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Spector Waste Paper Corporation - Issues Ruling, February 26, 1993

Issues Ruling, February 26, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

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

RULINGS ON ISSUES
AND
PARTY STATUS
DEC No. 8-2622-00050/1-0

SPECTOR WASTE PAPER CORPORATION
APPLICANT

Summary

These rulings describe the Applicant's proposal, summarize the comments received at the legislative hearing held on November 13, 1992, and discuss the issues proposed at the Issues Conference held on November 18, 1992. The Airport's proposal requiring the Applicant to prepare a bird control plan for the Facility raises a substantive and significant issue for adjudication. Adjudication of the bird hazard issue can be avoided if the Applicant prepares an approvable bird control plan before the Facility begins operating. If the Applicant objects, a hearing will be held and the Greater Rochester International Airport (GRIA) will have Party Status. The County's Division of Solid Waste and the Environmental Management Council's requests for Party Status are denied. A schedule for the filing of appeals from these rulings is provided.

Project Description and Environmental Review

Spector Waste Paper Corporation filed applications as required by ECL Article 27, Title 7, and 6 NYCRR Part 360 with the Region 8 Office of the Department of Environmental Conservation (the Department) 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 or the Project). As proposed, the Facility would have a maximum design capacity of 385 tons per day with approximately 70,000 sq. ft. of floor space. Operations at the Facility would include separating wastes generated from commercial and residential sources for recyclables, and transferring wastes that are not recycled to vehicles for transport to the Occidental Corporation waste to energy facility in Niagara Falls, NY.

By letter dated February 14, 1991, the Town of Chili Planning Board (the Town) declared itself the SEQR lead agency for the Applicant's proposal, identified the Project as an Unlisted Action, and recommended a coordinated review with all involved agencies. In a memorandum dated March 12, 1991, the Monroe County Department of Planning provided the Town with a zoning review of the Applicant's proposal. In a letter dated March 15, 1991, the Town issued a negative declaration and approved the Project. In memoranda dated March 21, 1991 and June 27, 1991, the Monroe County Department of Planning acknowledged the SEQR process was complete and issued its approval for the Project.

Legislative Hearing

A Notice of Public Hearing dated September 9, 1992 (the Notice) appeared in The Democrat and Chronicle on September 14, 1992, and in the Department's Environmental Notice Bulletin on September 16, 1992. The Notice announced that the public hearing regarding the captioned matter would convene on October 14, 1992. Due to an emergency, Administrative Law Judge Daniel P. O'Connell adjourned the hearing scheduled for October 14, 1992. Later, a Supplemental Notice of Public Hearing dated October 23, 1992 referring to the previous Notice of Public Hearing dated September 9, 1992 appeared in The Democrat and Chronicle and in the Department's Environmental Notice Bulletin on November 4, 1992. On November 13, 1992, Administrative Law Judge O'Connell presided over a legislative hearing regarding the application at the Town Hall in Chili, New York at 10:00 A.M.

About 100 people attended the legislative hearing. There were 34 speakers including the Applicant's representatives, the Department Staff, local county and town officials, residents of the Town of Chili, and representatives from the Federal Aviation Administration (FAA). Some individuals filed written statements. Comments about the Applicant's proposal included concerns about traffic, maintenance of the existing facility and the proposed Facility, air traffic safety, and whether the Applicant's proposal is consistent with the Monroe County Solid Waste Management Plan.

Issues Conference

On November 18, 1992, an Issues Conference convened to hear requests for party status and to define potential issues for adjudication. The Issues Conference was held at the law offices of Chamberlain, D'Amanda, Oppenheimer and Greenfield, 1600 Crossroads, Two State Street, Rochester, NY. According to 624.4, the Parties to any adjudicatory hearing are the Applicant, the Department Staff and those who have been granted party status. The Monroe County Division of Solid Waste with the Greater Rochester International Airport, and the Monroe County Environmental Management Council filed petitions for party status.

Lisa Perla Schwartz, Esq., Assistant Regional Attorney, Region 8, appeared for the Department Staff.

Andrea Morano Quercia, Esq., Senior Deputy County Attorney represented the Monroe County Division of Solid Waste (the County) and the Greater Rochester International Airport (GRIA).

Lee Loomis, Chair of the Monroe County Environmental Management Council (EMC), represented the EMC.

Attorneys, Jerry R. Greenfield, Terry Richman, and Henry Ippolito, from the law firm Chamberlain, D'Amanda, Oppenheimer and Greenfield, Rochester, NY appeared for the Applicant.

The Office of Hearings received the stenographic transcript of the Issues Conference on December 4, 1992. Upon receipt of timely filed briefs and comments on the revised draft permits, the record of the Issues Conference closed on February 9, 1993.

Summary Positions of the Issues Conference Participants

At the Issues Conference, the Department Staff presented draft permits to construct and to operate the proposed solid waste management facility. With a cover letter dated December 16, 1992, the Department Staff submitted a revised draft permit to operate and a corrected draft permit to construct, both dated December 14, 1992. The permit revisions were based on discussions at the Issues Conference. The revised and corrected draft permits are identified in the hearing record as Exhibits 3A and 3B, respectively. In its December 16, 1992 letter, the Department Staff reported that the draft permit conditions were acceptable to the Staff and the Applicant. Asserting there were no issues for adjudication, the Staff contended the draft permits adequately addressed the concerns expressed in the public comments and by those who filed for party status.

Although the Monroe County Department of Planning approved the Project in memoranda dated March 21, 1991 and June 27, 1991, the Monroe County Division of Solid Waste with the Greater Rochester International Airport alleged the Town of Chili's SEQR determination inadequately addressed the potential impacts of the proposed Facility. The County identified the following topics as SEQR issues requiring adjudication: the size of the Facility, impacts to federal wetlands, floodplain concerns, locating the Facility on an inactive solid waste site, the Project's compliance with the County's Solid Waste Management Plan, traffic, noise, and FAA safety concerns. According to the County, the Applicant's proposal would create a bird strike hazard at the Greater Rochester International Airport (GRIA). The County also contended the proposal is inconsistent with the Monroe County Solid Waste Management Plan and would encourage noncompliance with the Monroe County Solid Waste Reuse and Recycling Law and Regulations. The County asserted the Applicant's poor compliance history requires permit denial.

In a letter dated February 8, 1993, the County provided comments about the draft permits identified as Exhibits 3A and 3B. The County's proposed draft permit conditions relate to storm water runoff and ponding, a bird control plan, and enforcement of the permit conditions by either the County or an advisory group.

According to the Monroe County Environmental Management Council, there are adjudicable issues about traffic, freshwater wetlands, noise, and locating the proposed Facility on an inactive solid waste site. The EMC contended the proposal is inconsistent with the Monroe County Solid Waste Management Plan, and would encourage violations of the Monroe County Solid Waste Reuse and Recycling Law and Regulations. The EMC asserted the Applicant's proposal would create a potential bird strike hazard at the GRIA. The EMC argued the Applicant's poor compliance history requires the development of a stringent enforcement plan. The EMC did not provide comments on the draft permits identified as Exhibits 3A and 3B.

In reply to the arguments presented by the County, the GRIA, and the EMC, the Applicant contended the requests for party status should be denied because there are no issues for adjudication. The Applicant stated it accepted all draft permit conditions.

A detailed review of each Conference Participant's arguments about specific topics are examined below. These rulings address the proposed issues discussed at the Issues Conference. The rulings incorporate all written and oral submissions made to date by those who participated in the Conference.

SEQR

Despite participating in the coordinated SEQR review, and issuing its approval for the Project, the County asserted the following topics are SEQR issues requiring adjudication: the size of the Facility, impacts to federal wetlands, floodplain concerns, locating the Facility on an inactive solid waste site, the Project's compliance with the County's Solid Waste Management Plan, traffic, noise, and FAA safety concerns. Since the Issues Conference Participants disagreed about whether SEQR related issues could be adjudicated in this proceeding, I provided the Issues Conference Participants with an opportunity to brief this legal question. The County, the Applicant and the Department Staff filed briefs and replies in a timely manner. The EMC did not file a brief or a reply.

The County based its argument that SEQR related issues could be adjudicated in this proceeding on the following. First, the Town of Chili Planning Board's (the Town's) negative declaration states, in pertinent part, that "a coordinated review will not be required since involved agency review will be given during the permit process". The County interpreted the Town's negative declaration to mean the Town did not coordinate the SEQR review, and the "permit process" is this DEC permit hearing.

Second, the County cited 360-1.8(b) and 360-1.11(a). The former provision, entitled SEQR Review, states the environmental review procedures provided in ECL Article 8 and Part 617 apply to Part 360 permit applications. The latter provision authorizes the Department to condition the Part 360 permit in a manner not explicitly required by Part 360 to mitigate impacts to the maximum extent practicable.

Finally, the County pointed to other DEC permit hearings where the Commissioner considered environmental impacts in the permitting process, regardless of whether issues had been considered in the SEQR process. [See St. Lawrence Solid Waste Disposal Authority, DEC No. 60-87-0889 (December 28, 1989); Development Authority of the North Country, DEC No. 6-2252-0007 (July 24, 1990); and Development Authority of the North Country, DEC No. 6-2252-0007 (March 13, 1990 - ALJ's Report).]

RULING: The Town was correct when it stated that a coordinated review is not required. A lead agency may coordinate the environmental review of an unlisted action, or each involved agency may determine the environmental significance of the Project independently [617.6(d)].

The Town, as lead agency, did conduct a coordinated environmental review of the Project, and the County fully participated in the coordinated review process. By letter dated February 14, 1991, the Town declared itself the SEQR lead agency for the Applicant's proposal, identified the Project as an Unlisted Action, and recommended a coordinated review with all involved agencies. The County did not challenge the Town's decision to be lead agency, and provided the Town with a zoning review dated March 12, 1991. In a letter dated March 15, 1991, the Town issued a negative declaration. Subsequently, in memoranda dated March 21, 1991 and June 27, 1991, the Monroe County Department of Planning acknowledged the SEQR process was complete and issued its approval for the Project. The County's assertion that the Town did not conduct a coordinated environmental review of the Project is, therefore, incorrect.

The County waived its right to assert certain SEQR related issues in this proceeding. The County's zoning review dated March 12, 1991 provided comments to the Town during the SEQR process about the 100 year floodplain, freshwater wetlands, storm water runoff, and construction and demolition material on the Avion Drive site. During the SEQR process, the County did not comment about the size of the Facility, traffic, and noise. When the Town issued the negative declaration, the SEQR process ended. Consequently, the County cannot raise issues about the size of the Facility, traffic, and noise now.

The County cannot rely on 360-1.8(b) and 360-1.11(a) to revisit the Project's SEQR determination in this proceeding. Section 360-1.8(b) does not require the Department to undertake a de novo SEQR review when the Department evaluates the Project pursuant to Part 360. The Town's negative declaration is binding on all involved agencies including the County and the Department. The County's involvement in this hearing, therefore, can only be limited to the Part 360 permit.

The County's reliance on St. Lawrence and Development Authority of the North Country (DANC) is misplaced. In St. Lawrence and DANC, the lead agencies issued positive declarations and required environmental impact statements. To complete the SEQR process after the lead agency issues the Final Environmental Impact Statement (FEIS), all involved agencies are required to make independent findings [617.9]. In St. Lawrence and DANC, the hearing process provided an opportunity to develop a factual record on which to base the Department's independent findings. In this instance, however, the Town completed the SEQR process when it issued the negative declaration. The involved agencies are bound to this determination and are not required to make independent findings. Consequently, the only remaining aspects of the Project that can be examined in this proceeding is whether the Project meets the permit issuance criteria pursuant to Part 360.

Monroe County Solid Waste Management Plan and the Monroe County Solid Waste Reuse and Recycling Law and Regulations

The County and the EMC asserted 360-1.9(e)(4)(ii) requires the Project to comply with the Monroe County Solid Waste Management Plan (MCSWMP), and argued the Applicant's failure to comply with the MCSWMP requires permit denial. The basis for the County's and the EMC's assertion that the Project is inconsistent with the MCSWMP is the Facility would establish new, unneeded transfer capacity in the County. The MCSWMP states "it is not necessary to establish new transfer capacity" (MCSWMP, Section 6.2.4.2, page 6-14.).

The County and the EMC also asserted the Department's approval of the Project would encourage violations of the Monroe County Solid Waste Reuse and Recycling Law and Regulations (MCSWRRLR) because the Facility would accept mixed loads of solid waste and recyclable materials. According to the County, the Project would prevent the County from meeting the recycling goals developed in the MCSWMP, and threaten the economic viability of the County's integrated solid waste management facilities.

The Applicant argued the Project is consistent with the objectives of the State's solid waste management hierarchy policy (ECL 27-0106) and the MCSWMP. The Applicant asserted the County's interests in the Project are economic because the County objects to loosing recycling revenues to the Applicant.

The Staff asserted 360-1.9(e)(4)(ii) does not require the Applicant to comply with the MCSWMP.

RULING: Although the County does not object to the Applicant's recycling operations which account for about 10% of the Project, the County does object to the transfer portion of the Project which is about 90% of the Applicant's business. Unlike the recycling operations, the County stated it did not consider the Applicant's transfer operations when the County developed the MCSWMP because the existing Scottsville Road facility never had an operating permit. Since the Applicant is operating an unpermitted facility on Scottsville Road and does not have a permit for the proposed Facility on Avion Drive, the County concluded the Project is a new transfer station.

The County's assertion that the Project would establish new transfer capacity is without merit. The County did not adequately explain why the Applicant's existing recycling operations were considered in developing the MCSWMP and not the Applicant's existing transfer operations. The Department Staff confirmed that many recycling operations, including this one, include some transfer processes. Setting aside whether the Applicant's operations have been legal, there is no dispute that the Applicant has operated a recycling/transfer facility on Scottsville Road for at least 35 years. Therefore, I conclude the Applicant's proposal would not establish what the County characterizes as new transfer capacity.

Furthermore, I accept the Department Staff's position that 360-1.9(e)(4)(ii) does not require the Applicant to comply with the MCSWMP. First, the MCSWMP is a policy document lacking the force of law. Therefore, the Department cannot require the Applicant to comply strictly with the MCSWMP.

Second, based on how 360-1.9(e)(4)(ii) is construed, the Applicant's compliance with the MCSWMP is not required. Pursuant to 360-1.9(e)(4)(ii), the engineering report submitted with an application to construct a solid waste management facility must:

identify the facility's proposed service area; (for applications submitted before April 1, 1989) using a detailed checklist or other suitable format, demonstrate that the project is consistent with the applicable goals and objectives of solid waste management plans in the proposed service area of the facility and of the New York State Solid Waste Management Plan in effect at the time of permit application; describe how the proposed facility is consistent with the state solid waste management policy identified in section 27-0106 of the ECL; and (for applications for permits to construct submitted after January 1, 1990, by or on behalf of a municipality in a planning unit) a copy of the local solid waste management plan in effect for the municipality pursuant to section 27-0107 of the ECL.

In its Engineering Report dated February 28, 1992, the Applicant identified the proposed service area and described how the proposed facility complies with ECL 27-0106 (State Solid Waste Management Policy). The County and the EMC raise no issue about these two requirements of 360-1.9(e)(4)(ii).

Based on how this regulatory provision is written, only applications submitted before April 1, 1989 must be consistent with local solid waste management plans. Since the subject permit application was filed with the Department in August 1991, this part of the provision does not apply to the Applicant. The final phrase of this regulatory provision also does not apply to the subject permit application because the Applicant is not a municipality or filing for a municipality. The interpretation of this regulatory provision is consistent with ECL 27-0707 which is the statutory basis for 360-1.9(e)(4)(ii).

The County is concerned about the effect the Project would have on the County's recycling goals. However, the Commissioner has ruled (See St. Lawrence, supra), that the Applicant's recycling efforts, as well as the recycling efforts done by other private facilities, will be counted toward the County's recycling goals. The focus is not on who operates the recycling facilities, but on whether the recycling goals are met.

The Department's approval of the Facility does not relieve the Applicant of its obligation to comply with the Monroe County Solid Waste Reuse and Recycling Law and Regulations (MCSWRRLR). The County enacted the MCSWRRLR as required by General Municipal Law 120-aa. Having the MCSWRRLR in place will require the Applicant to recycle, and thereby help the County meet the recycling goals set in the MCSWMP. For the reasons stated above, whether the Project would comply with the Monroe County Solid Waste Management Plan is not a substantive and significant issue for adjudication.

Public Safety

Relying on the authority provided in 360-1.11(a), the Greater Rochester International Airport (GRIA) asserted the Project would threaten public safety by attracting birds around the GRIA thereby increasing the possibility of bird strikes with aircraft at the airport. The Facility would be 2500 feet from the approach of Runway 4 which is the principal runway at the GRIA.

As a sub-issue, the County asserted the need for a noise impact study. The County stated aircraft may have to use the alternative runway if there is a high potential for birds strikes over Runway 4. According to the County, however, the approach to the alternative runway is located over a noise sensitive population.

The EMC argued the Project should comply with FAA Order 5200-5A, and the Applicant should develop a plan to control wildlife hazards. The EMC also contended the Applicant should investigate noise impacts that may result from using the alternative runway.

The Department Staff asserted there is no issue for adjudication about public safety. According to the Staff, the draft permit conditions address the County's, the GRIA's and the EMC's concerns.

The Applicant argued it has reasonably addressed the issue of public safety. According to the Applicant, only covered vehicles would deliver materials to the Facility, and all processing activities would be done inside the Facility. The Applicant contended the new Facility would eliminate the housekeeping problems associated with the current facility. In addressing the applicability of FAA Order 5200-5A to the Project, the Applicant explained the Project is different from a landfill, and noted the Department's regulations make this distinction.

RULING: The County and the GRIA claim the draft permit conditions do not adequately preserve public safety. In comments dated November 24, 1992, January 25, 1993 and February 8, 1993 about the Department's draft permit conditions, the County and the GRIA proposed additional conditions to mitigate potential public safety impacts.

Some permit conditions proposed by the County and the GRIA have already been incorporated into the draft permits. Conditions Nos. 5 and 7 of the Department's revised draft permit to operate (Exhibit 3A for identification) address the concern about storing trucks outside the facility. Condition No. 14 of the revised draft permit to operate prohibits the Applicant from allowing open water to accumulate on the Avion Drive site.

Relying on the legal authority provided by 360-1.11(a), the County and the GRIA proposed permit conditions that relate to permit enforcement. However, I find 360-1.11(a) does not enable the Department to delegate inspection rights or enforcement authority to the Monroe County Director of Aviation, a bird control advisory group, or the County. In this instance, only the Department has the authority to enforce the ECL and the permits conditions issued pursuant to it. There is no legal authority to incorporate the proposed inspection and enforcement conditions into the Department's draft permit.

The proposal made by the GRIA requiring the Applicant to prepare a bird control plan for the Facility raises a substantive and significant issue for adjudication. I find the Department's draft permit Conditions Nos. 13 and 19 inadequately protect public safety because the reaction time from when a bird hazard condition is identified at the Facility to when the Department determines how the Applicant should respond to the bird hazard could be prolonged.

The bird hazard issue could be resolved without adjudication, however, if the draft permit conditions were modified and required the Applicant to prepare an approvable bird control plan before the Facility begins operating. Having an approved bird control plan in place before the Facility begins operating would shorten reaction times to potential bird hazard conditions, and thereby adequately maintain public safety.

To avoid adjudicating the bird hazard issue, the Applicant should prepare an approvable bird control plan with the GRIA and the Department Staff using the Recommendation to Alleviate Bird Hazards at the Monroe County International Airport dated July 1980 as a guide, and any other relevant materials. The bird control plan should specifically define what would constitute a bird hazard, and describe in order of priority what steps should be taken, and by whom, to eliminate a bird hazard condition from the Facility. The bird control plan should identify the necessary permits and approvals the Applicant would need to implement all steps in the plan.

If the Applicant objects, a hearing will be held to give the Applicant an opportunity to explain why a bird control plan is not needed before the Facility begins operating. In other words, the Applicant would present evidence about how long the reaction time from when a bird hazard condition is identified at the Facility to when the Department determines how the Applicant should respond to the bird hazard condition could be without affecting public safety.

The sub-issue asserted by the County and the EMC about potential noise impacts associated with using the alternative runway is not an issue for adjudication. The arguments presented by the County and the EMC are conclusive, and therefore do not raise a substantive and significant issue for adjudication.

The Applicant's Compliance History

The County and the EMC asserted the Applicant's compliance history should be an issue for adjudication. The County argued the Applicant's lack of compliance with the ECL about obtaining a permit for the existing Scottsville Road facility demonstrates the Applicant would not comply with the proposed draft permit conditions thereby jeopardizing public safety at the GRIA. At the Issues Conference, the County offered a list of complaints about the Scottsville Road facility filed with the Town of Chili. The County asserted the Applicant violated the terms of the June 1990 consent order. To further support its position, the County cited American Transfer Company (Commissioner's Interim Decision dated February 4, 1991).

The EMC contended there is no indication that the Applicant would operate the Facility in a clean environmentally sound manner based on the Applicant's current practices at the Scottsville Road facility.

The Department Staff contended the Applicant's compliance history is not an issue for adjudication. The Staff stated the Applicant signed a consent order in June 1990 requiring the Applicant to file permit applications for the Scottsville Road facility. According to the Department, the consent order resolved past violations and gave the Applicant temporary authority to operate the Scottsville Road facility pending the review of the permit application. The Department Staff stated the Scottsville Road facility and the Project are not contingent upon each other. They are separate facilities and separate permit applications. The Staff explained the Department will issue permits for either facility only if the Applicant meets the permit issuance criteria.

The Applicant asserted its compliance history is not an issue for adjudication. According to the Applicant, when it became aware of the need for permits from the Department, it applied for them. The Applicant admitted that having the Department bring an enforcement action against the Applicant was not the best way to learn about the need for permits.

RULING: To adjudicate the Applicant's compliance history, a reasonable doubt must exist that demands further inquiry into whether the Applicant would comply with the draft permit conditions. For the following reasons, I find there is no need for further inquiry. The Applicant's compliance history, therefore, is not an issue for adjudication.

The assertions by the County and the EMC about odor and debris at the Scottsville Road facility identify a problem about the size of the existing facility. Without any regulatory control, the Applicant's business outgrew the existing site. However, the discipline imposed by the draft permit for the Project provides the appropriate regulatory context and addresses the problems associated with the size of the existing facility. For example, the draft permit prescribes how the Applicant would receive solid wastes at the Facility, process the solid waste and remove the processed wastes and recyclable materials from the Facility. The draft permit also sets a daily limit on the amount of solid waste the Applicant could process at the Facility.

There is nothing in the record to suggest the Applicant is a chronic violator of local laws or the ECL. The County offered a list of complaints filed with the Town about odor and debris at the Scottsville Road facility. Neither the County nor the EMC asserted the Applicant violated any local laws, ordinances or regulations. In the 35 year history of the Applicant's business, the Issues Conference Participants identified only one consent order for the record. Although the County asserted the Applicant violated the terms of this consent order, the County did not explain the alleged violation or identify the proof that would establish its assertion.

I also note the Town of Chili and the Monroe County Department of Planning have sufficient confidence in the Applicant to approve the Project. These two local agencies have been in a position to observe the Applicant's business. The approval of the Project by other agencies provides additional assurances that the Applicant will comply with the proposed permit conditions.

Other Issues

The County and the EMC contended there were issues related to freshwater wetlands on the Avion Drive site and whether the Avion Drive site is an inactive solid waste site.

At the Issues Conference, I ruled that freshwater wetlands under the jurisdiction of the U.S. Army Corps of Engineers are outside the Department's jurisdiction, and therefore not the subject of adjudication in this proceeding. With respect to ECL Article 24, the Department Staff stated the Project is greater than 100 feet from any state regulated freshwater wetlands. Neither the County nor the EMC made an offer of proof to refute the Department Staff's statement. Accordingly, I ruled there was no adjudicable issue about state regulated freshwater wetlands on the Avion Drive site.

Whether the proposed site is an inactive solid waste site is not a substantive and significant issue for adjudication in this proceeding. If solid waste is on the proposed Avion Drive site, the Applicant must dispose of it in a manner that complies with all applicable statutes and regulations.

Any other concerns raised by the Petitioners for party status in their oral and written arguments that were not discussed specifically above are not substantive and significant issues for adjudication.

Party Status

Pursuant to 624.4(b)(2), persons requesting Party Status must raise a substantive and significant issue or be prepared to materially contribute to such an issue. Since there is a substantive and significant issue for adjudication about whether the Applicant should prepare a bird control plan before operating the Facility, the Greater Rochester International Airport's request for party status is granted.

If the Applicant prepares a bird control plan before operating the Facility as outlined above, there would be no issues for adjudication. In which case, the Greater Rochester International Airport's request for party status would be denied.

I find the Monroe County Division of Solid Waste and the Environmental Management Council neither raised substantive and significant issues for adjudication, nor would materially contribute to the bird control plan issue. Therefore, the County's Division of Solid Waste and the EMC's requests for Party Status are denied.

Appeals

As provided by 6 NYCRR 624.6(d) and 624.4(f), Issues Conference Participants may appeal the rulings of the Administrative Law Judge on issues for adjudication and party status in writing to the Commissioner. The Issues Conference Participants must postmark their appeals by March 11, 1993, and send them to the Office of the Commissioner, New York State Department of Environmental Conservation, 50 Wolf Road, Albany, New York 12233-1010. One copy must be sent to the Administrative Law Judge and to each person listed on the attached Service List. Telefaxed copies of appeals will not be accepted. Replies to appeals are authorized, and must be postmarked by March 17, 1993. Telefaxed copies of replies to appeals will not be accepted. No modifications of the schedule for appeals will be considered.

___________________________
Daniel P. O'Connell
Administrative Law Judge

Dated: Albany, New York
February 26, 1993

To: Attached Service List

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