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Declaratory Ruling 27-34: Embassy Industries, Inc., B.H. Aircraft Company Inc., Appleton Papers Inc., Windowrama, Inc.

State of New York
Department of Environmental Conservation

In the Matter of the Petition of
a Declaratory Ruling pursuant
to the State Administrative
Procedure Act Section 204
and Title 6 of the New York Code
Rules and Regulations Part 619:

Embassy Industries, Inc.,
B.H. Aircraft Company Inc.,
Appleton Papers Inc.,
Windowrama, Inc.;

Petitioners.

Introduction

Petitioners, by their attorney, pursuant to the State Administrative Procedure Act Section 204 and Title 6 of New York Codes Rules and Regulations Section 619, seek a declaratory ruling to determine whether requests for information made by the New York State Attorney General's Office on behalf of the New York State Department of Environmental Conservation ("Department") relating to Petitioners' waste disposal practices were authorized by the Department. Petitioners further question whether statutory or regulatory justification existed at the time the requests for information were issued to the Petitioners.

Statement of Facts

The facts alleged in the Petition shall be assumed to be true. The Department shall not engage in any fact finding for the purposes of this declaratory ruling. (6 NYCRR §619.2(b)). The Department may take notice of a fact not subject to reasonable dispute, if it is either generally known or can be accurately and readily verified. Id.

The binding effect of this ruling is limited by the assumed facts on which it is predicated. (See Power Authority of the State of New York v. New York State Department of Environmental Conservation, 58 NY2d 427, 434; 461 NYS2d 769, 772 (1983)).

Petitioners are Embassy Industries Inc., B.H. Aircraft Company Inc., Appleton Papers Inc., and Windowrama Inc. Each Petitioner received Requests for Information ("Requests") on behalf of the Department from the Office of the New York State Attorney General. The Requests related to each Petitioner's use of the Babylon Landfill between the years of 1946 and 1992. Each Petitioner was advised that compliance with the Requests was mandatory and failure to comply might result in violations and penalties.

The Babylon landfill is located on Gleam Street, in the Town of Babylon, and is listed as a Class 2 Site in the New York State Registry of Inactive Hazardous Waste Disposal Sites ("Registry"). The most recent version of the Registry indicates that the remedial action for the Babylon landfill is complete.

Petitioner's Questions

  1. A determination whether the Department, acting pursuant to Articles 3, 17, 19, 37, and 40, authorized the Attorney General to demand that petitioners respond to the Babylon Landfill Requests.
  2. Assuming, arguendo, that the Department did authorize the Attorney General to send the Requests, a determination whether there was any statutory or regulatory justification for the Requests.

Discussion

As to the Petitioners' first question, declaratory rulings may only be issued by the Department with respect to either (1) the applicability to any person, property, or state of facts of any rule or statute enforceable by it, or (2) whether any action by the Department should be taken pursuant to a rule. (SAPA §204)(1)(i)(ii)). Petitioners' inquiry, whether the Department "authorized" the Attorney General to issue Requests to the Petitioners on its behalf, does not raise a question of the applicability of any regulation or statute enforceable by the Department. (6 NYCRR §619.1(a)(1), SAPA §204)(1)(i)(ii)). Therefore, Petitioners' request for a declaratory ruling with regard to the first question is deemed improper and is denied.

Petitioners' second question asks if there is any statutory or regulatory justification at the time the Attorney General's Office, on behalf of the Department, issued Requests to Petitioners. The authority for the Department to issue Requests is derived from Environmental Conservation Law (ECL) §27-1307(1) which provides, in pertinent part, that: "[i]n order to facilitate the department's efforts to secure information about inactive hazardous waste disposal sites in the state, any person shall, upon the request of the department, furnish to the department, in a form and manner prescribed by the department, the following information: ... ." The statute does not impose any time limitations for making such requests for information of the Petitioners.

Furthermore, the ECL requires the Department to:

maintain and make available for public inspection, either at each of its regional offices and regional sub-offices, at the office of the county clerk or register for each county and at the office of the town clerk for each town in Suffolk and Nassau counties, or on its homepage on the internet, a registry of inactive hazardous waste disposal sites in such region or, with respect to the office of the county clerk or register, in such county. *** The department shall take all necessary action to ensure that the registry provides a complete and up-to-date listing of all such sites within the region. *** Such registry shall include but need not be limited to those items among the following which the commissioner determines to be necessary: *** (e) [n]ames of persons responsible for the generation and transportation of hazardous waste disposed of; (f) [t]ype and quantity of hazardous waste disposed of; (g) [m]anner of disposal of hazardous waste ... . (ECL §27-1305(1), ECL §27-1305(1)(e),(f),(g)).

As the Babylon Landfill is an inactive hazardous waste disposal site, the Department is required to maintain a listing in the Registry for the Babylon Landfill, and in so doing, must take all necessary action to ensure the information contained in the Registry is complete and up to date.

Conclusion

Petitioners' first question, whether the Department authorized the Attorney General to issue Requests on behalf of the Department, does not raise a question for which a declaratory ruling may be issued by an agency, and therefore I decline to address that question. (SAPA 204(1); 6 NYCRR §619.3(a)).

With respect to Petitioners' second question, inasmuch as the Department is required by statute to maintain a complete and up-to-date Registry, which necessarily includes among other things, the names of persons responsible for the generation and transportation of hazardous waste disposed of at a site, as well as the type, quantity, and manner of hazardous waste disposed of, the Department's request of such information from Petitioners is necessary and in furtherance of the Department's statutory obligations. The legislature has given clear authority to the Department, without limitations on time, to secure needed information. Therefore, the Department may properly require Petitioners to furnish the information requested at any time in order to ensure that the information contained in the Registry is complete and current.

Dated: Albany, New York
November 28, 2005

James H. Ferreira
Deputy Commissioner and General Counsel

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