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Pride Solvents and Chemical Company - Interim Decision, September 9, 1993

Interim Decision, September 9, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
- of -
the Application of PRIDE SOLVENTS AND CHEMICAL CO., INC. for a permit to operate a hazardous waste management facility at 78-88 Lamar Street, West Babylon, Suffolk County

DEC Project No. 1-4720-00299/00002-0

INTERIM DECISION OF THE COMMISSIONER

This Interim Decision relates to an appeal filed to the July 29, 1993 Issues Rulings (the "Rulings") of Administrative Law Judge ("ALJ") Edward Buhrmaster in the captioned matter.

The principal issue raised by Pride Solvents and Chemical Co., Inc. (the "Applicant") in the appeal is whether its request for a variance from the requirements of 6 NYCRR 373-2.8(h)(1) may encompass changes to the type of financial responsibility as well as to the amount. For the reasons stated below, I concur with ALJ Buhrmaster's conclusion that only changes as to amount of the financial responsibility are contemplated by 6 NYCRR 373-2.8(h)(3).

The provision cited above permits applicant-initiated variances to the "level" of financial responsibility required by rule. Though the term "level" is not defined, as pointed out in the Rulings, its common meaning implies scale, rank or magnitude. Further reinforcing this view is the commentary from the U.S. Environmental Protection Agency ("EPA") which appeared with the promulgation of the federal rule from which the state rule is derived. In that commentary, the EPA stated that the provision allows for variance of the amounts of coverage required by an owner or operator of a hazardous waste management facility (47 FR 16545, April 16, 1982).

The Applicant also argues that the applicant-initiated variance provision should not be interpreted more narrowly than a separate provision dealing with variances issued at the initiative of the Commissioner and which contemplates changes to the type of financial responsibility. Although no commentary or other interpretive document addresses the intent of the second provision or the difference between the wording in the two variance provisions, the only reasonable conclusion is that the latter provision is intended to cover situations where the financial commitment is inadequate based on the degree and duration of risk associated with the facility. It is not necessary for the Commissioner to initiate any action in situations where the financial commitment prescribed by rule is adequate; if any action is needed, i.e. , if a less burdensome commitment can be justified based on the degree and duration of the risk associated with the facility, it is in the interest of the applicant to request such a variance.

Therefore, it can only be concluded that the language difference in the two variance provisions is intended to authorize use of a different type of financial instrument only where none of the types of instruments explicitly authorized by rule would be adequate, given the degree and duration of the risk associated with operating a facility. In this case, the types of financial instrument authorized by rule are adequate and hence only a change to the level of those instruments may be considered.

As part of its appeal, the Applicant also asks that the guidance memoranda which ALJ Buhrmaster required the Department Staff supply to the Applicant be provided prior to the filing of its testimony. This request is appropriate and apparently consistent with the intent of the Rulings. The Applicant is entitled to this information prior to the filing of its testimony as part of the normal discovery process.

The Applicant also objects to the inclusion of evidence on two alleged violations. It argues that even if there had been violations, those situations are now corrected and therefore the occurrence of a violation is irrelevant.

Proof of the alleged violations has the potential to demonstrate a higher degree of risk at the facility. Such proof could be relevant to the question of whether unsafe situations are likely to occur in the future and it may reflect on the overall care with which the Applicant conducts its business at the site. Whether or not such alleged violations have been the subject of enforcement action does not change their relevance to these issues.

Finally, Applicant submits that public policy concerns related to the purpose of the regulations be taken into consideration. I note that ALJ Buhrmaster's Ruling did not preclude their consideration since he limited his discussion to those fact issues that needed to be adjudicated. While I concur with the Applicant that, as a general proposition, public policy concerns may be considered, they may only be factored into the decision to the extent that the legal requirements are subject to various interpretations or that the application of the regulations admits of discretion.

Conclusion

This matter is remanded to ALJ Buhrmaster for further proceedings consistent with this Interim Decision.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Interim Decision to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York this 9th day of September, 1993.

_____________/s/_____________
THOMAS C. JORLING,
COMMISSIONER

Dated: September 9, 1993

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