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Revere Smelting and Refining Corp. - Ruling, June 20, 1995

Ruling, June 20, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
-of-
the Application of REVERE SMELTING & REFINING CORPORATION ("REVERE" or "RSR") R.D. #2, Ballard Road Middletown, New York 10940 for a hazardous waste management permit to continue operations at its secondary lead smelter facility on Ballard Road, (Middletown), in the Town of Wallkill, Orange County pursuant to the Environmental Conservation Law ("ECL") and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR")

RULINGS OF THE ADMINISTRATIVE LAW JUDGE ON PARTY STATUS AND ISSUES

DEC Project No. 3-3352-00145/00001-0,
EPA ID #NYD030485288

PROJECT DESCRIPTION

Revere has applied for a hazardous waste management permit to continue operations at its secondary lead smelter facility, located at R.D. #2, Ballard Road, Middletown, Town of Wallkill, Orange County, New York 10940. The company has been and is currently operating the facility under an interim status permit as provided in the applicable Hazardous Waste Management Facilities Regulations (6 NYCRR Part 373).

The company is primarily engaged in the reclaiming, smelting and refining of lead from lead acid batteries and other lead bearing materials. The company operates a hazardous waste management facility to store the spent batteries and other lead bearing materials. Most of these lead bearing materials are wastes due to their lead content and corrosivity. Hazardous wastes are stored at the facility in a battery storage area and in a containment building.

STATUTORY AND REGULATORY PROVISIONS

The application was filed and is being processed pursuant to Environmental Conservation Law ("ECL") Article 3, Title 3 (Department of Environmental Conservation, General Functions, Powers, Duties and Jurisdiction), Article 8 (Environmental Quality Review), Article 27, Title 9 (Industrial Hazardous Waste Management); and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 373 (Hazardous Waste Management Facilities), Part 617 (State Environmental Quality Review), Part 621 (Uniform Procedures) and Part 624 (Permit Hearing Procedures).

DETERMINATION OF COMPLETENESS

The Department's Region 3 Staff issued a Notice of Complete Application on January 13, 1994 and commenced the public comment process on the Applicant's proposal.

The Department Staff has made a tentative determination to issue an industrial hazardous waste management permit and has prepared a draft permit for the facility. The purpose of the hearing in this matter is to determine whether or under what conditions the permit should be issued.

As part of its regulatory process, the Department Staff determined that there have been releases of hazardous waste or hazardous waste constituents to the environment from this facility. Revere has conducted off-site soil and on-site groundwater investigations and has submitted a corrective measures study as specified in the Department Staff's draft hazardous waste management permit.

SEQRA STATUS

Pursuant to the State Environmental Quality Review Act ("SEQRA"), the Department Staff, as lead agency, has determined that the proposed action described above is an excluded action and therefore, is not subject to further procedures under this Act.

PUBLIC STATEMENT HEARING AND COMMENT PERIOD

Following publication of the required hearing notice in The Times Herald-Record, Middletown, New York, and in the Department's Environmental Notice Bulletin, both on February 1, 1995, a legislative public statement hearing to receive comments on the proposed Project was held before Administrative Law Judge ("ALJ") Robert P. O'Connor of the Department's Office of Hearings at 7:00 PM on Monday, March 6, 1995 in the Town of Wallkill Town Hall, 600 Route 211 East, Middletown, New York to receive unsworn statements from the public about the Applicant's proposal and the Department Staff's draft permit.

Attending the legislative were approximately seven or eight representatives of the Applicant; nine or ten representatives of the Department Staff, both from the Department's Region 3 Office in New Paltz and the Central Office in Albany; and approximately sixteen to eighteen members of the public.

Following brief statements from the Applicant and the Department Staff, four members of the public made statements concerning the facility and the draft permit: Hon. Richard Baum, member of the Orange County Legislature; Michael R. Edelstein, Ph.D., President of Orange Environment, Inc.; and Andrew M. Levi and Deborah H. Clark, President and Vice-President, respectively, of Wallkill Area Residents.

ISSUES CONFERENCE

A pre-adjudicatory hearing issues conference was held in the Town of Wallkill Town Hall at 10:00 A.M. on Tuesday, March 7, 1995 to consider all timely filed applications to participate in any adjudicatory hearing which may be held in this matter.

At the issues conference, the Applicant was represented by Philip H. Gitlen, Esq., from the firm of Whiteman, Osterman and Hanna, One Commerce Place, Albany, New York 12260.

The Department Staff was represented by Katherine Hudson, Esq., Assistant Regional Attorney, NYSDEC - Region 3, 21 South Putt Corners Road, New Paltz, New York 12561.

Orange Environment, Inc., P.O. Box 25, Goshen, New York 10924 was represented by its President, Michael R. Edelstein, Ph.D.

The issues conference was adjourned and continued at 10:00 A.M. in the Holiday Inn in Middletown on both March 30, 1995 and May 4, 1995, as efforts by the above participants continued to resolve various issues outside the formal hearing process.

SUMMARY POSITIONS OF THE PARTICIPANTS

The Applicant

The Applicant believes it has met its burden to receive the hazardous waste management permit for which it has applied. It has negotiated the express terms for several permit conditions with the Department Staff, and in sum, believes it has adequately and appropriately addressed all potential concerns and regulatory criteria which have been the subject of discussion in the issues conference. In the Applicant's view, there are no issues which are substantive and significant enough to require adjudication; and therefore, no hearing is warranted.

The Department Staff

The Staff contends that with the Applicant and Department Staff having reached final agreement on the terms and conditions of a draft hazardous waste management permit pursuant to the provisions of 6 NYCRR Part 373, there are no issues which remain in dispute between the Applicant and Staff. The Applicant, therefore, has satisfied the applicable statutory and regulatory criteria which would entitle it to receive the permit, subject to inclusion of the conditions upon which the Applicant and Staff have agreed. The Staff has not identified any substantive and significant issues which would require adjudication, and thus, no further hearing is necessary.

Orange Environment

Orange Environment believes that substantive and significant issues exist regarding the need for public participation mechanisms that will empower residents and municipalities to have oversight and control over the Applicant's operations to the degree necessary to protect the public health and the local environment. Orange Environment believes the Applicant must provide a host community benefit package which would monetarily support the oversight and community relations activities of community intervenor groups. Orange Environment asserts there is a need for stringent independent monitoring of the Applicant's operations at the site to ensure the safety of the surrounding community and environment. Orange Environment also raised issues regarding financial assurance to guarantee cleanup of the site, and the Applicant's record of compliance. Subsequent to its initial filing and identification of issues, Orange Environment also requested the SEQRA process be revisited to address "significant new information about RSR, lead and the condition of the site."

RULINGS ON THE ISSUES PROPOSED FOR ADJUDICATION

In order for an issue to be adjudicated, the issue must relate to a dispute between the Department Staff and the Applicant over a substantial term or condition of the draft permit; relate to a matter cited by the Department Staff as a basis to deny the permit and is contested by the Applicant; or be an issue proposed by a potential party which is both substantive and significant.

An issue is substantive if there is sufficient doubt about the applicant's ability to meet statutory or regulatory criteria applicable to the project, such that a reasonable person would require further inquiry. An issue is significant if it has the potential to result in the denial of a permit, a major modification to the proposed project or the imposition of significant permit conditions in addition to those proposed in the draft permit.

6 NYCRR 624.4(c)(4) specifically provides that in situations where the Department Staff has reviewed an application and finds that a component of the Applicant's project as proposed or as conditioned by the draft permit, conforms to all applicable requirements of statute and regulation, the burden of persuasion is on the potential party proposing any issue related to that component to demonstrate that it is both substantive and significant. Such is the case in the instant matter, with the Department Staff and the Applicant having agreed upon the express language and provisions for a variety of draft permit conditions and with the Department Staff having determined there are no statutory or regulatory prohibitions or restrictions which would preclude the issuance of the hazardous waste management permit for which Revere has applied. It is, therefore, the intervenors' burden to demonstrate that the issues they are raising warrant adjudication.

Public Participation/Community Relations Plan

Orange Environment believes its involvement in the development of a community relations plan for the Applicant's facility will foster active communications among the Applicant, the Department Staff and the surrounding community. Such a relationship would benefit all parties, ensure the Applicant's compliance with the applicable operating conditions and enhance the opportunity to quickly resolve any problems regarding clean-up of the site. Acceptance of this proposal for the direct involvement of Orange Environment in the development of a comprehensive community relations plan for the facility would allow Revere to gain the public trust in its continuing operations and in the clean-up of the site which is currently contaminated with toxic materials. Orange Environment essentially seeks equal standing with the Applicant and the Department Staff in the development of the community relations plan for the facility. Orange Environment further notes the federal Resource Conservation and Recovery Act ("RCRA") does not preclude the Department Staff from requiring community/public participation in the permit process, and inclusion of such a requirement in the subject permit would support the "spirit of RCRA."

Revere notes the language of RCRA does not require community involvement in the permit process, nor do the requirements of the ECL and/or 6 NYCRR Part 373. Revere maintains that the community relations module included in the draft permit proposes a community relations plan which has been modified to respond to various comments from the public and which has been agreed to by the Department Staff. This proposal goes beyond the minimum requirements of RCRA, the ECL and 6 NYCRR Part 373. Furthermore, there is no statutory or regulatory provision for granting Orange Environment any authority in the permitting process.

The Department Staff concurs with the Applicant that the terms of the community relations module have been agreed to and that there are no statutory or regulatory provisions which require the type of direct involvement in the permitting process which is sought by Orange Environment. The Staff did indicate, however, that certain aspects of the involvement which Orange Environment is seeking would be helpful to the community and would make public participation in the permitting process, the permit modification process and the permit compliance process more meaningful for the community. The Staff noted that while other firms may have voluntarily agreed to more extensive public participation/community relations activities related to their respective permits, such involvement is not statutorily or regulatorily required, and therefore, cannot be mandated or enforced as a permit condition.

In this instance, Revere has taken the position that it will not voluntarily agree to more extensive community involvement in its operations than is provided in the community relations module of the draft permit. Revere believes it has already exceeded all statutory and regulatory requirements by its concurrence in the draft permit language.

Ruling: In the absence of any specific enforceable statutory or regulatory criteria regarding community/public participation in the permitting process, the Department cannot impose permit conditions which go beyond the measures to which Revere has voluntarily agreed in the draft permit's community relations module. There is no adjudicable issue raised with respect to public participation.

Community Host Benefits Package

As an adjunct to the public participation/community relations plan issue above, Orange Environment seeks from Revere substantial monetary support for community oversight of its operations. Specifically, Orange Environment has proposed that Revere pay $10,000 per annum to the Community Advisory Committee ("CAC") as administrative support to the CAC. Orange Environment also seeks a sum of $20,000 per annum to the CAC from Revere as a technical assistance grant in support of independent monitoring, oversight and analysis of Revere's operations. Lastly, Orange Environment has requested Revere to pay the amount of $100,000 per annum in order to offset the impacts of Revere's facility on the community. The CAC would determine the expenditure of these funds.

While the Department Staff would not object to having Revere make these contributions, the Staff concurs with the Applicant that the measures which Revere has already agreed to effect go beyond the minimum requirement of the applicable laws and regulations in its support of the CAC. Revere has chosen to provide "in-kind" administrative services to support the CAC on a monthly meeting basis and has underwritten the cost of studies of the facility's impacts on the community. Revere will, in the future, when it is appropriate to do so, voluntarily undertake a variety of activities in support of the CAC and/or the community at large. Furthermore, Revere believes its commitment to an environmental monitoring program obviates any demand for monetary support for independent monitoring for the CAC. And as related to a community benefit program, Revere makes contributions to a variety of local organizations and recently announced a college scholarship program which would provide $10,000 per year for four years to each of four Town of Wallkill high school graduates (total $160,000).

Ruling: As above, in the absence of any statutory or regulatory requirements, the Department is unable to mandate an applicant provide specific community host benefits, especially in the way of express monetary contributions. These sorts of arrangements, even if formalized, are not appropriate for inclusion in permits for they are unenforceable by the Department. No adjudicable issue is raised.

On-Site Environmental Monitoring

During the course of the extended issues conference, the three participants, Revere, the Department Staff and Orange Environment, have agreed upon the provisions of the environmental monitoring module in the draft permit.

Ruling: No adjudicable issue is raised regarding on-site monitoring at the facility.

State Environmental Quality Review Act ("SEQRA")

As noted above, Orange Environment seeks to have the Department Staff's SEQRA determination of an "excluded action" overturned in order to explore new information regarding the Applicant, its operations and the site. Orange Environment cites a more complete understanding in recent years of the hazards of lead contamination in the environment, a full appreciation in the recent past of the extent of corporate misconduct by Revere's parent, RSR, and a more complete identification in the past several years of the extent of on-site contamination at the Revere facility as reasons the impacts of the facility and its operations should now be readdressed under SEQRA.

In the instant case, Revere's Town of Wallkill facility is an existing facility. Revere is not engaging in any new operations nor is it proposing any expansion of production capacity at the facility. The focus in the instant proceeding is on storage of hazardous wastes at the facility, and in this regard, the Applicant's activities over the past ten years have been to significantly reduce the hazards related to the on-site storage of such wastes. Thus, the current potential environmental impacts of storage of hazardous wastes are considerably diminished from the earlier operations at the facility.

Additionally, here, the Staff is well aware of the hazards of lead contamination in the environment and of the remedial actions necessary at the Revere site. Furthermore, the Staff is cognizant of the Applicant's record of compliance. Thus, the "new" information suggested by Orange Environment is not new to the Department Staff.

In this instance, the Department Staff determined that the proposed action is an "excluded action" under SEQRA, i.e. -- the action is one which was undertaken, funded or approved prior to the effective dates of the State Environmental Quality Review Act (ECL Article 8) (eff. 9/1/76). The Applicant's facility was originally constructed in the early 1970's and was acquired by Revere in 1972. During its term of operation of the site, Revere's actions regarding storage of hazardous wastes at the facility have been to mitigate potentially adverse environmental effects. Thus, the Staff's determination to not require an environmental impact statement for this phase of the facility operation is correct, and it is not appropriate to revisit the SEQRA determination.

Ruling: Under the circumstances presented with respect to the instant application, no basis exists for reopening the SEQRA determination of significance. Thus, no adjudicable issue is raised. It is noted, however, that the issue of corrective measures to remediate on-site hazardous waste contamination is the subject of a separate proceeding which may afford the opportunity for the Staff to consider a separate SEQRA determination.

Financial Assurance for Closure

Whereas Revere had previously filed with the Department Staff letters of credit in the amount of $2 million for public liability and property damage and $870,000 to assure closure, as of March 10, 1995, Revere submitted a revised letter of credit for closure in the amount of $3,669,665. This financial assurance is separate from the conditions proposed in the draft permit and must be updated on a annual basis to account for inflation and other cost factors. The revised amount was determined to be acceptable by the Department Staff and has not been objected to by Orange Environment.

Ruling: No adjudicable issue is raised with regard to financial assurance.

Record of Compliance

In a recent case in Federal District Court in Indiana, Revere's parent company, RSR, and a subsidiary, Quemetco, entered a plea of guilty to one charge under the federal Clean Water Act. Quemetco also pleaded guilty to one charge under an Indianapolis city ordinance. [United States of America v. RSR Corporation, Quemetco, Inc., Donald J. Eby, James Stephen Bitmer, William Sylvester Mobley and Stephen R. Summers, Cause No. IP 94-120-CR (S.D. Indiana, Aug. 18, 1994)]. Other counts of the indictment were dismissed, and $1.5 million fine in the aggregate was assessed with RSR paying $0.5 million and Quemetco paying $1 million. The four individuals also entered guilty pleas to various charges and will be sentenced on June 23, 1995. Since one of the individuals was an officer of RSR, he may have previously had some responsibility with respect to the Revere facility in the Town of Wallkill. Representatives of the Applicant stated emphatically on the record of the instant proceeding that none of the convicted individuals currently have any management responsibilities for the Revere facility nor will they have for the life of the subject permit in this case.

The Department Staff has been closely following the case in Indiana and has been especially sensitive to the Applicant's (and its parent's and sister subsidiaries') record of compliance. It is particularly for this reason that the Staff has insisted on the inclusion of an on-site environmental monitor provision in the draft permit.

Ruling: Revere does not contest the on-site environmental monitor provision in the draft permit. There is no adjudicable issue raised.

RULING ON PARTY STATUS

Pursuant to 6 NYCRR 624.5(a), the Applicant and the assigned Department Staff are automatically full parties to the proceeding. The other participant, Orange Environment, has applied for full party status to participate in any adjudicatory hearing which may be held in this matter.

Pursuant to 6 NYCRR 624.5(d), the ALJ's ruling on entitlement to full party status will be based on: (i) a finding that the petitioner has filed an acceptable petition pursuant to paragraphs 624.5(b)(1) and (2); (ii) a finding that the petitioner has raised a substantive and significant issue or that the petitioner can make a meaningful contribution to the record regarding a substantive and significant issue raised by another party; and (iii) a demonstration of adequate environmental interest.

In the instant case, there is no question that Orange Environment has demonstrated an adequate environmental interest nor that it has filed an acceptable petition for full party status. However, none of the issues raised by Orange Environment are substantive and significant in the regulatory context, and therefore, these issues do not require adjudication in any future hearing in this matter. Thus, Orange Environment's petition for full party status is denied.

DISPOSITION

The adjudicatory hearing is cancelled. This matter is remanded to the Department Staff for issuance of the requested permit in accordance with the applicable statutory and regulatory criteria. Said hazardous waste management permit shall incorporate the special conditions which have been developed expressly for the Revere facility and as a result of the issues conference discussions have been made part of the draft permit.

APPEALS

Pursuant to 6 NYCRR 624.6(e) and 624.8(d), these Rulings on party status and issues may be appealed in writing to the Commissioner within ten days of receipt of the Rulings.

Any appeals must be received at the office of Commissioner Michael D. Zagata (NYSDEC, Room 604, 50 Wolf Road, Albany, New York 12233-1010) no later than June 30, 1995. Additionally, responses to the initial appeals will be allowed. All responses must be received as above no later than July 10, 1995.

The participants shall ensure transmission of all appeal and reply papers to me and all others on the enclosed amended Service List at the same time and in the same manner as transmission is made to the Commissioner.

_____________/s/_____________
ROBERT P. O'CONNOR
ADMINISTRATIVE LAW JUDGE
Albany, New York

Dated: June 20, 1995

To: Service List (enclosed)

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