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Environmental Waste (Long Beach) - ALJ Ruling 2, November 1, 1996

ALJ Ruling 2, November 1, 1996

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violations of Articles 17, 19, 27, and 71 of the Environmental Conservation Law of the State of New York, Sections 173, 175 & 176 of the Navigation Law of the State of New York, and Title 6, Parts 200, 201, 219 & 360, of the Official Compilation of Codes, Rules and Regulations of the State of New York,

- By -

Environmental Waste Incineration Inc.,
ERD Waste Corp., and
ERD Management Corp.,

Respondents.

RULING OF THE ADMINISTRATIVE LAW JUDGE

Background

By a Notice of Hearing and Complaint dated September 4, 1996, the Department Staff charged the above-named Respondents with various violations stemming from operation of the Long Beach Resource Recovery Facility, an incinerator at 70 Water Street, Long Beach. By a verified petition dated October 3, 1996, the City of Long Beach moved to intervene as a party in this enforcement proceeding. The Respondents filed an affidavit dated October 15, 1996, in opposition to the City's motion. The City provided a reply affirmation dated October 24, 1996.

Standard for Intervention

The Department's regulations provide that at any time after the institution of a proceeding, the commissioner or the assigned administrative law judge, upon receipt of a verified petition and for good cause shown, may permit a person to intervene as a party. [6 NYCRR 622.10(f)(1)] The petition to intervene must state with preciseness and particularity:

(1) the petitioner's relationship to the matters involved;
(2) the nature of the material the petitioner intends to present in evidence;
(3) the nature of the argument the petitioner intends to make; and
(4) any other reason that the petitioner should be allowed to intervene. [6 NYCRR 622.10(f)(2)]

To succeed, the petitioner must demonstrate (1) that there is a reasonable likelihood that its private rights would be substantially adversely affected by the relief requested, and (2) that those rights cannot be adequately represented by the parties to the hearing. [6 NYCRR 622.10(f)(3)]

Position of the City

The City claims a relationship to the matters involved because it owns the land upon which the incinerator is situated, and because it is a party to a disposal agreement that governs the facility's operation. The City intends to present evidence including findings of its consulting engineers about the physical status and capability of the facility to operate in accordance with permit requirements, the expenditures and feasibility of attaining compliance with the state air laws, and other materials the City has concerning violations of the state's environmental law and the facility's own permits.

If allowed to intervene, the City says it would argue that the Respondents have accepted and burned non-approved medical and household hazardous waste at the facility, thereby risking the health, safety and welfare of the City's residents. In addition, the City would argue that the violations alleged by Department Staff also breach agreements to which the City is a party. Finally, the City would argue that due to its disputes with the Respondents, it has ordered them to stop work on the facility, and that the Respondents' alleged failure to operate and manage the facility in accordance with applicable laws has prompted the City to make two requests for Department intervention, one by letter dated March 30, 1994, and a second by resolution dated September 3, 1996.

The City supports the Department Staff's requests for a Commissioner's order (1) directing that the Respondents immediately cease operation of the incinerator, (2) requiring the Respondents to properly close the facility in accordance with 6 NYCRR Part 360, and (3) revoking the facility's air pollution control and solid waste management facility permits.

The City claims that its private rights would be adversely affected by the relief requested because, should the Department revoke the facility's permits, the City would be required to obtain alternative means of solid waste disposal. The City also notes that if the Respondents do not comply with a closure order, the City would have to ensure that closure occurs without any expense to it and in accordance with existing contracts.

The City also claims that its rights cannot be adequately represented by Department Staff since the City, not the Department, has the primary responsibility to ensure the health, welfare and safety of its residents. The City asserts that it must be a party to avoid any determination which may be adverse to its interests.

Position of the Respondents

The Respondents argue that the right of intervention is very limited under Part 622, and that the City has not met the regulatory standards for entering this proceeding.

More particularly, the Respondents claim that the City does not have private rights which give rise to the need for intervention. Also, the Respondents claim, any rights the City asserts would not be "substantially adversely affected" because the City wants the same relief requested by Department Staff.

The Respondents claim that the City's solid waste disposal is governed by a written contract between the City and one of the Respondents to whom the rights under the contract have been assigned. According to the Respondents, the City's contractual issues should be addressed, if necessary, in a court of law, not in this action.

The Respondents contend that any rights the City has can be adequately represented by Department Staff. Because the Department is authorized and obligated to address violations of the Environmental Conservation Law, the Respondents claim it cannot be argued seriously that the Department is not capable or does not have the expertise to see that proper enforcement is undertaken. Furthermore, the Respondents claim, it is not necessary or even appropriate for those who know of violations to become parties to an enforcement action since, by working with Department Staff, there is an opportunity for their evidence to be presented.

Finally, the Respondents claim that the City has not stated "with preciseness and particularity" the nature of the material it intends to present in evidence and the argument it intends to make. According to the Respondents, the City's evidence, as described in its petition, would not be related to the hearing issues.

Position of Department Staff

Department Staff "does not oppose" the City's request for intervention, said Benjamin Conlon, Staff counsel, during a telephone conference call. Staff was provided an opportunity to argue its position, but has declined to do so.

Discussion

The Department's regulations provide that intervention will only be granted where it is demonstrated that there is a reasonable likelihood that the petitioner's private rights would be substantially adversely affected by the relief requested by the Department. [6 NYCRR 622.10(f)(3)] The City has not made this demonstration and therefore I agree with the Respondents that its request for intervention must be denied.

Effect on City's Rights

The City contends that its private rights would be adversely affected by any decision made as a result of this enforcement action. However, according to the regulations, one should consider only how the relief requested would affect the City's rights. The relief requested by the Department Staff includes halting the incinerator's operation, closing the facility in accordance with Part 360, and revoking the Respondents' permits. The City's own motion indicates that it supports the Department Staff's intention to secure this relief. Given its position, the City cannot also argue that there is a reasonable likelihood that its private rights would be substantially adversely affected by the relief requested.

To explain its argument, the City contends that should the Department Staff prevail and revoke the incinerator's permits, the City would be required to obtain alternative means of solid waste disposal. On the other hand, the City wants the permits revoked, so such a result cannot be considered adverse to its stated interest.

Alternatively, the City argues, a negotiated settlement between the Department Staff and the Respondents allowing for the continued operation of the facility would be inconsistent with the City's own intent to seek its closure. This argument is irrelevant since the Department Staff is seeking closure of the facility; the continued operation of the facility is not contemplated according to the relief requested in the complaint.

Finally, the City claims that any result achieved in this proceeding could be inconsistent with future contract negotiations between the City and the Respondents. This argument is speculative; at any rate, possible future contracts do not vest rights in the City today.

Potential Site Remediation

To augment its motion, the City notes that it has recently been advised that there is a "Phase II Environmental Report" indicating potential contamination of the facility site and adjacent areas due to the incinerator's operation. As the site owner, the City asserts an interest in seeing that the site is remediated, and says that such remediation may be inconsistent with continued operation of the facility. Also, the City asserts that such remediation should be addressed in this enforcement proceeding. The City adds that if the Department requires remediation in accordance with 6 NYCRR Part 375, the City, as site owner, could incur significant cleanup expenses should the Respondents fail to comply with any Department order.

As a basis to intervene in this enforcement action, this argument has several flaws. First, it is highly speculative, requiring assumptions that there is actual contamination, that the Respondents will be directed to remediate, and that the Respondents will fail or refuse to comply with an order to do so. Second, even if there is contamination, this enforcement action has not been brought pursuant to Part 375, and is not directed toward site remediation. Finally, the relief requested by the Department Staff in this action does not absolve the Respondents of any responsibility for contamination they may have caused. Therefore, the City's rights in this regard would not be affected should the Department Staff prevail.

Closure of the Facility

The City argues that if the Respondents fail or are otherwise unable to comply with a closure order, the facility site and its improvements would revert to the City, and the City would have to ensure that closure occurs without expense to it and in accordance with agreements it has with one of the Respondents. This action does not affect rights that exist under those agreements and the City has appropriate remedies, outside this proceeding, to exercise those rights and thereby protect its interests.

Representation of City's Rights

To secure intervenor status, the City must also show that its private rights cannot be adequately represented by the other parties to this proceeding. While the City has not demonstrated any private rights that would be adversely affected by the relief requested by Department Staff, I also find that the Staff can adequately represent the City's interests in this matter.

For one thing, the City and the Department Staff are allies in this action; they both want the facility closed and its permits revoked. Second, by not opposing the request for intervention, the Department Staff implies a willingness to work with the City. Finally, the Department Staff is authorized and obligated to address violations of the state's environmental law, and has the expertise to do so.

As the Respondents point out, intervention in enforcement actions is strictly limited since the addition of parties tends to complicate hearing procedures. While intervention is allowed in certain circumstances, it would be inefficient to bring in additional parties without the requisite good cause [6 NYCRR 622.10(f)(1)] or merely because the Department Staff does not object to their entry. Among other things, the administrative law judge is obliged to do all acts and take all measures necessary for the maintenance of efficient hearing conduct [6 NYCRR 622.10(b)(1)(x)]. Efficiency is best achieved here by limiting the City's role to an informal one, assisting Department Staff to the extent the City has evidence confirming the violations alleged in the complaint.

This type of role was actually contemplated by the Department when it developed its intervention regulation. In a document addressing comments on the regulation, the Department confirmed that "public participation in enforcement matters is available through interaction with DEC Staff. Citizens, municipalities and citizen organizations may pursue their objectives by registering complaints with Staff, volunteering to be witnesses and otherwise assisting in Staff's prosecution." [Parts 622 and 624 Comments/Response Document, December 1993, DEC Office of Hearings, p.8-9.]

Alleged Flaws in Petition

As a separate basis for denying the City's motion, the Respondents claim that its petition is insufficiently precise and particular about the nature of the evidentiary material and argument that the City would present. While I find that, for the most part, the petition is adequately precise and particular, I also note that much of the material and argument has no apparent relevance to the allegations in the complaint. For instance, the Respondents are not charged with burning non-approved medical and household hazardous waste at the facility, one of the City's claims. Also, that the City has requested the Department's intervention, and has itself taken action against the Respondents, does not by itself prove any of the charges. Finally, whether the violations alleged in the complaint also constitute breaches of agreements the City has with the Respondents is a matter for the Respondents to pursue in court, and not in this administrative proceeding.

The City states that it would present documents and testimony in connection with violations of the Environmental Conservation Law (ECL) alleged in the complaint. This evidence is alleged to include findings of the City's consulting engineers regarding the physical status and capability of the facility to operate in accordance with its permits, the expenditures and feasibility of attaining compliance with the air laws, and other materials concerning violations of the ECL or the facility permits.

Without more detail, I cannot determine how relevant this evidence would be concerning the truth of Staff's charges or the appropriateness of its requested relief. However, nothing precludes the City from sharing its information with Staff, if it has not done so already. To the extent the information is helpful to Staff's case, Staff would presumably want to use it.

Opportunity to Comment

To address the City's concern about a possible settlement of this proceeding, the Respondents indicate that in other actions where there has been wide public interest, the Department has allowed public comment before the execution of a consent order. The Respondents also say they do not object to the Department subjecting any proposed settlement here to public comment. While I cannot compel it, I agree that affording the City and other members of the interested public an opportunity to comment on any tentative settlement reached between the Department Staff and the Respondents is a good idea. Ultimately, however, the Department must make its own determination whether any settlement is in the public interest.

Conclusion

The City has not demonstrated that there is a reasonable likelihood that its private rights would be substantially adversely affected by the relief requested, or that any rights it has cannot be adequately represented by Department Staff.

Ruling

For the reasons stated above, the petition of the City of Long Beach to intervene as a party in this enforcement action is denied.

Edward Buhrmaster
Administrative Law Judge
November 1, 1996
Albany, New York

TO: Dan Elias, Esq.
Elias Goodman Shanks & Zizmor, L.L.P.
444 Madison Avenue (41st Floor)
New York, New York 10022

Philip M. Halpern, Esq.
Pirro Collier Cohen & Halpern, L.L.P.
140 Grand Street (Suite 701)
White Plains, New York 10601

Steve Latham, Esq.
Twomey, Latham, Shea & Kelley
33 West Second Street
P.O. Box 398
Riverhead, New York 11901

Benjamin Conlon, Esq.
New York State Department of Environmental Conservation
Division of Environmental Enforcement
Compliance Assurance Practice Group
50 Wolf Road, Room 627
Albany, New York 12233-5500

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