Laidlaw Environmental Services - Ruling, Interim Hearing Report and Order of Referral, March 21, 1994
Ruling, Interim Hearing Report and Order of Referral, March 21, 1994
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
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)
RULINGS, INTERIM HEARING REPORT, and
ORDER OF REFERRAL
These Rulings are supplemented by the ALJ Rulings (Rulings I through XII) and Order previously made November 15, 1993. They conclude there are no substantive and significant issues that require further hearing, subject to the commissioner's discretion.
Because the Applicants request, pursuant to 6 NYCRR 373-1.7(a)(2), that the NYSDEC Commissioner approve the proposed change in operational control of BDT's Clarence, NY facility, the Order below refers this matter to the Commissioner for decision, rather than remands it to DEC Staff for action. For the purpose of this referral, these Rulings and those issued November 15, 1993, are deemed collectively to constitute an Interim Hearing Report. The Public's concerns were described in the November 15, 1993 Rulings.
Various aspects of the November 15, 1993 Rulings were appealed to the DEC Commissioner by the Applicants and the Intervenors by the end of that month.
In accordance with my prior Order, on December 1, 1993, I received from DEC Staff a statement that none of the draft additional permit conditions (in Exhibit 3D) were unrelated to the proposed transfer.
In accordance with the Order, the issues conference resumed at 10:00 AM Tuesday, December 7, 1993 at the Clarence Town Hall, One Town Place, Clarence, NY, to identify and define issues which existed within the scope of Ruling XII and the manner in which they would be resolved. Ruling XII essentially provided that the remainder of these proceedings would focus on the need for and appropriateness of Staff's additional permit conditions and/or certain modifications to them suggested by the Intervenors or public, and whether or not the transfer should be denied in the absence of any or all of these possible conditions.
At the beginning of the conference, regarding Ruling XI (which stated that permit conditions designed to create new rights for the Town or impose penalties not authorized by law would not be considered), I announced that I would consider the Town's proposed conditions, provided the Intervenors adequately addressed the threshold concerns I identified in the discussion which accompanied the Ruling. The threshold concerns were not addressed in the Intervenors' Party Status filings. They were also not discussed during the June 3, 1993 session because all parties felt it was premature to discuss permit conditions without first understanding the "record of compliance" standards which were to be met. Since they were not in a position to do so at the conference, I permitted them to do this in a brief following the conference.
The Intervenors requested that the proceedings be stayed pending a decision by the Commissioner on their appeal. They stated they did "not believe" that the proceeding was an issues conference per 6 NYCRR 624.6(a), and argued that "a decision must be made by the Court identifying what areas of Laidlaw's compliance history present problems that need to be corrected and addressed by conditions. ... Without an identification of what the serious compliance problems are, it's difficult, if not impossible, for us to identify conditions which address those problems." I denied the Intervenors' request, pointing out that everything they had submitted was in the record, and that it was their responsibility to support the outcome they preferred with citations to the record and with argument.
At the conference, Staff and Applicants announced that they had reached an agreement on all of the conditions that would be added to the permits when "transferred," essentially adopting the second Draft Permit (Exhibit 3D) with two changes. The changes basically consist of (1) reducing the number of proposed environmental monitors from 2 to 1; and (2) subjecting the permittee's choice of consultant and the work plan for the proposed annual environmental audit to DEC approval. The other draft additional conditions remain unchanged. The Intervenors stated they were not prepared to address the changes at the conference because they had only recently been informed of them. I directed Staff and Applicant to reduce the agreed-upon terms to writing and file it for the record. The Intervenors were permitted to address these changes in their brief as well.
Each condition or modification referenced in Ruling XII was discussed at the conference. To the extent the parties were unable to argue in support of their preferred outcome for this proceeding with reference to the specific documents marked as exhibits for identification (including their offers of proof), they were permitted to do so in briefs filed after the conference.
The conference concluded after the briefing schedule was set.
Staff and Applicants filed a statement of the agreed upon conditions on December 13, 1993, as well as the "Final Draft Permit" (hereby collectively designated "Exhibit 3I" for identification).
Briefs were filed by the Applicants and Intervenors on or about December 21, 1993. Staff filed a letter essentially reaffirming the position it enunciated at the conference. (These items are marked as Exhibits 2E, 6D and 3J respectively).
On December 21, 1993, the Commissioner issued an Interim Decision fully upholding the November 15, 1993 Rulings and remanding the matter to me for further proceedings ("Interim Decision, 12/21/93").
Reply briefs were filed by Applicants, Intervenors and Department Staff on or about January 10, 1994 (Exhibits 2F, 6E and 3K respectively).
The remaining matters are ripe for ruling herein. All of the parties' submissions that are listed on the official Exhibits List (Appendix A) constitute the record for the decision herein.
Summary Positions of the Parties
Summary of the Proposed Added Permit Conditions agreed upon by Staff and Applicants (Exhibit 3I), and Staff's Rationale:
Staff found it "compelling" that, in spite of the documentation of environmental violations, no other jurisdiction has imputed LESI's unsuitability by revoking or denying environmental permits. Rather than gross negligence or criminal intent, LESI's record reveals transgressions followed by corrective actions. Thus, Staff would transfer the permits, provided that conditions are added. Those conditions, which Applicants have accepted, are summarized as follows:
- DEC will assign one full-time employee as an on-site environmental monitor. The monitor will have access to the facility at all times. The Permittee will make specified contributions to an account with DEC to pay for monitoring activities, and will also provide the monitor with suitable office space, utilities and telephone.
- The Permittee will provide DEC with annual environmental audits (covering both records and operating practices), with the choice of Permittee's consultant and the consultant's work plan both subject to prior DEC approval.
- The Permittee will provide Continuous Emissions Monitoring ("CEM") of certain air pollutants, monitor various specified process parameters, supply DEC with the CEM data electronically via telephone lines and the capability to view/download "realtime" data with an IBM PC compatible system, and maintain a fund to reimburse DEC's costs of reviewing the information generated. The monitoring equipment and its maintenance and operation must also meet certain requirements.
- The Permittee will conduct annual stack tests of one source (alternating each year between the incinerator and hydrolysis process) with DEC to determine sampling parameters.
- Materials which are acceptable for incineration or hydrolysis are listed, feed rates are specified, particulate control efficiency and emissions must meet stated requirements, and parameters within which within which certain pollution control equipment on the incinerator must be operated and maintained are defined. In addition, the Permittee will be required to make certain quarterly reports to DEC, must notify DEC immediately of episodes of non-compliance, and must make written request for DEC approval of any proposed additions of acceptable waste streams.
Staff bases the imposition of the various monitoring and audit requirements on its lack of first hand experience dealing with LESI (who will assume operational control), and the violations which have occurred at LESI's facilities in Ohio, South Carolina, and Florida. Staff is of the opinion that the kinds of violations exemplified by these facilities could be avoided or mitigated by having an environmental monitor on-site observing procedures at the facility and having the CEM and audit data available for review. Staff would impose the stack test requirement because of BDT's recent violation in this regard, the lack of other methods for measuring particulates from the facility, and because of LESI's record of compliance. Staff would impose the various other requirements (particularly the technical ones such as feed rates and operating parameters) primarily to institutionalize practices that BDT voluntarily undertook and "understandings" previously developed between BDT and DEC, which provided assurance to DEC Staff that regulations would be complied with. Staff indicates that these practices support its opinion that BDT is a "well-run" facility, and that making such practices permit requirements is the way to ensure they would be continued by the new controlling entity.
Staff opposes the Intervenors' proposals for permit conditions. Staff contends more on-site monitors and more frequent stack testing are unnecessary given the size of the facility and the monitoring to be conducted. Staff noted the electronic monitoring of incinerator processes would not provide additional information, and had only been offered by Applicants coupled with an unacceptable half-time monitor. Staff contends waste testing is exempt under the regulations, thus DEC approval is not a requirement. The requested notice to the Town of "all" violations is vague from Staff's point of view, and, essentially, not needed because DEC is the state's designated environmental enforcement agency. Staff contends it won't need updates of the Applicants' ROC submissions until permit renewal time. Staff opposes Town oversight of DEC enforcement and its proposed "disincentives for noncompliance" as "overreaching;" and pointed out that the Town and citizens, prior to this proceeding, stipulated to when a risk assessment should be performed and that the condition for same has not been met.
Summary of Applicants' Position:
Although the Applicants dispute the need for any of the added permit conditions in Exhibit 3I, and prefer that the transfer of operational control be approved with no changes to BDT's permits except to change the name of the permittee from BDT, Inc., to Laidlaw Environmental Services (BDT), Inc., they are not challenging Staff's determination. They have accepted those conditions to expedite resolution of these proceedings.
Nevertheless, Applicants brief the question of whether BDT's permits should be modified solely due to the "transfer" of operational control to LESI. They argue that LESI is fit to assume control of the BDT facility without permit modifications. They contend that there is nothing in the record of compliance to support a conclusion that LESI is unfit, and claim that the Intervenors are attacking the transfer as a means of continuing a battle against the facility being in their town.
Applicants admit that LESI subsidiaries paid penalties to settle alleged violations, but note that they continue to do business at these facilities with the sole exception of Cleveland, OH (which they contend had serious problems when acquired).
With their brief, Applicants submitted a December 20, 1993 Affidavit of Roger E. Davis, LESI's Vice-President for Engineering and Regulatory Affairs, to support their arguments. The affidavit provides detailed information and/or explanations for a number of alleged violations by LESI facilities (most of which is not recapitulated here). Arguing that its facility managers are rewarded for good performance and held accountable for mistakes, it was claimed that LESI terminated or replaced managers at its facilities in Bartow, FL, Crowley, LA, and Pinewood, SC in response to situations cited by Intervenors as reason for a denial. It is also claimed that LESI frequently voluntarily makes "state-of-the-art" improvements to its facilities to protect employees, the public, and environment.
LESI claims that the Intervenors misstated the facts regarding the "feed rate" violation at the Roebuck, SC, incinerator, and that the violation was caused by the facility and regulatory agency having differing interpretations of a provision.
LESI admits that it did not report on two matters the Intervenors raise as significant indicators of its unsuitability, but addresses them in Applicants' brief. LESI notes the "wetlands" matter was referred to EPA for review, but enforcement action has not yet commenced; and claims any clearing of wetlands was inadvertent. LESI notes the "acid cloud" incident at its Antioch, TN facility resulted in a notice of violation that is still pending. LESI claims the incident resulted from having been supplied improper information by the waste generator. Although it admits to some vegetation damage, LESI claims no personal injuries have been detected.
Regarding Intervenors' argument that monitors have been ineffective in preventing violations, Applicants argue that it was the Pinewood, SC monitors who monitored and worked with the facility on a problem with fugitive dust emissions at the landfill. LESI disagree's with a perceived innuendo by Intervenors that LESI somehow caused the monitors to be ineffective.
Applicants argue that the Department cannot and should not impose permit conditions which effectively delegate its authority to intervenors, and that Intervenors have failed to satisfy their burden of proof to show that LESI is unsuitable or the permits should be modified.
Summary of the Intervenors' Position:
The Intervenors argue that their rights are compromised by the lack of a prior ruling on whether or not LESI is suitable "per se" or suitable with permit conditions. As an alternative to such ruling, they argue that the ALJ must identify for the parties those aspects of LESI's record of compliance that are "so problematical that special conditions are required before LESI will be rendered a suitable applicant to hold BDT's permits."
In their Reply brief, the Intervenors object to Applicants' submission (and consideration herein) of the December, 1993 affidavit of Mr. Davis, arguing that the ALJ "in effect" ruled the evidentiary record closed, and that the affidavit now creates issues of fact where none had previously existed. If considered, Intervenors would want the proceedings stayed "in order to permit them to identify the specific factual issues which may be in dispute," have discovery, and an opportunity to cross examine Mr. Davis.
The Intervenors' main argument is that no permit condition can remedy what they perceive to be LESI's unsuitability as a permittee. Therefore, they want the transfer disapproved. However, if the transfer is approved over their objection, they would want more stringent and additional conditions to be imposed, beyond those agreed upon between Staff and Applicant.
The Intervenors want the transfer disapproved, based upon the perceived unsuitability of LESI:
The Intervenors base their contention that LESI is an unsuitable transferee for BDT's permits (with or without additional permit conditions) on various incidents or situations. These are tabulated below with citations to the documents the Intervenors rely upon. For clarity of the record, Intervenors' citations have been converted to the official Exhibit numbers See Exhibits List attached as Appendix A. The cited portions of particular exhibits are placed in parentheses.
|1) 7/10/89 Cleveland OH: Explosion and fire caused by storage of incompatible waste in a third floor office.||Exhibit 6A (Ex.E)|
|2) 2/7/91 Pinewood, SC. The Roebuck, SC and Pinewood, SC Landfill have environmental monitors: Collapse of a containment wall at the hazardous waste landfill.||Exhibit 2B (Sec. VII, Tab N 11-17); Exhibit 5 (Ex. 48, Bates Nos. 7057-7064)|
|3) 6/3/92 Antioch, TN: Release of a cloud of sulfuric acid into a residential neighborhood.||Exhibit 5 (Ex. 51)|
|4) 1992 SC: Mining of 50 acres of wetlands without a permit.||Exhibit 5 (Ex. 50)|
|5) 1993 Pinewood, SC: Improper disposal of land-banned waste and failure to test waste to certify that it meets treatment standards.||Exhibit 2D (Sec. VII, Ex. T, 31 and 41)|
|6) 1992 Bartow, FL Failure to know that an air permit included both annual and daily emission limits.||Exhibit 6A (Vol. II, Bates Nos. 8031-8033).|
|7) 1992-1993 Roebuck, SC: Repeated violations of court-ordered permit conditions, including burning of waste while the carbon monoxide monitor was being calibrated.||Exhibit 2A (p.19 Item 11); Exhibit 5 (Ex. 44); LESI's 12/10/93 Memo Att. 1|
|8) 1987-1992 Roebuck, SC: Repeated failure to comply with NPDES permit limits resulting in payment of $100,000 penalty.||Exhibit 2B (Sec. VIII, Tab Q)|
|9) 1988-1992 Roebuck, SC: Numerous violations of the incinerator's operating permit, including a failure to maintain feed rates (1987-1989) and openings in the facility's thermal relief vents (1990-1992). These violations resulted in the payment of $75,300 in fines and an order to replace several pieces of equipment.||Exhibit 2B (Sec. VII, Tabs P and R); Exhibit 2A (p.18, Item 3; Exhibit 5 (Ex. 40 -- 42)See also Exhibit 2B (Sec. VIII, Tab R, p.3), and Exhibit 5 (Ex. 41, Bates Nos. 6033-6049) specifically re thermal relief vents.|
|10) 1990-1991 Pinewood, SC: Numerous violations of the facility's hazardous waste permits including the placement of rocks in the landfill's liner, repeated failure to maintain secondary containment units free of waste (in spite of repeated requests by the on site monitor) and the improper construction of a containment wall which resulted in its collapse. Fines and penalties of $135,000 were paid relating to these violations.||Exhibit 2B (Sec. VII, Tab. N). See also Exhibit 2B (Tab N, 3-5), Exhibit 5 (Ex. 48, Bates Nos. 7029-7039) for monitor requests re containment unit; and Exhibit 2B (Sec. VII, Tab N, 6 and 21); Exhibit 5 (Ex. 48, Bates Nos. 7040-7041) for monitor requests re liner.|
|11) 1991-1993 Pinewood, SC: Continued numerous violations of the facility's permit, including violation of a 1991 Consent Order. Violations included improper disposal of land-banned waste, failure to test waste prior to disposal, improper management of waste and continued failure to maintain secondary containment units. Also, there were fires (including one in the drum shredder unit) at the facility. Fines and penalties of $1.8 million were assessed.||Exhibit 2D (Sec. VII, Tab T); See also Exhibit 5 (Ex. 49, Bates Nos. 7281-7283)|
|12) 1992 Bartow, FL: State initiated proceedings to deny LESI an air permit. LESI chose to withdraw its permit application and to install new equipment.||Exhibit 2D (Sec. I, Tab A)|
|13) Ohio initiated proceedings to revoke LESI's facility permits. (Many of the violations which led to OHIO's action were container management problems). LESI chose to close the facility.||Exhibit 2A (Sec. III, Tabs H and I)|
|14) California denied LESI's application for air permits on the grounds that the equipment had not been installed in compliance with the facility's construction permit.||Exhibit 2B (Sec. VI, Tab M)|
The Intervenors take the position that the above matters reveal a disregard for the law which will not be ameliorated by permit conditions; and argue that it is cheaper for LESI to violate the law and pay fines and penalties "than do what's right in the first place." The Intervenors argue that there is no support in the record for Staff's conclusion that permit conditions will address problems in LESI's compliance history.
As an example of the ineffectiveness of on-site monitors, the Intervenors point out that in spite of the presence of environmental monitors at LESI's Pinewood, SC facility (which has two monitors at the landfill and one at the incineration unit) several "significant and serious violations" occurred including the collapse of a containment wall, tears in the landfill's liner, and the facility repeatedly not keeping secondary containment areas free of waste to permit visual inspections by the monitors. The Intervenors point to documents showing that the monitor made repeated requests to keep the secondary containment area free of waste, and made repeated requests that rocks not be placed in the landfill's liner (see Table items 2 and 10). In spite of the monitors' presence and the resolution of these matters by Consent Order and payment of a $135,000 fine, violations continued, resulting in another Consent Order and a $1.8 million fine (see Table item 11).
LESI's Roebuck, SC incinerator is pointed out as another example where an on site, full-time, monitor did not prevent significant violations from occurring. The violations included repeated violations of a Court-ordered permit (including continuing to burn waste while calibrating a carbon monoxide monitor) (see Table item 7), openings of thermal relief vents (Table item 9) and multi-year violations of NPDES permits (Table item 8).
The Intervenors argue that the proposed annual environmental audits also will be ineffective in preventing violations. They note that LESI claims to already conduct unannounced audits at their facilities [see Exhibit 2C (Davis Affidavit, 23)], yet there are violations at LESI's facilities in South Carolina, Ohio and Florida. The Bartow, FL facility exceeded its air emission limits, and the facility manager apparently did not know the facility had both annual and daily emission limits (see Table item 6). The audits failed to uncover storage of waste in a third floor office at LESI's Cleveland, OH facility more than 2 years after the facility was acquired (Table Item 1). The recent violations at Pinewood, SC, many of which involve failure to follow and implement procedures for identifying and testing of waste, underscore the failure of audit programs to identify problem areas and prevent violations at LESI facilities (see Table item 11). The Intervenors question whether the LESI-paid independent auditor would be any more effective than LESI's own audits.
If the transfer is approved, the Intervenors want more stringent, and additional, conditions:
If the transfer is approved, the Intervenors would prefer to require the two monitors that Staff had originally proposed rather than the one finally agreed upon, and, in addition, would want certain processing activities to be contingent upon a monitor actually being present at the site when they are conducted. The Intervenors presume that Staff was aware of the facility's size, the volume of wastes being treated, and LESI's compliance history when Staff originally determined two monitors were needed. The Intervenors argue that there is no rational explanation for Staff's change in position. The Intervenors also prefer that DEC actually choose (or employ) the environmental auditor rather than approve the permittee's choice.
The Intervenors argue for stack testing to be conducted on both stacks each year, rather each stack in alternating years. They contend that Staff's admission that LESI's compliance history warrants stack testing, and Staff's opinion that the tests (as proposed) probably would have been incorporated eventually into BDT's permits (a "well-run" facility), justifies that more frequent testing being required of LESI. The Intervenors argue that the burden is on DEC Staff, rather than the Intervenors, to establish that the tests, as proposed, are sufficient to ensure LESI's suitability. The Intervenors point out that Staff, during a 1990 hearing on BDT's permit renewal, took the position that no stack test was necessary. However, when tests were ultimately conducted, pursuant to an agreement independently reached between the Town and BDT, "the incinerator failed." The Intervenors contend they are entitled to more than Staff's conclusory statement that the cost of more frequent stack testing will outweigh its benefits.
With regard to the other additional permit conditions that Staff and Applicants agreed upon, the Intervenors had no specific objection. However, if the transfer is approved, the Intervenors want DEC to impose a number of conditions in addition to those agreed upon. The Intervenors cite DEC's mandate to protect the environment and its broad statutory authority to impose permit conditions (including those not explicitly authorized by statute or regulations), as providing the legal basis for imposing the requirements that they seek to impose on the permittee.
The Intervenors would like the permittee to be required to provide DEC with regular updates of its Record of Compliance submissions (i.e., copies of all consent orders, legal memoranda or orders, decrees, judgments, stipulations, pending charges etc.) pertaining to hazardous waste management by LESI or its subsidiaries (and any other companies it manages). The Intervenors note that Staff drafted a similar provision for another facility, and argue that the authority for and appropriateness of that provision would be apply here.
The Intervenors want the DEC to require LESI to monitor the incinerator's operational parameters, as LESI itself offered to do in a December 3, 1993 letter to Staff, to provide Staff with additional information to evaluate the facility's operation.
The Intervenors propose a number of conditions for the benefit of the Town and its citizens. Based on the Intervenors lack of familiarity with LESI, the Intervenors want the DEC to require LESI to provide written notice to the Town and DEC prior to the testing of any new waste for acceptance by the facility, that the notice contain certain information, and that test results be provided to the DEC. The Intervenors want the DEC to require the permittee to notify the Town of all violations at the facility, contending that there should be no objection to providing the Town with such publicly available information and that it would not be a burden. The Intervenors want DEC to require permittee to maintain a telephone line on which the Town and its citizens will be able to directly report complaints or obtain information on facility operation. An incident at a LESI facility wherein a citizen had to "track down" the on-site monitor to report that a relief valve fell off an incinerator was cited in support of this request, along with the argument that a "hotline" would have resulted in earlier discovery of the incident.
In addition, the Intervenors contend that various aspects of LESI's compliance history (not repeated here) "Requires the Town to Actively Assist" DEC in its oversight of the facility. The Intervenors propose that DEC require that the Town and citizens be provided with an opportunity to review resolution of violations that may occur at the facility under LESI's management, that the permittee consent to the initiation of citizens' suits in State Court, and that the permittee fund a Town environmental monitor at the facility as well as bear the cost of the Town's increased oversight.
The Intervenors further contend that specific violations at other facilities require that LESI's permits contain "disincentives" for non-compliance. In this regard, the Intervenors propose that the permit contain a system of graduated penalties to eliminate economic incentives for repeated violations, that the permit require any modifications to the facility receive prior approval of the DEC, and that the permits require LESI to agree to operate the facility in accordance with DEC's [presumably Staff's] interpretation of its regulatory authority, with penalties to be imposed for each day of operation not in accordance with the interpretation (regardless of whether or not the interpretation is upheld as correct).
The Intervenors also seek that a risk assessment be made a permit requirement.
RULING XIII: Based on their agreement, there are no issues in dispute between Region 9 Staff and Applicants which require adjudication.
RULING XIV: Any question of LESI's suitability to control the facility or otherwise hold BDT's permits without added permit conditions was rendered moot by Applicants' acceptance of the additional conditions set forth in Exhibit 3I. Therefore, determination of Applicants' suitability to hold the permits must be made assuming the agreed upon conditions will be imposed.
RULING XV: Based upon the documentation submitted and the arguments made, there appears to be no material dispute that the various situations cited by the Intervenors as reasons to deny or further condition the transfer were resolved as follows:
The item numbers and summary descriptions in small capital letters correspond to the tabulation of Intervenors' position above. Although all circumstances surrounding these incidents are not known, enough is known so that further fact finding would add little of value. Items 1 and 13) - 7/10/89 Cleveland OH: Explosion and fire caused by storage of incompatible waste in a third floor office.
- Ohio initiated proceedings to revoke LESI's facility permits. (Many of the violations which led to Ohio's action were container management problems). LESI chose to close the facility.
The explosion incident, plus all other claims pending between the State of Ohio and GSX Chemical Services, Inc. (the LESI subsidiary involved) for alleged violation of environmental laws, rules, and consent judgements through the date of the Consent Judgment (October 23, 1990) at its Bessemer Avenue, Cleveland, OH hazardous waste facility were resolved by a Consent Judgment wherein GSX agreed, inter alia, to submit a closure plan within 90 days of entry, and close the facility in accordance with the plan. Compliance with the Consent Judgment was to be a full accord and satisfaction and release for civil, criminal and administrative liability of GSX, if any. The Consent Judgment expressly provided (on page 8) that it was not an admission of any violation of law. Exhibit 2B (Sec. III, Subsection I).
Items 2 and 10) - 2/7/91 Pinewood, SC.: Collapse of a containment wall at the hazardous waste landfill.
-1990-1991 Pinewood, SC: Numerous violations of the facility's hazardous waste permits including the placement of rocks in the landfill's liner, repeated failure to maintain secondary containment units free of waste (in spite of repeated requests by the on site monitor) and the improper construction of a containment wall which resulted in its collapse. Fines and penalties of $135,000 were paid relating to these violations.
These matters, pertaining to a hazardous waste landfill, were resolved by Administrative Consent Order 91-66-SW dated November 13, 1991, wherein GSX of South Carolina (the LESI subsidiary involved) agreed to pay a civil penalty of $135,000 and conduct itself in a certain manner. Said Order contained several findings of fact, and concluded that GSX had violated several provisions of the South Carolina Hazardous Waste Management Regulations. However, by the Order's express terms (page 16), GSX made no admission of liability for any alleged violation, and the Order is not admissible as evidence in any administrative or judicial proceeding except as necessary by the South Carolina Department of Health and Environmental Control or GSX to prove its existence and nature. The alleged violations were not adjudicated. Exhibit 2B (Sec. VII, Tab N).
Items 5 and 11) -1993 Pinewood, SC: Improper disposal of land-banned waste and failure to test waste to certify that it meets treatment standards.
-1991-1993 Pinewood, SC: Continued numerous violations of the facility's permit, including violation of a 1991 Consent Order. Violations included improper disposal of land-banned waste, failure to test waste prior to disposal, improper management of waste and continued failure to maintain secondary containment units. Also, there were fires (including one in the drum shredder unit) at the facility. Fines and penalties of $1.8 million were assessed.
These matters were resolved by Consent Order 93-47-HW dated 9/14/93 wherein Laidlaw Environmental Services of South Carolina (the LESI subsidiary involved) agreed to pay a civil penalty of $1,825,000 and conduct itself in a certain manner. Said Order contained several findings of fact, and concluded that Laidlaw had violated several provisions of the South Carolina Hazardous Waste Management Regulations. However, by the Order's express terms (page 24) the findings and conclusions were deemed admissions only as necessary for South Carolina's enforcement of the Order, or subsequent actions relating to Laidlaw by that state agency. They were not adjudicated. Exhibit 2D (Sec. VII, Ex. T).
Items 3 and 4) - 6/3/92 Antioch, TN: Release of a cloud of sulfuric acid into a residential neighborhood.
- 1992 SC: Mining of 50 acres of wetlands without a permit.
These matters are still pending in their respective states.
Items 6 and 12) 1992 Bartow, FL: - Failure to know that an air permit included both annual and daily emission limits.
- State initiated proceedings to deny LESI an air permit. LESI chose to withdraw its permit application and to install new equipment.
These matters, pertaining to a hazardous waste processing facility, were resolved by Consent Order dated 7/1/93 between the Florida Department of Environmental Regulation and Laidlaw Environmental Services of Bartow, Inc. (the LESI subsidiary involved). The Order settled alleged violations and the facility's renewal applications by, inter alia, (1) requiring payment of $42,400 in civil penalty and costs, (2) allowing the facility to withdraw renewal applications, (3) allowing the facility to continue operating (4) requiring the submission of a application for a construction permit and (5) allowed construction per approved construction permit. A number of operating and reporting requirements were also imposed. Allegations were not adjudicated. The Order expressly provided (p. 4 of 14) that no violations were admitted. Exhibit 2D (Sec. I, Tab A).
Item 7) 1992-1993 Roebuck, SC: Repeated violations of court-ordered permit conditions, including burning of waste while the carbon monoxide monitor was being calibrated.
It is not clear which violations the Intervenors are referring to here, except to note that Exhibit 2A on p.19 under Item 11 (which Intervenors cited) identifies two instances where the USEPA demanded penalties related to Laidlaw Environmental Services (TOC)'s incinerator which were paid. The first was for failure to maintain negative pressure in the incinerator unit in November 1991. The second (in which EPA reduced the penalty to half the original demanded because of mitigating circumstances) involved failure to operate the incinerator within the specified combustion gas carbon monoxide concentration for a 15 second interval and a 45 second interval, both in March 1992. The amounts paid were $20,000 and $20,000 respectively. (A third instance involving NPDES is discussed under Item 8 below.)
The Intervenors referred to Exhibit 5 (Ex. 44) on the allegation of burning waste while the carbon monoxide monitor was being calibrated. It is not clear from the documents that the problem was exactly as stated by the Intervenors, but it is clear that EPA thought there was a problem related to carbon monoxide. The Intervenors' documents indicate (at No. 006483), however, that "TOC was able to demonstrate to EPA's satisfaction that it acted responsibly throughout the entire series of events" outlined in a June 10, 1992 report; and that based on same, the minimal potential impacts associated with the 20 second violation, and the subsequent installation of continuous monitoring of CO, EPA cut its penalty request in half to $10,000.
Item 8) 1987-1992 Roebuck, SC: Repeated failure to comply with NPDES permit limits resulting in payment of $100,000 penalty.
These matters, pertaining to a wastewater treatment system associated with the hazardous waste incinerator, were resolved by Consent Order and Decree dated June 10, 1992 wherein Laidlaw Environmental Services (TOC), Inc. (the LESI subsidiary involved) agreed to pay a civil penalty of $100,000, conduct a fish tissue study for mercury, and comply with other requirements in full settlement for alleged NPDES violations. No violations were admitted or adjudicated: the Order expressly providing (on page 4) that it would not constitute evidence of misconduct or wrongdoing. The Order also recited that South Carolina recognized that Laidlaw made "persistent efforts ... at considerable expense, to evaluate and control the discharge of pollutants in excess of current effluent limitations" and (on pages 2-4) outlined 17 things Laidlaw had done in this regard. Exhibit 2B (Sec. VIII, Tab Q)
Item 9) 1988-1992 Roebuck, SC: Numerous violations of the incinerator's operating permit, including a failure to maintain feed rates (1987-1989) and openings in the facility's thermal relief vents (1990-1992). These violations resulted in the payment of $75,300 in fines and an order to replace several pieces of equipment.
The feed rate and thermal relief vent (TRV) matters were resolved by two Consent Orders between the South Carolina Department of Health and Environmental Control, and Laidlaw Environmental Services (TOC), Inc. (the LESI subsidiary involved).
In the first, Administrative Consent Order 90-03-SW,A, dated January 31, 1990, Laidlaw agreed to pay DHEC a $35,000 civil penalty related to alleged violations of feed rates and alleged failure to maintain feed rate monitoring equipment. Although the Order related several agency findings of fact and conclusions that provisions of South Carolina law had been violated (pages 1-3), the order expressly provided (page 3) that no claims were adjudicated nor were any facts or legal conclusions admitted. Exhibit 2B (Sec. VIII, Tab P).
In the second, Consent Order 93-8-A dated 2/19/93, Laidlaw agreed to pay a $30,000 civil penalty, replace certain emissions control equipment and install a sensor system tied to the facility data recorder, and do other things, to settle "contested portions" of a prior (2/14/92) Administrative Order 92-5-A, SW involving alleged releases from the TRVs. The Consent Order provided (page 1) that no issues of fact or law were admitted or adjudicated. Exhibit 2B (Sec. VIII, Tab R).
The prior Administrative Order 92-5-A, SW [see Exhibit 2B (Sec. VIII, Tab R)], on pages 1-2 listed seven deficiencies other than the one pertaining to the TRV's, and found them to be violations (page 5). These charges involved failures to timely submit completed manifests for hazardous waste shipments, failure to label containers of hazardous waste with their contents, inadequate aisle space between ash cans, excess amounts of hazardous waste being stored on site, and inspections of hazardous waste storage areas not conducted or documented. These violations were among those which appear The copy of the stipulation in this record is unexecuted. However, no one challenged this part of the application. Because it is among the documents cited by the Intervenors to support their position, for the purposes of these Rulings it is presumed to have been executed. to have been settled by a "stipulation and order" between the parties "without any admission by TOC of any fact or liability." It was agreed that the facility would pay a $14,300 penalty. Exhibit 2B (Sec. VIII, Tab R).
Item 14) California denied LESI's application for air permits on the grounds that the equipment had not been installed in compliance with the facility's construction permit.
This matter, pertaining to a landfill gas collection and disposal system in Orange County, CA, was addressed by the South Coast Air Quality Management District (SCAQMD) Hearing Board's November 3, 1989 Findings and Decision for Order for Abatement (Case No. 3785-2). The matter was submitted to the Board on the written stipulation and proposed conditional Order for Abatement that had previously been filed by the SCAQMD and Laidlaw Gas Recovery Systems (the LESI subsidiary involved). Laidlaw had obtained permits for a landfill gas fired resource recovery system and for a landfill gas treating and flaring system, but installed two standby flares without permit (subsequently applied for). The Board found several deviations from the operational requirements of the permits, and instances where monitoring equipment was installed without prior approvals. Performance tests of the generator and flare systems in 1989 showed accedences of emission limits contained in the permits and regulations. Based upon these noncompliances, SCAQMD denied the aforementioned permits. The Board ultimately resolved the matter by concluding Laidlaw had violated District Rules 202 and 203, concluding that the violations would continue unless corrective actions were taken, ordering Laidlaw to cease and desist from violating the emission levels, and setting forth a list of corrective actions to be taken which would be "... likely to result in compliant operation at the Orange County Facility." Exhibit 2B (Sec. VI, Tab M).
RULING XVI: With respect to those aspects of LESI's compliance history reported above, the parties have not cited any statutory, regulatory or common law provision that would mandate a particular outcome here (i.e., either approval, denial or approval with particular conditions) as a matter of law. Caveat: See Ruling VI (B) - Any act or failure which serves as the basis for denial or revocation of a hazardous waste permit shall have occurred within 2 years from the date on which the application for the permit, renewal or modification is submitted to DEC. Thus, the decision of whether or not to approve of the transfer, or whether (and what) additional conditions are needed, remains within the bounds of the commissioner's discretion.
As already noted in the discussion under Ruling IV, passing on the fitness of an applicant is a matter of the licensing official's "discretion," Barton Trucking, Inc. v O'Connel 7 NY2d 299, 308-09 (1959), which generally means "unhampered by legal rule," see Black's Law Dictionary, Rev. 4th Ed. Of course administrative determinations must still (1) have a rational basis on the record as a whole, Matter of Pell v Board of Educ., 34 NY2d 222, 231; and (2) be within the scope of the official's legislatively delegated responsibilities, see Bologno v O'Connel 7 NY2d 155 (1959). The parties have not cited the exceedence of a legal standard that would remove this matter from within the commissioner's discretion.
RULING XVII: The Intervenors' proposed permit conditions designed to create new rights for the Town, and conditions which purport to impose penalties not authorized by law, do not appear to be within the Department's authority to impose (absent Applicants' agreement), for the reasons previously discussed under Ruling XI. Therefore, they should not be considered further. Also, Intervenors request for a risk assessment should not be considered because the concerns were effectively addressed by the decision to permit the facility, the validity of which is not in issue (see Ruling II).
Although the Intervenors have cited the broad authority that the Department has to place conditions on permitted activities, this authority is not limitless. My concerns that certain proposed conditions would exceed that authority still exist because they were not directly addressed in the Intervenors' arguments.
RULING XVIII: Because of the discretionary nature of the determination, a definitive ruling on the outcome warranted by this record is not possible. (My "Recommendation" and reasons, however, appear below.) Of those argued, the following outcomes are options still available to the commissioner because they would have a rational basis, as explained in the discussion below:
- Denial of the approval;
- Approval with the Exhibit 3I conditions; or
- Approval as above with one or more of the following additional or more stringent conditions proposed by the Intervenors --
(1) an additional monitor, (2) certain operations being contingent upon the monitor's presence, (3) more frequent stack testing, (4) having DEC choose (or employ) the environmental auditor, (5) monitoring of additional parameters, and (6) periodic updates of the Record of Compliance submissions.
The question of whether to deny permits based on the suitability of the Applicant is one which requires a careful balancing of both facts and policy considerations. In terms of policy considerations, regulatory decisions relating to applicants who have compliance history problems will generally focus on two types of factual patterns. On one extreme are applicants who have intentionally or by management neglect operated outside the boundaries of the law and have done so criminally or with gross negligence. These are companies and individuals who must be prevented from entering any business activity which requires a hazardous waste permit of any type.
The other extreme is characterized by companies and individuals who have had transgressions but have acted responsibly in dealing with them and in improving operations to prevent recurrences.
Applicants in this category should not necessarily be denied permits but may very well require special conditions to ensure that any operations they undertake will be implemented properly and in full compliance with regulatory requirements. Matter of CECOS International, Decision 3/13/90.
The "criminal intent or gross negligence" extreme clearly warranting a denial has not been shown to apply here. The documents cited by the Intervenors contain no adjudication or admission of "criminal" or "grossly negligent" operations. Since what constitutes a "crime" or "negligence" depends to varying degree on the requirements of local laws, since the situations cited here all occurred in other states, and since we cannot adjudicate alleged violations in other jurisdictions (Interim Decision, 12/21/93), DEC is not in the position to make such determinations itself.
Although the above extreme doesn't appear applicable, a rational basis to deny the approval exists. The available record of LESI's compliance history, imputed from the records of its subsidiaries, contains numerous consent orders, and some instances where penalties were paid apparently without formal consent order (see e.g. Item 7 under Ruling XV) which could be construed as admissions. The California situation (Item 14, Ruling XV) involved admitted wrongdoing. The situations that are considered most significant by the hearing parties are reported under Ruling XV, but others are in the record as well (see Applicants' Exhibit 2A). Certain facilities (Pinewood and Roebuck, SC) were subjected to multiple orders.
Although most of the consent orders expressly state they do not represent adjudications or admissions that laws were violated (clearly preventing them from being used that way here), they also, conversely, are not findings that no violations occurred. There is no impediment to recognizing consent orders for what they are -- agreements which normally embody a compromise. In exchange for the saving of cost and elimination of risk, the parties each give up something they might have won had they proceeded with the litigation, with the resultant decree embodying as much of the parties' opposing purposes as they have the bargaining power and skill to achieve. (see US v Armour & Co. 402 US 673, 681-682; 91 SCt 1752, 1757 (1971)).
Compromises which entailed shutting down a facility only a few years after acquisition (Cleveland, OH) and payment of almost two million dollars in penalties (Pinewood, SC) indicate LESI's poor bargaining position and, if not violations of law, at least the probable existence of situations that DEC should be prepared to address as a matter of caution. The existence of a number of consent orders, and multiple consent orders at certain facilities, establishes the likelihood of similar agency engagement in the future. It would not appear to be an abuse of discretion (or arbitrary and capricious) for the commissioner, after assessing his agency's capabilities (an executive as opposed to legislative or judicial function), to conclude that the risks and burdens are too great for DEC to assume, and deny approval of the transfer on that basis.
DEC Staff articulated a rationale for approving the transfer, subject to the Exhibit 3I conditions. The conditions, while they cannot guarantee future compliance at the facility, appear that they will enable DEC to detect and appropriately respond to the kinds of situations that may have occurred at LESI's Ohio, South Carolina, Florida, and other facilities. The attempt to institutionalize BDT's "well-run" operations can be expected to further assist in the avoidance of situations that may have occurred elsewhere. It would not appear to be an abuse of discretion for the commissioner to conclude that the agreed upon conditions will bring the risks associated with LESI's control within DEC's capabilities to manage, and that the transfer could be approved.
The additional or more stringent conditions listed above that are proposed by the Intervenors are supported by the same rationale -- essentially, they will reduce risks associated with facility operation and increase agency oversight and control. Based upon his broader assessment of the Department's capabilities, it would not appear to be an abuse of discretion for the commissioner to conclude that some or all of these additional safeguards are needed to make LESI's control approvable.
RULING XIX: Subject to the commissioner's discretion, there are no substantive and significant issues remaining which require adjudication.
It should be clear from the record that the disputes between the parties are not so much over what LESI's record of compliance is, but more over what it means. No material facts are in dispute. The record can logically support alternative (and opposed) outcomes. For me, the record favors the recommendation below. Others, I'm sure, will disagree. The decision ultimately rests on how the commissioner wishes to exercise his discretion.
Regardless, there appears to be no need for fact-finding, or to otherwise continue the hearing process, since an extensive documentary record and arguments have already been made. Thus no substantive or significant issues remain to adjudicate. This conclusion, of course, is subject to the commissioner's discretion, since he may see a need for additional information to reach a decision.
I recommend that the proposed change in operational control be approved, and that the permit modifications applied for be granted, subject to the new permit conditions contained in Exhibit 3I. I also recommend that the permits require regular updating of the Record of Compliance submissions, on a continuous basis and in the same manner as done during this proceeding on those matters for which DEC Staff has already identified a need to see more detailed information, and annually and in the same manner as in Exhibit 2A (at tab 4) for other occurrences, with more detailed submissions to be made as needed by Staff.
Based upon the fact that a facility was agreed to be shut down (October, 1990), the Cleveland, OH situation (Items 1 and 13 under Ruling XV) appears to be the most serious one in this record. Applicants argued that the facility had serious problems when LESI took it over (February 2, 1988 per Exhibit 2A p.6) and, thus, it shouldn't count against them. There is room for disagreement on this (particularly in view of occurrences after the acquisition, see Exhibit 2A, pp 6-8). While settlement of the case could be viewed as a way for the facility to avoid an adjudicated finding of liability (and some of the attendant consequences), the agreement to shut down (with presumed financial loss) could also be viewed as a responsible act by a company that realized (1) compliant operation could not be achieved and (2) a shut down would prevent further problems. It does not appear possible to determine which view is more accurate -- and the need to do so is not apparent. The Exhibit 3I permit conditions will help prevent a similar serious situation from developing.
The situations at the Pinewood, SC (Items 2 and 10, 5 and 11, under Ruling XV) and Roebuck, SC (Items 7, 8 and 9 under Ruling XV), also appear to be serious, based on the large penalties which were agreed upon (Pinewood, Items 5 and 11, Ruling XV), the fact that several enforcement actions were taken, and that several violations were apparently admitted by the payment of fines upon assessment (Roebuck, Items 7 and 9, Ruling XV; as well as Exhibit 2A, pp. 18-20). Appearing less serious, because smaller penalties were assessed, but nonetheless significant because they have been cited by the parties, are the Florida (Items 6 and 12, Ruling XV) and California (Item 14, Ruling XV) situations, the latter representing adjudicated violations of law based on stipulated facts.
In the situations above, the responsible agencies generally allowed the facilities to continue to operate, subject to specific requirements designed to achieve compliance in the future, and/or provide the responsible agency with additional oversight capability. In light of this, it is not clear that these situations should warrant denial of the pending application. While I can't say it's "compelling" as argued by Staff, it seems appropriate to accord some deference to the manner in which the responsible agencies treated the situations that were before them. The agencies' reputations were on the line every time they settled a case. One would not expect that cases would have been settled in a careless, haphazard fashion, or that intolerable conditions would have been allowed to continue.
Staff's approach here is consistent with how DEC's sister agencies treated the LESI facilities: allow LESI to operate the facility, subject to conditions designed to achieve compliance and give the agency more oversight. Such an approach was sanctioned in the 3/13/90 CECOS decision. As stated above, there is a rational basis for taking this approach here. The mere fact that certain measures such as monitors may not have prevented every violation does not substantiate Intervenors' arguments that the measures are "ineffective," nor does it destroy the inherent rationality of Staff's approach.
Weighing heavily in favor of Staff's approach is that it is tailored to this particular facility -- institutionalizing good practices that currently exist.
While the more stringent measures proposed by the Intervenors can be supported by the same rationale, the reasons offered do not clearly favor their adoption. With the new site-specific conditions relevant to operations, need for the more stringent conditions proposed by the Intervenors is not apparent. Of course, if new problems develop at this facility, the Department can always move to modify the permits.
I agree, however, with the Intervenors' recommendation that the Record of Compliance materials should be periodically updated, rather than having DEC wait until permit renewal time for the information. "New information" is always a basis for reopening proceedings and possibly modifying permits. Certain situations could indicate a need to "fine tune" the permit during its effective period. Since so much compliance information will be located out of state, there will be practical difficulties for DEC to gather it unless it has at least some regular notice of what the controlling company is doing elsewhere.
Pursuant to 6 NYCRR 624.6 (d), "The ruling of the ALJ setting forth the issues for the hearing may, within three days of the ruling, be appealed in writing to the commissioner, who will decide the appeal within five days of receipt. Other parties may submit briefs in support of or in opposition to the ALJ's ruling. Notice of the appeal and a copy of all briefs submitted in support thereof shall be given to the ALJ and all parties to the hearing..."
Because this matter is being referred to the Commissioner for final decision, the parties will be permitted to appeal both the Rulings and the Recommendation.
Because these Rulings are complex and are being sent by mail, additional time is provided for filing appeals. All appeals must be received no later than close of business on Friday April 1, 1994. Replies are due one week later.
Appeals to the Commissioner are to be sent to the following address: Acting Commissioner Langdon Marsh, c/o Robert Feller, Assistant Commissioner; NYS Dept. of Environmental Conservation; 50 Wolf Road; Albany, NY 12233-1550. (See Service List attached for other addresses).
Order of Referral
Subject to remand from the Commissioner following appeal or if further development of the record is otherwise deemed warranted, absent the existence of issues requiring adjudication, the record is closed, and further hearings are cancelled pursuant to 6 NYCRR 624.6(c). This matter is referred to the DEC Commissioner for determination pursuant to 6 NYCRR 373-1.7(a)(2).
Administrative Law Judge
Dated: March 21, 1994
Albany, New York
Appendix A - Exhibits List
To: Acting Commissioner Langdon Marsh
Official Service List attached
December 6, 1993; rev March 21, 1994
NAME OF HEARING:
Laidlaw Environmental Services, Inc. & BDT, Inc. Transfer of existing Hazardous Waste Facility and Air Permits; and Certificates to Operate
1 HEARING NOTICE DATED April 19, 1993
1A Office of Hearings Hearing Notice Distribution List
1B Copy of Hearing Notice published in April 28, 1993 ENB
1C Affidavit of publication of Hearing Notice in The Buffalo News on 4/28/93
1D Affidavit of publication of Hearing Notice in the Metro Community News on 4/25/93
1E Affidavit of publication of Hearing Notice in The Clarence Bee on 4/28/93
1F Copy of Notice of Extension of Public Comment Period published in 6/16/93 ENB (exhibit marked 9/22/93)
1G Affidavit of publication of Notice of Extension in The Buffalo News on 6/16/93 (exhibit marked 9/22/93)
1H Affidavit of publication of Notice of Extension in the Metro Community News on 6/20/93 (exhibit marked 9/22/93)
1I Affidavit of publication of Notice of Extension in The Clarence Bee on 6/16/93 (exhibit marked 9/22/93)
2 APPLICATION DOCUMENTS (NO EXHIBIT "2"):
2A "Laidlaw Environmental Services, Inc. Request for Transfer of Permit Documents" dated December 22, 1992.
2B "Submission to Satisfy Record of Compliance Enforcement Guidance" (Applicant's supplement to its record of compliance in 2A above).
2C Memorandum in Support of Application and Affidavit of Roger E Davis under cover dated 8/19/93 plus separate letter of Mr. Brown 8/19/93 (responding to 6A) (exhibit marked 9/22/93)
2D Update of Record of Compliance under cover 9/27/93 (exhibit marked 10/19/93)
2E Second Memorandum and Affidavit (exhibit marked March 21, 1994)
2F Reply (exhibit marked March 21, 1994)
3 DOCUMENTATION OF STAFF'S POSITION (NO EXHIBIT "3"):
3A Current Part 373 permit including following documents:
1) 6 NYCRR Part 373 Fact Sheet
2) Permit Transmittal letter 10/17/91
3) BDT Facility Site Plan rev 7/1/84
4) Process Plant Site Plan 9/15/86
5) "NYSDEC Draft 6 NYCRR Part 373 Permit ... Volume I of II" (including unbound modules I -- III)
6) "NYSDEC Draft 6 NYCRR Part 373 Permit ... Volume II of II" (including unbound "Daily Walk-Through Inspection")
7) BDT, Inc. Contingency Plan 4/91
8) BDT, Inc. Contingency Plan 11/92
9) BDT, Inc. Contingency Plan 4/92
10) BDT Contingency Plan 2/90
11) BDT Contingency Plan 2/90 (including unbound "Daily Walk-Through Inspection")
3B [Error Noted 6/3/93, erroneously Identified as] Current Part 201 permits
3C Draft Permit Conditions and Fact Sheet under cover dated April 27, 1993 (received 4/29/93 at Office of Hearings)
3D Revised Draft Permit Conditions and Fact Sheet under cover dated May 27, 1993 (added as Exhibit 6/3/93)
3E Current Part 201 permits (corrected, added as Exhibit 6/3/93)
3F Staff's Response to 6A under cover dated 8/19/93 (exhibit marked 9/22/93)
3G Staff's Response to 2C under cover dated 9/10/93 (exhibit marked 9/22/93)
3H Staff's 11/26/93 Statement on Permit Conditions (exhibit received at Office of Hearings 12/1/93)
3I Final Draft Permit (exhibit marked March 21, 1994)
3J Letter 12/17/93 (exhibit marked March 21, 1994)
3K Reply (exhibit marked March 21, 1994)
4 Concerned Citizens of Clarence, Inc. Application for Party Status under cover dated 5/25/93
5 Town of Clarence, NY Application for Party Status under cover dated 5/26/93 (3 volumes)
6 TOWN/CCC JOINT EXHIBITS (NO EXHIBIT "6")
6A Town/CCC's Joint Memorandum of Law under cover dated 7/20/93 (2 volumes) (exhibit marked 9/22/93)
6B Statutory Exhibits to 6A under cover dated 7/19/93 (exhibit marked 9/22/93)
6C Town/CCC's Reply under cover dated 9/10/93 plus "Additional Pinewood... Documents", plus omissions under cover dated 9/14/93 (exhibit marked 9/22/93)
6D Memorandum in Further Opposition (exhibit marked March 21, 1994)
6E Reply (exhibit marked March 21, 1994)
SERVICE LIST - November 15, 1993
NAME OF HEARING: Laidlaw Environmental Services, Inc. & BDT, Inc.; Transfer of existing Hazardous Waste Facility and Air Permits; and Certificates to Operate
Department of Environmental Conservation, Office of Hearings
50 Wolf Road, Room 409,
Albany, NY 12233-1550
FAX: 518 485-7714;
PHONE: 518 457-3468
DEC Region 9
c/o Annette Sansone, Esq., Assistant Regional Attorney
NYSDEC Region 9 Headquarters,
270 Michigan Avenue,
Buffalo, NY 14203-2999
FAX: 716 851-7008 ;
PHONE: 716 851-7190
Laidlaw Environmental Services, Inc.
c/o Nixon, Hargrave, Devans & Doyle
P.O. Box 1051
Rochester, NY 14603
attn: G. Robert Witmer, Jr., Esq.
FAX: 716 263-1600
PHONE 716 263-1000
c/o Hodgson, Russ, Andrews, Woods & Goodyear
1800 M&T Plaza,
Buffalo, NY 14203
attn: Jerrold S. Brown, Esq.
FAX: 716 852-5185 or *518 465-1567;
PHONE: 716 856-4000 or *518-465-2333
[* These numbers to be used first]
INTERVENOR 1 -
Town of Clarence, NY
c/o Whiteman Osterman & Hanna
1700 Liberty Building,
Buffalo, NY 14202
attn: Alice J. Kryzan, Esq.
FAX: 716 854-4428;
PHONE: 716 854-4420
INTERVENOR 2 -
Concerned Citizens of Clarence, Inc.
c/o School of Law
Legal Assistance Program;
University at Buffalo,
SUNY; P.O. Box 9,
Getzville, NY 14068-0009
attn: R. Nils Olsen, Jr., Esq., Dir. Clinical Education
FAX: 716 645-2900;
PHONE: 716 636-2167
DEC Press Office, attn: R.W. Groneman