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Mohawk Valley Organics, LLC - Ruling, April 11, 2003

Ruling, April 11, 2003

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

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

April 11, 2003

RULING ON VERIFIED PETITION TO INTERVENE

Permit No. 4-2730-00033/001

SUMMARY

This Ruling grants in part the request of the Town of Minden to intervene in the above-captioned matter. The Town will be allowed to participate in the hearing for the limited purpose ensuring that the Town does not incur any liability as the result of closure of the facility. The Town will not be permitted to participate in the hearing regarding liability and remedy selection.

PROCEEDINGS

By a Notice of Intent to Revoke Permit dated February 24, 2003, Staff of the Department of Environmental Conservation ("DEC Staff") notified Mohawk Valley Organics, LLC. ("Permittee") that DEC Staff intended to revoke two environmental permits, pursuant to Article 70 of the Environmental Conservation Law and Part 621 of Title 6 of the New York Code of Rules and Regulations ("6 NYCRR"). The two permits are a State Pollutant Discharge Elimination System ("SPDES") permit (#NY-0261262) and a solid waste permit (#4-2730-00033/00001) for the Mohawk Valley Organic Composting Facility ("facility") located in the Town of Minden, Montgomery County. Two bases for revocation were cited: 1) failure to comply with terms and conditions of the permit (6 NYCRR 621.14(a)(2)) and 2) noncompliance with permit conditions or regulations related to the permitted activity (6 NYCRR 621.14(a)(5)). Specifically, DEC Staff cited off-site odor complaints, acceptance of excessive quantities of bio-solids, failure to maintain appropriate records on site, failure to implement odor mitigation plans, and violations of SPDES effluent limits.

By letter dated March 5, 2003, the Permittee requested a hearing pursuant to 6 NYCRR 621.14(d). By papers dated March 18, 2003, DEC Staff filed a Statement of Readiness with DEC's Office of Hearings and Mediation Services ("OHMS"). On March 21, 2003 the matter was assigned to Administrative Law Judge ("ALJ") P. Nicholas Garlick. Following a conference call, the hearing was scheduled to commence on April 15, 2003.

On April 1, 2003, counsel for the Town of Minden ("Town"), filed a Verified Petition applying for intervention in the permit revocation hearing, pursuant to 6 NYCRR 622.10(f). By papers dated April 7, 2003, both DEC Staff and the Permittee opposed the application.

DISCUSSION

DEC Staff and the Permittee are parties to the hearing in the above-captioned matter (6 NYCRR 622.2(m)). Others may seek party status pursuant to 6 NYCRR 622.10(f), which provides:

(f) Intervention

(1) At any time after the institution of a proceeding, the commissioner or the ALJ, upon receipt of a verified petition in writing and for good cause shown, may permit a person to intervene as a party.

(2) The petition of any person desiring to intervene as a party must state with preciseness and particularity:

(i) the petitioner's relationship to the matters involved,

(ii) the nature of the material petitioner intends to present in evidence,

(iii) the nature of the arguments the petition intends to make, and

(iv) any other reason that the petitioner should be allowed to intervene.

(3) Intervention will only be granted where it is demonstrated that there is a reasonable likelihood that the petitioner's private rights would be substantially adversely affected by the relief requested and that those rights cannot be adequately represented by the parties to the hearing.

"A plain reading of 6 NYCRR 622.10(f)(3) indicates that persons seeking to intervene in an enforcement proceeding must satisfy three requirements: (1) that they have private rights, (2) that such rights would be substantially adversely affected by the relief requested, and (3) that such rights cannot be adequately represented by the parties at the hearing" Matter of Town of Riverhead, Interim Decision of the Commissioner, November 20, 2000. Thus, the Commissioner has established a three prong test to determine whether party status should be granted to a third party.

Does the Town have Private Rights?

In this case, the Town asserts a number of private rights. The Town claims it has private rights to enforce its local zoning laws and ensure the beneficial use of land within its border. The Town also claims private rights derived from its police powers to abate nuisances and protect public health, safety and welfare. However, since these asserted private rights are not enjoyed by a private party, it is unlikely that they are, in fact, private rights.

More persuasively, the Town argues it has a third private right, that is, should the permits be revoked, such revocation could result in a financial obligation to the community. To support this claim, the Town states in its petition that (1) DEC Staff has stated that no bond for closure has been posted by the Permittee for proper closure of the facility (paragraph 56), (2) the Permittee represented to a NYS Supreme Court Justice that preventing the facility from accepting biosolids would force the Permittee into bankruptcy and it would be financially unable close its facility (p. 51) and (3) no state funds would be available to pay for the closure (p.56). Neither DEC Staff nor the Permittee challenge these specific assertions by the Town regarding the Town's private rights. Accordingly, the Town has shown that it has at least one private right.

Will Such Rights be Substantially Adversely Affected by the Relief Requested?

In this case, DEC Staff has notified the Permittee of its intention to revoke the permits, however, both DEC Staff and the Permittee in their responses to the petition seem to acknowledge that a modified permit may be the outcome of the instant hearing. Thus, in this case it is reasonable to conclude that permit modification may be included as one form of relief requested.

The Town asserts that its private rights will be adversely affected by both permit revocation and permit modification. As discussed above, two of the Town's claimed private rights may be public rights. However, even if the Town does have a private right in enforcing its zoning laws, the Town has failed to show how the instant DEC administrative enforcement action could possibly affect the Town's ability to exercise or enforce its zoning law. In addition, a DEC administrative enforcement hearing is not the appropriate forum for seeking enforcement of local zoning laws. The Town is already in proceedings in NYS Supreme Court seeking such enforcement.

The Town does have a private right in protecting its financial assets from the potential financial liability should the permits be revoked, the Permittee declare bankruptcy, and the Town be forced to take actions to properly close the facility. Should these eventualities occur, the Town would be substantially adversely affected by the revocation of the permits.

However, if the permits are modified and the facility remains in operation, the Town will not become liable for any closure costs. Therefore, if the Commissioner grants the relief of permit modification, the private rights of the Town will not be adversely affected.

Can the Town's Private Rights be Adequately Represented by Parties at the Hearing?

The third prong of the test that the Town must meet to be granted party status is that its private rights in the case of revocation will not be adequately represented by DEC Staff. The Town claims a private right to protect the public health, safety and welfare as well as a private right to prevent nuisance within its borders. However, even assuming these are private rights and not public rights, these are the same rights and interests that DEC Staff is charged to protect. Thus, those interests will be adequately protected by one of the parties to the hearing.

DEC Staff asserts that it can address all issues related to the proper closure of the facility if the permit is revoked. The Permittee also argues that DEC Staff and the Town should work together to ensure the protection of the Town's interests and that intervention should not be granted. However, the Town does have an interest different from that of DEC Staff in this permit revocation hearing, namely to ensure that it does not incur any financial obligation as a result of the closure of the facility. Moreover, those interests would not be adequately represented by DEC Staff. Accordingly, the Town should be provided an opportunity to protect this right at the hearing.

Ruling: The Town's Verified Petition seeking intervention is granted for the limited purpose ensuring that the Town does not incur any liability as the result of closure of the facility. The Town will not be permitted to participate in the hearing regarding liability and remedy selection.

/s/
P. Nicholas Garlick
Administrative Law Judge

April 11, 2003

To:
Lawrence R. Schillinger Esq.
Young, Sommer ... LLC
Executive Woods,
5 Palisades Drive
Albany, NY 12205

Ann Lapinski, Esq.
Senior Attorney
NYSDEC Region 4
1150 North Westcott Road
Schenectedy, NY, 12306-2014

John D. Hoggan, Jr., Esq.
LeBoeuf, Lamb, Greene & MacRae
99 Washington Avenue
Suite 2020
Albany, NY 12210-2820

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