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Leo Dickson & Sons - Decision, March 26, 1993

Decision, March 26, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1550

In the Matter

- of -

Applications for permits to construct and to operate a waste storage time stabilization tank
for wastewater treatment plant sludge, septage and manure at the Applicant's property located in
the Town of Cameron, Steuben County; and a renewal permit to spread sludge on lands in
the Towns of Bath, Cameron, and Thurston pursuant to ECL Article 27 and 6 NYCRR Part 360

- by -

LEO DICKSON AND SONS, INC.
Helmer Creek Road
Town of Cameron, Steuben County

APPLICANT

DEC Nos.

8-4628-1/4-0

8-4699-12/1-0

DECISION

March 26, 1993

Decision of the Commissioner

The Attached Hearing Report prepared by Administrative Law Judge Daniel P. O'Connell, in the matter of applications for permits to construct and to operate a storage and stabilization tank (the Tank) for wastewater treatment plant sludge, septage and manure at the Applicant's property located in the Town of Cameron, Steuben County (the Site); and a renewal permit to continue disposing sludge by spreading it on land in the Towns of Bath, Cameron, and Thurston (the Renewal Permit) pursuant to ECL Article 27 and 6 NYCRR Part 360, is hereby adopted as my Decision in this matter.

I have reviewed the draft permit conditions to operate the Tank and the draft Renewal Permit conditions to dispose of stabilized sludge by spreading it on land, and concur with Administrative Law Judge O'Connell. I conclude the stipulation embodied as the terms of the draft permits resolves the issue about the Applicant's compliance history by responding to the concerns raised by the Cameron Committee for a Safe Environment (CCSE).

The draft permit conditions provide a two part mechanism to insure the Applicant will operate the Tank and the land spreading processes safely and in compliance with the applicable environmental laws and regulations. The first component is the part-time environmental monitor. The Department Staff has agreed to administer the funds provided by the Applicant for the environmental monitor. Using an environmental monitor is appropriate in this instance because the monitor will provide additional oversight of the Applicant's operations. Furthermore, the environmental monitor's reports will supplement and verify the Applicant's reports.

The second part of the mechanism which will assure that the Applicant's operations are safe and compliant is monitoring neighboring wells. Though not expressly required by 6 NYCRR Part 360, 360-1.11(a) authorizes the Department to condition the permits to keep track of this and other potential impacts. The Applicant has agreed to this condition which will further alleviate concerns expressed by CCSE about possible impacts to neighboring groundwater supplies from the Applicant's land spreading operations.

Based on the statements made by the Cameron Committee for a Safe Environment (CCSE) at the January 13, 1993 Issues Conference, the draft permit conditions are consistent with and responsive to the concerns raised by CCSE. Also, the conditions of the draft permits are clear and adequately assure the Tank and the land spreading operations will comply with the applicable environmental laws and regulations. Accordingly, I direct the Department Staff to complete the review of the pending permit applications and to issue the permits as drafted.

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 26th day of March, 1993.

_____________/s/_____________
THOMAS C. JORLING, COMMISSIONER

To: Philip Dickson
Via Certified Mail
Leo Dickson and Sons, Inc.
Helmer Creek Road, RD 1
Cameron Mills, New York 14820

Edward M. O'Brien, Esq.
Via Certified Mail
Harris, Evans,
Fox & Chesworth, P.C.
400 East Avenue
Rochester, New York 14607

Elizabeth A. Beiring
Student Attorney
University of Buffalo, School of Law
Legal Assistance Program
P.O. Box 9
Getzville, New York 14068-0009

Lisa Perla Schwartz, Esq.
Assistant Regional Attorney
NYSDEC-Region 8
6274 East Avon-Lima Road
Avon, New York 14414

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1550

In the Matter

- of -

Applications for permits to construct and to operate a waste storage time stabilization tank for wastewater treatment plant sludge, septage and manure at the Applicant's property located in the Town of Cameron, Steuben County; and a renewal permit to spread sludge on lands in the Towns of Bath, Cameron, and Thurston pursuant to ECL Article 27 and 6 NYCRR Part 360

- by -

LEO DICKSON AND SONS, INC.

Helmer Creek Road
Town of Cameron, Steuben County

APPLICANT

DEC Nos.

8-4628-1/4-0

8-4699-12/1-0

HEARING REPORT

- by -

_____________/s/____________
Daniel P. O'Connell
Administrative Law Judge

Summary

The Applicant, Leo Dickson and Sons, Inc., filed permit applications with the Department of Environmental Conservation (the Department) to construct and to operate a storage and stabilization tank for sludge. The Applicant also filed a renewal permit application to continue disposing sludge by spreading it on land. The Commissioner consolidated the Department's review of the Applicant's permit applications into one proceeding. After the hearing record was opened, the Applicant, the Cameron Committee for a Safe Environment, and the Department Staff entered into a stipulation thereby resolving the issue joined for hearing in the Commissioner's Interim Decision dated June 29, 1992 about the Applicant's compliance history. This Hearing Report addresses the stipulation as required by the Commissioner's Organization and Delegation Memorandum #85-13, and concludes the stipulation meets the criteria identified in Memorandum #85-13. The Report recommends the Commissioner affirm the stipulation.

Proceedings

Permits to Construct and to Operate the Tank

Leo Dickson and Sons, Inc. filed applications pursuant to ECL Article 27 and 6 NYCRR Part 360 with the Region 8 Office of the Department. The Applicant seeks permits to construct and to operate a 53,800 gallon tank to store waste water treatment plant sludge, septage, certain food processing wastes and manure for stabilization with lime (the Tank) before disposing an estimated annual volume of 3,516,000 gallons of stabilized sludge by spreading it on land. The Tank is located on the Applicant's dairy farm on Helmer Creek Road in the Town of Cameron, Steuben County (the Site). Pursuant to ECL Article 8, and 6 NYCRR Part 617 (SEQR), the Department Staff determined the Tank was an unlisted action that would not have a significant effect on the environment, and issued a Negative Declaration for the Tank on December 16, 1991.

A Notice of Public Hearing for the Tank permit applications dated February 14, 1992 was published in the Department's Environmental Notice Bulletin on February 19, 1992 and in The Leader on February 20, 1992. As provided by 6 NYCRR Part 624, Administrative Law Judge Daniel P. O'Connell presided over the legislative hearing and Issues Conference on March 17, 1992 in the Legislative Chamber of the Steuben County Office Building in Bath, New York at 10:00 A.M.

About 80 people attended the legislative hearing for the Tank permit applications on March 17, 1992. There were 18 speakers including the Applicant's representatives, the Department Staff, local officials, residents of the Town of Cameron, and members from the Cameron Committee for a Safe Environment (CCSE). Also, many individuals submitted written statements. In general, those who spoke at the hearing or submitted written comments expressed concerns about the Applicant's compliance history, the impact the proposed Project may have on groundwater and property values, as well as objectionable orders. The appearances at the March 17, 1992 Issues Conference are noted below.

Renewal Permit

The Applicant also filed a renewal permit application with the Region 8 Department Staff pursuant to ECL Article 27 and 6 NYCRR Part 360 to dispose on an annual basis: (1) 1,188,000 gallons of stabilized sewage treatment plant (STP) sludge from the Villages of Alfred, Dansville and Dundee, and (2) 3,516,000 gallons of septage, manure, Seneca Food wastes, and sludge from the Village of Bath STP (the Renewal Permit). The Applicant would dispose of the sludge by spreading it on 1,080 acres of land owned by the Applicant in the Towns of Bath, Cameron, and Thurston, and on 190 acres of land owned by A. Pietrak in the Towns of Cameron and Thurston. Pursuant to ECL Article 8, and 6 NYCRR Part 617 (SEQR), the Staff issued a Negative Declaration for this Type I action on October 16, 1992.

Since the Tank proposed by the Applicant is part of the Applicant's land spreading operations, the Commissioner consolidated the review of the Tank permit applications with the Renewal Permit application The Commissioner ordered the consolidation in his Interim Decision dated June 29, 1992. A copy of the Interim Decision is attached to this Report as Appendix A.. The proceedings for the Tank permits were suspended until the Applicant completed the Renewal Permit application. On October 16, 1992, the Department provided a Draft Notice of Complete Application for the Renewal Permit to ALJ O'Connell.

A Combined Notice of Complete Application and Public Hearing for the Renewal Permit dated November 30, 1992 was published in the Department's Environmental Notice Bulletin on December 2, 1992 and in The Leader on December 17, 1992. On January 13, 1993, ALJ O'Connell presided over the legislative hearing and Issues Conference in a meeting room at the Steuben County Office Building in Bath, New York at 10:00 A.M.

Although several people attended the legislative hearing on January 13, 1993 for the Renewal Permit, there were no public comments. There were no additional requests for Party Status. The participants of the March 17, 1992 Issues Conference raised no additional issues for adjudication. The appearances at the January 13, 1993 Issues Conference are noted below.

The Office of Hearings received the stenographic transcript of the January 13, 1993 Issues Conference on March 4, 1993. The record of this proceeding closed on that date.

Appearances

Lisa Perla Schwartz, Esq., Assistant Regional Attorney, appeared for the Region 8 Department Staff at both the March 17, 1992 and the January 13, 1993 Issues Conferences.

Edward M. O'Brien, Esq., from the Rochester law firm of Harris, Evans, Fox and Chesworth appeared for the Applicant at both Issues Conferences.

At the March 17, 1992 Issues Conference, Wayne Wells appeared for the Cameron Committee for a Safe Environment (CCSE). Although Susan Bozman, Bruce Bozman and John Cushman are members of CCSE, they individually requested Party Status and appeared on their own behalf at the March 1992 Issues Conference. ALJ O'Connell consolidated the individual requests for Party Status with CCSE in his ruling dated May 20, 1992 on issues and Party Status relating to the Tank. At the January 13, 1993 Issues Conference, Student Attorneys Elizabeth Beiring and Daniel Spitzer from the Legal Assistance Program at the University at Buffalo School of Law, Getzville, represented CCSE.

At the March 17, 1992 Issues Conference regarding the Tank permits, Mr. Brutsman from the Cameron Town Council requested Party Status and appeared on his own behalf. ALJ O'Connell denied Mr. Brutsman's request for Party Status in his ruling dated May 20, 1992 on issues and Party Status relating to the Tank. Mr. Brutsman did not appeal ALJ O'Connell's ruling, and did not request Party Status with respect to the Renewal Permit application.

Discussion

After the Issues Conference on March 17, 1992 for the Tank permit applications, ALJ O'Connell issued a ruling dated May 20, 1992 on issues for adjudication and requests for Party Status. The Applicant, and CCSE filed appeals from these rulings. In addressing the appeals, the Commissioner's Interim Decision dated June 29, 1992 upheld ALJ O'Connell's ruling that the Applicant's compliance history would be an issue for adjudication. Also, the Commissioner consolidated the review of the Tank permit applications with the Renewal Permit application. The Interim Decision provided for a legislative hearing and Issues Conference on the Renewal Permit application.

At the January 13, 1993 Issues Conference for the Renewal Permit application, the Staff provided a draft permit to dispose of sludge by spreading it on land. The draft Renewal Permit was marked as Exhibit 4 for identification. The Department Staff also provided a corrected copy of the first page of the draft permit to operate the Tank identified as Exhibit 3. The Staff modified the first page of Exhibit 3 so the permit to operate the Tank would have the same expiration date as the Renewal Permit to dispose of sludge by spreading it on land. The Applicant accepted all the draft Renewal Permit conditions, and the modification of the draft permit for the Tank. Copies of the two draft permits are attached to this Report as Appendix B.

At the January 13, 1993 Issues Conference, the Applicant, the Staff and CCSE identified no additional issues for adjudication regarding the Renewal Permit. Furthermore, the Parties stated the draft Renewal Permit conditions resolved the compliance history issue. After the January 13, 1993 Issues Conference regarding the Renewal Permit, the Applicant, the Department Staff and CCSE explained how the draft Renewal Permit conditions (Exhibit 4 for identification) resolved the compliance history issue.

The Applicant stated the draft Renewal Permit conditions provide a mechanism to assure the Tank and the land spreading operations are safe and in compliance with the applicable laws and regulations. According to the Applicant, the draft conditions provide for groundwater testing, a part time environmental monitor, and better access to records about the Applicant's operations. The Applicant would finance the groundwater testing and the environmental monitor.

The Department Staff agreed to administer the funds for the environmental monitor. The environmental monitor would regularly inspect the Applicant's operations and prepare reports. Copies of the monitor's reports would be available for public inspection at the Department's regional sub-office in Bath. Also, the Department Staff identified a draft condition that would require the Applicant to use color coded signs to post the fields. The purpose of the different colored signs is to distinguish fields that have exempt wastes spread on them (e.g. manure) from those that have regulated wastes spread on them. Although not explicitly required by Part 360, the Department Staff stated 360-1.11(a) provides the regulatory authority for the groundwater monitoring.

According to the Cameron Committee for a Safe Environment, the following draft Renewal Permit conditions would assure compliance with the ECL and regulations. These draft conditions include: (1) requiring an environmental monitor who is employed by the Department and financed by the Applicant, (2) testing groundwater, and (3) limiting hours of operation for the Tank from 6 A.M. to 7 P.M. and land spreading to day-light hours, weather permitting. CCSE stated the draft Renewal Permit conditions meet its needs.

When Parties to an adjudicatory proceeding resolve contested issues by stipulation after the hearing record is opened, the Commissioner's Organization and Delegation Memorandum #85-13 requires the Administrative Law Judge to review the stipulation when issues have been joined for trial.

Organization and Delegation Memorandum #85-13 directs the ALJ to determine whether the terms of the stipulation are clear, if the stipulation is consistent with and responsive to concerns raised by the Parties and the public during the hearing process, whether the terms of the stipulation are within the jurisdiction of the Department to impose on the Applicant and are enforceable, and whether the stipulation adequately assures the Project would comply with the applicable environmental laws and regulations.

The stipulation is expressed as permit conditions that are acceptable to the Applicant and CCSE. The terms of the stipulation are clear. Since the Tank and the Renewal Permit are interrelated parts of the Applicant's sludge storage, stabilization and disposal operations, the draft Renewal Permit conditions address CCSE's concerns.

The Department has the jurisdiction to impose these permit conditions and to enforce them. The Commissioner's Organization and Delegation Memorandum #92-10, dated February 20, 1992, provides guidance about using environmental monitors. According to the memorandum, ECL Article 3, and other sources in the ECL, provide the legal authority for monitors. Section 360-1.11(a) authorizes the Department to condition permits to mitigate impacts that may occur which are not expressly contemplated in Part 360 such as monitoring groundwater. The draft Renewal Permit conditions adequately assure the Tank and the land spreading operations will comply with the applicable environmental law and regulations.

Conclusion

The draft Renewal Permit conditions serve as the basis for the stipulation between the Applicant, CCSE and the Department Staff. These permit conditions resolve the compliance history issue by assuring that the Applicant's operations are safe and comply with the ECL and regulations. The draft Renewal Permit conditions meet the criteria outlined in Organization and Delegation Memorandum #85-13.

Recommendations

  1. The Commissioner should affirm that the stipulation represented by the draft Renewal Permit conditions meets the criteria outlined in Organization and Delegation Memorandum #85-13.
  2. Since no one raised additional issues for adjudication at the Issues Conference for the Renewal Permit, the Commissioner should remand the matter to the Department Staff to complete the processing of the permit to operate the Tank and the Renewal Permit, and to issue these permits as drafted by the Department Staff.
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