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Alfredo, Albert C. - Commissioner's Ruling, November 22, 1996

Commissioner's Ruling, November 22, 1996

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1010

In the Matter
- of the Summary Abatement Order Issued -
Pursuant to Environmental Conservation Law Section 71-0301 to

ALBERT C. ALFREDO,
A. ALFREDO NURSERIES, INC.
and
RECYCLING ORGANIC MATERIALS, INC.

DEC File No. 3-2826/9406

RULING OF THE COMMISSIONER
ON THE REQUEST FOR MODIFICATION
OF SUMMARY ABATEMENT ORDER

November 22, 1996

RULING OF THE COMMISSIONER

By letter dated October 31, 1996, counsel for Respondents Albert C. Alfredo, A. Alfredo Nurseries, Inc. and Recycling Organic Materials, Inc. requested an extension of time within which to comply with my August 21, 1996 Summary Abatement Order in this proceeding. The Summary Abatement Order, issued after notice and an eleven day hearing, halted receipt of solid waste at Respondents' composting facility because strong odors were unreasonably interfering with the comfortable enjoyment of life and property on adjacent and nearby lands. Upon consideration of Respondents' request and Staff's response, I am denying the Respondents' request.

BACKGROUND

Respondents were ordered to remove odor causing materials from the site of its composting facility, beginning 15 days from August 21 and to complete the removal within 75 days. Alternatively, the Order gave Respondents the option of submitting an approvable plan for processing of the "brush pile" material into a final product. Respondents submitted a plan to Staff on September 3, but the plan was rejected by Staff on September 9. It was resubmitted on September 30 and rejected again on October 16, 1996.

Under these circumstances, Respondents were obligated by the terms of the August 21 order to begin removal within 15 days and to complete it within 75 days, which Staff states means completion by November 23, 1996.

No removal has taken place however, despite the fact that the Respondents were advised that removal was required because their processing plans were disapproved. Respondents now seek an extension of time. But they propose no time for completing the removal work. They further claim that they lack the funds to do the work. One Respondent, ROM, has filed for a voluntary petition for relief under the Bankruptcy Code. Counsel for Respondents' further states in his October 31, 1996 letter that Respondents Albert C. Alfredo and A. Alfredo Nurseries, Inc. also lack funds to pay for the removal work. In short Respondents have done no work, do not indicate any intent to do so, and claim they cannot afford to do any.

DISCUSSION

Respondents appear to be asking for an open-ended extension of time to remediate the odors emanating from the facility. This is totally unacceptable.

Respondents' property is the source of serious noxious odors. They have failed to take good faith action to remedy the problem. While they now claim lack of funds, they have failed to come forward with any credible proof as to the financial capability of Mr. Alfredo and A. Alfredo Nurseries, Inc.

CONCLUSION

I find no basis to grant Respondents' petition. Respondents do not appear to be acting in good faith. Respondents' request for an extension of time is denied.

For the New York State Department
of Environmental Conservation

/s/
By: Michael D. Zagata, Commissioner

Dated: Albany, New York
November 22, 1996

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