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All City Paper Fibers Corp. - Ruling September 11, 1992

Ruling, September 11, 1992

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Application of

ALL-CITY PAPER FIBERS CORP.

for a permit to operate a recyclables handling and recovery facility and transfer station at
27-35 Bridge Street, Brooklyn

RULINGS OF THE ADMINISTRATIVE LAW JUDGE
ON PARTY STATUS AND ISSUES

DEC Project No. 2-6101-00028/00001-0

Background and Brief Project Description

All City Paper Fibers Corp. (the "Applicant") seeks a permit to operate a solid waste management facility pursuant to 6 NYCRR Part 360. More precisely, a permit is sought for the operation of a recyclables handling and recovery facility (under Subpart 360-12) and transfer station (under Subpart 360-11). As proposed, the facility would receive mixed solid waste from commercial operations throughout the New York City area. The waste would arrive in trucks operated by the Applicant and other local solid waste handling companies. The waste would then be dumped on a tipping floor and sorted to remove recyclable materials, including corrugated cardboard. All waste processing, including the separation and baling of materials, would take place within an existing building. All waste not recycled would be trucked to and disposed of at the Freshkills landfill, Staten Island, and other approved disposal sites, many of them out of state.

The facility currently operates under authority of a DEC Order on Consent. That order provides that the Respondents shall not receive, store and handle a total of more than 350 tons or 875 cubic yards of putrescible material, including both recycled and non-recycled waste, on a daily basis. In its permit application, the Applicant sought to increase this limit to 600 tons. Under its draft permit, the Department Staff would raise the limit to 430 tons, noting that based on inspections after permit issuance, a further increase might be provided. The Applicant accepts the tonnage limit in the draft permit.

The facility is located at 27-35 Bridge Street, Brooklyn, in an area zoned "M3" manufacturing.

Based on an uncoordinated review under the State Environmental Quality Review Act ("SEQRA"), Department Staff determined the project to be an unlisted action which would not have a significant effect on the environment. A negative declaration was issued on March 6, 1991 and an amended negative declaration was issued on April 1, 1992. The amendment was based on additional information which Staff said clarified and supported its initial determination.

Legislative Public Hearing Session

A Notice of Public Hearing, dated June 18, 1992, was published in Newsday on June 23, 1992, and in the Department's Environmental Notice Bulletin on June 24, 1992. As announced in the notice, I held a legislative hearing at 7 p.m. on July 14, 1992, at the Dr. White Community Center, 200 Gold Street, Brooklyn.

Sixteen people gave oral statements at the hearing and another seven wrote letters in response to the hearing notice. All comments were against permit issuance or, at minimum, for stricter facility monitoring. One statement was made on behalf of City Councilman Kenneth Fisher (33rd District, Brooklyn). According to Councilman Fisher, the facility is operating in violation of its consent order, and there should be a DEC moratorium on new transfer station applications until the city adopts new siting regulations prohibiting these stations within 300 feet of a residence or residential district.

The other speakers were mainly neighborhood residents, most of them against permit issuance based on the facility's past operating history. Many of them were members of either the Vinegar Hill Neighborhood Association or the Brooklyn Waterfront Loft Tenants Association. These groups made a joint filing for party status. Many complaints were registered about conditions at and near the facility, as follows:

  1. Odors

    Neighbors complained that the facility created an odor which at times had permeated several blocks from its building. The odor problem was said to be aggravated by the facility's operating with front and back doors open, creating a wind tunnel that disperses odors throughout the neighborhood. Some speakers said an odor control atomizer, recently in use, had replaced the garbage smell with a sweet, perfumed odor that stung their eyes. Many residents said that, because of the odors, they kept their windows closed.

  2. Truck traffic

    Many speakers complained of trucks idling on the street for hours while waiting to enter the facility. This idling at night was alleged to make it difficult for residents to sleep, and to have suffused neighborhood streets with diesel fumes. Trucks were alleged to have parked in front of fire hydrants and on sidewalks, and to have leaked garbage residue on the streets, leaving a green, slimy sheen.

  3. Noise

    Neighbors complained of noise from the idling trucks, many of them honking their horns, and from the bulldozer operating inside the facility, including the sound of its beeper.

  4. Retention of Waste

    Neighbors complained that waste had been retained at the facility for periods ranging from between several days to one full week, aggravating odor problems. It was alleged that compacted waste stood several days at an exposed loading dock before being hauled off.

  5. Structural suitability

    Several neighbors said the facility was built in such a way that its doors could not be closed while trucks dumped their waste inside. This was alleged to contribute to noise and odor problems.

Several speakers said the facility had drawn rats to their neighborhood and that prostitutes were drawn by the large number of truck drivers idling outside the facility at night. One speaker said that in its SEQRA review of the project, the DEC had underestimated the residential character of the mixed use neighborhood around the facility, and that this should have been considered in an environmental impact statement.

Issues Conference

As announced in the hearing notice, an issues conference was held on July 15, 1992, at the Department's Region 2 Office, Long Island City, New York. Participating at the conference were the Applicant, Department Staff, and several representatives of the Vinegar Hill Neighborhood Association and Brooklyn Waterfront Loft Tenants Association, who made a joint filing for party status. (For purposes of this report, they are referred to together as "the Associations.")

The Applicant was represented by Lawrence R. Schillinger, P.O. Box 7275, Albany, New York. He was assisted by Michael Vitarelli, secretary of All-City Papers Fibers Corp.

The Department Staff was represented by John Nehila, Esq., assistant Region 2 attorney, assisted by Michelle Moore, associate environmental analyst with Region 2's Division of Regulatory Affairs; Olufemi Falade, a senior engineer with Region 2's solid waste unit; and George Kandakai, an inspector with the solid waste unit.

The Vinegar Hill Neighborhood Association was represented by three of its members, Per-Olof R. Odman, James M. Martin, and Chalmers Clark, all of whom reside near the facility.

The Brooklyn Waterfront Loft Tenants Association was represented by one of its members, Anthony Starbuck, also a neighborhood resident.

At the start of the issues conference, Staff presented a draft permit it proposed to have issued to the Applicant. Staff acknowledged it would authorize the receipt and handling of not more than 430 tons of mixed solid waste per day, 170 tons less than proposed by the Applicant, but 80 tons more than is authorized by the order on consent, which now governs operations. Staff said it was unwilling to raise the tonnage limit given community concerns about existing operations and the amount of truck traffic generated by the facility. Staff said that, under the draft permit, the Applicant would be required to pay $10,000 annually to a DEC fund for environmental monitoring. It would also have to abide by permit conditions designed to prevent nuisance conditions such as those described at the legislative hearing. Among the major conditions noted:

  1. No solid waste could be tipped at the facility between 4 and 5 p.m. weekdays, at which time the transfer pad would be thoroughly cleansed and deodorized;
  2. All doors and bays would be closed except when vehicles were entering or leaving the facility;
  3. The tipping floor and trucks leaving the facility would be deodorized by a lemon-based atomizing spray, as part of an odor control system recently installed and now in use;
  4. Truck traffic would be governed by a service agreement which the Applicant would enter with its independent truckers. Among other things, the agreement would restrict truck idling time and alert truckers to the access routes determined to be acceptable by the state transportation department.

The Department Staff named no issues for adjudication and the Applicant said it would accept the draft permit and had no objections to its terms. Thereafter, the issues conference dealt with the Associations' filing for party status, and with issues related generally to the Applicant's compliance history. That history includes having opened two transfer stations without required DEC permits, one at 27 Bridge Street in Brooklyn (which is the subject of this application) and another, within a block of the Bridge Street facility, at 246 Plymouth Street in Brooklyn (which was also given authority to operate under a consent order, and which now has a DEC permit).

Issue No. 1 - - Operations Without DEC Authorization

For purposes of adjudication, a fitness issue is raised in relation to the Applicant's past unauthorized operations. These operations are detailed in two consent orders, one for the Bridge Street facility (R2-2183-88-12; conference exhibit No. 5) and the other for the Plymouth Street facility (R2-3124-90-07 and R2-2182-88-12; conference exhibit No. 11). From these orders, supporting documentation, and statements made at the issues conference, I accept the following as true for purposes of this ruling:

  1. The Applicant constructed solid waste transfer stations/recyclables handling and recovery facilities at both the Bridge and Plymouth street locations and began operating them on or before November 29, 1988, without permits or other DEC authorization, and without having filed permit applications.
  2. Operation of these facilities was first formally authorized by the above-referenced consent orders, both dated July 27, 1990. The consent orders stated they were not permits but that they constituted temporary authority to operate the two facilities. For the Bridge Street facility, this temporary authority continues pending a decision on the permit application. Such authority does not continue for the Plymouth Street facility. That facility operates instead under terms of a Department permit issued since the consent orders were signed.

The unauthorized operations are set out in the consent orders and were acknowledged by the Applicant at the issues conference. In settlement of the violations, the Applicant was assessed and has paid $15,000 in civil penalties, $10,000 for the Bridge Street facility and $5,000 for the Plymouth Street facility. In entering the consent orders, the Applicant bound itself to compliance schedules, understanding that if it failed to comply with them, its operations could be suspended. Before and after the consent orders were signed, Department Staff took no action to close the facilities, or to suspend their operations. The Applicant has no record of DEC violations other than those cited above, although those, standing alone, are sufficient to warrant further inquiry.

In support of my ruling, I note especially the Commissioner's Interim Decision, dated August 21, 1992, in the Matter of the Application of Conover Transfer Station and Recycling Corp. In that matter, too, the Applicant was seeking permits for a transfer station that was acknowledged to have opened without DEC authorization. Upholding my rulings finding a fitness issue, the Commissioner wrote that "the mere fact that the Applicant began operations without any authorization from the Department means that it must demonstrate its fitness as part of its overall burden of proof on the application."

In remanding the matter, the Commissioner ordered the record be developed on the circumstances surrounding the Applicant's illegal commencement of operations, including the state of mind of those who made the management decision to do so. In this case, that must be done for both the Bridge and Plymouth street facilities, despite the fact the Plymouth Street facility is already permitted. While it is true this hearing is limited to the Bridge Street application, operations at Plymouth Street are relevant to the Applicant's environmental compliance history and, in turn, to its fitness to hold the permit it is seeking, which must be shown before that permit can be granted.

The Applicant's environmental compliance history as a permitting consideration is well-established by many Commissioner's decisions, his Record of Compliance Enforcement Guidance Memorandum, dated July 15, 1991, and a long line of court decisions, among them Matter of Bio-Tech Mills, Inc. v. Williams, 105 AD2d 301 (3d Dept., 1985), aff'd, 65 NY2d 855 (1985).

The Applicant's fitness is a substantive issue since it can be adjudicated based on its compliance history. It is significant because the permit can be conditioned or denied, based on resolution of the fitness issue. At the issues conference I asked the Applicant's counsel why his client started operations as it did, without permits or other authorization. He answered that this was in response to an increase in tipping fees at the Fresh Kills landfill, which "dictated" that solid waste be transferred to long-haul vehicles, then shipped to out-of-state landfills, where tipping fees were lower.

In the absence of a more complete answer, I can only conclude that the Applicant seized what it perceived to be an economic opportunity. My concern is that it did so in derogation of the regulatory scheme, and without even alerting the Department. Under any permit, the Applicant would have to be relied upon to monitor itself and to report its activities. The Department must know it can count on the Applicant's veracity and rigid adherence to regulation. Given doubts raised by its start-up of operations, a full explanation is required. If this explanation is unsatisfactory, and in the absence of countervailing reasons to permit the Applicant, permit denial shall be recommended.

Issue No. 2 - - Compliance with the Bridge Street Consent Order

A second issue, also related to fitness, is raised with regard to the Applicant's compliance with the Bridge Street consent order. This was called into question by the Associations' filing for party status, and by their representatives' statements at the legislative hearing and issues conference. Based on their offers of proof, inquiry is needed as to the Applicant's compliance with the following consent order provisions:

  1. Paragraph VI (c) and (g) - - Retention of putrescible wastes onsite over the weekend, and for periods of more than 24 hours;
  2. Paragraph VI (b) - - Facility doors remaining open during periods when trucks are not loading or unloading;
  3. Compliance schedule "B" (9) - - Ineffective control of odors, creating a public nuisance; and
  4. Compliance schedule "B" (17) - - Obstruction of traffic, including double parking of vehicles on city streets.

Inquiry is needed based on first-hand accounts of facility operations. These accounts were given at the legislative hearing and issues conference by officials, representatives, and members of the Associations. Some accounts were given orally, others in writing. To the extent they are backed up by photographs or videotapes, as alleged by the Associations, these can be offered to the record as corroborating evidence.

Department Staff said that since May, 1992, it had done monthly inspections of the Bridge Street facility. Prior to that, inspections were done every three or four months. Apart from one inspection in February, 1989, where slight odors were detected offsite, Staff said it had found no compliance problem. Staff has never taken action for violation of the consent order; for that reason, there has been no prior adjudication of those alleged violations that are cited above. Because they have not already been litigated, both the Applicant and the Department Staff said they could not be considered in the permit hearing, and could only be raised in an enforcement action initiated by Staff. I disagree, based on the Commissioner's June 5, 1990 interim decision in the Matter of the Application by Seaboard Contracting and Material, Inc. That decision (at page 2) acknowledged that consideration of an Applicant's environmental compliance history "cannot be based on mere allegations but must rely on findings that were reached after the applicant was afforded an appropriate opportunity to contest. While no such findings have been made with respect to this Applicant, there is no procedural reason why the fact finding process cannot occur as a component of this [permit] hearing."

My ruling is that the Applicant's adherence to the consent order shall be considered as part of its environmental compliance history, which in turn relates to its fitness. This is of special concern since the provisions of the draft permit closely mirror those of the consent order. If the Applicant cannot adhere to provisions of the consent order, there is some question as to whether it can comply with provisions, many of them similar, in the permit Staff proposes to provide.

On this issue, the Associations shall have the burden of going forward, with sworn statements (which can be used as pre-filed testimony) and other documentation, including photographs and videotapes. Any witnesses they offer shall be available for cross-examination by the Applicant and Department Staff. The fact Staff has not found the compliance problems noted by the community is not a bar to pursuing this issue. By its own admission, Staff does not have a constant monitoring presence, unlike those people, represented by the Associations, who live nearest to and are most closely affected by facility operations.

Issue No. 3 - - Odor Control Measures

Related to the second issue, the record needs development on the measures the Applicant would use to control odors from putrescible waste. This a special problem because the facility is apparently too small for trucks to fully enter it when dumping their loads. As a result, the doors are open during this process, allowing for the escape of odors. Whether this is unavoidable, or whether there are means to prevent the odors' escape, requires further consideration.

Consideration must also be given to the working of the odor atomizer which was installed earlier this year, use of which would be required, under the draft permit, among other measures to mitigate odors from putrescible materials. Neighbors complained at the legislative hearing and again at the issues conference that chemicals used in the atomizing process merely displaced the garbage smell with a perfumed odor. It was also alleged these chemicals were actually stinging neighbors' eyes. From the record to date, it is hard to verify to what extent an odor nuisance exists, and, if so, how it is being caused, and how it could be corrected.

Since odor control is so essential to proper functioning of the facility, these concerns must be addressed, especially as operations, to some extent, must occur without a full enclosure. This issue can be covered by testimony of the Applicant's own consultants, perhaps supplemented with testimony of the Department's own solid waste experts, assuming they are familiar with the workings and effects of the odor atomizer.

Other Concerns

All other concerns expressed by the Associations shall not become issues for adjudication or pursued further at this time. They are addressed as follows.

  1. Certificate of Occupancy

    It was alleged there is no certificate for the Plymouth Street facility. According to the Associations, this is a violation of city law. There has been no adjudication of the alleged violation and since it is not within the administrative jurisdiction of DEC, this forum can't be used to litigate it. [See Commissioner's March 19, 1992 interim decision in the Matter of A-1 Recycling and Salvage, page 3.] Should the city take its own action on this matter, any finding of a violation may be offered prior to the close of the record, with an explanation of its bearing on the Applicant's fitness to receive DEC permits.

  2. SEQR Review

    The Associations contend that in its SEQR review of this project, the Department discounted the residential character of the surrounding neighborhood, and disregarded cumulative environmental impacts of the Bridge and Plymouth street facilities. These contentions were not adequately supported. There was no showing that the Department, in fact, was unaware of the neighborhood characteristics, or that its negative declaration was flawed. The fact the Bridge and Plymouth street facilities share a common ownership, and are within a block or two of each other, is not enough, standing alone, to show they have any cumulative impacts. Such a showing was not made.

  3. City Zoning Changes

    The Associations want a suspension of this proceeding pending an anticipated change in city zoning requirements for transfer stations. No such suspension is appropriate since regardless of this proceeding's outcome, the Applicant must address zoning issues, as a separate matter, with the city. Zoning is a local concern and does not involve DEC.

  4. Back-up Provider

    The Associations want to know more about BQE Services, which has agreed to take solid waste that would be diverted from the Bridge Street facility in the case of an emergency or service breakdown. No issue is raised since BQE operates a Department-authorized facility. No showing was made that BQE lacks adequate back-up capacity.

Party Status for the Associations

The Associations shall have full party status because of the material contribution they can make to development of the three issues I have certified for adjudication. Neither the Applicant nor the Department Staff challenged the sufficiency of the Associations' interests in this matter. Therefore, there is no need to discuss them in this ruling.

Appeals

Pursuant to 6 NYCRR Section 624.4(f) and 624.6(d), the rulings of the ALJ denying or limiting party status and setting forth the issues for hearing may be appealed in writing to the Commissioner within three days of the rulings. Allowing extra time for the parties' convenience, and recognizing the length of these rulings, any appeals must be received at the Office of the Commissioner (NYSDEC, 50 Wolf Road, Albany, New York, 12233-5500), no later than September 23, 1992, Any letters or briefs in support of or in opposition to the ALJ's rulings or any appeals must be received by October 5, 1992. The parties shall ensure transmission of all papers to me and all others on the service list at the same time and in the same manner as transmission is made to the Commissioner. No submissions by telecopier will be allowed or accepted.

Order of Disposition

As I will be on leave and not returning to my office prior to October 6, 1992, a schedule of hearing submissions, which shall include pre-filed testimony, shall be sent to the parties after that date, or after any appeals are resolved by a Commissioner's decision.


/s/

Edward Buhrmaster
Administrative Law Judge

Dated: By: Albany, New York
September 11, 1992

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