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Skaneateles Excavating Inc. - Ruling, March 11, 1994

Ruling, March 11, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Renewal and
Modification of the Waste Transporter
Permit (6 NYCRR Part 364) issued to
Skaneateles Excavating, Inc., also known
as Skaneateles Septic Tank Service

DEC Application No. 70-84-0154

RULING
March 11, 1994

Summary

The deadline for responses to the draft permit for the above application was February 25, 1994. I received responses from Skaneateles Septic Tank Service (the "Applicant") and from the persons represented by Mr. Raus (the "Intervenors") but no response from the Town of Elbridge Commission for the Conservation of the Environment (the "Elbridge CCE").

The Applicant has agreed to the conditions in the draft permit, with the modification stated in item 1 of Mr. Gallagher's January 25, 1994 letter to me. The Intervenors objected to issuance of the permit but did not provide the required information regarding the basis of their objections. As discussed further below, no issues have been identified which require adjudication. Consequently, a permit may be issued unless the present ruling is modified on appeal by the Commissioner of Environmental Conservation.

Background

This proceeding began on August 27, 1987, as a hearing on the renewal of the Applicant's waste transporter permit pursuant to Part 364 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR Part 364). The application for the renewal was application number 70-84-0154. The permittee had requested a hearing since it objected to modifications of the permit which the Department Staff sought to impose at the time when the renewal would be issued. The modifications included deleting permission to landspread dairy waste at a site on Chatfield Road in the Town of Elbridge since, among other things, this activity required a permit pursuant to 6 NYCRR Part 360 (Solid Waste Management Facilities) and the Applicant did not have such a permit.

I made an issues ruling on September 4, 1987 which concluded that based on facts which were stipulated at the August 28, 1987 issues conference and on the regulatory requirements, the modification was necessary and that no further hearing was required regarding the permit modification. I also recommended that if the ruling was appealed and the Commissioner decided that a hearing was necessary, certain issues should be adjudicated including alleged odor problems and alleged violations of the Environmental Conservation Law. At the time of the hearing, the Applicant stated that it was preparing an application for a permit pursuant to Part 360.

The Applicant appealed the September 4, 1987 issues ruling. The Applicant argued, among other things, that the Department's past misinterpretation of the regulations should act to afford the Applicant a reasonable time to submit its Part 360 application. The October 6, 1987 Interim Decision of the Commissioner remanded the matter to me to determine whether the Applicant had timely submitted a Part 360 application.

On December 29, 1987, I made a supplemental issues ruling which concluded that the application was not timely. The Applicant appealed this ruling. In a Second Interim Decision dated February 11, 1988, the Commissioner stated that due to the circumstances of this case, the application was both timely and sufficient.

The Applicant was allowed to continue its landspreading activities at the site on Chatfield Road due to extension of the Part 364 permit pursuant to State Administrative Procedure Act Section 401. The Part 360 application was designated as Application No. 70-87-0184. It included a proposal for landspreading at that site and at two additional sites both located in the Town of Sennett. A hearing on the Part 360 application began on March 16 and 17, 1988. At that time, the Department Staff anticipated that the Part 364 permit would be modified to reflect the permit conditions in the Part 360 permit if one were issued. The hearing was adjourned without date, awaiting information which I requested in my letter of April 18, 1988.

There was neither an issues ruling nor an adjudicatory hearing in the Part 360 permit application. In 1991, the Applicant withdrew its application for a Part 360 permit. This left the original hearing on the Part 364 permit renewal still pending. In my August 20, 1991 letter to Mr. Brickwedde, I stated that given the changes in the Applicant's operations and the passage of time, it was unclear what issues might remain with regard to the Part 364 permit. I identified a procedure for determining what issues, if any, remained with regard to the activities which the Applicant was proposing to carry out at that time.

On November 15, 1993, the Department Staff distributed a draft Part 364 permit. The Applicant objected to the condition which would prohibit spreading of septage between November 30 and April 1. The Applicant stated that it had purchased a sludge injector and that by injecting the waste below the ground surface it could operate without creating odors or runoff during this time period on days when the ground was neither saturated nor frozen.

On January 25, 1994, the Department Staff stated that disposal by injection during November 30 to April 1 would be allowable "provided that prior to any such disposal: the Applicant demonstrates that loading limits for the Site have not been exceeded (see e.g. Special Conditions 1,2,3 and 7); the Applicant demonstrates that there is compliance with applicable Site restrictions; and the Applicant submits and obtains approval of its operation plan relative to disposal by injection." In a letter dated February 21, 1994, the Applicant agreed to the draft permit as modified in the Department Staff's January 25, 1994 letter.

In my correspondence to the parties on August 20, 1991, November 23, 1993, December 24, 1993, and February 1, 1994, I identified the type of information which the Intervenors and/or the Elbridge CCE would need to submit if they objected to issuance of the permit or believed that additional conditions should be imposed. They would need to identify the statutory or regulatory provisions which the party believes would be violated if the draft permit were issued, and must explain the facts supporting the party's conclusions that the permitted activities would not comply with these provisions. In addition, in my February 1, 1994 memorandum I stated that if either of these parties planned to call expert witnesses, they would need to provide the names and resumes of the witnesses. The parties were not, however, required to provide the names of witnesses who would be testifying regarding their own observations without providing expert opinions.

I have received no correspondence from the Elbridge CCE since the draft permit was distributed. The Intervenors represented by Mr. Raus stated a general objection to the permit being issued, by correspondence dated December 7, 1993 and February 16, 1994, but have not provided information which identifies any issues for adjudication. The Intervenors stated their conclusion that the Applicant has been violating its existing permit and has shown a disregard for the environment, but the Intervenors have not stated or explained any facts supporting this conclusion nor identified the alleged violations.

The Intervenors have stated, without any explanation or supporting facts, that it will be impossible to monitor the condition prohibiting waste spreading when the ground is saturated or frozen. There is nothing to indicate that there is a basis for this statement. This prohibition is actually contained in the regulations governing land application of sewage sludge and septage (see 6 NYCRR 360-4.4(p)) and routinely applies to such activities.

There are a number of minor changes which would need to be made to the draft permit, as discussed in the recent correspondence, but these changes do not require adjudication. The modification discussed in Mr. Gallagher's January 25, 1994 letter will need to be incorporated into the permit. The name of the owner of the site will need to be corrected, as stated in Mr. Miles's letter of November 24, 1993. It may also be necessary to more precisely state the method of waste application (i.e., injection), particularly on the first page of the draft permit where there is a reference to "landspreading with plow down" and in provisions regarding operation between November 30 and April 1.

Ruling: There are no issues which require adjudication with regard to the project as described in the draft permit, modified as described above. Subject to any appeals of this ruling, the matter is remanded to the Department Staff for issuance of the modified draft permit.

Appeals: This issues ruling may be appealed to the Commissioner of Environmental Conservation pursuant to 6 NYCRR 624.6(d). The deadline for any such appeals will be March 25, 1994. Any appeals must be received by March 25, 1994 and are to be sent to the following address: Commissioner of Environmental Conservation, c/o Robert H. Feller, Assistant Commissioner for Hearings, NYS Department of Environmental Conservation, 50 Wolf Road, Albany, New York 12233-1550.

/s/
Susan J. DuBois
Administrative Law Judge

Albany, New York
March 11, 1994

TO: William J. Miles
William F. Gallagher, Esq.
Donald E. Nettleton, Jr.
George M. Raus, Jr., Esq.

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