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Universal Waste, Inc. - Ruling, November 3, 2003

Ruling, November 3, 2003

STATE OF NEW YORK: DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Delisting Petition for the

UNIVERSAL WASTE
INACTIVE HAZARDOUS
WASTE DISPOSAL SITE
(Site ID No. 0633009)

RULING

PROCEEDINGS

By letter dated July 17, 2003, Universal Waste Inc. and Clearview Acres Ltd., Inc. (collectively referred to herein as "Petitioners") requested that the Office of Hearings and Mediation Services of the New York State Department of Environmental Conservation (the "Department") "reconvene the adjudicatory hearing" concerning the status of the Universal Waste inactive hazardous waste disposal site in Utica, New York. Petitioners' request for an adjudicatory hearing arose out of Department Staff's summary denial of Petitioners' June 23, 2003 petition to delist or reclassify the site on the New York State Registry of Inactive Hazardous Waste Sites (the "Registry").

Petitioners sought deletion of the site from the Registry, or reclassification as a Class 3 site, pursuant to Section 375-1.9 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"). Petitioners asserted that Department Staff made no showing that polychlorinated biphenyls ("PCBs") had migrated from the site to a sewer outfall channel, or that the PCBs in the channel are causing or materially contributing to a significant environmental effect or that it was reasonably foreseeable that those contaminants would do so. As a result, Petitioners argued that the Department could not conclude that the site constitutes a significant environmental threat, warranting the site's listing as Class 2 on the Registry.

Department Staff denied the petition by letter dated July 8, 2003, and, as set forth above, Petitioners now request that an adjudicatory hearing be held, pursuant to Part 624 of 6 NYCRR ("Permit Hearing Procedures"). For the reasons set forth below, the request is denied.

DISCUSSION

Department Staff contends that the Department summarily denied the petition pursuant to Section 375-1.9, and that a Part 624 hearing is not authorized. According to Department Staff, the property in question was listed in the Registry as a Class 2 site until approximately 1999, when the property was subdivided, at Petitioners' request, into the Utica Alloys and Universal Waste sites. The Utica Alloys parcel remained as a Class 2 site, and the Universal Waste property was reclassified 2a, until Petitioners undertook a Preliminary Site Assessment ("PSA") pursuant to a May 2000 Order on Consent. Following the submission of the PSA, Department Staff determined that reclassification of the Universal Waste parcel as a Class 2 site was appropriate.

Department Staff asserts that the Commissioner delegated her authority to the Director of the Division of Environmental Remediation to make a determination on the petition, citing to the Department's September 12, 1995 Organization and Delegation Memorandum No. 95-24, at Paragraph 2.2. As a result, Department Staff argues that its summary denial of the petition is a final agency action, and therefore, the proper vehicle for challenging that denial is not an adjudicatory hearing, but rather a proceeding under CPLR Article 78.

Petitioners do not dispute Department Staff's account of the history of the site, but disagree with Department Staff's conclusion that off-site contamination attributable to Universal Waste poses a significant threat, and contend that data in the PSA is subject to different interpretations. Petitioners maintain that the Class 2 listing is not supported by the results of the PSA. According to Petitioners, the issue to be adjudicated is whether the site poses a significant threat to the environment such that the listing is appropriate. Petitioners assert that the explanation provided in Department Staff's letter of July 8, 2003 summarily denying the petition was cursory, and failed to provide the level of detail called for under the regulations.

In addition, Petitioners point out that the Commissioner's Order in Utica Alloys, Inc., Decision and Order, 1987 WL 55369 (Jan. 16, 1987), at paragraph 4, adopts Administrative Law Judge ("ALJ") Robert O'Connor's findings and conclusions. ALJ O'Connor's report, in a motion for summary order, stated that the issue whether the site poses a significant threat to the environment should be adjudicated. According to Petitioners, a hearing is required in light of this determination.

During a conference call on August 14, 2003, Department Staff acknowledged that the July 8, 2003 letter sent to Petitioners was not sufficiently detailed, and stated that Department Staff would provide further elaboration in writing. By letter dated September 5, 2003, Department Staff reiterated its summary denial, stating that "[t]he Department has determined that the factual allegations made within the delisting petition, even if accepted as true by the Department, are insufficient to support the Department's either deleting the site from the Registry of Inactive Hazardous Waste Disposal Sites or reclassifying the site as a 'Class 3' site." The letter went on to state that even if the site did not pose a significant threat based upon the criteria in Section 375-1.4(a)(1), "the provisions of Section 37-1.4(a)(2) require the Department to find that the contamination of soils, sediments and groundwaters by PCBs related to the site, when evaluated in accordance with the factors set forth in Section 375-1.4(b), presents a significant threat to the environment."

On that same day, Department Staff, pursuant to the ALJ's direction, provided a letter discussing the appropriate procedure for a hearing, in the event that a hearing was deemed necessary. By correspondence dated September 16, 2003, Petitioners responded to both letters, arguing that Department Staff's letter again failed to provide a substantive explanation for its summary denial, and renewing their request for a hearing. Petitioners also took issue with Department Staff's interpretation of the regulations with respect to the procedural posture of this matter.

RULING

Sections 375-1.9(a) and (b) of 6 NYCRR provide that a responsible party at a site may petition for the site's deletion from the Registry. Within 45 days of receipt of a complete petition, the Department must either summarily grant or deny the petition, and provide "a statement of reasons therefor" or convene an adjudicatory hearing if the petition cannot be summarily determined. Section 375-1.9(d)(1) and (2). Section 375-1.9(d)(1)(i) provides that "a petition will be summarily denied if the factual allegations made therein, even if accepted as true by the department, would be insufficient to support the grant of the relief sought or any other proper relief." A petition cannot be summarily determined, and, accordingly, a hearing would be convened, if the factual allegations in the petition, "if accepted as true by the department, would be sufficient to support the grant of the relief sought or any other proper relief, but the department does not accept such allegations as true." Section 375-1.9(d)(2).

Section 624.8(b)(1)(i) provides that an administrative law judge has the power to "rule upon all motions and requests, including those that decide the ultimate merits of the case." The request for a hearing in this case must be denied. The regulation, which provides for a summary grant or denial of a petition, or for a hearing if the petition cannot be summarily determined, does not afford Petitioners a regulatory mechanism to review Department Staff's summary denial. In this case, Department Staff accepted the factual allegations in the petition as true, but concluded that the facts were insufficient to warrant the relief sought. Because Department Staff summarily denied the petition, no hearing is provided for under the regulations. Accordingly, no administrative adjudicatory forum is available to review Petitioners' contentions concerning the insufficiency of Department Staff's "statement of reasons" for the summary denial or the merits of the delisting petition.

In addition, Petitioners' citation to Section 27-1305(4)(c)(1) of the ECL in support of their request is unavailing. The statute states that the Commissioner "may convene an administrative hearing to determine whether a particular site should be deleted from the registry, [or] receive a modified site classification." This provision is consistent with the language of the regulation, which provides for a hearing when the Department determines, in its discretion, that it is not possible to make a summary determination on a petition. That is not the case here. At this stage, administrative relief is not available. Moreover, nothing in Section 624.1(a) states that a Part 624 hearing is available to review a summary denial under Section 375-1.9.

Petitioners' reliance on the decision in Utica Alloys is misplaced. Utica Alloys was decided before the Section 375-1.9 regulations were promulgated. Furthermore, sixteen years have elapsed since the Commissioner's directive in Utica Alloys. During that time, the parties executed an Order on Consent, and undertook further study of conditions at the site. The parties dispute the conclusions to be drawn from that study, but Section 375-1.9 does not provide recourse.

Accordingly, the request for a hearing is denied.

/s/
Maria E. Villa
Administrative Law Judge

November 3, 2003
Albany, New York

TO: Michael B. Gerrard, Esq.
Arnold & Porter
COUNSEL FOR PETITIONERS
399 Park Avenue
New York, New York 10022-4690

Dolores A. Tuohy, Esq.
Associate Attorney
Division of Environmental Enforcement
New York State Department of Environmental
Conservation
625 Broadway
Albany, New York 12233-5500

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