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Accurate Asbestos Transport - Interim Decision March 27, 1995

Interim Decision March 27, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

50 Wolf Road

Albany, New York 12233-1550
In the Matter

- of -

the Application of ACCURATE ASBESTOS TRANSPORT, INC.
for a permit to construct and operate a solid waste management facility;
permit to operate a process, exhaust, or ventilation system (Air Contamination Source)
pursuant to Environmental Conservation Law Article 3, Title 3 (General Functions);
Article 70 (Uniform Procedures);
Article 27, Title 7 (Solid Waste Management and Resource Recovery Facilities);
Article 19 (Air Pollution Control) and Article 8 (Environmental Quality Review);
and also pursuant to Title 6 of the Official Compilation of Codes, Rules and Regulations of
the State of New York (6 NYCRR) Part 621 (Uniform Procedures);
Part 624 (Permit Hearing Procedures); Part 360 (Solid Waste);
Part 212 (General Process Emission Sources); Part 617 (State Environmental Quality Review).

DEC Project No. 2-6102-00009/00001-0

INTERIM DECISION

March 27, 1995

INTERIM DECISION

This Interim Decision is in response to the appeal of the February 2, 1995 Second Ruling on Party Status and Rulings on Further Issues for Adjudication and on Discovery (the "Rulings") of Administrative Law Judge ("ALJ") John H. Owen in the captioned matter filed by Red Hook Civic Association (the "Intervenor").

Fitness (past history of the Applicant)

The Intervenor appeals the ALJ's ruling limiting the evidence of unadjudicated charges to relevant charges of ECL violations. It maintains that previous decisions of the Commissioner hold relevant charges issued by other governmental agencies should also be considered. DEC Staff, supporting this aspect of Intervenor's appeal, cites Matter of A-1 Recycling and Salvage (Commissioner's Interim Decision dated March 19, 1992) as authority for the proposition that considerations of relevancy make the ECL/non-ECL distinction meaningless. This is incorrect.

Resolution of this question hinges on the competence of the evidence Intervenor seeks to introduce, not on its relevance. Unadjudicated/unadmitted allegations do not constitute evidence of a violation. The Decision in A-1 Recycling made it clear that only adjudicated violations or violations that have been admitted in the form of a consent order or similar instrument may be received into evidence.

With regard to unadjudicated violations, only with those matters over which the Department has administrative jurisdiction may be adjudicated in a hearing before the Department (see In the Matter of the Application of Seaboard Contracting and Material, Inc., Interim Decision of the Commissioner, June 5, 1990).

Matters not subject to an expedited appeal

The ALJ, concluding that the Staff had failed to consider the fact that the facility lies within a flood plain in its original State Environmental Quality Review ("SEQR") determination, remanded the negative declaration to Staff for review and revision with respect to flood plain and coastal assessment issues.

The Intervenor does not appeal this ruling, but asks for a determination of who has the burden of proof to establish whether the Applicant did or did not know of the flood plain's existence. This is not a proper subject for an expedited appeal under 6 NYCRR 624.8(d)(2). The only matters arising out of a Ruling which can be appealed in an expedited manner are a ruling to include or exclude an issue for adjudication, a ruling on the merits of a legal issue or a ruling affecting party status.

Similarly, the Intervenor's appeal of the ALJ's ruling on discovery is rejected since it is not appropriately considered in an expedited appeal.

Summary

ALJ Owen's rulings are upheld in full. This matter is remanded to him for a hearing on the issues determined in his Rulings.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Interim Decision to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York this 27th day of March, 1995

DEPARTMENT OF ENVIRONMENTAL CONSERVATION
/s/
MICHAEL D. ZAGATA, COMMISSIONER

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