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Alfredo, Albert C. - Order, August 21, 1996

Order, August 21, 1996

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

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.,

Respondents

ORDER

DEC File No.
3-2826/9406

WHEREAS:

  1. Pursuant to a Summary Abatement Order dated June 19, 1996, an administrative enforcement hearing was held before Susan J. DuBois, Administrative Law Judge ("ALJ") at the Department's Region 3 Sub-office located in Tarrytown, New York and at the Village Hall, New Paltz, New York. The Department Staff appeared by Katherine Hudson, Esq. and Carol Krebs, Esq., Assistant Regional Attorneys, and by Lisa A. Wilkinson, Esq., Assistant Counsel. The Respondents appeared by Stanley S. Zinner, Esq., of the firm of Greene and Zinner, White Plains, New York.
  2. The Summary Abatement Order of June 19, 1996 asserts that there exists an imminent danger to the welfare of the People of the State of New York, specifically the residents, school staff and children in the area surrounding and in close proximity to the Respondents' yard waste composting facility. The annexed Report of ALJ DuBois and the hearing record demonstrate that there was actual harm to the welfare of the persons in the area of the facility due to the odors caused by the facility, and that measures need to be taken to prevent the recurrence and continuance of such odors.
  3. The odors from the facility have unreasonably interfered with the comfortable enjoyment of life and property by persons in the areas adjacent to the facility. Such odors constitute air pollution as defined in Environmental Conservation Law Section 19-0107.
  4. The modification of the Summary Abatement Order which was proposed by the Department Staff, with the additional provision recommended by the ALJ, is adopted as the modified Summary Abatement Order in this matter.

NOW, THEREFORE, have considered this matter and being duly advised, it is ORDERED that:

  1. Based upon the annexed Report of ALJ DuBois and the record of the public hearing held in this proceeding, and pursuant to the Commissioner's authority under the Environmental Conservation Law, including Articles 19 and 71, thereof, Respondent is directed to undertake to abate the continuance of odors, nuisance conditions and air pollution emanating from the facility onto adjacent public and private lands, including nearby residences and a public school.
    1. Respondent shall not accept solid waste of any kind until: (1) Respondents have removed from the facility all odor-causing materials identified by the Department pursuant to the provisions of Paragraph III below, or until (2) Respondents have received approval from the Department to process these materials on-site and Respondents have completed the breaking down of the "Brush Pile" and placement of all identified materials in appropriate processing areas, pursuant to the Department-approved plan.
    2. Upon satisfaction of the above condition, the following shall govern the receipt of waste at Respondents' facility:
      1. No grass clippings whatsoever shall be received, bagged or unbagged. If grass is discovered in a load, the load shall be rejected. If already unloaded, the load shall be removed from the site immediately to an authorized facility.
      2. No leaves or brush (i.e., other vegetative or leafy material, shrubs, or branches with leafy material) shall be received until January 1, 1997. At that time, if Respondents hold a current Part 360 permit authorizing the operation of a composting facility, leaves and brush, as described above, may be received within the permit limit of 100,000 cubic yards per year, if handled in compliance with all applicable permit conditions, provided that sufficient time remains in Respondents lease to enable the waste material being received to be properly processed into finished compost (a minimum of twelve months).
      3. Logs and limbs free of leaves may be received in an amount up to 2710 tons through December 31, 1996. Such logs and limbs shall only be handled in the wood pile area and shall be cut into fire wood or chipped within 30 days of receipt. Commencing January 1, 1997, if Respondents hold a current Part 360 permit authorizing such operation, logs and limbs as described above may be received within the permit limit of 15,000 tons per year if cut or chipped within 30 days of receipt and handled in compliance with all applicable permit conditions.
      4. If Respondents violate any of the above conditions or any of their Part 360 permit conditions, the Department may serve a Notice of Noncompliance upon Respondents, upon receipt of which Respondents will temporarily cease receipt of all waste at the facility. Respondents shall not recommence receipt of waste until the Department has notified them in writing that the facility has been brought back into compliance with all applicable conditions contained herein and all Part 360 permit conditions.
    1. Respondents shall commence removal of all material contained in the "Brush Pile," as identified on Hearing Exhibit Number 4, within 15 days of the date of this Order and shall complete removal within 75 days of the date of this Order unless Respondent (1) submits an approvable plan, as described in Paragraph B below, within 14 days of the date of this Order, and (2) the Department approves said plan, and (3) the handling and processing of said material is completed in full compliance with that plan, and the schedule contained therein, and (4) excessive objectionable off-site odors are not produced thereby in the sole determination of the Department.
    2. Respondents shall submit a plan to the Department within 14 days of the date of this Order for handling and processing of the "Brush Pile" material into a final product. The plan shall be prepared by an individual with expertise in yard waste composting proposed by Respondents and approved by the Department.

      The Plan shall identify the following:

      1. What product the material will be converted to
      2. what process shall be used for the conversion,
      3. a detailed schedule for the handling and processing of the material, and
      4. A detailed description of odor control and management techniques that will be employed by Respondents to control or eliminate off-site odors.
      5. A violation of the approved Plan shall constitute a violation of this Order and shall be subject to all the sanctions provided for in Paragraph V below.
    3. If any of the above conditions are not met, Respondents will be required to commence removal and complete removal of the "Brush Pile" materials within the following time frames:
      1. If the engineering plan is not approved by the Department, Respondents shall commence removal within 15 days of receipt of Department disapproval and complete removal within 75 days of receipt of Department disapproval.
      2. If handling and processing is not completed in full compliance with the approved plan and schedule or if excessive off-site odors are produced during handling and processing, in the sole determination of Department staff, Respondent shall commence removal within 15 days of receipt of written notice from the Department of such non-compliance and/or excessive odors, and complete removal within 75 days of such notice.
    4. In addition, Respondents shall commence removal of any other waste material which, in the sole determination of the Department, has caused or is causing objectionable off-site odors, or is causing objectionable odors on-site which have the potential to cause objectionable off-site odors,. within 24 hours after being notified by the Department to do so. Respondents shall complete removal of such material within such time period as is directed by the Department.
    5. In the event that the Brush Pile materials or other waste materials are required to be removed from the site, the Department shall have discretion to require the Respondents to use odor control and management techniques identified by the Department to control or eliminate off-site odors.
  2. Respondents shall process all remaining solid waste on-site in strict accordance with the terms of their Permit.
  3. Take notice that in the event of Respondents' failure to initiate and diligently pursue compliance with this Order, Respondents shall be subject to the sanctions provided in Article 71 of the ECL and the Department will proceed further to enforce this Order.
  4. All communications between Respondents and the Department concerning this Order shall be made to the Department's Region 3 Director, New York State Department of Environmental Conservation, 21 South Putt Corners Road, New Paltz, New York 12561.
  5. The Respondents or the Department Staff may petition the Commissioner for modification of this Order, on notice to the other party.
  6. The provisions, terms and conditions of the Order shall bind Respondents, their agents, servants, employees, successors and assigns, and all persons, firms and corporations acting for or on behalf of the Respondents.

For the New York State Department
of Environmental Conservation

/s/
By: Michael D. Zagata, Commissioner

Dated: Albany, New York
August 21, 1996

To: Albert C. Alfredo
c/o A. Alfredo Nurseries, Inc.
645 Hillside Avenue
White Plains, New York 10603

Albert C. Alfredo
c/o Recycling Organic Materials, Inc.
645 Hillside Avenue
White Plains, New York 10603

Albert C. Alfredo
President
Recycling Organic Materials, Inc.
645 Hillside Avenue
White Plains, New York 10603

A. Alfredo Nurseries, Inc.
645 Hillside Avenue
White Plains, New York 10603

Recycling Organic Materials, Inc.
645 Hillside Avenue
White Plains, New York 10603

Stanley S. Zinner, Esq.
Greene & Zinner
202 Mamaroneck Avenue
White Plains, New York 10601

Katherine Hudson, Esq.
Region 3, NYSDEC
21 South Putt Corners Road
New Paltz, New York 12561-1696

Lisa Wilkinson, Esq.
NYSDEC
50 Wolf Road, Room 627
Albany, New York 12233-5500

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Summary Abatement Order pursuant to
Environmental Conservation Law Section 71-0301 and Part 620 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York,
issued to

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

DEC Case No. 3-2826/9406

HEARING REPORT

/s/
Susan J. DuBois
Administrative Law Judge.

Proceedings

On June 19, 1996, Executive Deputy Commissioner Gary L. Spielmann issued a Summary Abatement Order (the "Order") to Albert C. Alfredo, A. Alfredo Nurseries, Inc., and Recycling Organic Materials, Inc. (the "Respondents") which, among other things, directed that the Respondents immediately cease accepting solid waste of any kind at their composting facility located at 645 Hillside Avenue in the Town of Greenburgh, Westchester County. The composting facility has a permit issued by the Department pursuant to Part 360 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR Part 360, Solid Waste Management Facilities).

The Summary Abatement Order was issued pursuant to Environmental Conservation Law ("ECL") Section 71-0301 (Summary Abatement) and 6 NYCRR Part 620 (Procedures for Issuance of Summary Abatement Orders).

The Order was issued based on findings that the composting facility was causing odor problems that were severe enough that they unreasonably interfered with the public welfare and the comfortable enjoyment of life or property by persons near the site, and on findings that the Respondents were operating their facility in violation of the facility's permit. The operational problems included accepting large quantities of grass clippings, including grass in plastic bags, and failing to process yard waste properly. The Order was supported by affidavits from 17 individuals. The affiants are officials of the Town of Greenburgh, employees of the Department, or persons who live or work near the facility. The Order concluded that given the Respondents' failure to address the violations present at the facility and to operate the facility incompliance with the permit, it did not appear that the odors would subside absent extraordinary enforcement measures.

The Order directed that the Respondents immediately ceas accepting solid waste of any kind at the composting facility and also remove all solid waste which causes objectionable off-site odors, as determined solely by the Department, pursuant to a schedule which the Respondents were to submit to the Department.

The Order scheduled a hearing for July 2, 1996, at which the Respondents could present proof that the conditions identified in the Order did not exist. The hearing began on July 2, 1996 at the Department's Region 3 Sub-office in Tarrytown and continued at that location or at the New Paltz Village Hall on the following dates: July 3, 8, 9, 10, 11, 12, 15, 16, 22, 23, and 24, 1996. Administrative Law Judge ("ALJ") Susan J. DuBois presided at the hearing.

The Department Staff was represented at the hearing by Katherine Hudson, Esq., Assistant Regional Attorney, Region 3, New Paltz, Carol Krebs, Esq., Assistant Regional Attorney, Region 3, New Paltz, and Lisa Wilkinson, Esq., Assistant Counsel, Albany. All of the Respondents were represented by Stanley S. Zinner, Esq., of the law firm of Greene and Zinner, White Plains.

The Respondents called as their witnesses the following persons: Police Officer Schmidt, of the Town of Greenburgh Police Department; Jeffrey Furlan, a Postal Service employee who delivers mail at the Respondents' facility; Philip Nesmith, a resident of Tomahawk Drive, Greenburgh; Joseph Alfredo, father of Respondent Albert Alfredo; Eliot Epstein, Ph.D., Chief Environmental Scientist, E&A Consultants, Sharon, Massachusetts; Albert C. Alfredo; Ernesto Brown, Environmental Health Technician, Westchester County Department of Health; David DiPrinzio, Sanitarian, Westchester County Department of Health; Armenio Badia and Brian Wynne, residents of Lawrence Drive, Greenburgh; and Phillip Nash, a resident of North Road, Greenburgh.

The Department Staff called as their witnesses the following persons: Alfred Powell, Jr., Maurice Taylor and Garfield Ponce, all of whom are residents of Maryton Road, Greenburgh; Marilyn Foley, R.N., School Nurse at the Virginia Road Elementary School; Robert Stiloski, Deputy Fire Marshall, Town of Greenburgh; Phyllis Schatsky, Samuel Schatsky, Richard Kaplan, Morton Marks, and Anthony Galvao, residents of Lawrence Drive, Greenburgh; Milton Albert, a resident of Lawrence Court, Greenburgh; Melissa McCullough and George Weinstein, residents of Hillside Avenue, Greenburgh; John Kapica, Greenburgh Police Chief; Albert C. Alfredo; Patrick Dunn, Environmental Engineering Technician, DEC Region 3; Alan Fuchs, P.E., Environmental Engineer 3, Regional Solid Waste Engineer for DEC Region 3; Dunbar Regis, P.E., Environmental Engineer 2, DEC Region 2; David Pollock, Environmental Engineer 1, DEC Region 3; Sally Rowland, Ph.D., P.E., Environmental Engineer 3, DEC Division of Solid and Hazardous Materials, Albany; Edward Horn, Ph.D., Director of the Bureau of Toxic Substances Assessment, NYS Department of Health; Valerie Goldstein, Supervisor of the Complaint Bureau, Westchester County Department of Health; and Rev. Steven Geckler, a resident of Edgepark Road, Greenburgh.

Summary Abatement Orders

ECL Section 71-0301 provides, in part, that: "Notwithstanding any inconsistent provisions of law, whenever the commissioner finds, after investigation, that any person is causing, engaging in or maintaining a condition or activity which, in his judgement, presents an imminent danger to the health or welfare of the people of the state or results in or is likely to result in irreversible or irreparable damage to natural resources, and relates to the prevention and abatement powers of the commissioner and it therefore appears to be prejudicial to the interest of the people of the state to delay action until an opportunity for a hearing can be provided, the commissioner may, without prior hearing, order such person by notice, in writing wherever practicable or in such other form as in the commissioner's judgement will reasonably notify such person whose practices are intended to be proscribed, to discontinue, abate or alleviate such condition or activity, and thereupon such person shall immediately discontinue, abate or alleviate such condition or activity. As promptly as possible thereafter, not to exceed fifteen days, the commissioner shall provide the person an opportunity to be heard and to present proof that such condition or activity does not violate the provisions of this section..."

Air pollution

ECL Section 19-0107.3 defines air pollution as "the presence in the outdoor atmosphere of one or more air contaminants in quantities, of characteristics and of a duration which are injurious to human, plant or animal life or to property or which unreasonable interfere with the comfortable enjoyment of life and property throughout the state or throughout such areas of the state as shall be affected thereby; excluding however all conditions subject to the requirements of the Labor Law and Industrial Code."

ECL Section 19-0107.2 defines air contaminant as "a dust,fume, gas, mist, odor, smoke, vapor, pollen, noise or any combination thereof."

6 NYCRR Section 211.2 provides that, "No person shall cause or allow emissions of air contaminants to the outdoor atmosphere of such quantity, characteristic or duration which are injurious to human, plant or animal life or to property, or which unreasonable interfere with the comfortable enjoyment of life or property. Notwithstanding the existence of specific air quality standards or emission limits, this prohibition applies, but is not limited to, any particulate, fume, gas, mist, odor, smoke, vapor, pollen, toxic or deleterious emission, either alone or in combination with others."

Positions of the Parties

The Respondents

The Respondents stated that although some persons had experienced odors from the facility, the odors were not "impermissible" and that the air pollution regulation cited in the Summary Abatement Order was unconstitutionally vague. They argued that people's responses to odors are subjective, and asked rhetorically whether an odor has to be acceptable to the entire population in order to be permissible. The Respondents presented testimony by persons who stated that they either had not experienced odors near the facility or that the odors were not offensive and did not interfere with their activities. The Respondents argued that if there are neighbors of the facility who have not been bothered by odors from it, they should not be ignored in favor of those who complained.

The Respondents stated that there had been odor complaints during a period when the Department had been requiring the Respondents to use windrows for composting, as opposed to the methods the Respondents currently use, and that the complaints had continued despite the changes in the composting process. The Respondents presented testimony regarding their current composting method, which they contended could not create impermissible odors, and regarding odor control methods used at the facility.

The Respondents also argued that the procedural regulations for Summary Abatement Orders (6 NYCRR Part 620) are unconstitutional and are also in conflict with the State Administrative Procedure Act in placing the burden of proof on the Respondents.

At the close of the hearing on July 24, 1996, the Respondents stated that they would not be objecting to or responding to the proposed modification of the Summary Abatement Order which the Department Staff planned to submit on July 26, 1996 since the proposed modification would benefit both parties. The proposed modification is addressed in Findings 38 and 39 and is attached as Appendix B of this Report.

The Department Staff

The Department Staff stated that the Respondents' composting facility generated odors which unreasonably interfered with the public welfare, public health and comfortable enjoyment of life and property in the neighborhoods surrounding the facility. The Department Staff presented testimony regarding the extent and nature of the odors and their impacts on the comfort and activities of persons in the area of the facility, and argued that the odor-generating conditions presented an imminent danger to the welfare of residents in the area and of children and staff at a nearby school. The Department Staff argued that there was actual harm in the form of unreasonable interference with the comfortable enjoyment of life and property. The Department Staff clarified, during the hearing, that they were not claiming that the odor situation was causing health impacts or illnesses but rather that persons near the facility had experienced physical complaints and annoyances.

With regard to the summary abatement nature of the proceeding, the Department Staff stated that the Commissioner had found that to delay action until after a hearing would be prejudicial to the interest of the persons in the neighborhood of the facility, given the likelihood that the odors would not subside absent extraordinary measures, the past failure by the Respondents to address the odors and alleged violations of regulatory requirements and permit conditions applicable to the facility. The Department Staff also argued that the Respondents had not complied with the portion of the Summary Abatement Order which required removal from the site of waste that caused objectionable off-site odors.

At the close of the hearing, the Department Staff argued that the Respondents had failed to demonstrate that resumed operation of the facility would not present imminent danger of harm to the welfare of the persons near the site. On July 26, 1996, the Department Staff proposed a modification of the summary abatement order which included more detailed requirements about processing or removal of odor-causing materials and the conditions under which the facility could resume receiving certain kinds of yard waste.

Findings of Fact

  1. Respondent A. Alfredo Nurseries, Inc. ("Alfredo Nurseries")is the permittee for a Department of Environmental Conservation permit for operation of a yard waste composting facility located at 645 Hillside Avenue, White Plains, New York 10603. Respondent Albert C. Alfredo is the shareholder of A. Alfredo Nurseries, Inc. and he is also the President of Respondent Recycling Organic Materials, Inc. ("ROM"). ROM is the operator of the facility.

    The site and surrounding area

  2. The site on which the facility is located is owned by Laurel Ridge Partnership, formerly known as Halpern Joint Venture. The site was sold to this entity in February, 1996 by Alfredo Nurseries. Laurel Ridge Partnership intends to build a residential development on the site. ROM has a lease to use the site, which allows ROM and Alfredo Nurseries to continue operating on the site until two years from the start of the lease or until 30 days after Laurel Ridge Partnership notifies them that it has received approval for the housing development, whichever comes first.
  3. The facility is located in the Town of Greenburgh, Westchester County, New York, although its mailing address is White Plains. The entrance to the site is on Hillside Avenue and the site extends to or almost to the Bronx River Parkway at its east end. The southern boundary of the site is along residential lots on Maryton Road. The southwestern boundary of the site is along Mt. Calvary Cemetery. On its northwest, the site is bordered by Hillside Avenue and aneveloped area behind Westchester Community College is across the street from the site. The western part of the site's northern boundary is along the south end of the Edgebrook Cooperative Apartments and the eastern part of the site's northern boundary is along the back of the Virginia Road School property. (See Appendix A of this Report for a depiction of the site and surrounding features.) The site on which the facility is located is 30 acres in area, and may also include 7.8 acres as to which the record is unclear regarding whether or not they are leased to the Respondents.
  4. The site is immediately adjacent to two residential neighborhoods and an elementary school. There are numerous houses located near the site boundary along Maryton Road. The Edgebrook apartments and other apartments along Virginia Road are garden apartments. The Virginia Road School is a kindergarten through second grade public school in the Valhalla school district.
  5. The current layout of the site itself is as follows. The driveway enters the site and goes approximately east across the site towards a one or two acre area known as the brush pile. The end of the driveway loops around the brush pile. The eastern endthe site (the southeast corner plus an area along the northern border referred to as the "tail" of the property) is not used as part of the composting operation. There is a small stream in this part of the site and a wetland which is not a state-regulated wetland area. North of the brush pile is an area referred to as the "infield" or "sand pit" which is used for leaf composting. An additional leaf composting area is north of the brush pile and east of the sand pit. The sizes of the piles of yard waste and compost change during the operation of the facility. The facility's office is located along the driveway near the entrance to the site, with a parking lot across the driveway from the office, and a garage is just east of the office. East of the garage is a screen which is used for processing finished compost. An area for processing logs and branches is in the northwestern part of the site. A small area north of the parking lot contains nursery plants. There are two berms which have been constructed, in 1994 and 1995, on the site near to and approximately parallel to its boundaries, one near the Edgebrook Coops and one near Maryton Road.
  6. The site is generally in a low area relative to the surrounding topography. There is a small hill in the south-central part of the site. The eastern part of Maryton Road is in a low elevation area and as one goes west on Maryton Road the elevation increases.

    History of the composting activities

  7. The site was used as a plant nursery starting in the mid-1940's. Over the years, the nursery operations involved a varying amount of composting of plant material, and at times manure, from racetracks, municipalities, and landscaping companies. The finished compost was used for soil improvement. The site was used as a sand and gravel mine, and the sand has also been used for mixing with the compost to produce a soil product. In recent years, the site has been used less for growing nursery plants and the nursery now temporarily stores plants that were grown elsewhere and are to be used in landscaping projects. The nursery aspect of the operation currently occupies very little of the site in comparison with the yard waste composting.
  8. In 1992, the Department required the Respondents to obtain a permit pursuant to 6 NYCRR Part 360 for operation of the yard waste composting facility. This permit was issued in 1993. Under the permit, the Respondents were required to use windrows (long, narrow piles of yard waste which are turned over periodically for aeration and to speed the composting process), as opposed to their former method of piling the yard waste in a large area and leaving it until it had finished composting. The Respondents were reluctant to alter their composting operation but did begin using windrows under the initial permit. In the fall of 1993, neighbors of the site began to complain about odors. There were interactions between the Respondents and the Department Staff about controlling the odors. In March of 1995, the Respondents submitted an application for modification of the permit, in order to return to a landspreading or shallow pile method of composting, which they contended would eliminate the odor problems. The Department Staff issued a modified permit on July 7, 1995 which allowed the Respondents to use the landspreading or shallow pile method.

    Yard waste composting and odors

  9. Yard waste composting is a process whose speed and odor production are affected by a number of factors. Under some circumstances, the process produces relatively little odor and the odors are not ones that most persons find objectionable. If the composting process becomes anaerobic, however, it can produce odors that are commonly regarded as objectionable. Anaerobic decomposition ultimately produces carbon dioxide and methane, but while anaerobic decomposition is going on it produces intermediate products such as amines, fatty acids, organic sulfur compounds, terpenes, and other intermediates, some of which have odors that are commonly regarded as offensive. The mixture of these intermediate products that would actually be produced from a given batch of compost depends on the starting materials and the conditions under which they are composted.
  10. Proper management of yard waste involves taking into account various factors that affect the extent to which the material becomes anaerobic and the extent to which the odors associated with the anaerobic decomposition are released. Designing and operating the process properly is more useful than attempting to control or remediate odor from an improperly done composting operation. Wastes with a relatively high nitrogen content decompose more quickly, creating a high oxygen demand and leading to anaerobic conditions. Grass clippings are a yard waste material with a relatively large proportion of nitrogen. Grass often arrives at a yard waste facility already in an anaerobic condition, particularly if it is contained in plastic bags or is piled deeply in a truck. Grass can be mixed with material that has a higher carbon-to-nitrogen ratio (lower proportion of nitrogen), such as wood chips, before being placed in the composting windrow or pile, in order to slow the process and reduce the potential for odor generation.
  11. The shape and size of the yard waste piles, and methods used to expose the waste to air, also affect their production of odors. The piles need to be large enough to heat up but not so large that air cannot get into them. The excessive size of compost piles at another facility in Region 3 caused an odor problem at that facility. In the aerated static pile method, forced air is added to the pile. (This process is not done at the Alfredo facility.) The length of time between when the waste is placed at a facility and when the waste is moved affects how far the decomposition process has progressed and in turn affects the odor which is released when the material is moved. Excessive moisture in the composting yard waste can lead to anaerobic conditions and odors.
  12. The Respondents have used certain odor remediation measures to reduce the odors at the site, including spraying an odor-counteractant spray, applying lime and putting wood chips on top of the yard waste. Wood chips placed on the surface of a pile, as opposed to being mixed with the yard waste as soon as it arrives, would mainly serve to contain the odor. Lime applied to the surface of the pile would only be effective at the surface and would be used on localized sources of odor such as ponded water rather than over the surface of a waste pile. The odor counteractant spray used by the Respondents is a material which is intended to react with and eliminate the odor rather than masking the odor.
  13. The movement of odor off site would be affected by the weather, including wind and air inversions, and by the topography of the area around the site.

    Odor problems from the Respondents' facility

  14. Persons in the neighborhoods surrounding the facility began to experience objectionable off-site odors in the fall of 1993. Intermittent odors continued through 1994 and 1995. The odors became noticeably worse, with respect to both intensity and frequency, in the spring of 1996. The odors decreased after issuance of the Summary Abatement Order (June 19, 1996), but off-site offensive odors have been observed on some days even after the Order was issued and as late as July 11, 1996.
  15. The odors were experienced differently by different persons living in or visiting the area of the facility. Factors which could have affected this include the topography (particularly in a low-elevation area of Maryton Road), the observer's distance from the site, and possibly differences in the materials which were causing odor at different parts of the site. The wind direction had a noticeable effect on where the odors were experienced. The intensity of the odor varied from place to place while traveling around the site and the odor at a given location could come and go as the wind changed, although sometimes it would persist at a given location for hours. Individuals also have differing sensitivities in detecting odors. Some chemicals, including ones associated with putrefaction, are regarded by most people as having objectionable odors but there are other chemicals whose odors are objectionable to some individuals but not to others.
  16. Numerous witnesses described the odor as not smelling like anything they had ever smelled before, and they had difficulty in describing it as smelling like a particular material. They described it as objectionable, horrendous, sweet, sickening, putrid, stench-like, a nasty odor one would try to get away from, nauseating, overwhelming, and uncomfortable. Witnesses who found the odor offensive, and who described it as resembling some other material, described it as smelling like manure, rotten garbage (sometimes mixed with the smell of menthol or fermentation), fermenting apples, other fermenting organic material, decaying or moldy material, silage, liquor, grass that was pungent, anaerobic or objectionable, tobacco, rotten eggs, rotten food, or like a bonfire made from discarded Christmas trees and garbage. Other witnesses testified that it did not smell like garbage, or that although it was not a garbage-like odor it was of a similar degree of offensiveness. One witness initially thought that the smell was from a cleaning material which the railroad might be using to wash trains. When the school nurse at the Virginia Road school initially smelled it, she checked the school's dumpster and looked around on the school property for a dead animal, but these were not the source of the odor.
  17. Two witnesses had not noticed any odor near the site. Several had smelled odors but did not find them offensive and described them as resembling wood or wood chips, peat moss, wine or fermentation, the odor one smells in fall or in the woods, or mulch.
  18. The odors have had impacts on the normal activities of numerous persons at the Virginia Road School, at the apartments north of the site, and in the neighborhood south of the site particularly along Maryton Road. The school nurse has received complaints from students and staff about odors both outside the school and inside it. From April, 1996 to the close of the 1996 school year, offensive odors were observed more frequently at the school than they had been in the past and there was also an increase of complaints by both the students and the staff regarding headaches, nausea, irritated eyes and irritated throats. During the 1995-1996 school year, over half of the school staff complained to the nurse that the odor was bothering them. The days on which the nurse received the most complaints were also days on which she observed the odor. There were days during this school year on which she experienced no odor and received no complaints about it. The teachers in classrooms on the west side of the building usually complained about the odors before the staff working in the north side of the school did. There were occasions on which students who had come to the nurse's office with complaints about the odors were allowed to study in the hall or the library, where the odors were less than in their classroom, rather than returning to the classroom. The nurse sometimes felt nauseous from the odor but felt better when she went into an air conditioned office.
  19. Numerous witnesses who live in the neighborhoods north and south of the facility curtailed their outdoor activities this spring due to the odors, including not sitting outside, refraining from having outdoor parties as they had in earlier years, moving outdoor gatherings indoors when the odor became to bad, and leaving the neighborhood in order to exercise. One couple who also have an apartment in New York City stayed there, instead of at their Greenburgh residence, for several days in order to avoid the odor. One person who usually works at home in the mornings would go to his office to work if the odor was present since it made it difficult to concentrate. Another person was moving out of the area, partly to get away from the odor. Several witnesses would close their windows in order to keep the odor out. Physical reactions to the odor included nausea, headaches, eye irritation, breathing problems, and throat irritation.
  20. The Department of Environmental Conservation, the Westchester County Health Department and the Greenburgh Police Department have received numerous complaints from persons in the areas near the facility regarding odors from the facility. Various neighbors have also complained to state and local elected officials. The Town Supervisor's office was receiving approximately 100 calls per week in May and early June, 1996 complaining about the odor. The number of such complaints to other elected officials is not in the hearing record.
  21. The Department of Environmental Conservation received about 15 or 20 complaints about the facility during the two months before the Summary Abatement Order was issued (i.e., before June 19, 1996) and about 10 or 15 complaints about the facility between June 19 and July 12, 1996. The Westchester County Health Department received at least 220 complaints regarding the facility between September 1995 and the time of the hearing. In contrast, this agency received about four or five complaints regarding any other yard waste facilities in Westchester County. The New York State Health Department received about 87 complaints during April, May and June 1996. The Greenburgh Police Department received 145 calls about odor from the facility between April 30, 1994 and June 30, 1996. The number of complaints increased in the spring of 1996, in comparison with the year preceding that time. There had also been numerous complaints in December, 1994 and March, 1995. Of the 59 occasions on which police officers prepared incident reports regarding the odor complaints, the police officers detected an odor on 31 occasions, did not detect an odor on 11 occasions, and made no record of their own odor observations on 17 occasions. The Greenburgh Police Department received three complaints about odor from the facility between June 19, 1996 and July 1, 1996.
  22. The objectionable odors which were experienced by persons near the facility were caused by the waste operations at the facility. The odor which several Department employees and an employee of the Westchester County Health Department smelled in the neighborhoods near the site was the same kind of odor that they smelled on the site. Although there may be odors from other sources which at times have led to complaints or have been mixed with the odor from the facility, the other odor sources proposed by the Respondents were not credible as explanations for the odor problem. While some of the neighbors stated that the odor had some similarity to that of garbage, they more often said it was an unfamiliar smell, that they were comparing it to garbage for lack of a better comparison, or that it did not smell like garbage. The dumpsters which Albert Alfredo depicted on his drawing of the site and the surrounding areas are not at the locations where the drawing shows them. His photographs of the dumpsters show two groups of dumpsters, none of which are at the three locations shown on the drawing. They are also not located on the Edgebrook Co-ops property although one of them is labeled on the back as being at "Edgebrook." The brush which was piled along a fence near Hillside Avenue was not an odor source and was also an extremely small amount of waste in comparison with the yard waste at the Respondents' facility. The odor which Mr. Alfredo attributed to the swampy area at the east end of the site was not experienced by a person who lived near that area nor by the Greenburgh Police Chief who was familiar with that area.

    Management of waste on site

  23. The July 7, 1995 modification of the facility's permit allowed the Respondents to change the composting method from a windrow method, which they had asserted was causing odors, to a shallow pile composting method. Under the modified permit, leaves would be placed in piles approximately 120 feet wide, 200 feet long and 3 feet deep, which would be covered with approximately six inches of soil for composting. The piles would be turned and reconstructed after about three or four months and this process would continue until the leaves were fully composted.
  24. The Respondents' handling of leaves during late 1995 and 1996 has not followed the method required by the modified permit. Leaves have been placed in piles significantly more than three feet deep in the leaf composting area, and are over 10 feet deep in some places. Leaves have been piled and left with other yard waste in the "brush pile" which is significantly more than three feet deep. The leaf composting areas have not been covered with the six inch layer of soil, and have not been turned and reconstructed at the required intervals.
  25. A variety of kinds of waste have been placed in the "brush pile." This pile covers an area one or two acres in size and ranges in depth from very shallow to approximately 15 feet. Although it is described as "brush" it also includes large amounts of leaves. Truck loads of yard waste including substantial amounts of grass clippings (anywhere from several bags to about half of the load) have been dumped at the brush pile and spread on top of the waste which was already in the pile. The size of the brush pile increased in the spring of 1996. The southern edge of the brush pile is close to the homes along Maryton Road.
  26. The July, 1995 permit allows the Respondents to accept grass, but not to accept grass in plastic bags. The permit, at special condition 15, also requires the Respondents to follow any operational changes deemed necessary by the Department and to comply with the Department's requests in handling material that is causing objectionable odors. In October 1995, due to odor problems, the Respondents agreed not to accept grass at all. Despite this, the Respondents have continued to accept grass clippings both loose and in plastic bags. On May 31, 1996, a Department employee observed grass being placed on the brush pile and asked one of the facility employees to remove it, but the grass was instead spread onto the brush pile. Despite being notified by the Department Staff about alleged violations of Part 360 and the permit, the Respondents did not change their operations during the spring of 1996.
  27. The Respondents' records of the amount and type of materials received are poor. Despite these limitations, the evidence demonstrates that the facility has received much larger amounts of both leaves and brush per month in the second half of 1995 and in 1996 than it was receiving during the first two years that the permit was in effect.
  28. The Respondents' processing of the yard waste has not kept up with the rate of their receipt of waste. Incoming waste, including leaves and grass, was being piled onto the brush pile without processing and was accumulating there.
  29. The facility has accepted waste other than yard waste. Employees of the Department of Environmental Conservation have observed non-exempt construction and demolition debris deposited and left on the site.
  30. The materials and areas on the site which have been odor sources include the brush pile, partially composted portions of the leaf composting area when this is disturbed, and at some times water which is ponded on the site. While the facility was operating, waste arriving at the facility would also have been a potential odor source, depending on the kind of materials and how long they had been decomposing. The piles of wood, as opposed to brush, have not been a significant odor source.

    Compliance with Summary Abatement Order

  31. The Summary Abatement Order directed that the Respondents immediately cease accepting solid waste of any kind at the facility, including but not limited to leaves and grass clippings. The Respondents did cease accepting such waste and had not accepted any between the date on which they received the Summary Abatement Order and the end of the hearing.
  32. The Summary Abatement Order also directed that the Respondents remove all solid waste which causes objectionable off-site odors, as determined solely by the Department, pursuant to a schedule submitted to the Department by June 26, 1996 (one week after the date of the Order) and bring the waste to a solid waste management facility which is authorized by the Department to accept such waste. The Order directed that in no event shall odor-causing solid waste remain on the site past July 18, 1996.
  33. On June 26, 1996, counsel for the Respondents wrote to the Department Staff, stating in part that, "It is the respondents' position that there is presently no objectionable odor emanating from the agricultural nursery which is 'injurious to human, plant or animal life or to property or which unreasonably interferes with the comfortable enjoyment of life and property.' In addition, it is our understanding of the Summary Abatement Order that the Department must first determine, and so advise us, which areas of solid waste create objectionable odors. Once the respondents are so informed, my clients will then be in a position to secure the necessary information to submit a schedule for removal of the solid waste." The letter took the position that the Respondents had complied with the Order in that there were no objectionable odors presently emanating from the site.
  34. On June 28, 1996, counsel for the Department Staff wrote to counsel for the Respondents stating, in part, that in an inspection of the facility on June 26, 1996, the Department Staff had found that the solid waste at the facility continued to produce objectionable off-site odors and that the Department Staff was still receiving complaints of odors since the issuance of the Order. The letter stated that, "Although it is not the responsibility of the Department to identify the material causing the objectionable off-site odors, the following information may assist Respondents in identifying the odor-causing waste material that must be removed. In the course of the staff visit to the site on June 26, 1996, staff did determine that objectionable off-site odors were emanating from the solid waste pile south and west of the composting areas and on the southerly boundary of the site, said pile being approximately 2 acres in area. The Department, however, makes no assurance or guarantee that the removal of this pile alone will eliminate the objectionable off-site odor problems." The letter further stated that the Respondents must promptly submit a schedule for removal of the above pile and that once this was removed, the Department would inspect to determine if there were still objectionable off-site odors. The letter stated that prompt removal of the 2 acre pile would allow time for re-inspection and, if necessary, removal of additional materials prior to the July 18, 1996 deadline.
  35. On July 3, 1996, counsel for the Respondents wrote to counsel for the Department Staff, stating that the Respondents' consultant had inspected the facility on July 1 and 2, 1996 and had testified in the hearing that there were no "objectionable odors" at the facility. The Respondents maintained their position that no objectionable odors were being produced at the facility and that consequently there was no schedule for removal of solid waste that needed to be submitted.
  36. On July 16, 1996, counsel for the Department Staff wrote to counsel for the Respondents, stating that notwithstanding the testimony by the Respondents' consultant, testimony in the hearing indicated that off-site objectionable odors have been detected emanating from the facility since the issuance of the Order and until July 12, 1996. The letter stated that absent a modification by the Commissioner, the Order obligated the Respondents to remove all solid waste which causes objectionable off-site odors by July 18, 1996.
  37. There is no indication in the record that the Respondents submitted a schedule for removal of all solid waste which causes objectionable off-site odors, nor that such waste was removed, prior to the close of the record on July 26, 1996.

    Proposed modification of Order

  38. At the close of the record, the Department Staff proposed certain modifications of the Summary Abatement Order. A copy of these proposed modifications is attached as Appendix B of this hearing report. The modification would continue the prohibition against receipt of solid waste until such time as the odor-causing materials were removed from the site or the brush pile was broken down in an approved manner. The modification would also impose additional conditions on receipt of yard waste after the above requirement was met. It would not allow receipt of any leaves or brush until after January 1, 1997, if the Respondents hold a current Part 360 permit at that time.
  39. On July 12, 1996, while the hearing was taking place, there was a request by the Respondents for modification of the Order so that they could accept logs and branches in the event of storm damage due to Hurricane Bertha. The Commissioner delegated the decision on this request to the Administrative Law Judge. The modification was not allowed since there was no information indicating that the storm had caused the kind of damage which had appeared possible at the time when the request was made.

Discussion

The definition of air pollution and the prohibition against air pollution (quoted on page 3 above) make reference to contaminants which unreasonably interfere with the comfortable enjoyment of life and/or property. There is ample credible evidence that the odors from the facility have interfered with the comfortable enjoyment of life or property by persons in the areas around the facility. Although there are some persons in the area around the facility who have not experienced such interference, that does not negate the adverse effects on those who have experienced such interference.

Obviously, not every person living or working in the neighborhood testified. The record also does not contain any comprehensive survey of neighbors' reactions. Neither of these things would be necessary, since the question is not whether the odors from the site interfered with the comfortable enjoyment of life or property by all persons in the area, or even a certain proportion of persons in the area. It is instead a question of whether the odors "unreasonably" interfered with the comfortable enjoyment of life or property. In the present case, numerous individuals experienced interference with ordinary daily activities, both indoors and outdoors. A portion of these individuals also experienced uncomfortable physical reactions such as nausea and eye irritation. There is no evidence that indicates that these individuals were somehow atypical of the persons in the neighborhoods or at the school. With regard to the school, the majority of the school staff complained to the nurse about the odors at one time or another during the 1995-96 school year. The facility's neighbors also experienced odors which smelled like things which many persons would find offensive. Interference with the comfortable enjoyment of life or property to the extent that it occurred in the present case is unreasonable interference.

Another factor which could be taken into account in evaluating the reasonableness of an odor impact is the extent to which it is avoidable or unnecessary. The odors here came from a yard waste composting facility. Such facilities can be operated in ways that produce little or no objectionable off-site odor.

Credibility and weight of the evidence

The testimony demonstrates that the odor problems were particularly severe in the spring of 1996. If, as the Respondents suggested, the continuing complaints about odor were just a matter of persons continuing to complain about even slight odors because they had experienced odors while the Respondents were using the windrow method, it is unlikely that so many of the witnesses would have noted an increase in the severity and impacts of the odors during the spring of 1996. The Respondents also suggested that the number of odor complaints was due to the distribution of leaflets which encouraged residents to call various government agencies and officials. These leaflets, which included phone numbers, may have influenced the number of complaints since neighbors now knew how to contact persons and agencies who they might not have contacted otherwise, but it would not have affected the neighbors' sense impressions of the odor nor its effects on their activities. The record does not indicate a motive that could have led a large number of residents in two neighborhoods, plus the students and staff at the school, to be fabricating odor complaints.

The Respondents argued that the odor complaints were coming from persons who had moved next to an "agricultural nursery" and who should not have moved there if they did not want to be exposed to odors. This argument is without merit for several reasons. A large proportion of the neighborhood residents who testified as witnesses for the Department, and who experienced odors which interfered with their activities, had lived in their current homes for decades. Their problems with odors from the facility had only begun in recent years. Several described the nursery as having been a beautiful place at the time when they had moved into the neighborhood. Over the years, the nursery activities on the site have shrunk while the waste management activities have expanded. Nursery activities on the site now consist of seasonal, temporary storage of plants for landscaping, on a small area of the site.

Constitutionality and legality of cited provisions

The Respondents placed in the record their arguments that the air pollution statute and regulation cited in the Summary Abatement Order are unconstitutionally vague and that 6 NYCRR Subdivision 620.3(b), regarding the burden of proof in hearings on summary abatement orders, is unconstitutional. The Respondents also argued that 6 NYCRR Subdivision 620.3(b) is contrary to State Administrative Procedure Act Section 306.1.

These arguments are not ruled upon in the present hearing report. The constitutional issues are not within the jurisdiction of an administrative hearing and must instead be presented to a judicial tribunal (DiMaggio v. Brown, 19 N.Y. 2d 283, 291-292). The question of whether 6 NYCRR Subdivision 620.3(b) is contrary to the State Administrative Procedure Act involves a challenge to a final determination of the agency (adoption of Part 620) and the hearing forum is generally not appropriate to review such a determination (In the Matter of James R. Lee, Allegro Oil and Gas, et al., Interim Decision of the Commissioner dated December 12, 1989).

Proposed modification of the Order

The modification of the Summary Abatement Order which the Department Staff proposed at the end of the hearing is consistent with the findings of the present report and would provide more specific requirements regarding the removal of odor-causing materials. It would also establish a new schedule for removal or processing of such materials, which would be useful since the Respondents failed to comply with the removal requirement in Item III of the original Order. It would give the Respondents an opportunity to obtain a product from materials which the present Summary Abatement Order would have them take to an authorized solid waste management facility.

The one addition which the present hearing report recommends be made to the proposed modification involves the situations in which the Respondents would be removing waste materials from the site. If the Respondents fail to submit an approvable plan for processing the brush pile into a final product, or cause excessive off-site odors or violate such an approved plan while processing the material, they would be required to remove the brush pile material from the site. In addition, the modification would require the Respondents to remove waste material, other than the brush pile, which has caused or is causing objectionable off-site odors.

Under the proposed modification, the Respondents' plan for processing the brush pile would have to include a detailed description of odor control and management techniques that would be employed by the Respondents to control or eliminate off-site odors. The proposed modification's sections involving removal of the brush pile and of other materials do not contain provisions regarding odor control and management techniques. The record indicates that temporary odor problems could occur while materials are being removed from the site. I recommend that the Department Staff be given discretion to require the Respondents to use odor control and management techniques, to be identified by the Department Staff, in the event that the brush pile materials or other waste materials need to be removed from the site.

Conclusions

  1. The provision governing issuance of Summary Abatement Orders (ECL Section 71-0301) allows the Commissioner of Environmental Conservation to order a person to abate a condition which "represents an imminent danger to the health or welfare of the people of the state" and which relates to the prevention and abatement powers of the Commissioner, when the Commissioner determines that the People would be prejudiced by having to wait until an opportunity for a hearing can be provided. Such a condition existed and continues to exist in the present case.
  2. The conditions at the Respondents' yard waste composting facility not only presented an imminent danger to the welfare of the people in the areas around the facility, but actually caused harm to their welfare. The harm to their welfare was in the form of odors which unreasonably interfered with their comfortable enjoyment of life and property.
  3. Odors which unreasonably interfere with the comfortable enjoyment of life and property fall within the definition of air pollution under the Environmental Conservation Law (ECL Section 19-0107.2 and 19-0107.3) and are subject to the prevention and abatement powers of the Commissioner (ECL Section 3-0301.1(i) and ECL Section 19-0305).
  4. The hearing record demonstrates the likelihood of odor problems reoccurring if the Respondents begin accepting waste again in the manner in which they were doing it this spring. These practices included accumulating large quantities of yard waste without processing it according to the permit conditions and accepting grass clippings, some of which were in plastic bags. The Respondents' failure to remove odor-causing waste as directed by the Summary Abatement Order, their position that no objectionable odors were emanating from the site in late June and early July 1996, their position that the odors which were emitted while the site was operating were not "impermissible," and their continuation of odor-causing practices even after a series of inspections in which the Department Staff notified them of odor problems, all indicate that the odor problems would have continued at a severe level in the absence of the Summary Abatement Order and would increase again if the Order was vacated.
  5. The Summary Abatement Order should be modified as proposed by the Department Staff at the end of the hearing, with an additional provision giving the Department Staff discretion to require odor mitigation measures during removal of odor-causing wastes.

Recommendation

I recommend that the Summary Abatement Order not be vacated, but that it be modified as proposed by the Department Staff and with the additional odor control provision outlined in the Discussion section above. The Order would be modified as follows (the text is that proposed by the Department Staff, with the exception of the material in italics regarding odor control):

Paragraph II of the Summary Abatement Order should be replaced with the following:

  1. Respondents shall not accept solid waste of any kind until: (1) Respondents have removed from the facility all odor-causing materials identified by the Department pursuant to the provisions of Paragraph III below, or until (2) Respondents have received approval from the Department to process these materials on-site and Respondents have completed the breaking down of the "Brush Pile" and placement of all identified materials in appropriate processing areas, pursuant to the Department-approved plan.
  2. Upon satisfaction of the above condition, the following shall govern the receipt of waste at Respondents' facility:
    1. No grass clippings whatsoever shall be received, bagged or unbagged. If grass is discovered in a load, the load shall be rejected. If already unloaded, the load shall be removed from the site immediately to an authorized facility.
    2. No leaves or brush (i.e., other vegetative or leafy material, shrubs, or branches with leafy material) shall be received until January 1, 1997. At that time, if Respondents hold a current Part 360 permit authorizing the operation of a composting facility, leaves and brush, as described above, may be received within the permit limit of 100,000 cubic yards per year, if handled in compliance with all applicable permit conditions, provided that sufficient time remains in Respondents' lease to enable the waste material being received to be properly processed into finished compost (a minimum of twelve months).
    3. Logs and limbs free of leaves may be received in an amount up to 2710 tons through December 31, 1996. Such logs and limbs shall only be handled in the wood pile area and shall be cut into fire wood or chipped within 30 days of receipt. Commencing January 1, 1997, if Respondents hold a current Part 360 permit authorizing such operation, logs and limbs as described above may be received within the permit limit of 15,000 tons per year if cut or chipped within 30 days of receipt and handled in compliance with all applicable permit conditions.
    4. If Respondents violate any of the above conditions or any of their Part 360 permit conditions, the Department may serve a Notice of Noncompliance upon Respondents, upon receipt of which Respondents will temporarily cease receipt of all waste at the facility. Respondents shall not recommence receipt of waste until the Department has notified them in writing that the facility has been brought back into compliance with all applicable conditions contained herein and all Part 360 permit conditions.

Paragraph III of the Summary Abatement Order should be replaced with the following:

  1. Respondents shall commence removal of all material contained in the "Brush Pile," as identified on Hearing Exhibit Number 4, within 15 days of the date of this Order and shall complete removal within 75 days of the date of this Order unless Respondents (1) submit an approvable plan, as described in Paragraph B below, within 14 days of the date of this Order, and (2) the Department approves said plan, and (3) the handling and processing of said material is completed in full compliance with that plan, and the schedule contained therein, and (4) excessive objectionable off-site odorsare not produced thereby in the sole determination of the Department.
  2. Respondents shall submit a plan to the Department within 14 days of the date of this Order for handling and processing of the "Brush Pile" material into a final product. The plan shall be prepared by an individual with expertise in yard waste composting proposed by Respondents and approved by the Department.
    1. The Plan shall identify the following:
      1. what product the material will be converted to,
      2. what process shall be used for the conversion,
      3. a detailed schedule for the handling and processing of the material, and
      4. A detailed description of odor control and management techniques that will be employed by Respondents to control or eliminate off-site odors.
    2. A violation of the approved Plan shall constitute a violation of this Order and shall be subject to all the sanctions provided for in Paragraph V below.
  3. If any of the above conditions are not met, Respondents will be required to commence removal and complete removal of the "Brush Pile" materials within the following time frames:
    1. If the engineering plan is not approved by the Department, Respondents shall commence removal within 15 days of receipt of Department disapproval and complete removal within 75 days of receipt of Department disapproval.
    2. If handling and processing is not completed in full compliance with the approved plan and schedule or if excessive off-site odors are produced during handling and processing, in the sole determination of Department staff, Respondents shall commence removal within 15 days of receipt of written notice from the Department of such non-compliance and/or excessive odors, and complete removal within 75 days of such notice.
  4. In addition, Respondents shall commence removal of any other waste material which, in the sole determination of the Department, has caused or is causing objectionable off-site odors, or is causing objectionable odors on-site which have the potential to cause objectionable off-site odors, within 24 hours after being notified by the Department to do so. Respondents shall complete removal of such material within such time period as is directed by the Department.
  5. In the event that the "Brush Pile" materials or other waste materials are required to be removed from the site, the Department shall have discretion to require the Respondents to use odor control and management techniques identified by the Department to control or eliminate off-site odors.

Paragraphs I, IV and V of the June 19, 1996 Summary Abatement Order would remain unchanged.

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