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Laidlaw Environmental Services - Decision, June 28, 1994

Decision, June 28, 1994

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

In the Matter

- of -

the Application of Laidlaw Environmental Services, Inc. and BDT, Inc., for a Modification
of Existing Hazardous Waste Facility and Air Permits; and Certificates to Operate;
and Approval of a Change of Operational Control pursuant to Environmental Conservation Law
Articles 19 and 27; and Title 6 of the Official Compilation of Codes, Rules and Regulations
of the State of New York, Parts 201 et seq.
(Air Pollution Control) and Part 373 (Hazardous Waste Management Facilities)

File No. 9-1432-00004/00001-0

DECISION

June 28, 1994

Decision of the Commissioner

This Decision relates to appeals filed to the March 21, 1994 Rulings, Interim Hearing Report and Order of Referral (the "Hearing Report") issued by Administrative Law Judge ("ALJ") Frank Montecalvo. In the Hearing Report, ALJ Montecalvo concluded that there are no substantive and significant issues of fact requiring adjudication. The appeals filed by the Town of Clarence and the Concerned Citizens of Clarence (collectively the "Intervenors") do not dispute the lack of factual issues requiring adjudication. However, they maintain that the facts warrant a different outcome than the one recommended by ALJ Montecalvo.

The pending application concerns a proposed transfer of permits from BDT, Inc. to Laidlaw Environmental Services, Inc. ("LESI") for the purpose of operating a hazardous waste management facility. The sole question concerns how LESI's record of compliance should be considered in the decision on the application.

The Department has frequently affirmed its commitment to ensure that the review of permit applications takes into account the compliance history of the applicant. This purpose of these reviews is to ensure that persons who are unsuitable to carry out responsibilities under Department permits or other authorizations are not allowed to do so (see Enforcement Guidance Memorandum No. II. 24 - Record of Compliance, March 5, 1993). It also provides the Department with the opportunity to impose permit conditions which increase assurance of compliance in situations where applicants have compliance problems that are not severe enough to warrant denial.

Permit decisions which evaluate an applicant's record of compliance are situation specific and require a careful balancing of facts and policy considerations (In the Matter of CECOS International, Inc., Decision of the Commissioner, March 13, 1990). In this case, the facts that have been evaluated in making this Decision are set forth in the Hearing Report. They show that there have been a number of operational problems at facilities that were managed by LESI or its subsidiaries. Some of these problems did constitute violations of the applicable environmental laws; in other situations, there was no determination of whether the problems violated the law. In LESI's favor, the record also shows that the company acted responsibly when it became aware of operational problems.

The principal issue is whether the problems for which LESI is responsible are so severe or pervasive that the grant of the subject permits on any terms is too risky. I judge that this is not the case here. While there have been a number of serious operating problems, the record shows that LESI has acted responsibly to address them. Although the Hearing Report describes 14 situations over the past six years where LESI experienced operational problems or was the subject of government enforcement action or both, the operations of LESI and its subsidiaries are extensive, operating 29 facilities in 11 states. In this context, I am not prepared to conclude that its operation of the subject facility in New York represents too great a risk of non-compliance, particularly when the conditions attached to the permit are considered.

In addition to the conditions accepted by LESI, I concur with ALJ Montecalvo that the company should be required to update its record of compliance submission periodically. Since all of the other facilities that LESI and its subsidiaries operate are outside New York State, this is the only efficient means to determine whether additional compliance problems occur. LESI is placed on notice that future compliance problems at any of the facilities it is responsible for will be considered newly discovered material information and, as such, may constitute grounds for the modification, suspension or revocation of its permits pursuant to 6 NYCRR 621.14. Modification may include the imposition of a condition which requires reduction of throughput at the facility.

Regarding the remaining conditions proposed by the Intervenors, I find that a condition which requires that the environmental monitor be on-site when the riskiest activities occur is appropriate. Activities that should not occur without the monitor on-site are incineration, hydrolysis, and any testing or experimental procedures.

The other conditions proposed by the Intervenors are not necessary. An additional monitor is not warranted since the riskiest activities will be performed with a monitor on-site. The Intervenors have not demonstrated that stack testing beyond what is already required will result in a substantial gain in assuring the safe operation of the facility. The Department already has approval over the selection of the consultant that LESI chooses to perform an environmental audit of the facility and the Department is committed to review the work product. Having the Department choose or employ the consultant itself would add little benefit. Finally, the Intervenors request for electronic monitoring of three different operating parameters is unnecessary in light of the presence of a full-time environmental monitor who can inspect the monitoring records for these parameters at anytime.

In consideration of the entire record, I direct that the application to transfer the permits at issue be granted subject to the conditions described above. I note that the permits that are the subject of this proceeding are due to expire in 1996 at which time they will need to be renewed if operations are to continue.

Until the permits are renewed, LESI's operations will be considered probational. The Department Staff is directed to modify the draft permit consistent with the instructions in this Decision and issue it to LESI.

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 28th day of June, 1994.

_____________/s/_____________
LANGDON MARSH, ACTING COMMISSIONER

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