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Hyland Facility Associates - Commissioner Ruling, February 26, 1998

Commissioner Ruling, February 26, 1998

50 Wolf Road
Albany, New York 12233-1010

In the Matter

- of the -

Application of HYLAND FACILITY ASSOCIATES for modification of
its Solid Waste Management Facilities Permit pursuant to Environmental Conservation Law (ECL)
Article 27, Title 7, and Title 6 of the Official Compilation of
Codes, Rules and Regulations of the State of New York (6 NYCRR) Part 360

DEC File No. 9-0232-00003/00002


February 26, 1998

Ruling on Motion for Recusal

The February 19th Motion on behalf of Concerned Citizens of Allegany County for recusal of Commissioner Cahill and Assistant Commissioner Bergen is denied.

Hyland Facility Associates' application to modify its permit to allow receipt of municipal solid waste was filed in June 1997 and sent to the Office of Hearings and Mediation Services in September 1997. The initial permit was issued in May 1995, based on Commissioner Zagata's April 13, 1995 decision. Neither Mr. Cahill nor Mr. Bergen were employed by the Department at that time, and neither of them had any involvement in that decision.

Mr. Cahill's tenure as General Counsel of the Department was between December 4, 1995 and January 1, 1997. There were no administrative proceedings in the Department involving Hyland in that period. The April 1995 administrative decision was on appeal following permit issuance until the Appellate Division affirmed the Department's decision in September 1996. While Mr. Cahill was General Counsel between December 1995 and September 1996, he had no role with respect to Hyland other than as client of the Attorney General's Office which successfully defended Commissioner Zagata's April 1995 decision. Accordingly, there is no basis for recusal of Commissioner Cahill with respect to Hyland Facility Associates' current application for a permit modification. The Commissioner is responsible for making final decisions of the Department, absent a conflict of interest or a rational perception that there may be a conflict. There is no actual conflict. There is no rational basis for the perception of a conflict under the facts of this case.

Contrary to the claim of counsel for Concerned Citizens of Allegany County, Assistant Commissioner Bergen has not been delegated the decision-making authority in Hyland's permit modification request. Contrary to the assertion in the February 23, 1998 letter from Applicant's counsel, the record in this matter did not close on November 10, 1997. A timely decision of the appeal by Hyland Facility Associates will be made by the Commissioner in due course. The motion for recusal is denied.

Commissioner Cahill has delegated the authority to make the decision on this motion for recusal to Deputy Commissioner Carl Johnson because of movant's claims of conflict on the part of the Commissioner.

Carl Johnson, Deputy Commissioner

Dated: Albany, New York
February 26, 1998

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