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Eastman Kodak Company - Hearing Report, June 7, 1994

Hearing Report, June 7, 1994


In the Matter of

Application for State Pollutant Discharge Elimination System Permit and
Radiation Control Permit pursuant to Environmental Conservation Law Article 17 and Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York,
Part 380 (Prevention and Control of Environmental Pollution by Radioactive Materials) and
Chapter X, Article 3 (State Pollutant Discharge Elimination System),

- by -



DEC Project No.



Eastman Kodak Company (Kodak) applied for renewal and modification of its State Pollutant Discharge Elimination System (SPDES) permit and a new Radiation Control permit (which would address matters previously regulated by Kodak's existing SPDES permit. Staff had no opposition to granting the permits, and had prepared draft permits and a draft Consent Order (collectively, the "permits") which incorporated many, but not all, public comments received in response to its two earlier notices of complete application. However, Atlantic States Legal Foundation, Inc. (ASLF), one group commenting on the complete application, requested a hearing in the event all its comments were not incorporated into the draft permits. Therefore Staff referred the permit action to this Office for scheduling of a hearing. The request for permit hearing in this matter was received by the Office of Hearings on March 17, 1994. On April 20, 1994, a combined public hearing notice appeared in the Rochester Democrat and Chronicle newspaper and the Department's Environmental Notice Bulletin advertising a legislative hearing session on May 24, 1994 and an issues conference on May 25, 1994. Those hearings occurred as scheduled, at the Cornell Cooperative Extension building in Rochester, New York.

In response to the hearing notice, only ASLF filed a petition for party status.

The Legislative Hearing

Staff was represented at the legislative hearing by Regional Attorney Paul D'Amato. He was accompanied by technical staff including Regional Permit Administrator Peter Lent. Kodak was represented by in-house counsel, Elliott Stern, who was accompanied by other Kodak employees including William Chandler, Director of Site Services Management and Chris Rau, Senior Environmental Engineer. ASLF appeared by Allen, Lippes & Shonn, Attorneys at Law, Charles Tebbutt, Esq. of counsel.

Kodak provided a brief description of the project and stated that it accepted the terms and conditions of the draft permits. Staff then summarized its position on the project and described the draft permits. The hearing was attended by approximately 20 members of the public. Nine members of the public, including Mr. Tebbutt on behalf of ASLF, provided oral comments on the project, three in support and six in opposition. Substantive comments raised in opposition to issuance of the draft permits were largely a reiteration of issues proposed by the ASLF petition.

Four written comments were submitted earlier, by county government, industry and trade groups in support of issuance of the draft permits. The three persons at the legislative hearing who provided statements in support of the project were representatives of entities that had previously submitted written comments.

The Issues Conference

Staff was represented at the issues conference by Regional Attorney Paul D'Amato and technical staff, including Angus Eaton of the Department's Division of Water. Kodak was represented by the law firm of Whiteman, Osterman & Hanna, Albany, New York, Philip Gitlen, Esq., of counsel. Also present were Kodak's in-house counsel, Elliott Stern, and Senior Environmental Engineer Chris Rau. ASLF appeared by the law firm of Allen, Lippes & Shonn, Buffalo, New York, Charles Tebbutt, Esq. of counsel. Mr. Tebbutt was not accompanied by any ASLF Staff, nor by ASLF's proposed expert witness.

ASLF's three-page petition sought full party status and proposed seven issues for adjudication:

(a) Effluent limitations in the Draft Permit fail to incorporate Best Available Technology Economically Achievable and Best Conventional Technology Economically Achievable as required by Clean Water Act ("CWA") 1311 and 1314; ECL 17-0101 & 17-0809; and 6 NYCRR 754.1(a). Effluent limitations do not represent proper exercise of best professional judgment to control the discharge of all pollutants;

(b) Effluent limitations in the Draft Permit would allow various pollutants to be discharged in amounts greater than allowed under the previous permit, in violation of ECL 17-0809 & 17-0103 and CWA 1342(o);

(c) General condition (c) is invalid as a matter of law because it is contrary to ECL 17-0815(3); the Draft Permit would allow the discharge of pollutants in violation of ECL 17-0815(3), General Condition 1(c) of the Draft Permit, and CWA 1251(a), 1311(a), 1314 and 1342;

(d) The Draft Permit would allow the excessive discharge of persistent toxic chemicals and other toxic pollutants, in violation of the Great Lakes Water Quality Agreement, as amended, the Lake Ontario Toxics Management Plan, the Rochester Embayment Remedial Action Plan, and CWA 1268 and 1251(a)(3);

(e) The Consent Order (Case No. R8-0979-93-02) is not contained in the Draft Permit, in violation of ECL 17-0813 and 6 NYCRR 754.3. The Consent Order (Case No. R8-0979-93-02) was not available for adequate public comment pursuant to ECL 17-0805;

(f) Provisions in the Draft Permit for toxicity testing, and the use of Ultimate Oxygen Demand as an indicator for a variety of toxic and other pollutants, violate regulations promulgated under CWA 1314(i)(A);

(g) Department Staff failed to adequately address the comments provided by ASLF to Staff in September 1992 and December 1993.

On May 25, 1994 Kodak filed a memorandum of law in opposition to the petition, which was treated as a motion to deny the petition as defective. At the May 25, 1994 issues conference, ruling was reserved on Kodak's motion to deny ASLF's petition, to allow ASLF to respond in writing. During the issues conference, ASLF was permitted to further explain its proposed issues for adjudication. The proposed issues were discussed at length.

At the close of the issues conference, a schedule was set requiring briefing of two legal issues and additional filings by ASLF in support of its petition, including a reply to the Kodak motion. The first issue identified for briefing by the parties and party applicant (hereinafter, "the parties") was the broad issue of whether ASLF must propose issues based upon New York law, or whether a colorable issue may be based solely upon authority of the CWA, as ASLF proposed in a number of its proposed issues. The second issue identified for briefing, which ASLF presented as related issues, were its proposed issues (b) and (c).

Other proposed issues did not require briefing. Proposed issues (a), (d) and (f) were to be ruled upon on the basis of the issues conference record. Proposed issue (e) was resolved at the issues conference by the parties' agreement that the SPDES permit and Consent Order would cross-reference each other, thereby clarifying that the compliance schedule contained in the Consent Order is part of the SPDES permit. This is a ministerial modification of the permit and does not require further public notice or review. ASLF limited issue (g) to its prior comments on the permit application which it cited in support of proposed issues (a) through (f). This amounted to ASLF's withdrawal of proposed issue (g). These matters required no further briefing.

The briefing schedule required initial briefs to be filed by June 8, 1994 and reply briefs to be filed by June 13, 1994. However, by a single page letter dated June 3, 1994 ASLF withdrew its petition for party status, citing "resource constraints" without further elaboration.

Order of Disposition

Since ASLF was the sole person seeking party status in this proceeding and has withdrawn its petition for party status, no intervenors remain and no proposed issues for adjudication exist.

Staff is directed to modify the SPDES permit and Consent Order to clarify that the Consent Order is incorporated into the SPDES permit. This is a ministerial modification of the permit and does not require further public notice or review.

This matter is remanded to Staff for further processing and issuance of permits consistent with this Order.

Kevin J. Casutto
Administrative Law Judge

Dated: Albany, New York
June 7, 1994

TO: Attached Service List


DEC Project No. 8-2614-00205/00137-0

SPDES and Radiation Control Permits

Philip H. Gitlen, Esq.
Whiteman, Osterman & Hanna
One Commerce Plaza
Albany, New York 12260
Tel: (518) 487-7607
Fax: (518) 487-7777

Robert Shavelson
Executive Director
Atlantic States Legal Foundation
658 West Onondaga Street
Syracuse, New York 13204
Tel: (315) 475-1170
Fax: (315) 475-6719

Paul D'Amato
Regional Attorney
NYSDEC Region 8
6274 E. Avon-Lima Road
Avon, New York 14414
Tel: (716) 226-2466
Fax: (716) 226-9485

Kevin J. Casutto
Administrative Law Judge
NYSDEC Office of Hearings
50 Wolf Road
Albany, New York 12233-1550
Tel: (518) 457-3468
Fax: (518) 485-7714

[May 27, 1994]

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