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Laidlaw Environmental Services - Interim Decision, December 21, 1993

Interim Decision, December 21, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
Office of Hearings
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 Article 19
(Air Pollution Control), and Article 27 (Waste and Refuse); and Title 6 of
the Official Compilation of Codes Rules and Regulations of the State of New York Part 201 et seq.
(Air Pollution Control) and Part 373 (Hazardous Waste Management Facilities)

DEC Project

No. 9-1432-00004/00001-0

INTERIM DECISION

December 21, 1993

Interim Decision of the Commissioner

This Interim Decision is in relation to the appeals filed by Laidlaw Environmental Services, Inc. ("LESI") and BDT, Inc. ("BDT") (collectively "the Applicants") and by the Town of Clarence and the Concerned Citizens of Clarence (collectively "the Intervenors") of the November 15, 1993 Rulings (the "Rulings") of Administrative Law Judge ("ALJ") Frank Montecalvo.

Applicants' Appeal

Jurisdiction

The Applicants applied to the Department for approval of a change in operational control pursuant to 6 NYCRR 373-1.7(a). Now they contend that this approval is not required because the transaction is structured as a sale of the corporate operator's stock and hence the same legal entity will continue to be the facility operator.

Paragraph (2) of 6 NYCRR 373-1.7(a) clarifies that the permit transfer requirement is intended to apply to changes in control as well as changes in ownership. This is precisely the situation encountered in this case.

However, even if action were not required pursuant to 6 NYCRR 373-1.7(a), the question of what modifications to the permit were needed in response to the stock sale could be addressed pursuant to paragraph (4) of 6 NYCRR 621.14 (Permit modifications, suspensions or revocations by the department). It is apparent that the Staff believe that additional conditions are necessary if the transfer is to be approved. Logically, in the absence of an application, it would have initiated an action to modify the permit in a similar fashion as it now proposes to condition the Applicants' proposed transfer request. Therefore, I conclude that the question is properly before the Department for approval.

Impact of ECL 27-0913 on the Department's authority to examine an applicant's fitness

The Applicants argue that ECL 27-0913, as amended by Chapter 854 of the Laws of 1982, exclusively and exhaustively establishes the factors upon which the Commissioner may base a fitness determination and that it supersedes any pre-existing authority for determining fitness. Similarly, they argue it places restrictions on the time period of the acts that may be taken into account in this proceeding.

The explicit terms of the statute make it clear that the factors which are set forth therein are neither exclusive nor exhaustive ["...Some of the factors which the commissioner may consider in arriving at his determination (on the suitability of the applicant) include the following..." ECL 27-0913(3), emphasis added]. The legislative history of the enactment also shows that it was not intended to indiscriminately supersede any preexisting authority which the Department had to address the fitness issue (see Matter of American Transfer Company, Commissioner's Interim Decision, February 4, 1991, citing the Approval Message of the Governor).

I also concur with the ALJ in his conclusion that ECL 27-0913(4) must be strictly construed as it is in derogation of the common law. While the application may not be denied on the basis of any event occurring beyond the two-year limit, information of older events may be used for purposes of interpreting and conditioning as allowed by the Ruling. In addition, the statute places no restriction on the consideration of older events to determine the appropriateness of conditions that would accompany the transfer.

Intervenors' Appeal

Validity of BDT's existing permits

Intervenors argue that no review was performed under the State Environmental Quality Review Act ("SEQRA") prior to issuance of BDT's permits in 1982 and that the validity of the existing permits should be an issue for adjudication.

Hearings which arise out of proposed permit modifications to an existing permit should not be used by third parties as opportunities to review the prior processing of the permit application. Such parties should have participated in the prior administrative process and/or taken action pursuant to CPLR Article 78. At this point, the only administrative avenue the Intervenors have to open the process on issues unrelated to the transfer is to request that the Department take action pursuant to 6 NYCRR 621.14.

Compliance history of LESI's parent corporation

The Department only requires adjudication of issues that are both substantive and significant [6 NYCRR 624.6(c)]. Significant issues are those that have the potential to affect the outcome of the permit decision (In the Matter of St. Lawrence County, Third Interim Decision of the Commissioner, April 30, 1990). In this case, I concur with the ALJ judgment that the compliance history of LESI's parent corporation is too remote to have any realistic likelihood of affecting the outcome of this proceeding. The offers of proof do not demonstrate that LESI's environmental compliance activities and policies are substantially controlled by its parent (cf. In the Matter of SES Environmental Systems, Fifth Interim Decision of the Commissioner, September 9, 1993). In view of the wealth of information relating directly to LESI itself, examining the information concerning its parent would be marginally beneficial, at best, and would unduly burden the administrative process.

Out-of-state and unadjudicated violations

Intervenors state that LESI has been charged with a number of alleged violations in other states and that these charges have not as yet been resolved. They argue that they must be considered in this proceeding in order to get a full picture of LESI's compliance history.

The Department has neither the authority nor the expertise to resolve allegations of violations of other states' laws. The ALJ's ruling excluding such allegations is sustained. If there is a significant conviction at some future date, the possibility of reopening the administrative process pursuant to 6 NYCRR 621.14 is always available.

Other matters

There are also several other matters that are raised by Intervenors in their filing which do not appeal any part of the Rulings. These will be addressed immediately below.

The Intervenors request that they be allowed to obtain discovery regarding other facilities that LESI may operate in New York. They have made no showing that any such facilities have potential significance in terms of the matters under consideration here. Discovery of this nature would overly burden the hearing process with little, if any, potential benefit.

The Intervenors also request reversal of a portion of the Ruling which they interpret as preventing the submission of documents beyond those already presented by the Applicant (see paragraph IX of Rulings at pg. 9). The Ruling only declined to require a further submittal from the Applicants. The ALJ will still be required to determine whether any submission which the Intervenors offer should be made part of the record of decision.

Finally, I note that the Intervenors' objection to the ALJ's preclusion of certain permit conditions is now moot. The ALJ himself modified the Ruling to address this objection.

Summary

The Rulings are fully upheld. This matter is remanded to ALJ Montecalvo for further proceedings.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Interim 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 21st day of December 1993.

_____________/s/_____________
THOMAS C. JORLING, COMMISSIONER

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