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PGS Carting Company, Inc. - Ruling, August 24, 1993

Ruling, August 24, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

of

the Alleged Violation of Articles 27 & 24 of the
New York State Environmental Conservation Law, and 6 NYCRR Part 360 by

PGS CARTING COMPANY, INC.,

BAY VILLAGE DISPOSAL CORPORATION, and
JOSEPH PARZIALE and JOSEPH SPADA,
individually and as owners/principals of
PGS CARTING COMPANY, INC.,
BAY VILLAGE DISPOSAL CORPORATION, and
AMITY DEVELOPMENT CORPORATION and
STEVEN W. SCHWARTZ, individually and as
President of AMITY DEVELOPMENT CORPORATION

Respondents

RULINGS/ORDER OF DISPOSITION
and
INTERIM HEARING REPORT

(Motion to Dismiss)

File No. 1-1603

PROCEEDINGS

On February 25, 1993, I issued Rulings (copy attached as Appendix D) which, among other things, provided Respondents with an opportunity to file a motion to dismiss the remaining charges. Following extensions requested and granted, Respondents filed a Notice of Motion plus memorandum (received April 6, 1993) to dismiss/recommend dismissal of the proceeding on the remaining charges against the remaining respondents; for exclusion of evidence and pre-filed testimony and/or portions thereof previously filed by Staff; and for renewal of Respondents' previous motion to dismiss for alleged failure of DEC Staff to make a prima facie case. Staff filed its answer in a letter received April 29, 1993. After requesting and receiving an extension, Respondents filed a letter in reply dated May 10, 1993. Staff, after requesting and receiving permission to do so, filed a letter in sur-reply on May 14, 1993. Respondents' motions are now ready for determination.

These Rulings are being issued not only as Rulings, but as an Interim Hearing Report, since I am recommending that the remaining charges be dismissed. Pursuant to the parties' January 29, 1992 agreement to bifurcate these proceedings, Staff made clear that it based its claim for all forms of relief (not only penalty but also cessation of operation and site restoration) solely on pre-September 19, 1988 occurrences, and that pre-September 19, 1988 occurrences would be the only ones in issue to establish Respondents' liability. This limits consideration of Respondents' potential liability to liability under the "old" (pre-December 31, 1988) Part 360 regulations, contrary to the Amended Complaint (which alleged violation of both "old" and "new" part 360 regulations). If it can be determined now that the facility, as Respondents have argued, was exempt from Part 360 under the "old" regulations, it would entirely dispose of this case, making continuance of the hearing unnecessary. My reading of the old regulations and the current record would lead me to such a conclusion. Hence, I am recommending that the Commissioner dismiss the charges now to save the litigants the time and expense of continuing the hearing. If my reading of the regulations is not accepted by the Commissioner, the Commissioner should establish for the record the proper reading of the regulations, so that the hearing participants will know the applicable standards on remand. This Interim Hearing Report provides an opportunity for the Commissioner to take either action.

In addition, certain prior Rulings, listed under Charges below, have effectively been dismissals of certain causes of action, subject to the Commissioner's ratification. These Rulings are attached as appendices hereto for the Commissioner to act upon, if corrective action is deemed necessary.

SUMMARY OF PREVIOUS PROCEEDINGS

Pursuant to a Notice of Hearing and Complaint dated August 8, 1989, duly served, the New York State Department of Environmental Conservation (the "Department" or "DEC") Region 1 Staff (the "Department Staff" or "Staff") initiated a civil administrative enforcement proceeding, conducted in accordance with the State Administrative Procedure Act ("SAPA") and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 622, against PGS CARTING COMPANY, INC., BAY VILLAGE DISPOSAL CORPORATION, JOSEPH PARZIALE and JOSEPH SPADA, individually and as owners/principals of PGS CARTING COMPANY, INC., BAY VILLAGE DISPOSAL CORPORATION, and AMITY DEVELOPMENT CORPORATION and STEVEN W. SCHWARTZ, individually and as President of AMITY DEVELOPMENT CORPORATION (the "Respondents"), in the matter of the alleged violation of Articles 24 and 27 of the New York State Environmental Conservation Law ("ECL") and 6 NYCRR Part 360. Respondents filed an answer dated October 6, 1989.

Commencement of the hearing was adjourned to October 25, 1989, at Respondents' request due to counsel's actual engagement in court on other matters on the scheduled hearing date of September 26, 1989.

By Notice of Motion dated September 18, 1989, DEC Staff moved to serve an Amended Complaint annexed to their motion papers. Respondents opposed this motion October 17, 1989. By Ruling dated October 19, 1989, Staff's Motion was granted, however, the requested penalty was deemed to read the amount indicated in the original complaint. The Ruling also specified that commencement of the hearing would be rescheduled, and that pursuant to 6 NYCRR 622.5(a) Respondents would not be required to file an Amended Answer. (A copy of the Amended Complaint, the complaint in issue herein, is attached hereto as Appendix A.) By letter of November 13, 1989, the hearing was scheduled to commence January 9, 1990.

By Notice of Motion dated November 30, 1989, DEC Staff moved to Compel Discovery and Inspection from Respondents. Respondents opposed this motion by affirmation dated December 18, 1989. On December 20, 1989, the ALJ denied Staff's motion because, in light of the fact that Staff had originally noticed the matter for hearing on September 26, 1989 and thereby indicated that it was ready for trial at that time, Staff made no demonstration that the documents sought were "material and necessary" to the prosecution of the action.

In accordance with the ALJ's November 13, 1989 letter, the adjudicatory hearing was convened before Administrative Law Judge ("ALJ") Frank Montecalvo on January 9, 1990 at the DEC Region 1 Offices, Building 40 SUNY Campus, Stony Brook, NY. John F. Byrne, Esq., Assistant Regional Attorney, appeared on behalf of the Department Staff. Patrick Kevin Brosnahan, Jr., Esq. appeared on behalf of the Respondents. At the hearing, Respondents requested that the ALJ "so Order" a subpoena on Department Staff. The ALJ denied this request. Testimony was taken from Louise Harrison who appeared on behalf of the Department.

The following day, January 10, 1990, the hearing was stayed by order of Hon. Kenneth Rohl, Justice of the Supreme Court, Suffolk County, issued at Respondents' request as part of an Article 78 proceeding instituted by Respondents against the Department and the ALJ, which proceeding was based in part on the ALJ's refusal to "so Order" Respondents' subpoena.

By letter dated September 20, 1990, Department Staff requested that the hearing resume; enclosed an Order from Hon. Alfred Lama, Supreme Court Justice, Suffolk County, dated May 16, 1990 which vacated the court-ordered stay; requested that the Respondent be ordered to serve any subpoena and the Department to respond with a motion to quash by dates certain; and transmitted to the ALJ a Notice of Motion to Amend the Complaint. On September 21, 1990 the ALJ wrote, with reference to the subpoena matter, that if Respondents objected to Staff's relief they should immediately write to the ALJ; and that the motion to amend the complaint was to be addressed following CPLR practice. Respondents objected to the requested relief regarding the subpoena, and also served another copy of their subpoena on Staff by "fax." Staff responded October 4, 1990 with a Notice of Motion to Modify the subpoena duces tecum on grounds that Item 1 therein ("any and all Part 360 applications [etc.]") was irrelevant, "unduly burdensome, cannot be deemed likely to lead to admissible evidence" and "not reasonable and necessary"; and that Items 2, 3 and 4 (consisting of 25 documents according to Staff) are exempt from disclosure under cited CPLR provisions).

On October 19, 1990 the ALJ issued a Ruling (1)(a) denying Staff's requested relief concerning service of Respondent's subpoena and timing of motion practice, (1)(b) denying Staff's motion to modify Respondent's subpoena duces tecum without reaching the merits of whether or not documents were entitled to protection, (1)(c) indicating an expectation that the subpoenaed documents would be provided to the Respondent in the absence of a clarification of the May 16, 1990 order of Judge Lama; (2) denying, for lack of a prima facie showing of good cause, Staff's motion to amend the complaint; (3) requiring prefiling of the evidence on matters on which a party has the burden of proof, setting forth ground rules for same, and scheduling submission and trial dates.

On October 24, 1990 Staff appealed to the Commissioner the ALJ's October 19, 1990 Rulings concerning (1) discovery and subpoena compliance, (2) denial for leave to amend complaint, (3) the pre-filed testimony requirement. On November 21, 1990 the Commissioner issued an Interim Decision affirming the ALJ's rulings.

On December 3, 1990, at Staff's request and without objection from Respondents, the ALJ issued a Ruling granting Staff an extension of time to submit pre-filed testimony due to Staff's attorney being called to active military duty. The prefiled testimony was subsequently submitted. (Because it is important below, it should be noted that the pre-filed testimony related some occurrences that took place after September 19, 1988).

The hearing resumed on December 18, 1990. Carl G. Dworkin, Esq., Principal Administrative Litigator, appeared on behalf of Staff, and was substituted for Mr. Byrne as Staff's counsel. Respondents moved at hearing for dismissal of all charges, alleging that the prefiled evidence would fail to set forth a prima facie case. The motion was denied because of the ALJ's express need for briefing. The hearing continued December 18 and 19, 1990 with testimony by Louise Harrison.

On January 30, 1991, the ALJ "faxed" a memo to the parties indicating that upon review of Staff's pre-filed evidence, it appeared that NYSDEC might not have jurisdiction to entertain the wetlands violations that had been charged, that the matter would be discussed when the hearing resumed, and directed that the hearing proceed on the other charges.

The hearing resumed on February 5, 1991, at which time the ALJ indicated his reasons for believing that there was no jurisdiction to entertain the wetlands violations, and took comments thereon from the parties. The ALJ indicated that his rationale for discontinuing the taking of evidence on the wetlands violations would be set forth in a written ruling so that the parties could take appropriate action thereon, including appeal of same to the Commissioner if believed warranted. The parties' representatives discussed settlement off the record and counsel reported they were close to agreement subject to their clients' approval. Other matters were discussed on the record February 6, 1991, when the parties agreed to exchange briefs on the remaining charges, and the hearing was adjourned until the briefs could be considered. During the discussion, Staff indicated that it was not seeking a monetary penalty for the time period following submission of the application [September, 1988] but was seeking cessation of operations which continued thereafter (Tr. p. 28). On February 21, 1991, the ALJ issued a Ruling (copy attached as Appendix B) which confined the remainder of the hearing to non-wetlands charges. Staff subsequently stated that it deferred to and would not contest this ruling.

Following exchanges between counsel, on May 8, 1991 the ALJ issued a Ruling finding that Staff's submissions were sufficient to establish a prima facie case.

The hearing continued on June 18, 19, 20, August 6, 7, October 1, 2, November 19 and 20, 1991; January 29, 30, March 11, 12, April 1, 2, 29, 30, August 4, 5, 1992. Testimony was taken from David DeRidder, Stanley Farkas, Paul Roth, James Hassan, Deidre Richardson, Salvatore Spizzirri, and Marita Gruhn, on behalf of NYSDEC Staff. Also, with Staff's consent, Respondent called Staff employee Joanne Howell as their witness.

On September 16, 1991, Respondents moved for dismissal of proceedings against respondents Amity Development Corp. and Steven Schwartz, alleging that the Complaint failed to state a cause of action against these specific respondents; and for the production of certain documents that Respondents had subpoenaed and Staff had withheld. On October 18, 1991, Staff cross moved to amend the Complaint and for permission to supplement its pre-filed evidence with a copy of a deed. The parties agreed to continue the hearing on Staff's pre-filed evidence while these motions were pending, and to give Respondents extensions to submit their reply (submitted in March 1992).

On January 29, 1992, the Parties agreed to bifurcate the proceeding to separate out consideration of pre- from post-September 19, 1988 occurrences (that date being the date Staff received a freshwater wetlands permit application for the site) and that the pre-September 19, 1988 occurrences would be the ones in issue for the purposes of establishing Respondents' liability. (Transcript January 27 [sic], 1992, pages 60-70). If liability is found, then post-September 19, 1988 occurrences would be considered on the issue of remedies.

On March 20, 1992, the ALJ, sua sponte, issued a Ruling which imposed time limits on cross examination.

On April 3, 1992, at the ALJ's request, Staff withdrew certain pre-filed testimony and exhibits, portions of which had been subjected to cross-examination and/or marked and moved (but not admitted) into evidence, since they related to the excluded wetlands charges. Other portions were re-offered with regard to the remaining charges. On April 9, 1992, the ALJ, sua sponte, issued a Ruling which excluded the re-offered portions because they were offered in support a liability theory that was different from what the ALJ had understood to be the liability theory up to that point. This Ruling essentially excluded consideration of the presence of a "berm" as a basis of liability for an alleged violation of 360.8(a)(1). (A copy of this Ruling is attached as Appendix C.) On April 13, 1992, Staff requested the ALJ to reconsider the Ruling. On April 21, 1992, the ALJ reconsidered the Ruling, but denied relief to Staff. On April 23, 1992, Staff appealed said denial to the Commissioner, which appeal, by letter of May 27, 1992, was not entertained; but leave to appeal the denial in the final brief was granted.

On August 5, 1992, Staff rested its case and moved for summary order. The motion was denied. Respondents indicated they had not yet obtained all the documents they subpoenaed, and that, once obtained, additional cross examination might be needed. On August 7, 1992, Staff moved for removal of Respondents' counsel and stated that it would not provide subpoenaed documents for the ALJ to review. With its submission, Staff included a transcript of the Suffolk County Supreme Court proceedings that occurred in 1990, which clarified Judge Lama's May 16, 1990 Order. On August 25, 1992, the ALJ issued Rulings which (1) denied sanctions against Respondents' counsel; (2) required Staff to either turn over the subpoenaed documents to Respondents, or submit them to the ALJ for in camera review with a motion for a protective order, within 30 days. On September 14, 1992 Staff appealed to the Commissioner the portion of said Ruling which denied sanctions; which appeal, by letter of September 28, 1992, was not entertained. Staff submitted documents and moved for a protective order October 30, 1992, which Respondents opposed November 20, 1992.

By Ruling of February 25, 1993 (copy attached as Appendix D), expressly subject to the Commissioner's final determination, the ALJ denied Respondents' motion to dismiss charges with respect to Amity Development, and granted the motion with respect to Mr. Schwartz. The ALJ also denied Staff's cross-motion to amend the complaint and granted its cross-motion to supplement the prefiled evidence with a deed to the subject site. The ALJ also ruled that Exhibits S-31 and S-33 were admissible. The ALJ partially granted and partially denied Staff's motion for protective order by making rulings for individual documents submitted and/or classes of documents, and set dates for non-protected documents to be disclosed. The ALJ deemed cross-examination of Staff's witnesses complete, and set forth the manner in which the hearing would proceed.

The pending motions were thereafter made as related under "Proceedings" above. Respondents' motions have been made prior to presentation of their case in defense.

THE CHARGES

The charges, summarized from the Amended Complaint, are as follows:

  1. [10] refers to the paragraph number of the Amended Complaint On or about March 13, 1986, Respondents violated 6 NYCRR 360.2(b) {360-1.7(a)(l)(ii) eff. 12/31/88} and ECL 27-0707 by operating a solid waste management facility without a valid operation permit.
  2. [11] On or about March 13, 1986, Respondents violated 6 NYCRR 360.8(a)(1)) {360-1.14(b)(1) eff. 12/31/88} by not preventing solid waste from entering groundwater.
  3. [12] On or about March 13, 1986 Respondents violated 6 NYCRR 360.8(a)(8) {360-1.14(l) eff. 12/31/88}, by operating a solid waste management facility in an open area without effectively controlling dust and odors, thereby constituting a nuisance and/or hazard to health, safety and property.
  4. [13] On or about January 1, 1989, Respondents violated 6 NYCRR 360-1.14(c)(4) by constructing and operating a solid waste management facility within the boundary of a regulated wetland.
  5. [14] On or about March 13, April 9, and April 17, 1986, Respondents violated ECL 24-2703 by causing or permitting to be caused, the destruction and/or disturbance of a freshwater wetlands and its adjacent area without a permit by the placement of unclean fill and construction of a berm in a regulated freshwater wetlands, and the clearing of vegetation in a freshwater wetlands adjacent area.

The above violations pertain to a Site (the "Site") located at 47 Wellington Place, Amityville, NY [ 7, 8]. The Amended Complaint also alleged that the above violations continued subsequent to March 13, 1986 [15].

By virtue of the Ruling of February 21, 1991, and Staff's deference thereto, the charges listed as IV and V above are no longer in issue. By virtue of the agreed upon January 29, 1992 bifurcation, occurrences post-dating September 19, 1988 are not in issue as a basis for liability. Therefore, consideration of the remaining charges above (I, II, and III) is limited to actions occurring on or before September 19, 1988, and, thus, to the "old" (pre-December 31, 1988) Part 360 regulations that were in effect at that time. By virtue of the Ruling of April 9, 1992, the presence of a "berm" was excluded from consideration as a basis for liability for charge II. By virtue of the Ruling of February 25, 1993, liability of respondent Schwartz is not being considered.

ADMISSIBILITY OF EXHIBITS

As a preliminary matter, the issue of admissibility of exhibits must be addressed at this time, since formal rulings thereon (except for Exhibits S-31, S-33 and a deed, admitted under previous rulings) were held in abeyance (to permit simultaneous voir dire and cross examination on the pre-filed exhibits).

Ruling:

All of Staff's exhibits that were marked and moved into evidence on the record during the evidentiary hearing, with the exception of those identified on the record as exclusively pertaining to post-September 19, 1988 occurrences, and those which were withdrawn (testimony of Ms. Harrison and her sponsored exhibits) are received into evidence. The deed at issue in the February 25, 1993 Ruling is received into evidence as Exhibit S-45. All of Respondents' exhibits that were marked and moved into evidence on the record during cross-examination of Staff's witnesses are received into evidence for the limited purpose of understanding the cross-examination directed to same.

Discussion:

Respondent argued that certain statements in the record are inadmissible because they were made at a "pre-application conference" and are privileged. Certain statements made to ECO Hassan by Mr. Spada were argued to be inadmissible because the ECO failed to state in his affidavit that he gave Mr. Spada warnings of his constitutional rights. These arguments are rejected as conclusory.

Respondent also argued that various statements in the pre-filed testimony are irrelevant and therefore not admissible. There are some statements in the record the relevancy of which is not clear (e.g., testimony about dumpsters being "eyesores" and the quality of the noise from the site). These are not being stricken because they were made as part of pre-filed testimony, and to do so now, without the witness being given an opportunity to make corrections, could destroy the context of the testimony, and change what the witness was trying to convey on relevant matters. Rather than exclude portions of the prefiled testimony, the testimony will be weighed in accordance with the degree of relevance and what was brought out on cross-examination.

Staff argued that Respondent's exhibits should not be admitted for various reasons, the most important of which (from an evidentiary standpoint) was a lack of authentication, etc. To not admit them, however, may make some of the cross examination meaningless, in the same sense that striking a question might make its answer meaningless. The exhibits are admitted for the purpose of keeping the record intelligible.

ANALYSIS

Summary of relevant facts as perceived by the undersigned at the conclusion of Staff's direct case:

This matter pertains to a parcel of property (the "Site") located at 47 Wellington Place, Amityville, New York, owned at the relevant times by Amity Development Corp. The Site is bordered by Wellington Place on the West, Lake Street to the East, and the Long Island Railroad to the North. Per Bay Village's consultant's report, submitted to DEC as part of a permit application pertaining to the Site Exhibit S-33, an application by Bay Village Disposal Corp. to construct and operate a Solid Waste Management Facility Materials Recovery Transfer Station, was received by the Department on November 21, 1988 (the "SWMF Application"). , the Site's soil drainage is predominantly well drained, the remainder being moderately well drained, and the depth to the water table is approximately 0 to 4 feet.

During the relevant period (March 13, 1986 through September 19, 1988), construction and demolition debris was routinely brought onto the Site in bins ("dumpsters" or "rolloffs"). This material was dumped outdoors onto bare ground, and separated by hand into clusters of wood, concrete, scrap steel, corrugated cardboard, rubbish and aluminum. On one occasion, the sorting process was observed to have taken place in the rain. The materials were temporarily stored in bins until the bins were full, at which time they were sent to other locations.

During the 1986 and 1987 calendar years, scrap metal (ferrous) was sent to Demasco Steel, Inc. for recycling; cardboard and aluminum went to DeMatteo Salvage for recycling; wood went to Hubbard Enterprises to be burned to produce electricity; demolition debris (unusable wood and concrete) went to 110 Sand and Gravel Company for disposal in their landfill; and the remaining rubbish was disposed of at various landfills. Typically, up to approximately 35% by volume of the material which left the facility was destined to be recycled or burned to produce electricity.

After sorting, material destined for the landfill was crushed by a bulldozer, reducing its volume. During operations, dust was generated by the bulldozer, trucks and employees. On unspecified occasions, dust was carried over neighboring properties. Two neighbors (Ms. Gruhn and Ms. Richardson) said that the dust limited use of their clotheslines, and that cleaned items (a car and furniture) would soon become dirty. One neighbor (Ms. Richardson) believed that dust from the Site caused allergic reactions and irritations to herself and her daughters who are allergic to dust.

These operations were nominally carried out by Bay Village Disposal Corp. (of which Mr. Parziale and Mr. Spada were the sole shareholders) under Mr. Parziale's supervision, except for transportation of materials, which was performed by PGS Carting Co. (of which Mr. Parziale and Mr. Spada were the sole shareholders). Bay Village's SWMF Application, however, indicates that PGS employees (including 2 "owners/principals") manned the operation, and PGS owned and/or operated the equipment (bins/containers, trucks, front-end loader) that was used. The facility generally operated five days a week. It should be noted that the SWMF Application recounted existing practices, and proposed changes consisting of installation of a concrete tipping floor and enclosing the facility.

Charge (I): [10] On or about March 13, 1986 (and continuing thereafter [15]), Respondents violated 6 NYCRR 360.2(b) and ECL 27-0707 by operating a solid waste management facility without a valid operation permit.

Conclusion: The above facts would establish that during the relevant period, a solid waste management facility was operated at the Site usually five days per week by Bay Village Disposal Corp. and PGS Carting Corp., under Mr. Parziale's supervision, manned by Mr. Parziale, Mr. Spada, and other unidentified employees. The above facts also would establish that the facility collected only non-putrescible solid waste and separated same into its various components so that such components might be beneficially used or reused as raw materials or energy sources, therefore making the facility exempt from the requirements of Part 360, as it existed at that time, under 360.1(f)(1)(ix). Because the facility was exempt, there could be no violation as charged.

Discussion:

The materials that were handled at the site (construction and demolition debris) and their containers ("dumpsters" and "rolloffs," containers commonly associated with collection and transport of solid waste), makes clear that the facility was handling "solid waste," the handling was "solid waste management," and the facility was a "solid waste management facility."

Staff took on the issue of possible exemption of this facility under 360.1(f)(1)(ix) in its direct case. The relevant provisions of 360.1 read as follows:

"(f) Exemptions. (1) The solid waste management facilities and operations named in this paragraph are exempt from this Part unless they manage waste oil. ...

"(ix) Any operation or facility which receives or collects only nonputrescible solid waste, and beneficially uses or reuses or legitimately recycles or reclaims such waste, or stores or treats such waste prior to its beneficial use or reuse or legitimate recycling or reclamation is exempt. Said operations or facilities include, but are not limited to, automobile junkyards, citizen programs, metal recovery from nonhazardous sludges, municipal operations, secondary materials dealers, and private and commercial salvage activities which collect, separate, clean or assemble materials, including but not limited to paper, corrugated board, metals, containers, glass, white goods, textiles and rubber.

"Note: By exempting the beneficial use, reuse, legitimate recycling or reclamation of nonputrescible solid waste and the treatment of such waste prior thereto, this subparagraph retains its prior exemption of any facility receiving or collecting such waste that "prepares recyclable or recovered materials for sale, reuse, or transport to purchasers."" [underline added].

Technical Staff concluded the exemption did not apply to the facility in question for one reason: the facility was recycling less than an 80% "recycling rate" criterion applied by the technical staff to determine whether or not a facility qualified for such an exemption. Citing the use of the words "only" and "such" in the first sentence of subparagraph (ix) of the regulation, Staff's legal counsel argued that 360.1(f)(1)(ix) required 100% of the waste stream to be recycled in order for a facility to qualify for the exemption, and that the operation at the Site did not qualify for the exemption because it did not meet this criterion.

Respondents contended that 360.1(f)(1)(ix) required no particular percentage, and argued that the facility was exempt because it was like the examples of exempt facilities provided by the regulation.

The 80% criterion was the region's "policy," developed through discussions between the Regional Solid Waste Engineer, the Regional Director, and other personnel. It was not based on specific language in the regulations. The Regional Solid Waste Engineer testified that he was not aware of any "municipal operation" in the region with a recycling rate as high as 67%, much less than 80%, yet such operations were expressly exempt under the regulation. This makes questionable the appropriateness of having used such a percentage to determine whether or not a facility qualified for the exemption.

The exemption plainly did not require the recycling of 100% of the wastestream. This is clear from the examples of qualifying operations or facilities listed in the regulation. The listed exempt operations or facilities would actually be inconsistent with an interpretation that would require 100% of the wastestream to be reused. "[M]etal recovery from nonhazardous sludges" was exempt. That example did not require that the nonhazardous sludge from which metal is recovered also had to be recycled. Automobile junkyards were exempt, in spite of common knowledge that not everything in junkyards is ultimately reused. The controlled removal of waste materials for reuse from a waste stream would qualify as "salvaging" under former 360.1(d)(62). "[S]alvage activities which ... separate, clean or assemble materials" were also exempt, with no requirements specified with regard to any materials left behind by the process.

Each of the examples mentioned above involved the removal of materials for reuse from other materials which might not be reused. The examples imply that recovery of materials for reuse be an actual objective or purpose of the activity or facility's operation (i.e., the occasional removal of a reusable item should not qualify a facility for the exemption). The key to the exemption appears not to have been a particular "recycling rate," but, rather, the nature of what the facility was doing.

Here, the subject facility was set up and operated to separate the incoming solid waste stream into component materials, so that component materials "may be beneficially used or reused as raw materials or energy sources." Under the old regulations, such operation would have been "reclamation," "recovery" or "recycling," such terms being interchangeable at the time. (See definition of "reclaim, recover, or recycle" at former 360.1(d)(56)). The separation activities could also be considered "salvaging" (360.1(d)(62)). The subject facility's operations were akin to the examples of exempt facilities or operations under 360.1(f)(1)(ix). The fact that up to about a third of the materials processed by the facility were reclaimed in some fashion indicates reclamation was an actual purpose or objective of the facility. The facility was exempt because the entire wastestream was processed to "prepare[s] recyclable or recovered materials for sale, reuse, or transport to purchasers." (See 360.1(f)(1)(ix) Note, above).

[It should be noted that the outcome would be different under the "new" (eff. 12/31/88) regulations which are significantly different from the "old." The list of exemptions from the "new" part 360 is more restrictive and does not contain an exemption like 360.1(f)(1)(ix). (See 360-1.7(b) Exemptions). Recognizing a significant potential for adverse environmental impacts, the Department determined to regulate previously unregulated "Recyclables handling and recovery facilities" (360-1.2(b)(121), which appears to be the classification applicable to the subject facility), to assure that the solid waste handled there is handled safely and in a sanitary and environmentally protective manner. See "Final Environmental Impact Statement and Responsiveness Summary for Revisions to 6 NYCRR Part 360 Solid Waste Management Facilities" dated August, 1988 ("FEIS"). These facilities now generally require a permit (subject to a different set of exemptions and partial exemptions). (See 360-12.1). Also, the new regulations expressly subject every solid waste management facility to every applicable requirement identified in Part 360 pertaining to the type of facility in question, subject to a demonstration to the department by its owner that the facility is clearly exempt from regulation under, or from the requirement in question that is contained in, Part 360. (See 360-1.4(a)(1)). The old regulations had no equivalent provision.]

Charge (II): [11] On or about March 13, 1986 (and continuing thereafter [15]), Respondents violated 6 NYCRR 360.8(a)(1)) by not preventing solid waste from entering groundwater.

Conclusion: If the facility was exempt from Part 360 during the March 13, 1986 -- September 19, 1988 period in issue, 360.8(a)(1) would not have applied to the facility, and it therefore would not have been violated.

If the facility was not exempt, there may or may not have been a violation of 360.8(a)(1), depending upon whether or not the provision cited was intended to apply to "leachate" from the facility (the basis for the charge), as distinguished from "solid waste." A clarification of the provision's applicability to "leachate" is needed to determine compliance with this provision. If the provision did apply to "leachate," then the record thus far would establish a violation, because the waste handling practices and site conditions would have permitted leachate to be produced and would have allowed it to reach ground water.

Discussion:

See Discussion under Charge I above, incorporated by reference, concerning the exemption. Although there is language in 360.8(a) which indicates that the provision applies to "all" solid waste management facilities, the exemption "from this Part" (Part 360) provided by 360.1(f)(1) would make 360.8(a) inapplicable to the subject facility.

If the facility was not exempt, clarification would be needed on whether or not the specific provision charged applied to the situation of concern to DEC Staff. Staff contended that 360.8(a)(1) was violated because there was no physical barrier (such as a concrete pad or impermeable surface) in place at the Site to prevent leachate from entering groundwater. Respondents argued that there was no proof that solid waste ever entered groundwater, no proof there was no barrier, and there was nothing in the rules that required a liner.

A priori, the manner in which the waste handling activities were conducted and the conditions of where they took place, as shown in the record thus far, indicate that "leachate" (as defined in the "old" regulations, below) had the potential to reach ground water. In other words, the record thus far would support Staff's position relative to the physical circumstances of the alleged violation: Waste was sorted outdoors, on occasion in the rain. When waste was exposed to rain, "leachate" would have been produced by the contact of rain with the waste materials (see "leachate" definition below). Since the activity took place on bare ground (i.e., no apparent barrier), on a site with "well" or "moderately well drained" soils and a shallow water table, "leachate" could have percolated through the soils to the ground water. Given such a practice, a physical barrier would have been necessary to prevent the leachate from reaching the ground water.

However, the regulation allegedly violated, 360.8(a)(1), did not expressly require the placement of a physical barrier to prevent leachate from entering groundwater. Rather, it stated "Solid waste shall not be deposited in, and shall be prevented from entering, surface waters or groundwaters." 360.8(a)(1) [italics added]. Neither leachate, nor barrier were mentioned.

"Leachate" and "solid waste" had distinct definitions. "Leachate" was defined to be "a liquid, including any suspended components in the liquid, which has been in contact with or passed through solid waste" (360.1(d)(41)). "[S]olid waste" was "any garbage, refuse, sludge or any other waste material" not specifically excluded (360.1(c)(1)). Since 360.8(a)(1) referred to "solid waste," not "leachate," it might be inferred that "leachate" was intended to be excluded from this provision McKinney's Statutes 240: "The maxim espressio unius est exclusio alterius is applied in the construction of the statutes, so that where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded."

(assuming, of course, that the liquid that became leachate would not qualify as solid waste in its own right). Likewise it might be inferred that "leachate" was not intended to be regarded as "solid waste" because it was not defined to be a solid waste. It should be noted that the statutory definition of "solid waste" in ECL 27-0701(1) excludes from "solid waste" "sewage and other highly diluted water carried materials or substances ..." (italics added).

"Leachate" had its own provision relative to water protection, 360.8(a)(3) The original Complaint charged Respondents with violating this provision instead of 360.8(a)(1). , which stated that "[l]eachate from a solid waste management facility shall not be allowed to drain or discharge into surface waters except pursuant to a [SPDES] permit ... , and shall not contravene ground water quality standards ..." Being specific to leachate, it might be inferred that subsection (a)(3) was intended to be the regulatory control for leachate, to the exclusion of subsection (a)(1). See McKinney's Statutes 238. Essentially, where there are general and specific provisions in an enactment, the general provision applies only when the specific one is inapplicable. If (a)(3) was not intended to govern over (a)(1), it would contradict (a)(1) with regard to discharge to surface waters.

Section 360.8(a)(1) has been carried over into the "new" regulations as 360-1.14(b)(1), almost unchanged. It reads: "Solid waste must not be deposited in, and must be prevented from, entering surface waters or ground waters." The 'legislative history' FEIS at page RS 1-50. of 360-1.14(b)(1) indicates that language which would have explicitly required that solid waste be prevented from entering "or leaching into" surface waters or groundwaters had been considered, but was rejected to allow zone-of-saturation landfills. Although not controlling on an interpretation of the "old" regulations because it was 'after-the-fact,' the rejection of the "or leaching into" language is further indication that the provision was not intended to apply to leachate.

However, the new regulations and their legislative history may reveal a contrary intention. "Leachate" has been redefined to mean "any solid waste in the form of a liquid, including any suspended components in the liquid, which results from contact with or passage through solid waste" (360-1.2(b)(91), underline added). The definition of "leachate" as "any solid waste" blurs distinctions between these two terms, and could signal an intent that the regulations which pertain to "solid waste" should also apply to "leachate." The 'legislative history' does not explain why the "any solid waste" wording was added, but did state that the "leachate" definition was "presently in effect in the existing regulations" (i.e., August 1988). FEIS at page RS 1-15. (Note that there may have been a subsequent revision to the draft regulation because the number mentioned in the FEIS is different from the one cited here.

An intention that "solid waste" in 360.8(a)(1) implicitly includes "leachate" might also be inferred from the general thrust of the solid waste regulations. The basic objective of the solid waste regulations is prevention. It seems clear that a purpose of the regulations is to prevent intrusion of constituents of solid waste into ground water. Preventing leachate from entering ground water would prevent intrusion of constituents of solid waste into ground water. If subsection (a)(3) were applied to the exclusion of (a)(1), it would appear to allow a degradation of ground water quality down to ground water standards -- which seems contrary to the regulations' intent.

Given the conflicting inferences which are possible to draw from the regulatory language and available 'legislative history,' a determination of the proper interpretation of 360.8(a)(1) would be needed if the exemption were found not to be applicable.

Charge (III): [12] On or about March 13, 1986 (and continuing thereafter [15]), Respondents violated 6 NYCRR 360.8(a)(8), by operating a solid waste management facility in an open area without effectively controlling dust and odors, thereby constituting a nuisance and/or hazard to health, safety and property.

Conclusion: If the facility was exempt from Part 360 during the March 13, 1986 -- September 19, 1988 period in issue, 360.8(a)(8) would not have applied to the facility, and it therefore would not have been violated.

If the facility was not exempt, the evidence thus far would establish a violation of 360.8(a)(8), because the facility generated dust outdoors, which blew to neighboring properties, and interfered with the comfort of the occupants thereof.

Discussion:

See Discussion under Charge I above, incorporated by reference, concerning the exemption. Although there is language in 360.8(a) which indicates that the provision applies to "all" solid waste management facilities, the exemption "from this Part" (Part 360) provided by 360.1(f)(1) would make 360.8(a) inapplicable to the subject facility.

If the facility was not exempt, a violation would be established. 6 NYCRR 360.8(a)(8) stated: "Vectors, dust and odors shall be controlled by effective means so that they shall not constitute nuisances or hazards to health, safety or property." Black's Law Dictionary (revised 4th Ed.) indicates that a nuisance is, among a number of definitions, "[a]nything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property ..." It also is "[t]hat which annoys and disturbs one in possession of his property, rendering its ordinary use or occupation physically uncomfortable to him ..."

Although there may have been other sources of dust in the neighborhood (e.g., the nearby railroad) that could have contributed to observed problems, there may be questions as to the degree to which certain individuals were bothered, there was no documentation of dust having caused problems on specific occasions, and there may have been other (perhaps stronger) factors motivating individual neighbors to complain, there is no doubt that people were bothered by dust from the facility. The fact that neighbors have associated their inability to use clotheslines, observations of cleaned items getting dirty, and allergy conditions, with dust blowing from the site, and that these associations appear reasonable for them to have made (even after cross examination), demonstrates that people were actually annoyed by the dust and that the dust was a nuisance to them.

RULING/ORDER OF DISPOSITION

Since the facility was exempt from Part 360 under 360.1(f)(1)(ix), the regulatory provisions cited in the remaining charges did not apply. No issues are left to adjudicate.

Therefore, subject to the Commissioner's final determination and possible remand following receipt of this Interim Hearing Report, the hearing is discontinued and the record is closed.

RECOMMENDATION

It is recommended that the charges be dismissed based on the facility's exemption from Part 360.

If the exemption is found to be inapplicable, it is recommended that the matter be remanded for receipt of Respondents' defense case, accompanied by a clarification of the regulations as discussed above.

August 24, 1993
Albany, NY

____________/s/____________
Frank Montecalvo
Administrative Law Judge
Dept. of Environmental Conservation,
Office of Hearings
50 Wolf Rd., Rm 409
Albany, NY 12233-1550
FAX 518 485-7714

APPENDICES:

A. Amended Complaint

B. Ruling, February 21, 1991

C. Ruling, April 9, 1992

D. Ruling, February 25, 1993

TO:

Hon. Thomas C. Jorling, Commissioner
VIA HAND DELIVERY

Carl G. Dworkin, Esq.
Principal Administrative Litigator
NYS Dept. of Environmental Conservation
50 Wolf Road
Albany, NY 12233-5500

VIA FAX 516 661-3902 [w/o Appendices] and Mail [Complete Copy]
Patrick Kevin Brosnahan, Jr., Esq.
The 1826 House
73 West Main Street
Babylon, New York 11702

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