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Accurate Asbestos Transport - Ruling 2, February 2, 1995

Ruling 2, February 2, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

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).

SECOND RULING ON PARTY STATUS AND RULINGS ON

FURTHER ISSUES FOR ADJUDICATION AND ON DISCOVERY

DEC PROJECT

No. 2-6102-00009/00001-0

Proceedings

This is the second ruling on party status and issues for adjudication. The first ruling issued July 18, 1994 found that the New York City Community Board Six ("CB6") and the Red Hook Civic Association ("Red Hook") each had adequate environmental interest had raised both substantive and significant issues for adjudication and they each were granted party status, upon a consolidated basis. As to issues the earlier ruling found that the only issue for adjudication was the fitness of Accurate Asbestos Transport Inc. (the "Applicant") to receive the permits sought. That earlier ruling also directed the Region 2 Staff to furnish to the parties and the Administrative Law Judge ("ALJ"), within twenty (20) days of the hearing, sufficient documentation to show exactly what permit(s) the Applicant previously sought, the disposition of the application(s), and the reasons for the disposition(s).

A second pre-hearing conference was held in the above matter at the Region 2 Headquarters, Hunters Point Plaza, 47-40 21st Street, Long Island, New York on August 23, 1994.

Present were Lawrence R. Schillinger, Esq., for the Applicant; Paul A. Gallay, Esq., Region 2 Attorney for the Department of Environmental Conservation Staff ("Department Staff" or "Staff"); Stroock & Stroock & Lavan for Red Hook, intervenor, by Joseph J. Gamboi, Esq. and Robert C. Kern, Jr., Esq., of Counsel; New York City Law Department (the "City") by Robert Rosenthal, Esq. and Steven Russo, Esq.; and Craig Hammerman, District Manager of CB6.

Shortly prior to the conference, the City sought to take over from CB6 as a separate intervenor.

By motion dated August 11, 1994, Red Hook had sought discovery consisting of a Demand for Documentation, Request for Witness List, Request for List of Documentary and Physical Evidence to be Offered at Hearing, Request for Inspection, and a Notice to Admit; and the City filed under date of September 6, 1994 "The City's First Request for Production of Documents".

In addition to intervention and discovery issues, the Staff, the City and Red Hook sought to re-visit that part of the Rulings of July 18, 1994 which held that only adjudicated charges would be admitted into evidence on the question of the Applicant's fitness to receive the permits sought. The Applicant objected to re-visitation of the fitness issue.

The City and Red Hook also sought to bring in as an issue the question of whether the Applicant's facility was in a flood plain, claiming that this was not really a new issue but was admissible under the fitness issue. The Applicant opposed mainly on the ground that this was a new issue and it was far too late to raise it.

The Applicant under date of September 22, 1994 filed a Memorandum of Law on the proposed issues as did the Staff under the same date, and the City filed a Memorandum of Law under date of September 23, 1994.

In its memorandum the City went further than simply proposing that the Applicant's facility allegedly lying in a flood plain be a new issue for adjudication or be allowed into evidence under the existing fitness issue. It claimed that the Applicant's facility is located in an area that is subject to the City's Waterfront Revitalization Program such that the Staff should rescind its Negative Declaration and conduct a review to establish whether the Applicant's facility is consistent with the City's Waterfront Revitalization Program.

Lastly, the City argued that if the flood plain matter is allowed as neither a new issue nor allowed in directly under the fitness issue, it should be admitted in terms of a permit application misrepresentation and relevant to fitness in those terms.

Discussion

Intervention

As noted the Intervenor CB6 has been previously consolidated with Red Hook and now the City wishes to takeover from CB6.

The Applicant objected that without CB6, Red Hook would not have enough standing by itself to remain an intervenor and that if the City was to come in the City should remain consolidated with Red Hook. The Staff did not oppose the City coming in, nor did Red Hook, and neither took any position as to whether the City should be consolidated with Red Hook.

It was then ruled that the City had the same, if not greater, environmental interest and substantial and significant questions of fact for adjudication than CB6. Also the City coming in might well expedite the proceeding in that much of the proof under the fitness issue involved disposition of charges by the City agencies which information the City itself could obtain more readily than could CB6.

As to consolidation, at the time CB6 and Red Hook were consolidated, neither CB6 nor Red Hook had counsel formally appearing for them. Now the City is represented by the City Corporation Counsel's Office and Red Hook has its own counsel. No reason is seen, whether judicial economy or any other, to now tie the City to Red Hook, and so Red Hook is granted separate intervenor status and CB6 and the City are consolidated as parties.

Unadjudicated Violations Issue

In my prior rulings, as noted, it was held that fitness was the only issue and further held that as to violation charges only adjudicated municipal or other violation charges would be admissible into evidence. Now the Staff, the City, CB6 and Red Hook seek to modify that ruling so as to allow unadjudicated charges into evidence on the fitness issue.

The Staff cites the DEC's Record of Compliance Enforcement Guidance Memorandum dated March 5, 1999 ("ROC/EGM") and Commissioner's decisions In the Matter of Seaboard Contracting and Materials, Inc., (DEC No. 10-87-0655, Interim Decision, 1/5/90 - 199 WL 154837) and In the Matter of All City Paper Fibers Corp., (DEC No. 2-6102-00028, Interim Decision, 11/27/92 - 1992 WL 406389) for the proposition that unadjudicated violation charges are admissible to DEC permit hearings.

Where the ROC/EGM speaks of "...fraudulent, deceitful or materially inaccurate statements" and "...violations of...any similar [to DEC violations] civil or criminal statute, regulation or permit conditions of the federal or other state government" (pages 4 and 5), "fraudulent" statements and the like are always admissible as affecting the credibility of the applicant or its witnesses (and the Staff's and intervenors' witnesses as well) and violations of other laws and regulations means established violations and not unadjudicated charges. The only exception here appears to be that relevant unadjudicated ECL charges are admissible.

Staff also cites two Court decisions, Kenner v. Coughlin and Matter of Skyline Inn Corp v. NYS Liquor Authority, for the proposition that unadjudicated criminal charges are admissible in administrative hearings held by state agencies. As those cases are read, however, it appears clearly that what has been held is: if the agency can prove part or all of criminal allegations they are admissible if they establish in whole or part, violations of the agency's law or regulations; however, in my view this does not mean that they are admissible to prove the fitness of the respondent in those administrative proceedings to, for instance, remain a correctional officer (Kenner) or to hold onto a liquor license (Skyline).

As an "alternative" ground for admission of unadjudicated charges Staff argues that they are admissible to rebut the Applicant's claim that it has had a clean record of operation since it signed the 1991 consent order. Here again, however, a charge is only an allegation and is inadmissible unless it has been legally established as a fact.

The City in its memorandum has not cited any precedents in which unadjudicated violations were admitted. The City cites, among other precedents, Commissioner's decisions in Conover and in American Transfer. Those decisions were studied and referred to in the Rulings of July 18, 1994 where unadjudicated violations were barred from admission on the fitness issue. None of the other precedents cited by the City establish that a bare allegation, for instance, that the Applicant or its predecessor or related entities had dropped asbestos on the streets of Brooklyn, would be admissible regardless of whether it was true.

Red Hook, in it memorandum, has made much the same arguments and cited some of the same precedents as the Staff and the City. It too has failed to show that in any court case or administrative proceeding a mere allegation, for instance, that the Applicant had dropped asbestos in public or private areas would be admissible.

Ruling: Unadjudicated violations remain inadmissible except to the extent that relevant unadjudicated ECL charges will be admissible.

The Flood Plain and Coastal Assessment Issues

This matter was not previously raised before me at the earlier Issues Conference which preceded the Rulings of July 18, 1994. The test for considering this matter is whether it is a necessary, but omitted inquiry in the permitting process, or it prejudices the Applicant.

Specifically the City and Red Hook claim that the Applicant's facility is located in a federally-designated 100-year flood plain and should be included as an issue for the hearing. Staff takes no position and the Applicant opposes, stating that this issue is time-barred in that the Rulings of July 18, 1994 set the time for appeals to the Commissioner and the expiration date was July 29, 1994 with no appeals having been filed.

Under the State Environmental Quality Review Act (SEQRA), the maps and other documents submitted by the City and Red Hook seem to clearly show the Applicant's facility within a flood plain, such that a necessary inquiry involves, among other things, probable and reasonably foreseeable impacts, such as determining whether the Applicant's facility is so constructed as to be capable of withstanding flood waters to prevent the dispersal of asbestos in the populated area surrounding it.

In order for a lead agency to issue a Negative Declaration, it must be able to show that the proposed action will not have a significant adverse impact upon the environment. 6 NYCRR 617.2(y). The lead agency must take a hard look at all relevant potential impacts in making its decision and document its reasons in writing. 6 NYCRR 617.6(g)(2). Here the Negative Declaration does not address the flood plain issue.

Under 6 NYCRR former 624.7(4) the Issues Conference "...may be reconvened to consider additional issues" and under 6 NYCRR former 624.17(b) prior to a final decision the hearing record may be re-opened "...to secure additional information or data, or to consider significant new evidence or major permit application alterations."

The flood plain issue is new information. However, there is no information in the record to determine whether the location of the facility in a designated floodway will result in a significant adverse impact to the environment. Here the Applicant denied that its facility was in a flood plain, so Staff misapprehended the true facts. The true facts must be determined. See, In the Matter of Quail Ridge Associates, Interim Decision of the Commissioner, December 10, 1987; In the Matter of Peckham Materials Corp., Interim Decision of the Commissioner, November 1, 1985). Thus, the negative declaration must be remanded to Staff.

In addition, the coastal assessment issue was not raised earlier either, not at the Issues Conference and not until the time to appeal the Rulings on July 18, 1994 had expired.

Now the City states that the facility must comply with the City's Waterfront Revitalization Program ("LWRP") because the facility lies within an area affected by that program. The Staff, the Applicant, CB6 and Red Hook take no position.

There is no question that the City has had in place an LWRP known as the NYC WRP. Chapter II ("Boundaries") of the City's WRP describes the boundary delineation as including the "upland limit" of "flood plains". Thus the facility, being in a flood plain, is in an area affected by the City's WRP. It is also shown as included on maps prepared by the City's Department of Planning.

A DEC Memorandum from the Central Office and dated July 20, 1992 concerning "The Uniform Procedures Permit Management System and Coastal Management Program" describes the DEC procedures involved when a facility is in a LWRP and these procedures include thepreparation of a "Coastal Assessment Form (CAF)" which is used to assist in making a determination.

The Staff must prepare a CAF, follow the other required procedures and use that information in reviewing and revising the remanded negative declaration.

Ruling: The negative declaration is remanded to Staff for review and revision with respect to the flood plain and coastal assessment issues. The ALJ and the other parties are to be notified upon completion of the review.

Discovery Issues

The Demands

The Applicant has not opposed Red Hook's request for admissions, demand for documentation from DEC Staff, request for a witness list or request for documentary and physical evidence to be offered at the hearing and request for inspection, drilling sampling and testing, except the Applicant wants the admissions limited to adjudicated violations and opposes drilling, sampling or testing at the subject facility or elsewhere.

Nor has the Applicant opposed the City's request for production of documents. The City seeks documents in two categories: 1) applications filed by the Applicant or its predecessors or related corporations with the NYC Buildings Department, Department of Environmental Protection, or Department of Sanitation and 2) all documents relating to the same corporations allegedly having violated any laws or regulations. Neither the Staff nor the Applicant has opposed the City's request.

The Discovery Allowed

The Applicant shall respond to Red Hook's Notice to Admit except that, as far as unadjudicated charges (except relevant ECL charges) are involved, the Applicant need not respond.

As to Red Hook's demand for documentation from DEC Staff, this involves the prior denial of permits issue set forth in the Rulings of July 18, 1994. At the pre-hearing conference, the ALJ took up this matter with the Region 2 Attorney who stated he would submit the material within a short time. By letter to the ALJ dated August 30, 1994, with copies to the parties, the Regional Attorney enclosed a copy of the table of contents to the subject permit application and stated he would furnish any further documents not already furnished pursuant to the Freedom of Information Law ("FOIL"). Accordingly, Red Hook should contact the Regional Attorney for any further documentation on this issue and, if not satisfied, Red Hook is free to pursue its FOIL rights. If the FOIL process is going to be too extended and time-consuming, Red Hook may contact the ALJ provided it has reasonable cause to believe that Staff has the documents sought, in which event the ALJ will direct the Staff to either furnish the documents or deny under oath that they exist or that they are in its possession.

Not having opposed Red Hook's requests for a witness list or documentary and physical evidence to be offered at the hearing, the Applicant shall respond.

Red Hook's request for inspection, drilling, sampling and testing is denied. Red Hook has not stated any sufficient reason for the drilling and so forth other than its suspicions that there may be toxic substances underground or air pollution at the facility. Such substances or conditions, even if present, are not relevant to the permit application but are matters for an administrative search and an enforcement proceeding should Staff wish to take that course of action.

Since the Applicant has not opposed the City's request the Applicant shall respond; however, as to alleged municipal or other non-ECL unadjudicated violations, the Applicant need not respond.

Summary of Rulings

  1. The City is granted party status and is consolidated with CB6, with each being independent of Red Hook, and Red Hook remains a party.
  2. Unadjudicated charges shall not be admitted into evidence at the hearing, except to the limited extent stated.
  3. On the flood plain matter, Staff is directed to do the required review and follow any other required procedures.
  4. On the NYC WRP matter, Staff is directed to prepare a CAF and follow any other required procedures.
  5. Staff is directed to advise the ALJ and the other parties when the required procedures are completed and advise as well as to the results.
  6. The discovery requests shall be responded to the extent authorized here, within thirty (30) days after issuance of these rulings.
  7. A site visit to the facility will be arranged in connection with the hearing, the purpose of which will be to orientate the ALJ to the facility in terms of any visual observations relevant to the permit application. The parties and their counsel may attend.

Miscellaneous Notes

  1. With regard to the City's "First" request for documents, successive discovery demands are not favored. Since, however, the ALJ did not deal with this matter earlier, each party will be allowed a further and last round of discovery, with all requests to be served and filed within fifteen (15) days after issuance of these rulings, with responses due ten (10) days thereafter. No attempt should be made to re-visit any rulings made here.
  2. At the second pre-hearing conference, CB6 requested that it remain on the service list. Since CB6 had been an intervenor, is local to the facility, remains a party, and could be of assistance to the City, all parties shall serve CB6 and the ALJ with all papers.
  3. If the intervenors can prove that the Applicant was aware that its facility was in a flood plain at the time the permit application was filed, then this matter will be included under the fitness issue.

Adjudicatory Hearing

The adjudicatory hearing is adjourned without date. New dates shall be set after the Staff completes the required procedures and has advised the ALJ and the parties of the results.

Appeals

Pursuant to 6 NYCRR former 624.4(f) and 624.6(d) these rulings may be appealed to the Commissioner. Any appeals must be received at the Commissioner's office no later than February 10, 1995. The parties may file responses to the appeals no later than February 17, 1995. Copies of all appeals and responses must be sent to the ALJ and the other parties.

/s/

John H. Owen
Administrative Law Judge

Dated: Albany, New York
February 2, 1995

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