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All City Paper Fibers Corp. - Order, March 2, 1993

Order, March 2, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 WOLF ROAD
ALBANY, NEW YORK 12233-1550

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.

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

DECISION

March 2, 1993

DECISION OF THE COMMISSIONER

The attached hearing report of Administrative Law Judge Edward Buhrmaster, including its recommendation, in the matter of the application of All-City Paper Fibers Corp. (the "Applicant") for solid waste management facility permits to operate a recyclables handling and recovery facility and transfer station is adopted as the Decision in this matter, subject to my comments below.

The procedural posture of this case is somewhat unusual and deserves comment. The Applicant began operation of the facility under review illegally without benefit of a permit from the Department. Under a consent order entered into with the Department, the Applicant was allowed to continue to operate under certain conditions provided that it pursued the required permits for its facility. Thus, the pursuit of applications for permits in this case is not discretionary with the Applicant but rather is mandated under the consent order.

It follows that the Applicant cannot unilaterally withdraw the permit application, as would ordinarily be its right, but rather the withdrawal must be accompanied by a modification of the Applicant's rights under the consent order and must be approved. Given the fact that the decision to withdraw the applications was made during the course of an adjudicatory hearing in which a third party had successfully intervened, it is necessary for final disposition of this matter to be made through the hearing process.

Accordingly, upon review of proposed terms for withdrawing the pending applications, I hereby approve the Applicant's proposal to withdraw its applications based on the closure terms that are outlined in the ALJ's report.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Decision to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York, this 2nd day of March, 1993

For the New York State Department
of Environmental Conservation

/s/
By: THOMAS C. JORLING, COMMISSIONER

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

50 WOLF ROAD
ALBANY, NEW YORK 12233-1550

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.

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

HEARING REPORT

- by -

/s/
Edward Buhrmaster
Administrative Law Judge

PROCEEDINGS

The Applicant, All-City Paper Fibers Corp., has a pending application for permits to operate a recyclables handling and recovery facility and transfer station at 27-35 Bridge Street, Brooklyn. This facility is now operating under terms of a Department of Environmental Conservation ("Department" or "DEC") consent order, pending final action on the permit application.

An adjudicatory hearing to consider permit issuance began on December 22, 1992. The hearing was scheduled to continue on January 20, 1993, but was adjourned after Lawrence Schillinger, Applicant's counsel, sent a letter, dated January 19, 1993, stating the Applicant had elected to withdraw its application. (That letter is attached to this report as Appendix "A".)

Upon receiving the letter, I had a telephone conference with Mr. Schillinger and John Nehila, counsel for the Department Staff. At that time these parties had no understanding concerning closure of the facility or a timetable for concluding its operations. The Applicant said these matters were subject to negotiation between it and Department Staff and outside my jurisdiction since the application had been withdrawn. I disagreed and said I would continue to assert jurisdiction pending either (1) a decision on the merits of the application; or (2) a determination by the Commissioner accepting any closure arrangements that the parties might propose. Both the Applicant and DEC Staff took exception to my ruling, but apprised me of terms they later agreed to for closure of the facility. These terms are set forth in a letter, dated January 19, 1993, by Mr. Nehila (attached to this report as Appendix "B"). The acceptance of these terms by the Applicant is confirmed in a letter, dated January 19, 1993, by Mr. Schillinger (attached to this report as Appendix "C").

Upon receipt of these letters, I adjourned the hearing without date pending my and the Commissioner's review of the closure terms, which I considered not as binding, but merely as a proposal for review. In a memorandum to the parties, I said my and the Commissioner's continuing jurisdiction to review and pass on closure arrangements was necessary because the facility for which permits were sought was still operating, and because that operation (under terms of a consent order) was contingent upon maintenance of the permit application. I said the application could not be withdrawn unless (1) the Applicant at the same time stopped all operations within DEC's jurisdiction, or (2) there was some understanding, acceptable to the Commissioner, as to how and when the Applicant would stop any continuing operations which fell within the purview of the Department.

Although the hearing was adjourned, an opportunity was provided for comments by the Vinegar Hill Neighborhood Association and the Brooklyn Waterfront Loft Tenants. These groups of facility neighbors had secured intervenor status and, prior to the hearing's adjournment, were scheduled to introduce evidence on the Applicant's alleged non-compliance with its consent order. They were provided a copy of the parties' correspondence (cited above) and the closure plan submitted as part of the permit application, to which the Applicant would be bound under terms proposed by DEC Staff. (A copy of that closure plan is attached to this report as Appendix "D").

The intervenors' comments were provided in a letter, dated January 30, 1993, by James Martin (attached to this report as Appendix "E"). The Applicant and DEC Staff were provided an opportunity to respond, but neither did so.

For purposes of this report, I have treated the Applicant's election to withdraw its application as a proposal to withdraw, and DEC Staff's directions for closure, as established in Mr. Nehila's letter, also as proposal, to which the Applicant has expressed its assent. Since the application is not yet considered withdrawn, authority to operate under the consent order continues pending the Commissioner's review of the parties' correspondence.

PROPOSAL FOR APPLICATION WITHDRAWAL AND FACILITY CLOSURE

Based on the parties' correspondence, the following is a summary of terms under which activities requiring DEC permits would cease and the facility would be closed, should the Commissioner accept withdrawal of the pending application.

  1. All facility operations requiring a DEC permit, including any permit under 6 NYCRR Part 360, shall cease on or before April 19, 1993.
  2. As of April 20, 1993, the facility shall be closed in compliance with all applicable requirements of 6 NYCRR Part 360. All remaining solid waste shall be removed from the facility and legally handled, transported and (as appropriate) disposed.
  3. Any and all sampling, testing, and other requirements set by Department Staff shall be performed to its satisfaction and within any deadlines it may specify.
  4. Within 10 days of closure's completion, a New York State licensed professional engineer shall submit to DEC Staff written certification that closure has been completed in conformance with the closure plan and any all requirements that are set by the Department.
  5. The facility shall be closed in such a manner as to effect no adverse environmental impact to the surrounding community.
  6. Up until April 19, 1993, the facility shall have continued authority to operate pursuant to terms of the DEC order on consent (DEC File No. R2-2183-88-12).

DISCUSSION

The proposal to withdraw this application should be considered principally in terms of its timetable for the end of operations requiring DEC permits. If the proposal is accepted, the facility may continue existing operations up until April 19, 1993; whereas, if it is rejected, a shorter term might be negotiated, or the matter otherwise proceed to a decision on the merits.

As the hearing is not yet finished, the record is incomplete on the issues that were certified in the Commissioner's interim decision, dated October 27, 1992. On the other hand, the issues under review relate generally to the Applicant's fitness. This concern remains so long as the Applicant continues operations pending a final permit decision.

The concern here is heightened by allegations, which are now permit issues, as to whether the Bridge Street facility is operating in compliance with its consent order. Neighbors are especially concerned about odors they allege have been caused by rotting waste, and by efforts to control these odors, which they say have not been effective, and may even present their own health hazards.

If it continues, this hearing would address whether odors have been controlled effectively, or are creating a public nuisance; whether putrescible wastes have been held onsite for periods longer than authorized; whether facility doors have remained open during periods when trucks are not loading or unloading; and whether traffic has been obstructed, especially by the double parking of trucks on city streets. The intervenors have the burden of going forward on these issues, as their allegations were not corroborated by Department Staff. They had pre-filed statements and were prepared to bring witnesses on the last scheduled hearing date, which was adjourned when the Applicant elected to withdraw its application.

I adjourned the hearing on the basis of efficiency, since it would not need to be finished if the Commissioner, in essence, ratified the closure arrangements accepted by the Applicant. This decision should be made as soon as possible since, if the arrangements are rejected, the matter may still have to proceed to a determination on the merits.

My own recommendation is that the Commissioner accept the proposal advanced for facility closure since it has been accepted by the Applicant and DEC Staff and is not contested by the intervenors, according to their comments, dated January 30, 1993. The closure deadline is ample for the orderly wind-up of operations requiring permits from DEC. If anything, the time allowed may be more than enough, since there is no showing that other facilities, including the Applicant's own back-up provider, lack capacity for the amount of waste now moving through the Bridge Street station.

If this proposal is rejected, the Applicant might accept some earlier closure deadline, which the Commissioner might insist on; otherwise, the matter would go back to hearing, for completion of the record. In either event, it is doubtful the facility would be ordered closed much sooner than the date already accepted by the parties.

The date now set is soon enough that any odor problem that does exist should be solved by a change in operations prior to the warmer months of the year, when it would likely be more of a nuisance condition.

While they accept the pending proposal, the intervenors raise questions about its impact on the Applicant, the Applicant's operations, and the intervenors' ability to make a record of past complaints.

- - Future of facility operations. The intervenors want to know what will become of the Bridge Street facility, and whether it will be closed permanently. They want to know whether it can be used in conjunction with another recyclables handling and recovery facility and transfer station which the Applicant now operates, under DEC permit, at 246 Plymouth Street, within a block of the Bridge Street facility.

In electing to withdraw its application, the Applicant has not said what use would be made of the Bridge Street facility after its DEC closure. The facility has no DEC permits and, needless to say, would require them prior to any post-closure use which would be subject to DEC permit regulation. In the late 1980's, the Applicant had approvals from New York City to operate the facility as a solid waste disposal plant and as a junk shop, according to documents it provided at the adjudicatory hearing. Whether its permits have expired, or whether it would seek to resume some prior operation, is unknown.

At the issues conference, counsel for the Applicant said the Bridge and Plymouth Street facilities function separately on a day-to-day basis, although because they are close to each other, and have common ownership, trucks can be diverted to one or the other. There is no indication that the facilities work in such a way that operations at one are contingent on operations at the other. It is also unknown whether, with the Bridge Street facility's closure, the Applicant might use that facility at all in conjunction with operations it may conduct elsewhere.

It is fair to say that by "closing" the Bridge Street operation, it will not be able to function, alone or with the Plymouth Street operation, as a facility subject to DEC's permit jurisdiction. Whether the Applicant abides by this prohibition can and should be verified after closure has occurred.

- - Preservation of complaints. The intervenors want to know whether their pre-filed statements, alleging operating violations, go on record in the absence of the hearing's continuation, and if not, how they can put them on record. They want to know if the Applicant can re-apply for permits to do what it now does at the Bridge Street facility.

If the hearing does not resume, no record is completed, and the issues (including past non-compliance with the consent order) are not decided as part of a permit determination. Needless to say, the intervenors may offer their statements again should the Applicant re-apply for DEC permits. The Applicant is not barred from making new applications; likewise, if it does so, the intervenors may use their statements again to try to make fitness a permitting issue. These statements will not go on record now unless the hearing continues. If the hearing continues, they will not be used to decide pending issues unless the Applicant is first afforded an opportunity to cross-examine.

- - Finally, the intervenors want a thorough investigation of why DEC did not hold a public hearing before issuing the Applicant a Part 360 permit for its Plymouth Street facility.

I asked about this at the issues conference and was told there was no hearing because DEC Staff had no objections to permit issuance and because there was no public response to the Department's notice concerning the application. This statement was made by Michelle Moore of DEC's Region 2 Staff. Ms. Moore said notices were prepared to be sent to members of the Vinegar Hill Neighborhood Association, at addresses they had filed with the region. She then said these notices were misdirected after a problem with the mailing which was not discovered until after the permit was issued. The intervenors said there was always community interest in the Plymouth Street operation, and that the lack of public comments was due to a lack of proper notice. They appear to be correct, given the great degree of interest shown in the Bridge Street operation, which is very similar, and in the same neighborhood.

For the reasons noted above, no public hearing was held on the Plymouth Street facility, although clearly, by the standards set in this case, one should have been conducted. As noted in my prior issues ruling, 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 DEC permits or other DEC authorization, and without having first filed permit applications. That standing alone created an issue for hearing in this case, and has in others of a similar nature (See In the Matter of the Application of Conover Transfer Station and Recycling Corp., Interim Decision of the Commissioner, August 21, 1992, which states 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.")

The Department's mishandling of the Plymouth Street application allowed the Applicant, in effect, to avoid any hearing on its fitness to hold DEC permits. At the least, this is unfortunate, if that issue's adjudication would have resulted in permit denial. The failure by Staff to make hearing referrals on both the Bridge and Plymouth street applications cannot now be corrected as, for Plymouth Street, a permit already has been issued. This failure is noted here as it is addressed by the intervenors and to emphasize how important fitness is to the Department's permitting decisions.

RECOMMENDATION

Under terms proposed by DEC Staff and not contested by the other hearing participants, the Commissioner should approve the Applicant's proposal to withdraw its application for DEC permits to operate a recyclables handling and recovery facility and transfer station at 27-35 Bridge Street, Brooklyn.

***Appendix A-E available upon request.

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