedures] provide the basis for suspending the review of the captioned permit application. They are .621.14(a), and .621.3(f). Section 621.14(a) states, in pertinent part, that:

Permits may be modified, suspended or revoked at any time either at the request of any interested party or upon the department's initiative on any of the grounds set forth in paragraphs (1) through (5) of this subdivision.

Paragraph 621.14(a)(5) authorizes permit modification, suspension, or revocation for noncompliance with any provision of the ECL or regulations. Section 621.3(f) states that:

Processing and review of an application may be suspended with written notice to the applicant if an enforcement action has been or is commenced against the applicant for alleged violations of law related to the activity for which the permit is sought or for alleged violations of the ECL related to the facility or site. Such suspension of processing and review may remain in effect pending final resolution of the enforcement action.

RCEMC asserted that it is an interested party to this proceeding, and argued that .621.14(a) authorizes RCEMC to make this motion. According to RCEMC, the Applicant's June 20, 1996 letter is an admission of violations of the ECL and Part 360. Moreover, RCEMC argued that the Department Staff's June 28, 1996 letter confirms violations of the ECL and Part 360, and begins an enforcement action against the Applicant.

Before determining whether the Applicant has violated the ECL and Part 360, there is a threshold question about whether RCEMC and CAN DO have standing to move to suspend the review of the captioned permit application. In addition, there is a question about whether an enforcement action has commenced against the Applicant. Based on the following, I conclude that RCEMC and CAN DO lack standing, and that an enforcement action has not commenced.

RCEMC and CAN DO may be interested parties. However, .621.14(a) applies to the modification, suspension and revocation of permits which the Department has already issued. The Applicant's previous permit has expired, and the Department has not yet issued a permit for the current proposal. Absent a permit that is currently in effect, I conclude that .621.14(a) does not apply here. Consequently, RCEMC and CAN DO cannot rely on this regulation as a basis for the motion to suspend.

The issue now becomes whether RCEMC and CAN DO can rely on .621.3(f) as the basis for the motion. They cannot. To suspend permit review, .621.3(f) specifically requires the commencement of an enforcement action for violations of the ECL relating to the requested permit. Only the Department Staff, as prosecutor, has the discretion to start such an action. Consequently, only the Department Staff may rely on .621.3(f) as the basis for a motion to suspend the review of a permit application.

Furthermore, I reject RCEMC's assertion that the Department Staff's letter dated June 28, 1996 initiated an enforcement action. Section 622.3 (Commencement of a proceeding) provides that the Department Staff may commence an administrative enforcement proceeding by serving a notice of hearing with a complaint. The complaint must include: (1) a statement of the legal authority and jurisdiction under which the proceeding is to be held, (2) a reference to the particular sections of the statutes, rules and regulations involved, and (3) a concise statement of the matters asserted [.622.3(a)(1)(i) - (iii)].

I conclude that the Staff's June 28, 1996 letter is not a complaint because the letter does not meet the requirements outlined in .622.3(a)(1)(i) - (iii). In addition, there has been no showing that the June 28, 1996 letter was served upon Cristo Demolition or the 4-C's Development Corporation by personal service consistent with the CPLR, or by certified mail as require by .622.3(a)(3). Finally, there has been no showing that the Department Staff initiated an enforcement action by duly serving a motion for order without hearing as provided by .622.12, or by duly serving a summary abatement order as provided by .622.14.

Absent the initiation of an enforcement action by the Department Staff which includes proper service of a complaint, motion for order without a hearing, or summary abatement order upon the Applicant, I cannot suspend the review of the captioned permit application. Therefore, I deny RCEMC's and CAN DO's motion.

Finally, there is no authority for me to order RCEMC and CAN DO to pay the costs incurred by the Applicant for responding to the motion to suspend. Therefore, I deny the Applicant's request for costs.

/s/
Daniel P. O'Connell
Administrative Law Judge

Dated: Albany, New York
July 19, 1996

To: Service List dated June 12, 1996

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