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Conover Transfer Station - Ruling, July 6, 1992

Ruling - July 6, 1992

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Application of CONOVER TRANSFER STATION AND RECYCLING CORP. for a permit to operate
a recyclables handling and recovery facility and transfer station at

145-147 Wolcott Street, Brooklyn

RULINGS OF THE ADMINISTRATIVE LAW JUDGE ON
PARTY STATUS AND ISSUES

DEC Project No. 2-6102-00008/1-0

Background and Brief Project Description

Conover Transfer Station and Recycling 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). Under terms of the proposed permit, the Applicant would be authorized to process up to 2,000 cubic yards of putrescible waste and 300 cubic yards of construction and demolition debris per day.

Currently operating under a Department of Environmental Conservation ("Department" or "DEC") Order on Consent, the facility is located at 145-147 Wolcott Street in the Red Hook section of Brooklyn. All waste processing is proposed to occur within a fully enclosed existing building. Waste not diverted for recycling would be trucked to and disposed of at permitted landfills. Apart from a DEC permit, the facility requires a permit from the New York City Sanitation Department. That permit has not yet been issued, although an application was made and is now being reviewed by the city.

Based on an uncoordinated review, the Department Staff determined the project to be an unlisted action that would not have a significant effect on the environment. On June 19, 1991, Staff issued a negative declaration.

Staff determined the application complete on July 7, 1991, and then published a notice of complete application. In response to letters of concern from elected officials, community groups, and adjacent businesses, Staff decided to refer the matter to hearing. On August 27, 1991, Staff's referral was received by the Office of Hearings.

Legislative Public Hearing Session

A Notice of Public Hearing, dated November 8, 1991, was published in Newsday on November 15, 1991, and in the Department's Environmental Notice Bulletin on November 20, 1991. As announced in the notice, a legislative hearing was held before me at 7 p.m. on December 16, 1991, at P.S. 15, 71 Sullivan Street, Brooklyn.

Eighteen people gave statements at the hearing, all of them against the project. Among the speakers urging permit denial were representatives for Assemblywoman Eileen Dugan and Brooklyn Borough President Howard Golden. Other statements in opposition were given on behalf of Community Board No. 6 and the Red Hook Civic Association, both of whom also filed for party status.

Hearing speakers argued that Red Hook already had more than its "fair share" of waste transfer stations, and that the Department had failed to consider their cumulative impact upon the locality's quality of life. The facility's proximity to residential and business neighborhoods and its location near a public grade school (P.S. 15) were noted as reasons not to grant the permit, and to order the facility's closure.

The Applicant was characterized by several speakers as a bad neighbor, causing continuing problems related to odors, noise, vectors, and truck traffic. Some speakers alleged the facility was operating in violation of the compliance schedule incorporated to the Department's Order on Consent, and had operated with no authority at all for several years before that order was signed. It was alleged the Department was providing inadequate surveillance (particularly at night, when noise was a particular problem) and not giving due consideration to neighbors' complaints. Apart from violating the consent order, the Applicant was alleged to have violated Part 360 operating standards as well as rules of the New York City Department of Sanitation, particularly with regard to odors.

The Department's SEQRA review was challenged by speakers who argued that no meaningful study (or "hard look") had been made of the project's environmental impacts, especially in conjunction with impacts from other transfer stations also in the Red Hook area. One speaker questioned why no environmental impact statement had been generated.

Issues Conference

As announced in the hearing notice, an issues conference began on December 17, 1991, at the Department's Region 2 Office, Long Island City, New York. After some initial discussion the conference was adjourned at the participants' request for Staff to revise its draft operating permit. (Because the facility was already operating in an existing structure, no draft permit to construct was solicited or prepared.)

The issues conference resumed on May 4, 1992, with production of the revised draft permit, and a discussion of the participants' remaining concerns. The conference was held to hear requests for party status and to define the issues, if any, that should be addressed at an adjudicatory hearing. Participating at the conference were the Applicant, Department Staff, and two prospective intervenors who filed in a timely manner for party status: (1) Community Board No. 6, and (2) the Red Hook Civic Association.

At the issues conference the Applicant was represented by Lawrence R. Schillinger, P. O. Box 7275, Albany, New York. He was assisted by Carl Bivona, president and operating manager of Conover Transfer Station and Recycling Corp., and Robert A. LoPinto, P.E., of Shapiro Engineering, the Applicant's engineering consultant.

The Department Staff was represented by Paul Gallay, Esq., Region 2 Attorney, assisted by Raymond J. Kordish, deputy Region 2 permit administrator, and Larry Ojibe of the regional solid waste unit.

Community Board No. 6 (the "Community Board") was represented by Craig Hammerman, assistant district manager, assisted by Edna Mieles, chairperson of the board's environmental protection committee.

The Red Hook Civic Association (the "Civic Association") was represented by John McGettrick, co-chairman, assisted by Dr. Michael L. Kropsky, treasurer.

By agreement of the Applicant and Department Staff, the application was deemed to consist of an initial submission, titled "Application" and dated February 19, 1991; an operation and maintenance manual, dated February 26, 1991; letters dated April 12 and June 11, 1991, from the Applicant's consultants, Schillinger, Salerni and Boyd, Inc., to DEC Region 2 Staff; and several maps and drawings, including a site plan. No issues were proposed or identified with regard to project design. A final draft of the permit, incorporating all changes discussed at the issues conference, was sent to all participants under a cover letter, dated May 7, 1992, from Mr. Gallay, the Region 2 attorney.

Staff said it had reviewed and considered the application and had no basis to oppose the project as proposed, subject to the conditions of its draft permit. The Applicant raised no objections to the permit terms, and said it would accept the permit as written.

Because there were no apparent issues between the Applicant and Department Staff, the issues conference focused mainly on the concerns of the prospective intervenors. Potential issues considered at the conference and addressed by this ruling fall basically under three categories: (1) commencement of operations without DEC authorization; (2) quality of past facility operations; and (3) cumulative environmental impacts from this and other waste transfer stations in Red Hook.

Broadly stated, the first two issues relate to the "fitness" of the Applicant, and the last issue relates to the Department's SEQRA review of the project, including its negative declaration.

Fitness of the Applicant

In its filings for party status, both the Community Board and the Civic Association challenged the fitness (or suitability) of the Applicant to hold the permit it has requested. Both filings said that on the basis of the Applicant's past operations, it could not be relied on to perform in accordance with permit terms and government regulations.

According to the Applicant, its fitness should not be a hearing issue given its recent operating history under terms of the consent order, which shows it is willing and able to meet the terms of any permit that might issue. The Department agrees with this and adds that past violations encountered (including operations without a permit, and problems related to odors, traffic, noise and general housekeeping) have been resolved by the consent order and should not now be revived as issues for adjudication or as bars to permit issuance.

Order on Consent

As previously indicated, the Applicant and Department Staff entered into a consent order (DEC File No. R2-2559-90-1) which resolved past violations and gave the facility temporary authorization to operate. In that order the Applicant admitted constructing the facility and operating it from on or before March 1988, until the date of the order (January 28, 1991) without the required permits to construct and operate, contrary to ECL Section 27-0707 and 6 NYCRR Part 360.

In the order both parties also noted that "during the time the facility has been operational, it has been the subject of numerous inspections by New York City and DEC officials. These inspections have revealed that past operating practices by Conover have created odor, traffic and noise problems, in addition to general housekeeping problems, which must be fully redressed if the facility is to operate on a regular basis and be entitled to a DEC permit. The provisions of this Consent Order are designed to require strict compliance with applicable State law and regulation, and the Order makes clear that failure to so comply will subject the facility to closure and possible permit application denial."

In settlement of these violations, the Applicant was assessed and has paid a Forty Thousand Dollar ($40,000) civil penalty and has contributed Twenty Thousand Dollars ($20,000) to a Department-managed environmental compliance program. This program funds monitors, hired by the Department, who are responsible for the oversight of transfer stations and recyclables handling and recovery facilities that operate throughout Region 2 under permits or consent orders.

The consent order states it is not a permit and provides only temporary authorization for the Applicant to operate its facility, contingent upon strict compliance with the ECL, Part 360, and the provisions of the order. Among these provisions is a compliance schedule limiting the scope of the operation, setting operating standards, and requiring the Applicant's diligent efforts to complete an application (which were made, as evidenced by the new submission in February 1991, and the application's completion in July, 1991).

Since the consent order was signed, the facility has operated under its authority and terms, with extensions granted by Staff since the application is still pending before the Department. If the facility is found by Staff to have violated the order, its operating authority may be revoked, and enforcement proceedings commenced seeking environmental remediation and penalties, as appropriate. To date, Staff has made no attempt to close the facility, and has brought no enforcement proceedings. It is aware of the community's complaints but says the facility is not a nuisance, and has maintained a good compliance record for the year and a half since the consent order was executed.

Operations Without DEC Authorization

Consideration of fitness, as a potential hearing issue, must begin with the fact the facility began operations with no DEC authorization, although permits are needed to build and operate a solid waste management facility. Upon my questioning of the issues conference participants, I found no dispute on the following points, which I accept as true for the purpose of this discussion:

  1. The facility began operating in March 1988.
  2. Staff first became aware of the operations in the late spring of 1988.
  3. The Applicant's first permit application was made in September, 1988.
  4. Between the period of March 1988, until January 1991, the facility had no explicit authority to operate, either by permit or consent order.
  5. During this same period, the Department did not request the facility's closure, and made no other attempts to shut it down, despite inspections finding odor, traffic, noise, and housekeeping problems.

The Department said that during the summer and fall of 1990, it told the Applicant that unless significant improvements were made, it would move to close the facility. In the end, however, it chose not to close the facility, but to authorize its continued operation pending a permit decision. As reasons, Staff said it considered the fact the facility was performing a service required by the greater community, that it was improving on past performance, and that it was willing to abide by a strict compliance schedule, incorporated to the consent order. Staff also said to close the facility pending a permit decision might destroy its economic viability, apparently by disrupting the continuity of operations.

Staff and the Applicant both argue that past unauthorized operations do not, at this point, raise an issue for adjudication, mainly because they have already been addressed by the consent order, and because a good compliance record has been established since the consent order was signed. I disagree on this point and find that, in themselves, past operations, to the extent they were unauthorized, raise doubts about whether the Applicant can be trusted to operate in conformance with the ECL, DEC regulation, and any conditions in a permit it may ultimately receive. These doubts pertain to the Applicant's fitness (or suitability) and are sufficient to create an issue that requires further consideration.

In this respect this matter is similar to an application made by American Transfer Company, which applied for permits to operate an asbestos transfer station in the Bronx. In my issues rulings, dated December 17, 1990, in that matter, I noted that American Transfer, like Conover, had begun operating the facility for which it was then seeking permits without these permits and with no other DEC authorization. In rulings which were later upheld by the Commissioner, I said that, standing alone, the past unauthorized operation of the facility that was the subject of the pending application raised doubts pertaining to fitness sufficient to make that an issue requiring adjudication.

The Commissioner followed similar reasoning when he identified a fitness issue in the matter of 110 Sand Company, which applied for a permit to complete a landfill operation in Huntington, Suffolk County. In that matter, the Commissioner found, in an interim decision, that prior landfill phases had been operated without permits or other authorization, and said a question remained as to how this illegality should be employed in the decision-making process for the pending application. In that case, the proceeding was remanded to me for further submittals and, in my discretion, for testimony if additional fact-finding was warranted. (See In the Matter of 110 Sand Company, Second Interim Decision, October 22, 1990.)

In the American Transfer matter, a fact-finding hearing was held, after which permits were denied in a Commissioner's decision, dated December 24, 1991. The past unauthorized operations were one among many bases for finding the Applicant unfit. In the matter of 110 Sand Company, there was no fact-finding hearing, and a permit was granted on the basis of countervailing factors raised by the Applicant and not disputed by the other hearing participants. (In the Matter of 110 Sand Company, Decision of the Commissioner, June 19, 1991.) These factors included a need for the facility, the lack of environmental harm associated with the unauthorized operations, these operations' compliance with Part 360 (with the sole exception of the permit requirement), the Applicant's having applied for permits before it entered the unauthorized areas, and its reliance, to its own detriment, on Staff's incorrect assurance that its continued operations were legal.

These factors are not established in this case and, for that reason, among others, the fitness concern cannot be dismissed at this juncture. As noted by the consent order, the facility's unauthorized operations were associated with odor, traffic, noise and housekeeping problems, all of which relate to Part 360. No application was made prior to the facility's opening and it is of no consequence that the Applicant filed for permits after the Department became aware of its operation, as this would be expected if the facility had any chance to survive.

To date, there is no showing of need for this particular station, and the provision of a required service, as noted by the Department, is not the same as a need which would warrant looking past the unauthorized operations. This is because any other facility, without Conover's history, could provide the same service, therefore filling any gap opened up were the Applicant ordered to close. If, in fact, there is a shortage of these facilities, and others like it are working at capacity, these things are unknown at this point, and would have be demonstrated in some verifiable way.

Finally, this matter differs from 110 Sand Company because here, unlike in that matter, the Applicant does not suggest Staff approved of its illegal opening. Conover says that, in beginning operations, it relied not on bad Department advice, but on poor advice of its own former counsel, although the nature of this advice is unknown.

According to the Applicant, the Department was understaffed in the late 1980's and was untimely in its processing of permit applications. This may or may not be true, but even were it established, it would not authorize and cannot condone going outside the permit process. Regardless, Staff argued that when the first application was made (in the fall of 1988) it received prompt attention. (That application was later superseded by the one in February, 1991, which is the subject of this hearing.)

The Department finds no fitness issue because the Applicant paid a substantial penalty for its unauthorized operations; signed an order tightly regulating its conduct; and improved operations after some initial difficulties, based on frequent Staff inspections. In my opinion, these things don't eliminate the fitness issue. For one thing, the penalty was for the nuisance problems as well as the unauthorized operations, although the penalty is not apportioned in the order. Also, the penalty addresses almost three years of unauthorized activity, for which the economic benefit to the Applicant was likely well in excess of the amount paid. The fact the Applicant signed an order, which allows it to continue operations to this day, is actually in its own interest, and not relevant to fitness considerations. In fact, such an order puts the Applicant in a better position than others who do what the regulations contemplate: file an application first, and withhold operations unless and until a permit is granted.

In finding this fitness issue, I am concerned with the Applicant having begun operations without DEC authorization. The fact these operations have continued since late Spring 1988, is not my concern since the Department has been aware of them and has allowed them to continue, first by acquiescence, and then by authority of consent order. The use of consent orders as de facto permits is also not a hearing concern, although, as an intra-agency matter, the practice deserves some review, to the extent it rewards scofflaws with authority that is not given those who follow the expected permit process.

The Applicant's environmental compliance history as a permitting consideration is well-established by many Commissioner's decisions, the Commissioner's 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 NY 2d 855 (1985).

To be certified for hearing, the Department's regulations require that an issue be "substantive and significant" [6 NYCRR 624.6(c)]. The term "substantive" means the issue is not based on mere speculation but on facts that can be subjected to adjudication" [In the Matter of Concerned Citizens Against Crossgates v. Flacke, 89 AD2d 759 (3rd Dept., 1982), aff'd. 58 NY2d 919 (1983)]. The term "significant" means the adjudicated outcome "can result in permit denial or the imposition of significant conditions" [In the Matter of NYC Dept. of Environmental Protection, Chelsea Pump Station, Third Interim Decision of the Commissioner, October 6, 1988; In the Matter of St. Lawrence County, Third Interim Decision of the Commissioner, April 30, 1990].

As defined by this ruling, the fitness issue is substantive since it can be adjudicated based on a verifiable compliance history, and it is significant because there is authority to deny or condition permits based on the issue's evaluation. This ruling is not intended to decide the fitness issue but only to frame it for certification, while excluding other concerns which do not meet the issue standard. On the record to date there are sufficient doubts about fitness to pursue it further, recognizing that in the end, the Applicant has the burden to prove its fitness.

Both the Department and the Applicant were alerted to this potential issue at the issues conference and were provided an opportunity to rebut the fitness concern. To date, they have not allayed the doubts which are raised by the unauthorized commencement of operations.

Since, under terms of the draft permit, the Applicant must be relied on to monitor itself, and to report on its activities, the Department and the neighboring community must know it can count on the Applicant's veracity and on its rigid adherence to regulation. If there is some good explanation for the unauthorized commencement of operations, or some countervailing reason to grant the requested permit, this will have to be established in the context of an adjudicatory hearing. Otherwise, I will recommend permit denial.

Quality of Past Facility Operations

Apart from being unauthorized, the Applicant's operations, prior to January 1991, were marked by problems of a general nuisance nature. These problems were acknowledged by the consent order and tacitly admitted by the Applicant, since it did not deny them, but argued instead that since the order was issued, its operations have improved. Because they were admitted, these problems, up until January 1991, need not be relitigated in this hearing, although they should be considered as aggravating the unauthorized operations previously discussed.

As for problems since January 1991, there was vigorous dispute as to whether, or to what extent, the Applicant was violating the law and/or the compliance schedule made part of its consent order. This dispute pitted the Applicant and the Department Staff against the prospective intervenors, particularly the Civic Association.

Had it made an adequate offer, the Civic Association might have raised an issue despite Staff's finding of substantial compliance with the consent order. As it was, however, the offers made were too generalized to litigate, and complaints, to the extent they were lodged with the Community Board, were anonymous. In lieu of written statements, the Civic Association offered its members' testimony from the legislative hearing. But most of this testimony was non-specific or, at best, conclusory in nature, unsubstantiated by quantifiable evidence (and, where appropriate, by scientific or technical data). A neighborhood rat problem was identified but it would be hard, if not impossible, to litigate if it was caused or aggravated by the Applicant's operation. (For its part, the Department said rat and odor problems, related to putrescible waste, had been curbed considerably since the consent order was signed.)

At the issues conference all participants were allowed to show violations, since January 1991, which had been adjudicated by state or local authorities. Only one violation was noted, it being that once in March 1991, waste material was found to have exceeded the tipping floor by about 10 feet. The Respondent was issued a summons by the New York City Sanitation Department. It did not contest the violation and paid a $500 penalty. This is a de minimis violation and should not be considered further on the fitness issue. There is no evidence of pending city violations or fines which remain unpaid to either the city or the state. (Since the commencement of the issues conference, the Respondent has paid up obligations which at that time were past due and owing under its DEC consent order.)

All conference participants agreed that, overall, Conover's operations have improved during the last year and a half. This is significant to my issues determination, as is the draft permit itself. This permit was refined during the conference and now incorporates many parts of the compliance schedule. Should this permit be issued, it and the Part 360 regulations would provide adequate bases for enforcement action, including facility closure, should past problems resurface.

Beyond that, the Applicant would be bound, under its permit, to contribute to a fund hiring monitors for it and other waste transfer facilities. This would help ensure regular monitoring is performed. As became clear at the conference, it is particularly important that nighttime inspections occur, as this is when noise is most troublesome to nearby residents. The Department initially said it lacked resources to provide nighttime surveillance but later, in a letter to me dated May 7, 1992, said that solid waste management staff, accompanied by staff from the Division of Law Enforcement, would be able to make occasional overnight inspections. If a permit is issued, the Commissioner should direct that this be done.

In its oral argument, the Department analogized this matter to one involving CECOS International, Inc., which was the subject of a Commissioner's decision on March 13, 1990. In that case the Commissioner distinguished between applicants who have intentionally or by management neglect operated outside the boundaries of the law (who must be prevented from getting permits) and applicants who have had transgressions but who have acted responsibly in dealing with them and in improving operations to prevent recurrences (who should not necessarily be denied permits, but who may require special conditions in the permits they are issued).

The Department argued that the Applicant had taken steps to improve its operations and had, in fact, succeeded. Therefore, said the Department, a permit could be issued so long as it was conditioned to ensure continued operations at a level of full compliance.

This reasoning is good as far as it goes, but it overlooks the issue of unauthorized operations, which I have segregated as a separate consideration. The facility's having opened with no authorization brings it closer, in my opinion, to the scenario, outlined in the CECOS decision, of an applicant operating outside the boundaries of law. Such an applicant should be barred from getting permits, absent some good explanation for the unlawful conduct, or a countervailing reason to grant the permits requested.

Cumulative Environmental Impacts

As a separate proposed issue, both the Community Board and the Civic Association challenge Staff's SEQRA review of this project, particularly its negative declaration, which found no cumulative impact between this and other waste transfer stations also operating in the Red Hook section of Brooklyn. The issue, as proposed, is basically two-fold: (1) that Red Hook has a disproportionate share of Brooklyn's waste transfer stations, and (2) that these stations, taken together, are having adverse environmental impacts.

On the "fair share" concern, this is a city matter, and not within my purview. Therefore, it cannot be considered an issue, and I draw no conclusions regarding it.

On the question of cumulative impacts, this is a SEQRA matter, and something I may consider, although my review authority is limited. According to past Commissioner's decisions, an ALJ has the discretion and power to remand to Staff any application where prior SEQRA review is procedurally flawed or otherwise affected by an error of law [see, for example, Matter of Quail Ridge Associates, Interim Decision of the Commissioner, December 6, 1987]. But a negative declaration, issued by Staff, will not generally be disturbed so long as Staff identified the relevant issues of environmental concern, took a "hard look" at them, and provided a reasonable elaboration for its determination of no significant environmental impact. [See Matter of Hedges, Interim Decision of the Commissioner, April 10, 1986, articulating the "hard look" test enunciated in H.O.M.E.S. v. N.Y.S. Urban Development Corporation, 69 AD2d 222, 418 NYS2d 827 (4th Dept., 1979).]

In this instance, Staff took the required "hard look" and fulfilled all duties under 6 NYCRR Section 617.6(g)(2) for making its significance determination. Staff's review, as documented, indicates no basis for remand. On the issue of cumulative impacts, there was no showing of a connection or dependence between the Conover station and any other waste management facility in the Red Hook area. There was no showing that Conover, with other facilities, had a significant air quality impact, as was alleged by the Community Board.

Only one other waste transfer station was identified as possibly having been within a six-block vicinity of Conover, and that facility, 20th Century Recycling, Inc., no longer exists. Another facility, American Asbestos, has opened since the negative declaration was issued. But that is an asbestos transfer station, and operates differently than Conover. Because of the nature of its wastes, and the fact these wastes are bagged, one cannot foresee how it, with Conover, would create a combined odor problem.

Staff selected a six-block radius in the belief that odors, traffic and other problems associated with Conover would not carry beyond this area. This was a reasonable assessment and the intervenors did not show how other facilities beyond this radius were acting, in combination with Conover, to create a significant environmental impact.

Finally, Staff's action here is consistent with the decision of State Supreme Court, Queens County, in the matter of Golten Marine Co., Inc., et. al., vs. NYSDEC. In that unpublished decision, dated January 8, 1991, the court ruled that in its SEQRA review of another waste transfer station, Staff was required to consider traffic, zoning, community character, and cumulative impacts. According to the court, Staff could not avoid doing so on the basis that these were areas of local concern, for the reason that no local agency was conducting its own environmental review.

According to the Community Board, Staff's action is invalid given the court's direction in Golten. I disagree, for the simple reason that Staff did consider each of these impacts, as is clear from the face of its negative declaration.

Miscellaneous Issues

Apart from the concerns discussed above, various other items were raised as potential issues. They are addressed briefly as follows:

Zoning - - According to the Community Board, the facility's proximity to residential housing indicates a flaw in New York City's zoning regulations. This flaw, if it exists, is not within my purview and must be raised with the city. For my purposes, it is enough to note the facility is an M-2 (manufacturing) zone, and is consistent with that zone.

Building Collapses - - According to the Civic Association, Red Hook is built on filled tidal marsh, and on Van Brunt Street, where the Applicant's trucks would exit, there have been several building collapses. There is a concern that this problem is exacerbated by the Conover facility. But this was not demonstrated in any technical way, and one can only speculate why the buildings have fallen. No adjudicable issue is raised.

Health Hazard - - According to the Civic Association, the Conover facility is a hazard to the health of nearby residents, which Staff should have considered in its negative declaration. [See 6 NYCRR Section 617.11(a)(7).] I agree that Staff made no findings, under the heading of health hazards, with regard to this project. But it did consider noise, odors, and other issues underlying this perceived threat, which was enough under the circumstances. Further discussion was not required, and on the offers made at the issues conference, no issue was raised for adjudication.

Sale or Lease of the Premises - - According to the Community Board, the Conover building recently had signs on it stating "FOR SALE OR RENT" when the Applicant had stated, much earlier in the permit process, that it was negotiating to buy the premises. Counsel for the Applicant said this was a matter between it and the building owner and the subject of ongoing negotiations which he declined to discuss further. I agree with the Department that, on this point, no issue is raised. The Applicant need not own the building where its work is performed, and if that building should be leased to someone other than the Applicant, the Applicant will have to close its operations. There is no basis for further inquiry.

Permit Term - - The Applicant wants a five-year permit, as it understands is standard, whereas the prospective intervenors prefer a shorter permit term, so that if there are operating problems, they will be addressed sooner as part of the permit renewal process. In my opinion, the permit term is a non-issue since the Department, at any time, could move against the permit on good cause shown, including non-compliance with permit conditions or with the Part 360 regulations.

The Applicant wants a longer permit term as it thinks this will suggest greater certainty for its operations, and therefore better access to capital from lending institutions. Whether this is true or not is hard to say; at any rate, there is no need to put the Applicant on a shorter leash than others with the same type of permit, and therefore the standard term should apply if a permit is granted.

Summary Issues Ruling

One issue is presented for adjudication, that being whether the Applicant's unauthorized commencement of operations should result in denial of the requested permit, as drafted by Department Staff. To adjudicate this issue, the Applicant shall be provided an opportunity to present evidence on the reasons why and the circumstances under which it commenced operations. An opportunity shall also be provided for the Applicant to assert countervailing reasons why a permit should be granted, despite its compliance history, as evidenced by the DEC order on consent. To the extent this requires adjudication of facts, that shall be done, and the Department shall have an opportunity to produce its own evidence, and to cross-examine any witnesses presented by the Applicant.

Ruling on Party Status

There were two timely filings for party status, one by the Community Board and the other by the Civic Association. Both the Department and the Applicant acknowledged that the Community Board had sufficient interests to be a party to this proceeding. But at the end of the issues conference, and based on its satisfaction with the revised draft permit, the Community Board withdrew from the fitness issue, and retained its objections only with regard to the SEQRA review of this project. No hearing issue is raised by this review and, as the sole remaining issue does not relate to a concern reserved by the Community Board, there is no reason to grant the board full party status with regard to that issue's adjudication.

As for the Civic Association, it has reserved its concerns both as to fitness and the SEQRA review. The Applicant opposed its request for party status since it was not initially clear how the group had gone on record as against the Conover facility, and there was no verification that Mr. McGettrick, the group's president, was speaking on behalf of the association, and not on his own. These concerns have been allayed by correspondence from the group's secretary, Sharon Paige, stating the group's consistent opposition to the facility since it first opened in 1988, and affirming its support for Mr. McGettrick as the association's agent at this hearing.

According to its bylaws, the association is designed to improve the quality of life and delivery of government services in the Red Hook section of Brooklyn. It is open to all who live or own a business there, and apart from appearing at the issues conference, many of its members also spoke at the legislative hearing, describing the affects the facility had upon their lives. The association is not an ad hoc group, formed around this project, but a group of long standing recognized by the Community Board as the sole civic organization speaking on behalf of the whole Red Hook neighborhood. For these reasons, it has passed the interest test, although it does not warrant full party status, since its fitness concern, as raised at the issues conference, is principally with regard to the quality of operations (as to which no issue is raised), as opposed to their unauthorized nature (which was not central to their presentation).

Because of the narrow issue presented, and the likelihood all relevant information will be adduced from the Applicant and Department Staff, there is no need to grant full party status to others. Even so, it is possible, given their knowledge of the facility, that the prospective intervenors might have information which could be valuable to me and to the Commissioner, and useful for the examination of the other parties' witnesses. Given these circumstances, I hereby grant both groups a limited appearance under 6 NYCRR Section 624.4(g).

By such appearance, they may, at their discretion, make statements of position with regard to the issue for adjudication, and have the right to present unsworn written and oral statements on relevant points of fact and law. These statements shall not have the weight or importance of sworn statements or other evidence, but may be considered by me and the Commissioner in weighing evidence and making conclusions on the fitness issue. To the extent they raise points that should be considered factually, I have sufficient authority to ensure a record is developed for the Commissioner's consideration. I can do so by questioning witnesses offered by the Applicant and the Department staff, summoning other witnesses, and compelling the production of documents, to the extent any of these things would be helpful.

Should the facility have compliance problems between now and the close of the hearing, the Community Board and the Civic Association, by their limited appearance, may bring them to my attention (as, of course, may the Department Staff). With their limited appearance, both the Community Board and the Civic Association shall be able to appear and speak at hearing sessions, subject to limits I may set, and shall remain on the service list we have followed to date.

Finally, I note having received a letter, dated May 12, 1992, from Susan Peebles, secretary of the Beard Street Association, expressing opposition to the facility and an interest in participating in these proceedings. I am hereby denying this group party status since it did not show good cause for not having filed on time, and since there is no showing that its hearing participation would materially contribute to a complete record. [See 6 NYCRR Section 624.4(e).]

Parenthetically, I also note receipt, on June 9, 1992, of a long FAX transmission from the Community Board, which appears to be correspondence it sent to the city Department of Sanitation, which is also considering a permit for this facility. I did not solicit this FAX transmission and have no indication it was sent to all other parties on the service list. For these reasons, I have disregarded it in these rulings, and am making them solely on the basis of the issues conference record, including those materials I requested after our last meeting. The parties are reminded that any documents they send me, even if I am only copied on them, must be sent to all others on the service list. This is necessary to comply with 6 NYCRR Section 624.13(a), which provides that no party shall, directly or through a representative, communicate with the ALJ or the Commissioner in connection with any issue without providing notice and an opportunity for all other parties to participate. Please be aware of this rule and guide yourselves accordingly.

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 July 20, 1992. Any letters or briefs in support of or in opposition to the ALJ's rulings or any appeals must be received by July 30, 1992. The parties shall ensure transmission of all papers to me and the 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

I will issue a memorandum concerning further proceedings in this matter once the deadline for appeals has passed or, assuming appeals are made, after they have been determined by the Commissioner. However, as a first order of business, I will want a statement of position from the Applicant as to how it will address the issue that has been certified. Statements will then be solicited from the other parties, and testimony secured on points of disputed fact. Finally, a hearing report, with recommendations, will be submitted to the Commissioner, who will make the permit decision.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: Edward Buhrmaster
Administrative Law Judge

Dated: Albany, New York
July 6, 1992

TO: Service List
Beard Street Association

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