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Haverstraw, Town of - Decision & Order, October 20, 1993

Decision & Order, October 20, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

of

Alleged Violations of Environmental Conservation Law of the State of New York
Article 27 and Title 6 of the Official Compilation of Codes, Rules and Regulations
of the State of New York Part 360

- by -

TOWN OF HAVERSTRAW (ROCKLAND COUNTY)

RESPONDENT

DECISION AND ORDER

DEC No. 3-1754/8908

WHEREAS:

This Decision and Order is issued in reference to the Motion for Summary Order filed by the Region 3 Department Staff on February 25, 1993 in the captioned matter. The Town's reply opposing the Department's motion was received by the Office of Hearings on March 26, 1993. The attached Hearing Report submitted by Administrative Law Judge Daniel P. O'Connell addresses the Motion for Summary Order and is accepted as my decision in this matter subject to the following comments.

A Motion for Summary Order shall be granted if, upon review of all the papers and proof submitted, it is concluded the cause of action, or a defense thereto, is established as a matter of law [6 NYCRR 622.10(c) and CPLR 3212(b)]. Granting a Motion for Summary Order does not deny the Respondent its right to a hearing where the record shows there are no triable issues of fact relevant to the outcome of the case. Rather, a Motion for Summary Order requires the Respondent to show there is a need for a hearing.

Upon review of the papers submitted by the Department and the Town of Haverstraw (the Town), there are no factual disputes requiring adjudication regarding questions of liability or relief. The Department received the Town's renewal application for a permit to operate the Landfill some seven months after the existing permit to operate (UPA No. 3082-0256) expired. As previously determined (See Smithtown, Commissioner's Order dated March 14, 1988), renewal applications must be filed 15 days before the expiration date of the existing permit. Consequently, the Town did not file a timely renewal application. Since the Town's renewal application was untimely, State Administrative Procedure Act (SAPA) 401(2) did not extend the expiration date of the Landfill's existing permit to operate past September 1, 1987.

Given the Town's untimely renewal application, I further conclude the Town's existing permit to operate expired on September 1, 1987. Consequently, the Town has operated the Landfill without a permit since September 1, 1987 in violation of 6 NYCRR Part 360.

For the demonstrated violation, the Department requested an Order directing the Town to stop operating the Landfill immediately, and to close the Landfill permanently. With respect to stopping operations at the Landfill, the record establishes the Department has not issued a renewal permit or a new permit to the Town to operate the Landfill since the Town's permit to operate expired on September 1, 1987. In considering whether the Town has authority to operate the Landfill, this proceeding has provided the Town with its due process right to a hearing as required by law and as affirmed by the Court's March 26, 1993 ruling. Since the Town has no authority to operate the Landfill, the Town must stop operating the Landfill ........

Since the Town does not have a permit to operate the Landfill now, and because the pending application has been incomplete for five years, I find the Town has abandoned the renewal application.

If the Town completes the pending application within a reasonable time, then the Region 3 Director has discretion to extend the date for stopping operations and permanently closing the Landfill until the Department makes a final determination on the application.

In determining this relief, I have considered the circumstances of this matter as they are developed in the record and discussed in the attached Hearing Report.

NOW, THEREFORE, have considered this matter, it is ORDERED that:

  1. The Department's Motion for Summary Order is granted.
  2. In granting the Motion for Summary Order, I affirm the Department's assertion that the Town of Haverstraw operated the Landfill without a permit from September 1, 1987 to February 17, 1993 in violation of 6 NYCRR Part 360.
  3. Within ------ after receipt of a conformed copy of this Decision and Order upon the Town of Haverstraw, the Town shall stop receiving solid waste at the Landfill on Grassy Point Road. This date shall not be extended except by an explicit written modification to this Decision and Order by the Region 3 Director.
  4. Within ------- after the Town stops receiving solid waste at the Landfill, the Town shall begin to place an intermediate cover on the Landfill as described in 360-2.17(d).
  5. Within ------- after receipt of a conformed copy of this Decision and Order upon the Town of Haverstraw, the Town shall file with the Department final closure and post-closure care plans for the Landfill. The final closure and post-closure care plans shall include a schedule for implementing them.
  6. If the Town of Haverstraw provides the Region 3 Department Staff with the materials necessary to complete the pending permit application, the Region 3 Director may modify the time frames established in this Order while the Department reviews of the Town's permit application.
  7. All communications between the Respondent and the Department concerning this Order shall be made to the Department's Region 3 Director, NYSDEC, 21 South Putt Corners Road, New Paltz, New York 12561.
  8. The provisions, terms and conditions of this Order shall bind the Respondent, its officers, directors, agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondent.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: THOMAS C. JORLING, COMMISSIONER

Dated: Albany, New York
October 20, 1993

To:
Josephine E. Carella
via certified mail
Town Clerk
Town of Haverstraw
One Rosman Road
Garnerville, New York 10923

Steven R. Faber, Esq.
via certified mail
153 Brewster Road
Massapequa, New York 11758-8115

Joyce Jiudice, Esq.
Assistant Regional Attorney
NYSDEC-Region 3
21 South Putt Corners Road
New Paltz, New York 12561

SUMMARY

With service of a Notice of Hearing dated February 25, 1993 on the Town of Haverstraw, Rockland County (the Town or Respondent), the Region 3 Staff of the Department of Environmental Conservation (the Department) moved for Summary Order as provided by 6 NYCRR 622.10. The Respondent operates a sanitary landfill on Grassy Point Road within the boundaries of the Town of Haverstraw (the Facility or Landfill). The Department submitted proof showing the Town has operated the Landfill without a permit since September 1, 1987. The Respondent's answering papers did not identify any factual disputes requiring adjudication. The Hearing Report recommends granting the Department's Motion for Summary Order.

PROCEEDINGS

With a cover letter dated February 24, 1993, Joyce E. Jiudice, Senior Attorney in Region 3, served the Department's Notice of Hearing and Motion for Summary Order on the Respondent. Included with the Department's motion was an affidavit by Michael D. Merriman, Deputy Regional Permit Administrator, Region 3, and attached exhibits. The Department also filed a Memorandum of Law in support of the Motion for Summary Order.

In the Notice of Hearing, the Department scheduled a hearing in this matter for March 23, 1993. In an Order dated March 9, 1993, Administrative Law Judge O'Connell adjourned the hearing without date, and converted the March 23, 1993 hearing date into the return date for the Respondent's reply to the Department's Motion for Summary Order. The March 9, 1993 Order also informed the Parties that if any factual disputes existed after reviewing the Department's motion and the Respondent's reply, then an adjudicatory hearing would be scheduled.

The Town opposed the Motion for Summary Order. By its attorneys Anthony Matturro, Esq. from the law firm of Matturro, Hirsch and Folks, Carle Place, NY In a letter dated March 31, 1993, Mr. Matturro stated his firm no longer represented the Town of Haverstraw effective March 30, 1993. and Steven R. Faber, Esq., Massapequa, NY, the Town submitted an affirmation by Mr. Faber dated March 23, 1993 with numerous attachments. A copy of Mr. Faber's affirmation is attached to this Report as Appendix A. Also, the Respondent filed a Memorandum of Law opposing the Motion for Summary Order.

The record of the proceeding closed on March 26, 1993 after receiving the Respondent's papers opposing the Motion for Summary Order.

The Department's Position

The Department moved for Summary Order because there are no factual issues requiring adjudication. According to the Department, the Town did not file a timely renewal application for the Landfill. Consequently, the Department alleged the Town has operated the Landfill since September 1, 1987 without a permit or other authorization in violation of 6 NYCRR 360-1.7(a)(1)(ii).

The Department seeks an Order directing the Town to stop operating the Landfill and to put an intermediate cover on the Landfill as described in 360-2.17(d). The Department also requested the Commissioner to direct the Respondent to submit final closure and post-closure care plans for the Department's approval, and then implement the plans. The Department did not request a civil penalty.

The Respondent's Position

The Respondent opposed the Motion for Summary Order, and alleged there are factual and legal issues requiring adjudication. The Respondent asserted State Administrative Procedures Act (SAPA) 401(2) authorized the Town to operate the Landfill pending the review of the renewal application. The Respondent argued the principles of equitable estoppel and collateral estoppel prevent the Department from pursuing this enforcement action. The Respondent further contended it has court authority to operate the Landfill.

MOTION FOR SUMMARY ORDER

Pursuant to 622.10, the Commissioner shall grant a Motion for Summary Order if the filings submitted by the Parties sufficiently establish the cause of action or the defense that would warrant the granting of Summary Judgement under the Civil Practice Law and Rules. The burden of showing there are issues of fact for adjudication lies with the Respondent. To meet this burden, the Respondent must present proof demonstrating an issue of fact exists that requires adjudication [Zolin v. Roslyn Synagogue 154 AD2d 369, 545 NYS2d 846 (2d Dept 1989); Gilbert Frank Corp. v. Federal Insurance Co., 70 NY2d 966, 525 NYS 2d 793 (Ct App 1988)]. Conclusive allegations by the Respondent are not sufficient to raise an issue of fact for adjudication [Freedman v. Chemical Construction Corp., 43 NY2d 260 (1977), Spearmon v. Times Square Stores, Inc., 96 AD2d 552, 465 NYS2d 230 (2d Dept 1983)].

A Motion for Summary Order does not deny the Respondent a hearing. It is procedurally equivalent to a hearing [Crowley's Milk Co. v. Klein, 24 AD2d 920, 264 NYS2d 680 (3d Dept 1965)]. Rather, a Motion for Summary Order requires the Respondent to show there is a need for a hearing [D. Siegel, New York Practice, 407]. If the Respondent presents proof that demonstrates a factual issue exists, then the Commissioner must deny the Motion for Summary Order, and remand the issue for a hearing [6 NYCRR 622.10; CPLR 3212(b)]. However, the existence of a triable issue of fact associated with relief, such as the amount of civil penalty, does not prevent granting the Motion.

In this case, there are no triable issues of fact about the Respondent's liability or the relief requested by the Department. Consequently, the Commissioner should grant the Department's Motion for Summary Order.

FINDINGS OF FACT

  1. On May 14, 1985, the Department's Region 3 Office issued the Town of Haverstraw a permit to operate (UPA No. 3082-0256) the Landfill on Grassy Point Road.
  2. The Landfill is the site of a former clay mine and has an expected useful life of nine years.
  3. The permit to operate (UPA No. 3082-0256) the Landfill expired on September 1, 1987.
  4. Since September 1, 1987, the Department has not issued the Town a renewal permit, or a new permit, to operate the Landfill on Grassy Point Road.
  5. On March 10, 1988, the Department's Region 3 Office received a permit application from the Town of Haverstraw dated September 1, 1987 and signed by Philip Rotella, Town Supervisor. The stated purpose of the permit application was to renew the Landfill's permit to operate.
  6. On March 23, 1988, the Department sent a Notice of Incomplete Application to the Town of Haverstraw. In the Notice of Incomplete Application, the Department asked whether the Town objected to suspending the 15 day time limit set forth in the Uniform Procedures Act requiring the Department to make a final determination on the Town's renewal application. The Town did not object, and consented to a sixty day extension.
  7. On April 28, 1988, the Department sent a second Notice of Incomplete Application to the Town of Haverstraw requesting, among other things, an engineering report and plans for the Landfill showing compliance with 6 NYCRR Part 360.
  8. As of the date the record of this proceeding closed, the Department has not received the requested engineering report and plans.
  9. Around May 1992 after filing a request for documents pursuant to 6 NYCRR Part 616 (Access to Records), the Town obtained a copy of an intradepartmental memorandum dated February 21, 1989 from Richard Gardineer to Albert Klauss regarding the Landfill (the Gardineer memorandum).
  10. By letter dated December 30, 1992, Ralph Manna, Director of the Department's Region 3 Office, notified the Town it was operating the Landfill without a permit, and directed the Town to stop accepting solid waste at the Landfill.
  11. In a Judgement Upon Oral Decision and Order dated March 26, 1993 With a cover letter dated April 23, 1993, the Respondent forwarded a copy of a Judgement Upon Oral Decision and Order dated March 26, 1993 by Acting Supreme Court Justice Robert R. Meehan. A copy of the Judgement Upon Oral Decision and Order dated March 26, 1993 is attached to this Report as Appendix B., Acting Supreme Court Justice Robert R. Meehan ruled Director Manna's letter dated December 30, 1992 was a Summary Abatement Order.
  12. In the March 26, 1993 Decision and Order, Justice Meehan vacated the December 30, 1992 Summary Abatement Order because the Department denied the Town due process.
  13. In the March 26, 1993 Decision and Order, Justice Meehan ruled the Department must provide the Town with due process when the Department considers whether the Town violated Part 360.

DISCUSSION

With respect to the question of liability, the Respondent opposed the Motion for Summary Order, and alleged there are factual and legal issues requiring adjudication. The Respondent asserted State Administrative Procedures Act (SAPA) 401(2) authorized the Town to operate the Landfill pending the review of the renewal application. The Respondent argued the principles of equitable estoppel and collateral estoppel prevent the Department from pursuing this enforcement action. The Respondent further contended it has court authority to operate the Landfill.

SAPA 401(2)

The Respondent argued SAPA 401(2) authorized the Town to continue operating the Landfill under the terms of the existing permit (UPA No. 3082-0256) until the Department made a final determination about the Town's renewal permit application. Contrary to the Respondent's argument, however, SAPA 401(2) did not extend any rights to the Town in this instance because the Town did not file a timely renewal application. SAPA 401(2) states, in pertinent part,

When a licensee has made timely and sufficient application for the renewal of a license ... the existing license does not expire until the application has been finally determined by the agency ...

To be considered timely, the Permittee must file the renewal application 15 days before the expiration date of the existing permit (621.12 effective prior to January 1, 1989; Smithtown, Commissioner's Order dated March 14, 1988). Neither SAPA 401(2) nor Part 621 (Uniform Procedures) requires the Department to notify the Permittee about when to file renewal applications. It is the Permittee's responsibility to maintain its permits and to renew them.

The Department received the Town's renewal application on March 10, 1988, some seven months after the existing permit to operate expired (September 1, 1987). The Respondent presented no evidence to refute the Department's proof about when the Town filed the renewal application. The Town did not explain the disparity between the date Supervisor Rotella signed the renewal application (September 1, 1987) and the date the Department received the renewal application (March 10, 1988). Consequently, the Town did not file a timely renewal application, and is not entitled to the rights provided by SAPA 401(2).

The Respondent also asserted the Department waived the need to file a timely renewal application when the Department did not notify the Town that the renewal application was insufficient until sixteen months after the Town filed the renewal application. This assertion is without merit because there is no authority for such a waiver. Furthermore, if such a waiver existed, the Respondent's assertion is not supported by the record. As required by ECL Article 70 (Uniform Procedures) and subsequently within the mutually agreed time frames, the Department duly provided the Town with Notices of Incomplete Application.

SAPA 401(2) requires the Town to file both a timely and a sufficient renewal application. Since the record establishes the Town's renewal application was not timely, whether the renewal application was sufficient is irrelevant to deciding whether the Town is entitled to the rights provided by SAPA 401(2).

The Gardineer Memorandum

The Respondent argued an intradepartmental memorandum dated February 21, 1989 from Richard Gardineer to Albert Klauss regarding the Landfill (the Gardineer memorandum) proved SAPA 401(2) extended the expiration date of the Town's permit to operate (UPA No. 3082-0256). Mr. Gardineer is the Regional Solid Waste Engineer in Region 3. Mr. Klauss is the Regional Solid Waste and Hazardous Waste Engineer in Region 3. Around May 1992, the Town obtained a copy of the Gardineer memorandum after filing a request for documents pursuant to 6 NYCRR Part 616 (Access to Records).

In the memorandum, Mr. Gardineer repeatedly stated the Landfill was operating pursuant to SAPA 401(2). The Gardineer memorandum is not reliable proof that SAPA 401(2) extended the expiration date for the Town's permit to operate (UPA No. 3082-0256) past September 1, 1987. The Town did not rely on the Gardineer memorandum because the Town did not obtain a copy of the Gardineer memorandum until May 1992 after filing a request for documents pursuant to Part 616. Therefore, I assign the Gardineer memorandum no weight.

Equitable Estoppel

The Respondent argued estoppel is available against the Department when justified by the facts or when necessary to prevent manifest injustice. To support its argument, the Respondent cited Rudey v. Landmarks Preservation Commission, 182 AD2d 61, 587 NYS2d 623, 624 (1st Dept 1992); Landmark Colony at Oyster Bay v. Board of Supervisors of Nassau County, 113 AD2d 340, 493 NYS2d 340, 343 (2d Dept 1985); 1555 Boston Road Corporation v. Finance Administrator, 61 AD2d 187, 401 NYS2d 536, 540 (2d Dept 1978); Eden v. Board of Trustees of the State University of New York, 49 AD2d 877, 374 NYS2d 686, 692 (2d Dept 1975). With respect to the renewal permit application, the Respondent alleged the following instances where the Department injured the Town. As a result of being injured by the Department, the Respondent claimed the Department should not consider the Landfill to be unpermitted.

According to the Respondent, the Department injured the Town when the Department did not advise the Town the renewal application was defective and the Landfill was not permittable. The Town contended the Department prevented the Town from submitting an acceptable application that would have addressed the Department's concerns. Additionally, the Respondent contended the Department injured the Town when the Department remained silent about the renewal application for the Landfill. The Respondent interpreted the Department's silence to mean the Town did not need to investigate other waste disposal options because the Department was going to renew the permit for the Landfill. Finally, the Respondent contended Mr. Merriman's suggestion that the Town should apply for a second post-1985 renewal permit because the first post-1985 renewal permit would have expired on August 31, 1992 is a sign of the Department's bad faith in not providing the Town with a final determination on the renewal application.

Estoppel against a government agency is foreclosed in all but the rarest cases. [See generally, NYS Medical Transporters Association, Inc. v. Perales, 564 NYS2d 1007, 77 NY2d 126, 566 NE2d 134 (1990); Parkview Associates v. City of New York, 71 NY2d 274, cert. denied, 488 US 801] All of the Respondent's citations also acknowledge this point.

The Respondent's argument is not supported by the record. There is no manifest injustice. Contrary to the Respondent's assertion, the Department was not silent about the Town's renewal permit application and advised the Town the renewal permit application was incomplete.

Furthermore, the Respondent has no one else to blame but itself for not filing a timely renewal permit. Neither SAPA 401(2) nor Part 621 (Uniform Procedures) requires the Department to notify the Town about when to file renewal applications. It is the Town's responsibility to maintain the permits for the Landfill and to apply for renewal permits in a timely manner.

Collateral Estoppel

The Town asserted the Department is attempting to relitigate issues in this administrative action that the Court decided in the Article 78 proceeding on February 17, 1993. According to the Respondent, Acting Supreme Court Justice Robert R. Meehan ruled the Town's lack of a valid permit was not a sufficient basis to require the Town to close the Landfill. The Respondent argued the Court's ruling precludes the Department from closing the Landfill in this administrative action.

The Town filed its Article 78 petition to obtain relief from a letter dated December 30, 1992 by Region 3 Director Ralph Manna. Subsequently, in a Judgement Upon Oral Decision and Order dated March 26, 1993, Justice Meehan found Director Manna's December 30, 1992 letter to be a Summary Abatement Order. In vacating the December 30, 1992 Summary Abatement Order, the Court concluded the Department denied the Town due process. Within the context of Summary Abatement (ECL 71-0301), the Court ruled the Department must provide for due process by giving the Town notice of a hearing, and demonstrate an imminent danger to public health or the environment.

In deciding whether the Department denied the Town due process, Justice Meehan did not address the merits of whether the Town operated the Landfill in violation of 6 NYCRR Part 360, or whether the Landfill should be closed. Since the Court did not address the merits of these questions which are at issue in this proceeding, the Court's March 26, 1993 ruling does not preclude the Department from seeking to close the Landfill now.

As previously stated above, the Department's Motion for Summary Order does not deny the Respondent's due process right to a hearing. Summary Order is procedurally equivalent to a hearing [D. Siegel, New York Practice, 407; Crowley's Milk Co. v. Klein, 24 AD2d 920, 264 NYS2d 680 (3d Dept 1965)]. Therefore, the Department has provided for the Town's due process rights in this enforcement action.

6 NYCRR 360-1.5(a)(2)

Section 360-1.5(a)(2) states, in pertinent part, "[e]xcept as provided for in Subpart 360-10 of this Part, no person shall dispose of solid waste in this State except at: ... a disposal facility authorized to accept such waste for disposal pursuant to this Part or to a department-issued or court-issued order." According to the Respondent, Justice Meehan's Judgment Upon Oral Decision and Order dated March 26, 1993 authorized the Town to operate the Landfill pursuant to 360-1.5(a)(2).

The Respondent's argument that the Court authorized the Town to operate the Landfill is related to the due process issue discussed above (Collateral Estoppel). The Judgment Upon Oral Decision and Order dated March 26, 1993 did not authorize the Town to operate the Landfill indefinitely pursuant to 6 NYCRR 360-1.5(a)(2). The Decision and Order stated the Town has the right to operate the Landfill because due process requires the Department to give the Town a hearing before ordering the Landfill to close. Although this proceeding is not part of a Summary Abatement Order, the Decision and Order also stated if the Department chose to issue a Summary Abatement Order, then the Department would need to prove that certain conditions exist at the Landfill.

The Respondent's Liability

At issue is whether the Town operated the Landfill without a permit or other authorization since September 1, 1987 in violation of Part 360. Before December 31, 1988, 6 NYCRR 360.2 required a valid permit from the Department to operate a solid waste management facility. Section 360-1.7(a)(1)(ii), (effective December 31, 1988) states, in pertinent part, no person shall operate a solid waste management facility, or any phase of it, except in accordance with a valid permit to operate that facility issued pursuant to this Part ...

There is no dispute the Landfill is a solid waste management facility. Since the Town did not file a timely renewal application, SAPA 401(2) did not extend the expiration date of the Town's existing permit to operate (UPA No. 3082-0256) past September 1, 1987. The Town's permit to operate the Landfill expired on September 1, 1987. The Department has not issued the Town a renewal permit or a new permit to operate the Landfill. Therefore, except as authorized by the Court's March 26, 1993 ruling, the Town has operated its Landfill without a permit since September 1, 1987 in violation of Part 360.

Regarding the question of relief, the Respondent presented two distinct arguments about the Department's enforcement directive entitled, Closure of Active Solid Waste Landfills revised December 29, 1988. Also, the Respondent alleged the Town would experience significant negative economic impacts from stopping operations at the Landfill and from permanently closing the Landfill.

The Department's Enforcement Directive

The Respondent argued two points about the Department's enforcement directive entitled, Closure of Active Solid Waste Landfills revised December 29, 1988. First, the Respondent asserted the Department's enforcement directive requires closing any landfill that adversely impacts public health or the environment. According to the Respondent, the enforcement directive is invalid because the Department did not follow the rulemaking procedures provided in SAPA.

Second, if the enforcement directive is valid, the Respondent argued the Department is not entitled to the requested relief because the Department failed to show the continued operation of the Landfill would adversely impact the public health or environment. The Respondent contended it presented proof to show the Landfill caused no adverse public health or environmental impacts because the Town built the Landfill at the site of a former clay mine.

Closure of Active Solid Waste Landfills revised December 29, 1988, is a valid guidance document. The enforcement directive is not an unpromulgated rule. It advises the Department Staff about how to prioritize enforcement efforts directed toward facilities that do not comply with Part 360. Additionally, the enforcement directive does not create any right or expectation for a third Party.

The enforcement directive does not limit the Department's discretion to justify the requested relief exclusively by showing the continued operation of the Landfill would adversely impact the public health or environment. In addition to prohibiting adverse public health and environmental impacts, the applicable regulations (i.e. Part 360) also require the Town to have a valid permit to operate the Landfill. Operating the Landfill without a valid permit is sufficient in itself to justify stopping operations at the Landfill.

Adverse Economic Impacts

The Respondent asserted the Town would experience significant negative economic impacts from stopping operations at the Landfill and from permanently closing the Landfill. According to the Respondent's affidavits, the Town maintains disposal contracts with the Town of Stony Point, the Village of Haverstraw, the Village of West Haverstraw, the Village of Pomona, the Joint Regional Sewerage Board which includes the Haverstraw municipalities and the Town of Stony Point Sewage Treatment Plant, and Damiani Sanitation, Inc. which transports solid waste from the NYSDOH Helen Hayes Hospital in West Haverstraw.

The affidavits of the Supervisors from the Towns of Haverstraw and Stony Point, and the Mayors from the Villages of Haverstraw and West Haverstraw stated tipping fees at the Landfill are $10 per ton. The Town of Stony Point pays $28 per ton. In contrast, tipping fees at the Town of Clarkstown's transfer station and the Town of Ramapo's Transfer station are $82 per ton. The Respondent's affidavits concluded if the Landfill were prematurely closed, it would cost the municipalities who use the Landfill approximately $3,700,000 to dispose of the solid waste at the above mentioned transfer stations.

According to Supervisor Rotella's affidavit, tipping fees generated from the Landfill are approximately $750,000 which is 8% of the Town's revenue. Consequently, the Town would loose approximately $6,750,000 in revenues over the next nine years (the expected life of the Facility), and could force the Town into bankruptcy. Supervisor Rotella estimated the costs associated with closing the Landfill to be between $6,500,000 to $8,500,000. The Supervisor stated Town does not have these funds.

Closure of Active Solid Waste Landfills revised December 29, 1988 (page 3 of 7), states the date for stopping operations and closing unpermitted landfills may not be extended unless there is an disposal capacity crisis and there are no other reasonably available alternative disposal facilities. The enforcement directive further states, costs are not a factor in determining reasonably available alternative disposal facilities where the municipalities have not made a good faith effort to develop a comprehensive, long-term solid waste management program.

Based on the enforcement directive, the Respondent's economic information would be relevant to the issue of closing the Landfill only if the Town has made a good faith effort to develop a comprehensive, long-term solid waste management program. The only information in the record of this proceeding about what the Town's comprehensive, long-term solid waste management program would be is the Landfill that has an expected capacity of nine years.

It is assumed the Landfill is part of the Town's comprehensive, long-term solid waste management program because its expected capacity is substantial. Consequently, how the Town has complied with the applicable regulations governing Landfill operations is related to whether the Town has made a good faith effort to develop its solid waste management program. Although the Respondent filed a renewal application, the renewal application was filed after the existing permit expired, and the pending renewal application has been incomplete since April 1988. Also, the Town continues to operate the Landfill without a permit. Given the Town's non-compliance, the Town has not made a good faith effort to develop and maintain its solid waste management program. Given the policy established in the Commissioner's enforcement directive, the Respondent's economic information is, therefore, not relevant to the issue of stopping operations and permanently closing the Landfill.

Stopping Operations/Permanent Closure

For operating the Landfill without a permit since September 1987, the Department requested an Order from the Commissioner directing the Town to stop operating the Landfill immediately, and to close the Landfill permanently. Directing the Town to stop operating the Landfill is dependent on whether the Respondent has authority to operate the Landfill. Given the pending application, however, permanently closing the Landfill depends on whether the Respondent will obtain a permit to operate the Landfill.

With respect to stopping operations at the Landfill, the record establishes the Department has not issued the Town a renewal permit or a new permit to operate the Landfill since the Town's permit to operate expired on September 1, 1987. In considering whether the Town has authority to operate the Landfill, this proceeding has provided the Town with its due process right to a hearing as required by law and as affirmed by the Court's March 26, 1993 ruling. Since the Town has no authority to operate the Landfill, the Commissioner should direct the Town to stop operating the Landfill.

When the Town should stop operating the Landfill is respectfully referred to the Commissioner for his consideration. Municipalities and institutions other than the Town of Haverstraw use the Landfill and would be impacted by the decision to stop operations at the Landfill. The involvement of the other municipalities and institutions that use the Landfill in filing and completing renewal permit applications for the Landfill is not known.

The issue of closure depends on whether the Respondent will obtain a new permit to operate the Landfill. Although the Town's pending application is incomplete, it cannot be determined from the record of this enforcement proceeding whether the Town will complete the application process or whether the Department will issue a permit to operate the Landfill. On the one hand, if the Town completes the application process and the Department Staff denies the Town's permit application, the Town has the right to challenge the Staff's decision. Due to the regulatory nature of these questions, a final answer about the pending application must be made within a regulatory context which is different from the scope of this enforcement proceeding. On the other hand, if the Town has abandoned the application, then the Landfill must be closed.

The Town's lack of a permit to operate the Landfill and an application that has been incomplete since April 1988, reasonably suggest the Respondent has abandoned the application. Closing the Landfill is therefore necessary. However, when the Town should permanently close the Landfill is respectfully referred to the Commissioner for his consideration. As indicated above, municipalities and institutions other than the Town of Haverstraw use the Landfill and would be impacted by the decision to close the Landfill permanently.

If the Town completes the pending application within a reasonable time, then the Commissioner should give the Region 3 Director the discretion to extend the date for stopping operations and permanently closing the Landfill until the Department makes a final determination on the application.

CONCLUSIONS

  1. There are no issues of fact requiring adjudication about the Respondent's liability or the relief sought by the Department.
  2. SAPA 401(2) did not extend the expiration date of the Town's existing permit to operate (UPA No. 3082-0256) past September 1, 1987 because the Town did not file a timely renewal application.
  3. Since the Town did not file a timely renewal application pursuant to SAPA 401(2), it is not necessary to determine whether the renewal application was sufficient pursuant to the same provision of SAPA. The rights provided by SAPA 401(2) are dependent upon both criteria.
  4. The Town's permit to operate the Landfill (UPA No. 3082-0256) expired on September 1, 1987. Since that time, the Town has operated its Landfill without a permit in violation of Part 360.
  5. The Respondent is not entitled to estoppel against the Department because the Department did not injure the Respondent.
  6. The Court's ruling dated March 26, 1993 does not preclude the Department from closing the Landfill in this administrative action.
  7. Since the Town has not made a good faith effort to develop and maintain its solid waste management program, the Respondent's economic information is not relevant to the issue of closing the Landfill.
  8. Based on the Town's lack of a permit to operate the Landfill and an application that has been incomplete since April 1988, the Respondent has abandoned the renewal application.

RECOMMENDATIONS

  1. As provided by 6 NYCRR 622.10, the Commissioner should grant the Department's Motion for Summary Order.
  2. In granting the Motion, the Commissioner should affirm the Town of Haverstraw operated the Landfill without a permit from September 1, 1987 to February 17, 1993 in violation of 6 NYCRR Part 360.
  3. The Commissioner should direct the Town to stop operating the Landfill.
  4. Since the Respondent has abandoned the renewal application, the Commissioner should direct the Town to close the Landfill permanently, but give the Region 3 Director the discretion to extend the date for stopping operations and permanently closing the Landfill if the Town completes the pending application within a reasonable time.
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    625 Broadway, 1st Floor
    Albany, New York 12233-1550
    518-402-9003
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