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Spector Waste Paper Corporation - Decision, April 5, 1994

Decision, April 5, 1994

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1550

In the Matter

- of -

an Application filed pursuant to ECL Article 27 and 6 NYCRR Part
360 to construct and to operate a solid waste transfer station
and recycling facility at 10-14 Avion Drive, Town of Chili,
Monroe County

- by -

SPECTOR WASTE PAPER CORPORATION

APPLICANT

DEC No.

8-2622-00050/1-0

DECISION

April 5, 1994

Decision of the Commissioner

The attached Hearing Report prepared by Administrative Law Judge Daniel P. O'Connell, in the matter of applications for permits to construct and to operate a solid waste transfer station and recycling facility at 10-14 Avion Drive, Town of Chili, Monroe County (the Facility) pursuant to ECL Article 27 and 6 NYCRR Part 360, is hereby adopted as my Decision in this matter.

I have reviewed the Stipulation of Settlement, and concur with Administrative Law Judge O'Connell. I conclude the stipulation embodied as the terms of the Order of Modification, the combined Draft Permit, and the Bird Control Plan respond to the concerns raised by Monroe County thereby resolving the issues about the Applicant's compliance history and air traffic safety at the Greater Rochester International Airport (GRIA).

The settlement provides a mechanism to insure that the Applicant will close the existing Scottsville Road Facility, and will operate the proposed Facility in compliance with the applicable environmental laws and regulations and in a way that will provide for safe air travel at the GRIA. The Order of Modification authorizes the Applicant to operate the Scottsville Road Facility until the proposed Facility is constructed. After construction of the proposed Facility is finished, the Order of Modification outlines how the Applicant must close the Scottsville Road Facility.

The environmental monitor required by the terms of the combined Draft Permit will oversee the operations at the proposed Facility. The Department Staff has agreed to administer the funds provided by the Applicant for the part-time environmental monitor.

Due to the Facility's proximity to Runway 4 of the GRIA, the Bird Control Plan is designed to discourage birds from gathering at the Facility. The approved Bird Control Plan, therefore, will alleviate concerns expressed by the Airport Administrators about possible bird strikes with aircraft.

Based on the Stipulation of Settlement signed by the Parties, the Order of Modification, the combined Draft Permit dated March 15, 1994, and the Bird Control Plan are consistent with, and responsive to, the concerns raised by the County.

Also, the conditions of the combined Draft Permit and the Bird Control Plan are clear and adequately assure the Facility would comply with the applicable environmental laws and regulations. Accordingly, I affirm the settlement, and direct the Department Staff to issue the permits as drafted.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this 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 5TH day of April, 1994

____________/s/____________
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
LANGDON MARSH, ACTING COMMISSIONER

by Certified Mail

To: Jerry R. Greenfield, Esq.
Chamberlain, D'Amanda,
Oppenheimer and Greenfield
1600 Crossroads Building
Two State Street
Rochester, New York 14614-1397

by Certified Mail

Sidney Spector
Spector Waste Paper Corporation
1436 Scottsville Road
Rochester, New York 14624

Andrea Quercia, Esq.
Senior Deputy County Attorney
Monroe County
307 County Office Building
39 West Main Street
Rochester, New York 14614

Lisa Perla Schwartz, Esq.
Assistant Regional Attorney
NYSDEC-Region 8
6274 East Avon-Lima Road
Avon, New York 14414

SUMMARY

Spector Waste Paper Corporation (the Applicant) filed applications pursuant to ECL Article 27, Title 7, and 6 NYCRR Part 360 with the Region 8 Office of the Department of Environmental Conservation (the Department Staff) for permits to construct and to operate a solid waste management facility at 10-14 Avion Drive in the Town of Chili, Monroe County (the Facility). Operations at the Facility would include collecting recyclables from commercial and residential sources, and transferring nonrecyclable wastes to the Occidental Corporation facility in Niagara Falls, NY. In a letter dated March 15, 1991, the Town issued a Negative Declaration pursuant to ECL Article 8 (SEQRA), and approved the Project.

The Parties settled this matter after the Commissioner identified the Applicant's compliance history and the need to control birds at the Facility as issues for adjudication. This Hearing Report reviews the settlement as required by the Commissioner's Organization and Delegation Memorandum #85-13, and recommends that the Commissioner affirm the settlement.

PROCEEDINGS

After the Applicant duly published a Notice of Public Hearing and a Supplemental Notice of Public Hearing, Administrative Law Judge (ALJ) Daniel P. O'Connell presided over a legislative hearing regarding the proposed Facility at the Town Hall in Chili on November 13, 1992. On November 18, 1992, ALJ O'Connell convened an Issues Conference to hear requests for Party Status and to define potential issues for adjudication. ALJ O'Connell issued Rulings on Issues and Party Status dated February 26, 1993, and latter, issued a Clarification of Rulings on March 9, 1993.

On September 24, 1993, the Commissioner issued an Interim Decision that identified the following question as an issue for adjudication:

During the review of the applications for the proposed Facility, did the Applicant violate the terms of the consent order governing operations at the existing Scottsville Road facility?

Since the Facility would be located in the flight path for the principal runway at the Greater Rochester International Airport (GRIA), the Interim Decision also provided for a hearing to resolve the Parties' objections to the Applicant's Bird Control Plan.

The following were Parties to the proceeding. Lisa Perla Schwartz, Esq., Assistant Regional Attorney for Region 8, appeared for the Department Staff. Jerry R. Greenfield, Esq. with other associates from the law firm Chamberlain, D'Amanda, Oppenheimer and Greenfield, Rochester, NY, appeared for the Applicant. Andrea Morano Quercia, Esq., Senior Deputy County Attorney represented the Monroe County Division of Solid Waste, the Monroe County Environmental Management Council, and the GRIA (the County).

During a telephone conference on October 5, 1993 with ALJ O'Connell, the County proposed the use of an environmental monitor at the Facility as a way to settle the matter. The Parties confirmed they had settled the matter during a telephone conference on January 6, 1994.

With a cover letter dated November 8, 1993, the Applicant provided ALJ O'Connell with a copy of the approved Bird Control Plan prepared by Terrestrial Environmental Specialists, Inc., Phoenix, New York and dated October 1993.

With a cover letter dated March 25, 1994, the Department Staff provided ALJ O'Connell with a copy of a Stipulation of Settlement signed by the Parties. Two documents were included with the stipulation: (1) an Order of Modification dated March 24, 1994 that revises the Consent Order for the Scottsville Road Facility, and (2) a combined Draft Permit to construct and to operate the proposed Facility dated March 15, 1994. The combined Draft Permit dated March 15, 1994 includes conditions for a part-time environmental monitor. A copy of the combined Draft Permit is attached to this Report as Appendix A.

Upon receipt of the Parties' Stipulation of Settlement, the record of the hearing closed on March 25, 1994.

DISCUSSION

Organization and Delegation Memorandum (O&D Memo) #85-13 requires the ALJ to prepare a Hearing Report when Parties settle issues that have been joined for adjudication. O&D Memo #85-13 directs the ALJ to determine whether the terms of the settlement are clear, if the settlement is consistent with and responsive to the concerns raised by the Parties and the public during the hearing process, whether the terms of the settlement are within the Department's jurisdiction and are enforceable, and whether the settlement adequately assures the Project would comply with the applicable environmental laws and regulations.

The settlement consists of three documents. The first is an Order of Modification dated March 24, 1994 which changes some of the terms of the Order on Consent dated June 8, 1990. The Order on Consent as revised by the Order of Modification authorizes the Applicant to operate the Scottsville Road Facility until the proposed Facility is constructed. After construction of the proposed Facility is finished, the Order of Modification outlines how the Applicant must close the Scottsville Road Facility.

The second document is the combined Draft Permit dated March 15, 1994. Conditions in the combined Draft Permit require a part-time environmental monitor at the Facility. According to the combined Draft Permit, the Region 8 Department Staff will administer the funds provided by the Applicant for the environmental monitor.

The Bird Control Plan is the third element of the settlement. The purpose of the Bird Control Plan is to discourage birds from gathering at the Facility thereby reducing the possibility of a bird strike with aircraft using Runway 4 at the GRIA.

The terms of the settlement are clear. The Applicant has accepted the combined Draft Permit conditions, and the Department Staff has approved the Applicant's Bird Control Plan. The permit conditions requiring an environmental monitor and the Order of Modification respond to the County's concerns about how the Applicant will maintain the proposed Facility and close the existing Scottsville Road Facility. The terms of the Bird Control Plan address the County's concern about air traffic safety.

The Department has the jurisdiction to impose these permit conditions and to enforce them. The Commissioner's Organization and Delegation Memorandum #92-10, dated February 20, 1992, provides guidance for using environmental monitors. According to the memorandum, ECL Article 3 and other sources in the ECL provide the legal authority for monitors. The conditions in the combined Draft Permit assure the proposed Facility would comply with the applicable environmental law and regulations. Therefore, the terms of the settlement meet the criteria outlined in Organization and Delegation Memorandum #85-13.

RECOMMENDATIONS

The Commissioner should affirm that the stipulation meets the criteria outlined in Organization and Delegation Memorandum #85-13. Accordingly, the Commissioner should direct the Department Staff to finish processing the applications and to issue the permits.

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