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Mohawk Valley Organics, LLC - Commissioner Ruling, September 8, 2003

Commissioner's Ruling, September 8, 2003

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
625 Broadway
Albany, New York 12233-1550

In the Matter of the Notice of Intent to Revoke the Solid Waste and State Pollutant Discharge Elimination System (SPDES) Permits of: MOHAWK VALLEY ORGANICS, LLC.,
Permittee.

NYSDEC PERMIT NO. #4-2730-00033/00001

COMMISSIONER'S RULING ON MOTION TO SUSPEND ORDER AND REOPEN THE HEARING RECORD

September 8, 2003

COMMISSIONER'S RULING ON MOTION TO SUSPEND ORDER AND REOPEN THE HEARING RECORD

This ruling is in response to a motion made by Mohawk Valley Organics, LLC ("MVO") to suspend my order of July 21, 2003 in the Matter of Mohawk Valley Organics, LLC and to reopen the hearing record to receive new evidence. The order revoked the solid waste permit (#4-2730-00033/00001) for MVO's composting facility ("facility") located in the Town of Minden, Montgomery County.

For the reasons discussed in this ruling, MVO's motion is denied.

Background

By Notice of Intent to Revoke Permit dated February 24, 2003, Department of Environmental Conservation (the "Department") staff notified MVO that it intended to revoke the facility's solid waste permit and State Pollutant Discharge Elimination System permit pursuant to article 70 of the Environmental Conservation Law and 6 NYCRR part 621. Permit revocation proceedings were conducted in accordance with the Department's Uniform Enforcement Hearing Procedures at 6 NYCRR part 622. The hearing record closed on June 10, 2003.

The order, which was issued on July 21, 2003 ("July 2003 Order"), specified various regulations of the Department of Environmental Conservation (the "Department") that the facility had violated, including:

  • causing or allowing emissions of air contaminants to the outdoor atmosphere of such quantity, characteristic or duration which unreasonably interfered with the comfortable enjoyment of life or property -- 6 NYCRR 211.2;
  • failing to effectively control odors so that they constituted nuisances -- 6 NYCRR 360-1.14(m); and
  • failing to operate its facility to control odors -- 6 NYCRR 360-5.3(h).

Each of the above-referenced regulatory violations constituted a separate violation of the terms and conditions of MVO's solid waste permit. MVO also, on 45 different occasions, violated Special Condition 3 of its solid waste permit by accepting quantities of biosolids in excess of the 100 tons per day limit. Based on the record, it was determined that revocation of the facility's solid waste permit was warranted.

In addition to revoking the solid waste permit for MVO's composting facility, the July 2003 Order directed that MVO undertake various site remedial activities, including but not limited to preparing a site waste inventory, removing waste from the site, and properly closing the facility.

MVO Motion to Suspend the July 2003 Order and Reopen the Hearing

MVO subsequently submitted, on August 1, 2003, a "Motion to Suspend Order and Re-Open Hearing Record to Receive New Evidence." Specifically, MVO requested that the July 2003 Order "be modified or suspended, and that the hearing record be re-opened to receive into evidence proof that the facility's remedial plan has successfully resulted in a demonstration that the facility is operating and will operate without the generation of offensive odors." Motion, at 1.

In its motion, MVO stated that its facility had received more than 300 tons of digested bio-solids between June 12 and July 21, 2003 (the date of the July 2003 Order), and that, upon information and belief, no complaints about odors were received during this period by the Department or the Town of Minden (the "Town"). Motion, at 1 & 3. MVO argued that the operation of the facility without the generation of offensive odors was "directly attributable" to the remedial measures implemented by MVO. Motion, at 1.

As a basis for suspending the July 2003 Order and for reopening the hearing record, MVO argued that the alleged violations did not justify permit revocation. In that regard, MVO argued, among other things, that there was no finding that MVO was "unfit," the nature of the odors was equivocal, and there had been no opportunity to assess the facility's remedial plan. Motion, at 3-5.

Prior to the commencement of the permit revocation hearing, the Town had commenced a lawsuit against MVO seeking a temporary restraining order precluding MVO from accepting biosolids for composting. Town of Minden v Mohawk Valley Organics, LLC, Sup. Ct., Montgomery County, Index No. 2003-0132. Pursuant to a decision and order dated April 8, 2003, Justice Robert P. Best granted a limited preliminary injunction which reduced from 100 to 50 tons per day the quantity of biosolids that MVO could accept. Motion, Exh. 2. As support for its pending motion to suspend the July 2003 Order, MVO, by letter dated August 4, 2003, advised that Justice Best had extended his order. MVO argued that Department staff, in correspondence with Justice Best, had not objected to what MVO characterized as an extension of the facility's operating authority.

Responses to the MVO Motion

Department staff and the Town submitted responses in opposition to MVO's motion. Department staff argued that the language of 6 NYCRR 622.18(d), which provides for reopening the record "[a]t any time prior to issuing the final decision," makes MVO's motion to reopen the record untimely, and that MVO's only recourse for review is a proceeding pursuant to article 78 of the Civil Practice Law and Rules ("Article 78 proceeding"). Department staff also argued that MOV had not raised any issue of "illegality, irregularity or fraud" in the proceeding that might allow for further administrative review.

The Town of Minden (the "Town") similarly argued that 6 NYCRR 622.18(d) requires that any party seeking to reopen the record must make a motion prior to the issuance of a final decision, and that, consequently, MVO's motion should be denied. The Town also argued that there was no authority to suspend a final decision of the Commissioner, and the evidence submitted by MVO in its motion was available prior to the issuance of the July 2003 Order. The Town indicated that MVO's recourse is to commence an Article 78 proceeding.

Discussion

A Commissioner's order, issued pursuant to 6 NYCRR 622.18, represents a final action of the agency. Following its issuance, there is no express authority in Part 622 or the Environmental Conservation Law ("ECL") for the Department to suspend or reconsider the order, or to entertain other post-order motion practice. Although Part 622 authorizes the reopening of the hearing record, this only relates to the period prior to the issuance of a final decision. Specifically, section 622.18(d) reads: "[a]t any time prior to issuing the final decision, the commissioner or the [Administrative Law Judge] may direct that the hearing record be reopened to consider significant new evidence."

Notwithstanding the foregoing, the Department has recognized its inherent authority to reopen a hearing or otherwise reconsider a final decision. See, e.g., Matter of Charles Pierce, Sr., (Commissioner) Ruling on Motion for Reconsideration, June 9, 1995 (addressing the basis for that authority). That authority is only exercised in very limited circumstances, none of which apply here.

Grounds for vacating a civil judgment are set forth in Civil Practice Law and Rules 5015. These have been applied to the Department's permit application hearings under 6 NYCRR part 624, and are similarly applicable to Part 622 proceedings. See Matter of Monroe County (Mill Seat Solid Waste Landfill), (Commissioner) Ruling on Motion to Reopen the Hearing, April 14, 1993 (standard for reopening a final decision should be the same as the standard for reopening a civil judgment under CPLR 5015).

The CPLR 5015 standards include: excusable default; newly-discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial; fraud, misrepresentation, or other misconduct of an adverse party; lack of jurisdiction; or reversal, modification or vacatur of a prior judgment or order upon which the judgment or order is based. CPLR 5015 (a)(1)-(5). MVO makes no showing that any of these five standards are applicable here.

In its post-order motion MVO offers arguments and related information relative to the operation of its facility and the issue of permit revocation. At the hearing, however, MVO had a full opportunity to address issues relating to facility violations and permit revocation. Information that MVO has included in its post-order motion was available prior to the issuance of the July 2003 Order.

For example, Exhibit 1 to its motion includes data on biosolid shipments that the facility received on June 12, June 19, June 30, July 3 and July 7. MVO could have moved to supplement the record with this information, pursuant to 6 NYCRR 622.18(d), prior to the issuance of the final decision. It failed to do so. This cannot be considered "newly-discovered" evidence and, thus, cannot serve as a basis for reopening the hearing record. Moreover, various attached exhibits to MVO's motion (see, e.g., Exhibits 2 and 7) pre-date the closing of the hearing record on June 10, 2003 and likewise do not serve as a basis for reopening the hearing record.

MVO, in its motion, seeks to raise an issue relative to the Town's proceeding against MVO that is before Justice Best. As part of its motion papers, MVO submitted the July 17, 2003 order of Justice Best, by which he extended his preliminary injunction. However, as stated in the second paragraph of Justice Best's July 17, 2003 order, the extension is expressly conditioned:

"ORDERED, that my prior Orders are hereby modified so far as to authorize Defendant Mohawk Valley Organics, LLC to accept for composting no more than 50 tons per day, of digested bio-solids and other waste materials authorized for acceptance by the permit issued by the New York State Department of Environmental Conservation subject to the Commissioner's decision on the Department staff's proposed permit revocation" (emphasis added).

The extension order of Justice Best preceded the issuance of the July 2003 Order and, by its terms, would be subject to the Commissioner's decision. It, therefore, does not support reopening the hearing record or any reconsideration of the July 2003 Order revoking the MVO facility permit.

MVO allegations regarding Department staff's correspondence with Justice Best similarly could have been raised prior to the July 2003 Order. MVO's allegation in its motion papers that the correspondence "raises the issue of arbitrary and capricious conduct" is baseless. The July 8, 2003 letter of the Department Assistant Regional Attorney, which is included in the motion papers, clearly states that the Department's position on the extension of the prior order was subject to the Commissioner's decision on Department staff's proposed permit revocation.

Reopening the hearing record may also be appropriate where the decision-maker overlooked or misapprehended the facts or law. See Matter of Mayer v. National Arts Club, 192 AD2d 863 (3d Dept 1993); CPLR 2221; Matter of Kingston Oil Supply Company and Getty Terminals Corp., Inc., (Commissioner) Ruling on Motions for ALJ's Recusal and Reconsideration, January 20, 1995. MVO argues that the penalty of permit revocation is disproportionate, and that the permit was revoked "without finding either that it is unfit or has engaged in a pattern of non-compliance." Motion, at 4. In challenging the penalty and the facts relating to the facility's violations, MVO seeks to reargue matters that were the subject of the permit revocation proceeding or raise arguments that it could have previously presented, and fails to establish that any fact or law was misapprehended.

The arguments that MVO now submits in its post-order motion do not support reopening the hearing record or suspending or otherwise reconsidering the July 2003 Order. MVO's motion is denied in its entirety.

NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION
/s/
By: ERIN M. CROTTY,
COMMISSIONER

Albany, New York
Dated: September 8, 2003

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