Eastman Kodak Company - Ruling, November 17, 2000
Ruling, November 17, 2000
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the matter of
Eastman Kodak Company's application for a renewal and modification for an
Air State Facility Permit for Emission Point 218-1 pursuant to ECL Article 19 and 6 NYCRR 201-5
NYSDEC PROJECT NO. 8-2614-00205/01817
RULING ON ISSUES
AND PARTY STATUS
November 17, 2000
This proceeding involves the joint petition of Citizens Environmental Coalition, the Kandid Coalition and Susan Mihalyi ("Petitioners") for party status in the above captioned matter. The Administrative Law Judge ("ALJ") finds that none of the issues proposed by the Petitioners meet the regulatory standard for an adjudicatory issue and therefore, no adjudicatory hearing is necessary. Further, the ALJ denies the granting of party status to any of the Petitioners.
Eastman Kodak Company ("Kodak" or "Applicant") has applied to renew and modify its air state facility permit ("air permit") in order to install new air pollution control equipment ("APCE") at its chemical waste incinerator located in Building 218 at Kodak Park in the City of Rochester. This new APCE is necessary to ensure compliance with new federal standards for emissions from hazardous waste incinerators (40 CFR Part 63, Subpart EEE) which require the installation of Maximum Achievable Control Technology by September 30, 2002.
Kodak and the Staff of the New York State Department of Environmental Conservation ("DEC Staff") anticipate that installation of this new APCE will result in the removal of between 50-80% of the currently permitted emissions of particulates, metals, and dioxins/furans from the incinerator's exhaust gases.
DEC Staff determined that the installation of the new APCE will not have a significant adverse impact on the environment and issued a Negative Declaration pursuant to the State Environmental Quality Review Act ("SEQRA"). This Negative Declaration was subsequently revised (September 22, 2000) in response to public comments (6 NYCRR 617.7(e)), but DEC Staff maintains that the Negative Declaration is still applicable (Application Document #43). Following review of the application materials, DEC Staff prepared a draft permit dated September 22, 2000 on terms acceptable to Kodak.
The Petitioners, in their Amended Petition for Party Status dated October 24, 2000, ("Petition"), propose five issues for adjudication. These issues fall into two categories: challenging the appropriateness of DEC Staff's action taken pursuant to SEQRA; and, the compliance history of Kodak and its fitness to be issued the air permit.
Legislative Hearing and Issues Conference
Two opportunities for the public to make oral statements were provided. The legislative hearing and issues conference was originally the subject of a hearing notice dated July 26, 2000 that appeared in the Rochester Democrat and Chronicle on August 29, 2000 and in the Environmental Notice Bulletin on the same day. This notice announced that the legislative hearing would occur on August 28, 2000 and the issues conference would occur the next day.
A legislative hearing was held on August 28, 2000 at the Airport Marriott, Ridge Road, Rochester, New York. At this hearing a representative of the Applicant, a representative of DEC Staff, and thirteen members of the public presented oral testimony. Eleven people spoke against the issuance of the permit, two spoke in favor.
An issues conference was convened on August 28, 2000 in the same location. Upon motion from the Petitioners' counsel, the ALJ vacated the hearing process because many of the application documents had not been placed in the public repositories and thus had not been made available for public inspection during the public notice period.
A second hearing notice, dated September 22, 2000, was then published in the Rochester Democrat and Chronicle on September 27, 2000 and in the Environmental Notice Bulletin on the same day. This notice announced that the legislative hearing would occur on October 30, 2000 and the issues conference would occur the next day.
The second legislative hearing was held on October 30, 2000 at the Airport Marriott, Ridge Road, Rochester, New York. At this hearing a representative of the Applicant, a representative of DEC Staff, and twenty members of the public presented oral testimony. Many of those who spoke had also testified at the earlier legislative hearing. Eleven people spoke against the issuance of the permit, eight spoke in favor. The transcript of the August 28, 2000 legislative hearing and all written comments previously received were incorporated into the legislative hearing record for the October 30, 2000 legislative hearing.
An issues conference was convened at 9:00 a.m. on October 31, 2000 at the same location. Both parties, DEC Staff and Kodak, attended as did representatives the Petitioners.
DEC was represented by Paul D'Amato, Esq., Regional Attorney, from DEC's Region 8 office. Mr. Peter Lent, DEC's Region 8 Acting Permit Administrator also attended.
Kodak was represented by Scott Turner, Esq. from the law firm of Nixon Peabody, LLP. Joanne Gould, Esq. and Bernard Nee, employees of Kodak, also attended.
The Petitioners, Citizens Environmental Coalition, the Kandid Coalition and Susan Mihalyi, were represented by Valerie Gardner, Esq. Paul Connett, Ph.D. also attended.
Following the close of the Issues Conference and in an effort to more fully develop the issues discussed, a briefing schedule was set.
Reply briefs were timely submitted by all participants at the Issues Conference. The Issues Conference Record closed with the receipt of these briefs on November 10, 2000.
In a cover letter to these reply briefs, counsel for Kodak objected to the submission of certain documents into the issues conference record by the Petitioners' counsel. The basis for this objection was that these documents were irrelevant. I hereby overrule the objection and find these documents relevant. Therefore, I have included all 41 documents submitted by the Petitioner as exhibits in the issues conference record.
DEC Staff's Position
DEC Staff asserts that the project as conditioned by the draft permit complies with all applicable state and federal law. Further, DEC Staff asserts that none of the Petitioners' proposed issues require adjudication and that the Petitioners should not be granted full party status.
Kodak concurs with DEC Staff and, as noted above, accepts all terms and conditions of the draft permit.
The Petitioners assert that DEC Staff's determinations pursuant to SEQRA are faulty and that Kodak's compliance history is such that the permit either should be denied or, in the alternative, modified to include a requirement that four on-site environmental monitors be required.
In this matter, since DEC Staff has reviewed the application and found that Kodak's proposed project, as conditioned by the draft permit, conforms to all applicable requirements of statute and regulation, the burden of persuasion for all issues proposed for adjudication is on the Petitioners. (6 NYCRR 624.4(c)(4)).
The Petitioners have proposed four issues for adjudication related to DEC Staff's determinations made pursuant to SEQRA. In this case, where DEC is the lead agency, the ALJ may review a determination by DEC Staff to not require an environmental impact statement. Only if the ALJ finds that the determination was irrational or otherwise affected by an error of law, can the ALJ remand the determination to DEC Staff with instructions for a redetermination. In all other cases, the ALJ will not disturb DEC Staff's determination. (6 NYCRR 624.4(c)(6)(i)(a)).
Thus, for each of the four SEQRA issues proposed for adjudication, the Petitioners must demonstrate that the determinations made by DEC Staff were either irrational or otherwise affected by an error of law. If the Petitioners fail to prove this, the ALJ has no alternative but to find that the proposed issue does not meet the standard for adjudication.
-- Proposed SEQRA Issue #1 DEC Staff erred by not requiring preparation of a full Environmental Impact Statement.
Petitioners assert that DEC Staff acted irrationally or made an error of law by not requiring the preparation of an Environmental Impact Statement (EIS). This argument has two parts: first, DEC Staff erred in defining the "action", as defined by SEQRA, and thus failed to require the preparation of an EIS for the entire waste stream produced at Kodak Park prior to the issuance of the air permit; and second, that DEC Staff erred in determining that the project would have no significant adverse impact on the environment.
DEC Staff and Kodak assert that the "action" in this case is the installation of the new APCE at Building 218 (Transcript or "T." 19-20). The Petitioners argue that the "action" should be defined to include both the installation of the new APCE and the incineration of chemical waste in the incinerator itself. (T. 20-21). Petitioners contend that this incorrect definition led DEC Staff to fail to require the preparation of an EIS.
SEQRA defines "action" to include projects or physical activities, such as construction or other activities that may affect the environment by changing the use, appearance or condition of any natural resource or structure that require one or more new or modified approvals from an agency or agencies. (6 NYCRR 617.2(b)). In this case, chemical wastes are now and have been incinerated at Building 218. Kodak is not seeking approval to increase the amount of waste incinerated at the facility or in any way affect the combustion portion of the incinerator. The only changes to the structure of Building 218 are to construct and install the new APCE. Thus, I find that DEC Staff did not err in defining that the action is the installation of the new APCE.
Next, the Petitioners assert that DEC Staff made an error of law by failing to recognize that the installation of the new APCE may have a significant adverse impact on the environment and thus failed to require the preparation of an EIS. The determination whether an action will have a significant adverse impact on the environment is one of the most important decisions to be made in the SEQRA process, because it either results in the preparation of an EIS or the end of the environmental review.
To support their position, the Petitioners point to the Negative Declaration which indicates that the contaminants removed from the air emissions by the new APCE will be captured in wastewater. This wastewater will then be treated at the Applicant's King's Landing Wastewater Purification Plant ("KLWPP")(See Negative Declaration, p. 2). Following treatment, this wastewater will be discharged to the Genesee River. Sludge from the treatment process will then be burned in a second incinerator at Kodak Park, Building 95.
The Negative Declaration states that the installation of the new APCE is expected to produce an additional 110,000 gallons per day ("gpd") of wastewater and will be treated with the other 27,800,000 gpd of wastewater generated at Kodak Park (p. 2). Petitioners contend that this additional release of wastewater may have a significant adverse impact on the environment and thus should warrant the preparation of an EIS. Petitioners point to the fact that DEC Staff intends to undertake a short-term high intensity dioxin/furan monitoring program of the wastewater from KLWPP following the operation of the new APCE as proof that DEC Staff acknowledges that a significant adverse environmental impact may occur as the result of the installation of the new APCE. (T. 25).
DEC Staff and Kodak dispute the Petitioners' claims. With respect to impacts on water quality in the Genesee River, DEC Staff asserts that the installation of the APCE will result a greater volume of wastewater being sent to KLWPP but this volume is within the treatment capacity of the facility. (T. 28). DEC Staff (and Kodak) acknowledges that this action will result in a slight increase in contaminants being released to the Genesee, but that the increase in pollution is de minimis and well below the limits specified in the State Pollutant Discharge Elimination System ("SPDES") permit. Therefore, DEC Staff concludes this increase discharge is insignificant. (T. 46-7). With respect to the planned testing program to be initiated following the installation of the new APCE, DEC Staff contends that this testing is being done to confirm the expected results, that this action will not result in a significant adverse impact to the environment (T. 29). The fact that testing is planned to validate expected results following completion and installation of the APCE is not reason alone to require preparation of an EIS.
In addition to the possibility of significant adverse impacts to water quality, the Petitioners also assert there is a possibility of a significant adverse impact to air quality due to the burning of wastewater sludge at a second incinerator, located at Building 95 in Kodak Park. (T. 48-58). DEC Staff and Kodak contest this and state that the emissions of air pollution resulting from the burning of the additional wastewater sludge are de minimis and are within limits in the air permits Building 95. (T. 46-49).
The first step in determining whether or not a proposed action will have a significant adverse impact on the environment is to determine with the action is a Type I, Type II or an Unlisted Action. In this case DEC Staff has determined that the installation of new APCE is an unlisted action and the Petitioners have not disputed this (6 NYCRR 617.2(ak)).
Next, DEC Staff must review the Environmental Assessment Form ("EAF") and other information to identify the relevant areas of environmental concern (6 NYCRR 617.7(b)(2)). Once the relevant areas of environmental concern have been identified, DEC Staff then must thoroughly analyze these area and determine whether the action may have a significant adverse impact on the environment. (6 NYCRR 617.7(b)(3)). Following this analysis, DEC Staff must then set forth its determination of significance in a written form containing a reasoned elaboration. (6 NYCRR 617.7(b)(4)). These regulations codify the test used by the Appellate Division, Fourth Department in H.O.M.E.S. v. New York State Urban Development Corporation (69 A.D.2d 222, 418 N.Y.S. 2d 827 (4th Dept. 1979). As a matter of law, if the new APCE at Kodak may have at least one significant adverse impact on the environment, the preparation of an EIS is required. (6 NYCRR 617.6(g)(1)(ii).
In this case, following review of the permit application materials, DEC Staff identified two potential environmental impacts from the installation of the new APCE: impacts to air quality and impacts to water quality. DEC Staff determined the installation of the new APCE would not have a significant adverse impact on the environment. Finally, DEC Staff provided a reasoned elaboration supporting its determination. All of this is contained within the Negative Declaration.
RULING: The Petitioners have failed to demonstrate that the actions of DEC Staff in not requiring the preparation of an EIS are either irrational or based upon an error of law.
-- Proposed SEQRA Issue #2 DEC Staff impermissibly segmented its SEQRA review
Petitioners assert that DEC Staff failed to address the environmental impacts associated with the: additional wastewater traveling through the existing industrial sewer system at Kodak Park; the additional sludge being incinerated at Building 95; and, analyze the contents of the ash from Building 95. (T. 79-82). Petitioners contend that the failure to address these impacts constitutes an impermissible segmentation and should void the Negative Declaration. Impermissible segmentation occurs when a lead agency improperly divides the environmental review of an action so that the various parts of the action are evaluated separately. As discussed before, the standard for my review is: was the failure by DEC Staff to examine these impacts irrational or affected by an error of law. (6 NYCRR 624.6(i)(a)).
With regard to the integrity of the sewers between Building 218 and KLWPP, DEC Staff asserts that these are existing sewers that presently convey approximately 600,000 gpd of wastewater from the Building 218 to KLWPP and that Kodak plans no alteration of the system as part of the action. (T. 83-84). Further, the sewers in question are the subject of a consent order which requires that these sewers be in "verifiably non-leaking condition" before the new APCE becomes operational (T. 93). Thus, Kodak is required to assure that before the new APCE is operational that there will be no leaks from the sewers and no impact on the environment.
Regarding the creation of additional sludge at KLWPP, and the resulting incineration of this sludge, DEC Staff and Kodak assert that this potential environmental impact was identified and discussed in the Negative Declaration (p. 8). DEC Staff's analysis showed that the incineration of the additional sludge at KLWPP would not have a significant adverse impact on the environment.
Regarding ash, the Petitioners assert that because there is no analysis of the contents of the ash from Buildings 218 and 95, and it is impossible to do a mass balancing for the entire facility. A mass balancing analysis compares what goes into the incinerator with what comes out. Petitioners assert that the inability to conduct such a mass balancing makes it impossible to accurately characterize the emissions of pollutants to the environment and thus precludes any analysis of whether there may be a significant adverse impact on the environment. (T. 97-99). The ash from the incinerators is disposed of by shipment to a facility in Canada (Negative Declaration, p. 11).
DEC Staff responds that procedures for ash handling do not change as a result of the installation of the APCE (T. 100). Further, since the ash is never exposed to the environment, its handling cannot be considered to have a significant adverse impact on it (T. 102).
RULING: I find that the Petitioners have failed to demonstrate that DEC Staff improperly segmented the environmental review of this action or that DEC Staff irrationally or erred in implementing the law regarding these proposed segmentation issues. There are no anticipated environmental impacts as a result of the additional wastewater flowing through the sewers. The impacts on air quality as a result of the burning of additional sludge in Building 95 have been identified, the requisite hard look has been taken and a reasoned elaboration has been provided in the Negative Declaration. Finally, while analysis and public disclosure regarding the contents of the ash may be desired by the Petitioners, they have failed to demonstrate that the DEC Staff's failure to require this information was irrational or contrary to law.
-- Proposed SEQRA Issue #3 DEC Staff's Negative Declaration is based on faulty and out of date scientific information
The next issue raised by the Petitioners is that DEC Staff relied upon faulty and out-of-date scientific information in determining that the proposed action would not have a significant adverse impact on the environment. Petitioners also use SEQRA as the basis for this argument (Petition, p. 8). The standard for review is again: were the actions DEC Staff regarding these issues irrational or affected by an error of law. (6 NYCRR 624.6(i)(a)).
The Petitioners raise six sub-issues. The first three involve what the Petitioners allege is new scientific evidence that was not incorporated in DEC Staff's SEQRA review. First, Petitioners point to a study done in Belgium that purports to show that the test burn done on Building 218 could underestimate the amount of dioxin produced by 30 - 50 times. (T. 120, Petition 8). Second, Petitioners point to a study by EPA indicating that 90% of the products of chemical waste incineration have not been identified. (T. 147, Petition 9). Third, Petitioners point to a study that indicates that dioxin has a greater negative impact on the environment than previously thought. (T. 173, Petition 11). Petitioners argue that DEC Staff should have incorporated the results of these studies through additional conditions in the draft permit. In essence, Petitioners argue that what is required by law is not enough to protect the environment and that DEC Staff should require Kodak to do more. (T. 168)
DEC Staff and Kodak respond that the proposed air pollution control permit and Negative Declaration are both based upon protocols approved by the United States Environmental Protection Agency ("EPA"), which takes the lead in such matters. (T. 126, 152). Further, the studies cited by the Petitioners fall into the category of "evolving science". EPA has informed the states not to use these "evolving science" studies for regulatory purposes. These studies may form the basis of future regulatory protocols, but for the moment are not to be used. (T. 128, 153).
Kodak and DEC contend that Petitioners admit that the draft permits do not violate the law (T. 160). Further, the Petitioners' argument that Kodak should be required in its permit to go beyond what is required by law is contrary to New York State law which states that no air pollution control permit shall contain any emission standard more stringent than that established by federal or state law (ECL §19-0302(2))(T. 161).
Kodak argues that DEC Staff did not act irrationally when requiring compliance with state and federal standards. Kodak further argues that if DEC Staff were to insert requirements in the permit that are not based on accepted science, this would be irrational. (T. 163). Finally, DEC Staff and Kodak argue that the appropriate avenue for Petitioner to seek changes in the permit conditions is to have EPA change its protocols and thus require DEC Staff to amend Kodak's permit. (T.165).
RULING:I concur with DEC Staff and Kodak and find the Petitioners have failed to meet the burden of proof that DEC Staff acted irrationally or in error of law.
The next two sub-issues raised by the Petitioners involve the adequacy of the Health Risk Assessment and its incorporation in DEC Staff's SEQRA review. Specifically the Petitioners assert: that the Negative Declaration failed to examine the high cancer rates surrounding Kodak Park (T. 188, Petition 14); and, that the Negative Declaration failed to examine the risk to workers at Kodak (T. 199, Petition 15).
In response, both DEC Staff and Kodak assert that the Health Risk Assessment, which was completed by a consultant for Kodak in September 1997, is indeed adequate. DEC Staff and Kodak point to the fact that the Assessment was subsequently reviewed and approved by both the New York State Department of Health ("NYSDOH") in September 1998 and EPA in May, 2000. Both agencies found that the Assessment adequately evaluated the health impacts of both neighbors of Kodak Park and employees. They further assert that the installation of new APCE will significantly reduce the amount of air pollution from Building 218, thus improving public health. Finally, Kodak and DEC Staff assert that both the substance of and the procedures followed in the Health Risk Assessment are consistent with state and federal law. The Petitioners do not dispute this point.
RULING: Since the Petitioners do not dispute that the substance and procedures used were consistent with state and federal law, I conclude that DEC Staff did not act irrationally or in error of law on these points. Instead, the Petitioners seek to hold Kodak to higher standards than required by law. To do so would be exceeding the statutory authority of the DEC.
The final issue raised by the Petitioners is that under the federal Resource Conservation and Recovery Act("RCRA"), the permit should be denied if there is a danger to the public health or the environment that cannot be adequately mitigated. (T. 203, Petition 15). DEC Staff and Kodak respond that this is irrelevant because the permit at issue is not a RCRA permit, but rather an air pollution control permit issued pursuant to Article 19 of the ECL.
RULING: I concur with DEC Staff and Kodak that this issue is not relevant and, therefore, not adjudicable.
-- Proposed SEQRA Issue #4 DEC Staff's Negative Declaration failed to consider alternatives
The final SEQRA issue raised by the Petitioners is that DEC Staff's Negative Declaration is faulty because it fails to consider alternatives to the installation of the proposed APCE (T. 207). Petitioners assert that superior air pollution control technology exists for chemical waste incinerators, such as the use of activated carbon injection systems, and that the failure to evaluate these alternatives in the Negative Declaration is irrational and violates SEQRA.
DEC Staff and Kodak correctly assert that there is no requirement under SEQRA for the consideration of alternatives when the lead agency determines that there will be no significant adverse impacts from the proposed action, as is the case here. The requirement that the lead agency describe and evaluate a reasonable range of alternatives to a proposed action only must occur if an EIS needs to be prepared. (6 NYCRR 617.9(b)(5)(v). The Petitioners have not cited any statutory, regulatory or case law to support their position, nor is any available to support the contention that alternatives need to be considered by a lead agency when a Negative Declaration is issued.
RULING:Therefore, I find that DEC Staff did not act irrationally or make an error of law by not considering alternatives to the proposed action in its Negative Declaration.
-- Issue #5 DEC Staff failed to consider the Compliance History of Kodak
The final argument raised by the Petitioners is that Kodak's application for air permit should be denied or in the alternative, DEC Staff should require at least require four on-site DEC monitors, because Kodak's record of compliance contains numerous and serious violations such that Kodak cannot be trusted to operate in compliance with the requested permit. Both DEC Staff and Kodak disagree with Petitioners' contention that the record of compliance issue should be adjudicated.
The parties do not dispute that DEC has the authority to deny permit applications based upon the compliance history of an applicant. The Commissioner of DEC has issued a Record of Compliance Enforcement Guidance Memorandum ("EGM")(revised February 1993), pursuant to statutory authority. The EGM establishes the policy and procedures by which DEC Staff is to "ensure that persons who are unsuitable to carry out responsibilities under Department permits ... are not authorized to do so." (EGM, p.1). "The legislative requirement that a person have a permit or license in order to engage in certain activities creates not only an authorization but a command to the permitting and licensing authority to take reasonable steps to ensure that the applicant is a fit and proper person to engage in the permitted or licensed activity." (EGM, p. 3).
The evaluation of an applicant's record of compliance or fitness to hold an environmental permit is to be done on a case by case basis. (EGM, p. 4). "There is no quantitative model or formula for determining how many violations or what amount of civil penalties render a person unsuitable to receive a permit" Matter of Waste Management of New York, LLC., Interim Decision of the Commissioner, May 15, 2000, p.7. Other decisions regarding fitness emphasize that the evaluation of the record of compliance of applicants "are situation specific and require a careful balancing of facts and policy considerations." Matter of Laidlaw Environmental Services, Inc., Decision of the Commissioner, June 28, 1994, p.1.
As with the SEQRA issues discussed above, the burden of persuasion is on the Petitioners. The Petitioners must demonstrate that the issue of Kodak's record of compliance is both substantive and significant. (6 NYCRR 624.4(c)(4)). An issue is substantive if there is sufficient doubt about the applicant's ability to meet statutory or regulatory criteria applicable to the project, such that a reasonable person would require further inquiry. (6 NYCRR 624.4(c)(2)). An issue is significant if it has the potential to result in the denial of a permit, a major modification to the proposed project or the imposition of significant permit conditions in addition to those proposed in the draft permit. (6 NYCRR 624.4(c)(3)).
In an effort to meet this burden the Petitioners have offered records indicating numerous violations of both state and federal environmental law in their attempt to demonstrate that Kodak is unfit to receive this permit or, in the alternative, should be required by the permit to employ at least 4 on-site monitors at Kodak Park.
The Petitioners' basis for asserting this issue is the alleged history of non-compliance with environmental law at Kodak Park. Petitioners provide a list of ten violations dating back over the past decade (which they say are only a small sampling of violations) and some 130 alleged violations that occurred at Building 95. Both Kodak and DEC Staff dispute the number of violations asserted by the Petitioners. Kodak states that Petitioners have double counted the violations and that only five events merit consideration under the EGM. DEC Staff notes that of the 130 alleged violations at the incinerator, 121 were automatic waste feed cutoffs which occurred when according to design parameters, the incinerator automatically stops accepting waste when problems are detected. I concur with DEC Staff that these cutoffs should not be considered violations, but rather the activation of safety equipment to prevent emission problems. Thus, the number of alleged violations is far fewer than that alleged by the Petitioners and find that the Petitioners have greatly exaggerated the number of alleged violations.
In response to the Petitioners' arguments, DEC Staff asserts that after reviewing the compliance history of Kodak during the permit application process, that DEC Staff decided issuance of the permit is warranted. DEC Staff notes that Kodak Park is one of the largest industrial complexes in the world and that Kodak holds hundreds of DEC permits. Accordingly, it is not unexpected that some violations have occurred within the 1300 acres of Kodak Park at the various chemical processing points.
DEC Staff also makes two important points. First, "To staff's knowledge, there has been no substantial allegation by the United States Environmental Protection Agency or DEC that the company has failed to perform the obligations imposed upon them by the orders [to correct violations] listed in the petition, and the petition contains no such demonstration or allegation." (DEC Staff's Response to Petition, p. 4). And second, pursuant to an existing consent order, there are 2 environmental monitors being paid for by Kodak presently.
RULING: I concur with DEC Staff and Kodak that this issue does not rise to the level of an adjudicable issue. I find that this issue is not substantive because the Petitioners have failed to show that there is sufficient doubt regarding Kodak's ability to meet applicable statutory or regulatory criteria. It is true that Kodak has violated environmental law in the past. Kodak has acknowledged past wrongdoing and according to DEC Staff, the regulators, has complied with the terms of orders to remedy past problems. (Compare, Matter of AL TURI LANDFILL, Commissioner's Decision, April 15, 1999). In addition, DEC Staff has already required Kodak to pay for two full-time on-site monitors who are already in place at the facility. The Petitioners offer of proof does not rise to the level that a reasonable person would inquire further regarding Kodak's ability to meet the statutory and regulatory criteria. Therefore, this issue is not substantive, as defined by the regulations, and not adjudicable.
In addition to the record of compliance history issue discussed above, the Petitioners have also raised a two ancillary issues. First, Petitioners assert neither incinerator, Building 95 and Building 218, has ever had a valid permit. This seems to be contradicted by the Petitioners second claim that Kodak is burning chemical wastes in violation of its permit at Building 218 and the consent order provided by the Petitioners. Specifically, the Petitioners assert that Kodak has been using its chemical waste incinerators to dispose of off-site generated hazardous waste in violation of Kodak's permit. Petitioners assert that Kodak's acceptance of wastes from off-site sources, including Monroe County's hazardous waste collection efforts from citizens, "is not within permit parameters". Both of these claims are disputed by DEC Staff and Kodak.
As part of the petition for party status, Petitioners are required to present an offer of proof which includes the nature of the evidence the petitioner expects to present and the grounds upon which the assertion is made with respect to that issue (6 NYCRR 624.5(b)(2)(ii).
RULING: In this case, Petitioners fail to offer any support for these claims. Rather, both issues are raised in conclusory statements. The Petitioners present no offer of proof that the incinerators are operating without the required permits, nor do the Petitioners offer any proof that Kodak's admitted acceptance of waste from other generators violates existing permits. According, no issue is raised.
While there are no adjudicable issues raised by the Petitioners, this is not the same as finding that some of their technical and scientific arguments are not without merit. Whether these arguments are valid is not a determination appropriate to this forum. If the Petitioners wish to pursue these arguments the appropriate forum is the EPA, which can review new scientific information and require it nationwide, or before the Legislature, which can amend SEQRA to require review of the matters sought by the Petitioner.
The Petitioners have failed to prove that any of the issues that they have proposed meet the standard for adjudication. Since none of the issues asserted by the Petitioners meet the standard for an adjudicable issues, I hereby deny the Petitioners Petition for Full Party Status. (6 NYCRR 624.5(d)(1)(ii)). Finally, I hereby direct that no adjudicatory hearing is necessary in this matter and that DEC Staff should continue processing Kodak's application to issue the requested permit renewal and modification. (6 NYCRR 624.4(c)(5)).
This ruling may be appealed to the Commissioner on an expedited basis. 6 NYCRR 624.8(d)(2). Ordinarily, expedited appeals must be filed with the DEC Commissioner in writing within five days of the disputed ruling. 6 NYCRR 624.6(e)(1). However, I provide that any appeals must be sent to Commissioner John P. Cahill and received at the Office of the Commissioner (NYSDEC, 50 Wolf Road, Albany, New York 12233-1010) before 5 p.m. on November 29, 2000. Any responses to any appeals must be received before 5 p.m. on December 6, 2000. The parties shall ensure that transmittal of all papers is made to me and all parties at the same time and in the same manner as transmittal is made to the Commissioner. Please send two copies of any appeal that is filed. No submissions by telecopier will be accepted. Appeals should address this ruling, rather than merely restate a party's contentions. Any request for an adjustment to the appeal schedule must be made to DEC's Chief Administrative Law Judge, Daniel E. Louis, at the Office of Hearings and Mediation Services.
P. Nicholas Garlick
Administrative Law Judge
Dated: Albany, New York
November 17, 2000