Mohawk Valley Organics, LLC - Order, July 21, 2003

Order, July 21, 2003

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Notice of Intent to Revoke the Solid Waste and State Pollutant Discharge Elimination System (SPDES) Permits of:

MOHAWK VALLEY ORGANICS, LLC.
Permittee

ORDER
Permit No. 4-2730-00033/001

WHEREAS:

1. By letter dated March 5, 2003, Mohawk Valley Organics, LLC. ("MVO" or "Permittee") requested a hearing pursuant to Section 621.14(d) of Title 6 of the New York Code of Rules and Regulations ("6 NYCRR") regarding the February 24, 2003 Notice of Intent to Revoke Permit issued by the Staff of the New York State Department of Environmental Conservation ("DEC Staff"). This hearing was held before ALJ P. Nicholas Garlick on April 14, April 15, April 29, April 30, May 1 and May 2, 2003 at the Department's Region 4 headquarters in Schenectady. Ann Lapinski, Esq., Assistant Regional Attorney, represented DEC Staff. The Permittee was represented by Lawrence Schillinger, Esq. of counsel to the law firm Young, Sommer, Ward, Ritzenberg, Baker & Moore, LLC. The Town of Minden was granted intervenor status for the limited purpose of ensuring that the Town would not incur any liability as a result of the closure of the facility.
2. The Notice of Intent to Revoke, which seeks to revoke MVO's solid waste permit (#4-2730-0003/0001) and State Pollutant Discharge Elimination Systems ("SPDES") permit (#NY-0261262), cites as grounds for revocation that the Permittee failed to comply with terms and conditions of its permit (6 NYCRR 621.14(a)(2)) and that the Permittee did not comply with permit conditions or regulations related to the permitted activity (6 NYCRR 621.14(a)(5)).
3. Specifically, DEC Staff allege four violations: 1) continuing off-site odors in violation of the solid waste permit; 2) MVO's acceptance of quantities of biosolids in excess of limits contained in the solid waste permit; 3) MVO's failure to comply with conditions requiring odor tracking in the solid waste permit; and 4) violations of effluent limits in the SPDES permit.
4. Upon review of the record and the attached Hearing Report, I hereby adopt the ALJ's Findings of Fact and Conclusion. However, my adoption of his Findings of Fact and Conclusion, should not be construed to indicate any approval or endorsement on my part of the ALJ's comments or suggestions set forth on page 23 of the Hearing Report concerning permit modification or other compromise solutions not proposed by the parties.
5. Permittee violated various applicable Departmental regulations as follows:
   1. Permittee caused or allowed emissions of air contaminants to the outdoor atmosphere of such quantity, characteristic or duration which unreasonably interfered with the comfortable enjoyment of life or property in violation of 6 NYCRR 211.2;
   2. Permittee failed to effectively control odors so that they constituted nuisances in violation of 6 NYCRR 360-1.14(m); and
   3. Permittee failed to operate its facility to control odors in violation of 6 NYCRR 360-5.3(h).

   Each violation of these regulations constitutes a separate violation of the terms and conditions of Permittee's solid waste permit.

6. Permittee, on 45 different occasions, violated Special Condition 3 of its solid waste permit by accepting quantities of biosolids in excess of the 100 tons per day limit.
7. Based on the record in this case, revocation of the solid waste permit and closure of the facility is warranted.
8. Permittee also violated its SPDES permit on five occasions. However, as DEC Staff concedes, these violations, standing alone, do not constitute a sufficient basis for revocation of Permittee's SPDES permit. Although Staff contends that revocation of Permittee's solid waste permit is grounds for revocation of Permittee's SPDES permit because the two permits are "interdependent," this contention is not supported by the record. I agree with the ALJ that the SPDES permit should be continued so as to allow for the orderly closure of the facility and to govern post-closure activities.

NOW, THEREFORE, having considered this matter, it is ORDERED that:

1. The Permittee's solid waste permit (#4-2730-00033/0001) is revoked.
2. The Permittee shall immediately, upon receipt of this Order, stop receiving materials at its facility on Route 5S, in the Town of Minden, Montgomery County, New York.
3. Within 30 days of receipt of this Order, the Permittee shall provide DEC Staff with an up to date inventory of quantities of material present on the site to include but not be limited to: uncomposted waste recently received, waste currently undergoing active composting, waste currently undergoing curing, composted material that does not meet 6 NYCRR 360-5.5 specifications for particle size and compost that is stored on site.
4. Within 60 days of receipt of this Order, the Permittee shall remove from the site all material which does not meet the definition of compost (contained in 6 NYCRR 360-5.5) for disposal at a facility authorized under 6 NYCRR Part 360 to accept such waste. Receipts documenting the proper disposal of such waste must be provided to DEC Staff within 7 days of disposal.
5. Within 90 days of the effective date of this Order, the Permittee shall remove all compost product for either disposal or commercial use. Receipts documenting proper use or disposal of the compost product must be provided to DEC Staff within 7 days of the removal of the material.
6. Within 90 days of the removal of all material (waste and compost product) from the facility, the Permittee shall provide a certification by a New York State licensed engineer that the site has been properly closed in accordance with the approved closure plan contained in the facility Operation Manual approved by the Department.
7. Staff shall be authorized to enter and inspect the Facility for the purpose of ascertaining compliance with the Environmental Conservation Law, the regulations promulgated thereunder, and the terms and conditions of this Order.
8. The Permittee's SPDES permit (#NY-0261262) is continued.
9. All communications between the Permittee and the Department concerning this Order shall be made to the Department's Region 4 Director, 1150 North Westcott Road, Schenectady, New York 12306.
10. The provisions, terms and conditions of this Order shall bind the Permittee, its officers, directors, agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Permittee.

/s/
By: Erin M. Crotty,
Commissioner

Dated: Albany, New York
July 21, 2003

To: Lawrence R. Schillinger Esq.
Young, Sommer ... LLC
Executive Woods,
5 Palisades Drive
Albany, NY 12205

Ann Lapinski, Esq.
Senior Attorney
NYSDEC Region 4
1150 North Westcott Road
Schenectedy, NY, 12306-2014

John D. Hoggan, Jr., Esq.
LeBoeuf, Lamb, Greene & MacRae
99 Washington Avenue
Suite 2020
Albany, NY 12210-2820

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
625 Broadway
Albany, New York 12233-1550

In the Matter of The Notice of Intent to Revoke the Solid Waste and State Pollutant Discharge Elimination System (SPDES) Permits of:

MOHAWK VALLEY ORGANICS, LLC.
Permittee.

NYSDEC PERMIT NO. #4-2730-00033/001

HEARING REPORT

- by -

/s/
P. Nicholas Garlick
Administrative Law Judge
June 27, 2003

SUMMARY

Based upon evidence entered at a permit revocation hearing, this hearing report recommends that the Commissioner issue an Order revoking the solid waste permit of Mohawk Valley Organics, LLC ("MVO" or "Permittee"). Staff of the Department of Environmental Conservation ("DEC Staff") proved that MVO created persistent nuisance odors in violation of its permit and applicable law. DEC Staff also proved that MVO committed 45 violations of its solid waste permit by accepting quantities of biosolids in excess of permitted levels. DEC Staff failed to prove that MVO failed to implement its odor control plan. Finally, DEC Staff proved five minor violations of MVO's stormwater permit. However, as DEC's experts testified, one violation may be an anomaly and the others may be the result of elevated levels of naturally occurring iron and manganese. Because of the relatively minor nature of these violations, this report recommends that the Commissioner not revoke MVO's SPDES permit. Since MVO cannot operate without its solid waste permit, it is expected that MVO will surrender its SPDES permit once the facility is closed.

PROCEEDINGS

By a Notice of Intent to Revoke Permit dated February 24, 2003, DEC Staff notified MVO that it intended to revoke two environmental permits pursuant to Article 70 of the Environmental Conservation Law and Part 621 of Title 6 of the New York Code of Rules and Regulations ("6 NYCRR"). The two permits are a State Pollutant Discharge Elimination System ("SPDES") permit (#NY-0261262) and a solid waste permit (#4-2730-00033/00001) for the Mohawk Valley Organic Composting Facility ("facility") located in the Town of Minden, Montgomery County. Two bases for revocation were cited: MVO's failure to comply with terms and conditions of the permit (6 NYCRR 621.14(a)(2)) and MVO's noncompliance with permit conditions or regulations related to the permitted activity (6 NYCRR 621.14(a)(5)). Specifically, DEC Staff alleged four violations: 1) off-site odor complaints; 2) acceptance of excessive quantities of bio-solids; 3) failure to implement odor mitigation plans; and 4) violations of SPDES permit effluent limits.⁽¹⁾

By letter dated March 5, 2003, the Permittee requested a hearing pursuant to 6 NYCRR 621.14(d). By papers dated March 18, 2003, DEC Staff filed a Statement of Readiness with DEC's Office of Hearings and Mediation Services ("OHMS"). On March 21, 2003, the matter was assigned to Administrative Law Judge ("ALJ") P. Nicholas Garlick. Following a conference call, the hearing was scheduled to commence on April 15, 2003.

On April 1, 2003, counsel for the Town of Minden ("Town") filed a Verified Petition applying for intervention in the permit revocation hearing, pursuant to 6 NYCRR 622.10(f). By papers dated April 7, 2003, both DEC Staff and the Permittee opposed the application.

On April 11, 2003, the ALJ granted the Town's request in part and allowed the Town to participate in the hearing in a limited fashion. The Town's participation was limited to issues of the Town's potential liability as the result of closure of the facility. The Town was not permitted to participate in the hearing on the issues of liability or remedy selection.

The administrative permit revocation hearing was held before the ALJ on April 14, April 15, April 29, April 30, May 1 and May 2, 2003 at the Department's Region 4 headquarters in Schenectady.

DEC Staff was represented by Ann Lapinski, Esq., Assistant Regional Attorney, DEC Region 4. DEC Staff called as its witnesses: Angelo A. Marcuccio, Environmental Analyst I (DEC employee); George Elston, Environmental Engineering Technician III (DEC employee); Richard Forgea, Regional Solid Waste Engineer (DEC employee); Greg Recer, Research Scientist II (employed by New York State Department of Health); Thomas Reynolds, Environmental Engineer II (DEC employee); Anthony Kokocki, Environmental Engineer (DEC employee); David Pickett, Environmental Program Specialist I (DEC employee); Robert Streeter, Environmental Program Specialist (DEC Employee); Roger A. Bowley, Principal of the Harry Hoag School in the Fort Plain Central School District; James Welch, a neighbor of MVO; Jennifer Douglas, a neighbor of MVO; Janet Trumbull, Town Clerk for the Town of Minden; and Sally Rowland, Environmental Engineer III (DEC employee).

The Permittee was represented by Lawrence Schillinger, Esq. of counsel to the law firm Young, Sommer, Ward, Ritzenberg, Baker & Moore, Albany, New York. The Respondents presented the following witnesses: Charles Vigliotti, President of MVO; John Cameron, Managing Partner of Cameron Engineering and Associates and an expert on biosolids treatment; David Paolelli, Environmental Compliance Manager at MVO; and Ned Ostojic, Director of Engineering for Odor Science and Engineering, Inc. and an expert in odor identification and remedies.

Following the hearing, a schedule was established for receipt of proposed orders and closing briefs. The record of the hearing closed on June 10, 2003.

Town of Minden v. Mohawk Valley Organics

This administrative permit revocation proceeding is not the only action underway related to MVO. On February 10, 2003, the Town of Minden filed papers seeking a temporary restraining order ("TRO") from New York State Supreme Court, (Montgomery County), requiring MVO to cease acceptance of biosolids for composting on the basis that the special use permit issued by the Town did not specify this use for the site. DEC is not a party to that proceeding. The TRO hearing concluded on March 21, 2003. On April 8, 2003, NYS Supreme Court Justice Robert P. Best granted a limited preliminary injunction which reduced the quantity of biosolids MVO could accept from 100 to 50 tons per day. These biosolids must be "digested" so as to lessen odor impacts. Justice Best's order is to be effective for 90 days and after that it will be determined if odor problems are eliminated.

DEC Staff's Position

DEC Staff seeks an Order of the Commissioner that would immediately revoke MVO's solid waste permit and SPDES permit and require MVO immediately to cease accepting new waste. The existing on-site material would be allowed to finish composting but within 90 days of the Commissioner's Order, all materials would have to be removed from the site and the facility would have to be closed in accordance with its previously approved closure plan.

The Permittee's Position

MVO opposes the revocation of its permits and seeks an Order of the Commissioner modifying the solid waste permit. The modified permit would require MVO to undertake a series of actions at the site which would reduce odors from the site. Since such modification would be the result of an enforcement action, the modifications may be exempt from the State Environmental Quality Review Act ("SEQRA") (6 NYCRR 617.5(c)(29)).

Town's Position

The Town seeks the revocation of MVO's permits. In addition, the Town seeks a bond from MVO to cover any costs that the Town may incur resulting from the closure of the facility. The Town is concerned that if MVO declares bankruptcy prior to final closure, the Town would incur costs to close the facility. The Town does not suggest an amount of the closure bond.

FINDINGS OF FACT

1. MVO operates Mohawk Valley Organics Composting Facility, an open-air windrow composting facility, located on the south side of Route 5S, approximately 4 miles west of the Village of Fort Plain in the Town of Minden, Montgomery County, New York. The facility sits on an approximately 75-acre site which contains a 10-11 acre asphalt pad, an administration and maintenance building and a wetland treatment system for the control and treatment of stormwater.
2. MVO's President is Charles Vigliotti.
3. The MVO facility accepts organic waste material that might otherwise be landfilled or incinerated, and converts this material into marketable soil amendments. The process for accomplishing this is composting in which temperature, moisture and oxygen levels are controlled in order to allow microorganisms to degrade and decompose organic material.
4. The end result of the composting process is a stabilized material that MVO sells as fertilizer.
5. MVO uses open-air windrows to create its compost. A windrow is a long pile combining organic waste material and bulking agent. MVO uses wood chips as its bulking agent.
6. When a load of organic waste is brought to the MVO facility, it is delivered by truck and dumped in the tipping area. There it is inspected and, if acceptable, it is immediately mixed with woodchips and formed into a windrow on the asphalt pad.
7. Once in the windrow, the mixture begins to "cook" as the decomposing materials create heat. The windrow is then turned regularly to mix the materials and ensure that an adequate supply of oxygen is available.
8. Most of the odors from the composting process occur during the first two to three weeks after delivery. It takes approximately fifty days for the composting process to conclude.
9. DEC Staff issued MVO a solid waste permit and a SPDES permit on October 26, 2000. The solid waste permit allowed MVO to accept up to 400 tons per day of cow manure from local farmers, and paper mill sludge from Finch Pruyn and three other paper mills.
10. The SPDES permit has not been modified since it was originally issued. The SPDES permit regulates how stormwater that falls on the site and comes in contact with the compost is treated, and contains effluent limits for stormwater discharges from the facility.
11. MVO opened for business in Spring 2001.
12. Neighbors of MVO began experiencing odor problems in late Summer and Fall 2001. These neighbors characterized the odors from MVO as similar to the smell of dead, rotting carcasses.
13. Residents began to complain to Town officials and at a Town Board meeting in August 2001, the owners of MVO acknowledged the problems and asked residents to wait until the following spring because they were addressing the problem by putting down a new asphalt pad on which the windrows were placed.
14. At the request of MVO, the solid waste permit was modified by DEC Staff on December 7, 2001 to allow MVO to accept waste sludges from Bristol-Myers Squibb, American Tissue Mills and International Paper.
15. DEC Staff issued another modified solid waste permit on February 2002 which removed the individual companies and allowed for changes in sources of waste by letter from DEC Staff without a formal permit modification.
16. DEC Staff began to receive complaints from the community about odors from the facility in mid-July 2002.
17. On September 6, 2002, MVO and DEC Staff entered into an Order on Consent. The Consent Order forbade MVO from accepting any additional waste from Finch Pruyn, which was considered the source of the odors. Another condition of this Consent Order required MVO to implement an odor control plan. A condition of the odor control plan required MVO to maintain an Odor Complaint Log and to investigate odor complaints. Specifically, MVO was required to employ an administrative person to respond to the odor complaints. This administrative person, upon receipt of an odor complaint, would travel to the location of the report and try to confirm the odor.
18. MVO's solid waste permit was modified to its present form on September 9, 2002. This permit modification allowed MVO to accept biosolids. Biosolids are the semisolid fraction of waste water that is removed through the various treatment processes at a waste water treatment plant ("WWTP"). Once removed, these biosolids are treated at the WWTP to destroy pathogens, stabilize volatile organics and reduce volume before it is shipped to MVO for disposal. This permit modification limits the amount of biosolids MVO can accept to 100 tons per day for the first 100 days after the modification became effective. All sources of biosolids must be approved by DEC Staff before material is delivered. The permit limits the total amount of organic waste MVO can accept to 400 tons per day.
19. MVO began recording odor complaints in its log on September 13, 2002. Between that date and December 25, 2002, over 100 odor complaints were received.
20. During Fall 2002, people living near the MVO facility noticed that the odors changed from a dead animal smell to a sewage smell.
21. Also during Fall 2002, odors from MVO's facility disrupted normal school activities at the Harry Hoag School, in the Town of Fort Plain.
22. On November 21, 2002, the Minden Town Board passed a resolution creating an official odor log. Between November 11, 2002 and March 22, 2003, over 600 odor complaints were recorded in this log.
23. On January 2, 2003, DEC Staff wrote stating that no additional waste streams would be approved because of the ongoing odor problems at the site.
24. By letter dated February 24, 2003, DEC informed MVO of its intention to revoke MVO's permits.
25. MVO's facility is the source of odors that were noticeable and objectionable off-site. Between September 2002 and March 2003, over 700 odor complaints were recorded in the Town of Minden's official odor complaint log and MVO's odor complaint log. Appendix A summarizes the information contained in these logs.
26. On 45 days during the months of September, October and November 2002, MVO accepted more than 100 tons of biosolids. The exact dates and quantities of biosolids are detailed in Appendix B.
27. Samples of MVO's stormwater discharge show five violations of effluent limits in MVO's stormwater permit. On November 19, 2001, a sample showed an elevated level of sulfate. The four other violations of the SPDES permit occurred in samples taken on February 2, 2002, February 27, 2002, March 21, 2002 and November 13, 2002. All samples showed elevated levels of iron and manganese.

APPLICABLE LAW

The Commissioner may modify or revoke a permit at any time if the permittee fails to comply with any terms or conditions of its permits (6 NYCRR 621.14[a][2]) or if the permittee fails to comply with permit conditions, orders of the Commissioner, or applicable law (6 NYCRR 621.14[a][5]).

After receipt of the Notice of Intent to Revoke, the permittee may request a hearing in writing within 15 days (6 NYCRR 621.14[d]). The hearing must be commenced within 60 days from the Notice (6 NYCRR 621.14[e][2]). The hearing will be conducted pursuant to DEC's Uniform Enforcement Hearing Procedures (6 NYCRR 622.1[a][6]).

In the hearing, DEC Staff bears the burden of proof on all charges (6 NYCRR 622.11[b][1]). DEC Staff must sustain its burden of proof by a preponderance of the evidence (6 NYCRR 622.11[c]).

Within 30 calendar days of the closure of the record, the Commissioner shall issue a decision (6 NYCRR 621.14[f]).

DISCUSSION

Mr. Vigliotti, President of MVO, testified regarding the history and development of the MVO facility. He and his brothers began working in the recycling business 26 years ago on Long Island. His companies, the Vigliotti Recycling Corporation and Long Island Compost Corporation ("LICC"), had originally handled many different recyclable materials, but over time came to concentrate exclusively on organic wastes, such as yard waste. Currently, LICC handles 35% of the yard waste generated on Long Island and is approximately seven times larger than its largest competitor. LICC composts 100% of its organic waste stream and then sells the resulting compost.

Mr. Vigliotti's companies have been successful, and in the mid-1990s the demand for finished compost began to exceed the supply of yard waste and other organic materials on Long Island. At this time, he began researching opportunities to move upstate to produce more finished compost. Based upon experience and this research, he decided that the waste from paper mills would produce the best compost. After further discussions, he settled on the sludge from a wastewater treatment plant owned by Finch Pruyn that treated wastewater from its paper and pulp plants in Glens Falls. MVO and Finch Pruyn entered into a ten-year contract to take this waste. This waste was consistent in amount and quality. It provided between 140 and 150 tons per day of sludge with a substantial amount of nitrogen and was biologically active.

While preparing to begin business upstate, Mr. Vigliotti met with environmental regulators. A pre-application conference occurred between DEC Staff and MVO in August 1999. At this conference permitting requirements were discussed. Subsequently, MVO submitted permit applications to DEC Staff. During the permit application review process, DEC Staff considered the possibility of odor problems but decided that due to the rural nature and the size of the area, odors would dissipate and not be a great concern. Acting as lead agency pursuant to the State Environmental Quality Review Act (SEQRA) DEC then issued a negative declaration which was published in the Environmental Notice Bulletin on August 9, 2000. DEC determined that the MVO facility would not have a significant adverse environmental impact. Thereafter, a solid waste permit and a SPDES permit were issued on October 26, 2000, to MVO.

During this time, Mr. Vigliotti also met with officials from the Town of Minden and secured the local approvals necessary to construct and operate MVO. Litigation regarding these local approvals is described above.

According to Mr. Vigliotti, the waste stream from Finch Pruyn changed dramatically shortly after MVO opened. As a result of changes in the paper industry and a strike at its Glens Falls plant, the management of Finch Pruyn decided that it could no longer operate both its pulp making plant and its paper making plant. As a result, the pulp making plant was closed and Finch Pruyn purchased pulp from other companies. This altered the wastewater treated by Finch Pruyn's treatment plant and dramatically changed the character and quantity of waste received by MVO. Smaller quantities were received, and what was received was more odorous and less suitable for composting.

DEC Staff began to receive complaints from the community about odors from the facility in mid-July 2002. DEC Staff began investigating odors on July 16, 2002 and increased surveillance of the facility to confirm nuisance odors. DEC Staff confirmed odors in the area around MVO and after further investigation, came to the conclusion that the odors were coming from MVO. After discussions with MVO staff and management, DEC Staff concluded that the likely source of the odors was the wastes from Finch Pruyn. In early September 2002, DEC Staff and MVO entered into a Consent Order which prohibited the acceptance of any more waste from Finch Pruyn. Because it took approximately fifty days for the Finch Pruyn waste to compost, DEC Staff expected the odor problems to abate by the beginning of November 2002.

In early September 2002, MVO's solid waste permit was modified to its present form. This modification allowed the acceptance of biosolids from approved municipal wastewater treatment plants. The modification limited the quantity of biosolids that could be accepted to 100 tons per day for the first 100 days after the modification became effective. DEC Staff concluded that this change to the permit would not have a significant impact on the environment and issued a negative declaration for the modification. This modification made MVO the largest biosolids composting facility in state. The next largest open-air windrow composting facility for biosolids is at a Yorktown Heights sewage treatment plant, where 4 tons per day of biosolids are composted. The second largest biosolids composting facility is in Rockland County, which has a permit limit of 77 tons per day and is enclosed. All air emissions at the Rockland County facility are captured and treated before being released to the environment.

To monitor the odor problems at MVO and to see if the change in the waste stream would solve MVO's odor problems, the Consent Order also required the implementation of an Odor Control Plan. This plan required MVO to: establish a phone number to receive odor complaints from the community; record these complaints in a log; install a sophisticated weather station to monitor conditions and record weather conditions at the time of each complaint; and employ an administrative person to respond to the odor complaints. This administrative person, upon receipt of an odor complaint, would then travel to the location of the report and try to confirm the odor.

The odor problems at MVO continued. Neighbors noticed that the odors changed in Fall 2002 from a dead animal smell to a sewage smell. The area around MVO has many dairy farms. These neighbors were familiar with smell of manure, and found the odors from MVO to be distinguishable and more offensive.

One neighbor testified that after the Consent Order was signed, some of MVO's neighbors would call MVO to make odor complaints. These neighbors expected MVO to respond and to send an employee out to investigate and log the complaint. However, when they called, residents found that there was no answer at MVO or they got an answering machine. Out of frustration, this neighbor began her own odor complaint log and published in the local paper a phone number for residents to call. On November 21, 2002, the Town Board passed a resolution recognizing this phone number and that of the Town Clerk as the numbers for residents to call to make odor complaints. The complaint log showed 164 complaints from November 11, 2002 through December 9, 2002 at the private number. The complaint log maintained by the Town Clerk recorded approximately 468 complaints from December 1, 2002 through March 22, 2003.

Also in Fall 2002, shortly after the school year began, students and staff at the Fort Plain public school began noticing odors at the Harry Hoag School, which is about four miles from the MVO site. These odors continued and on days when the odors were particularly bad, students were kept inside, gym classes were not held outside and playground activities were cancelled. On October 17, 2002, the Fort Plain School ventilation system was shut down due to the odors. In early December, the school began keeping track of the odors in an odor log.

In mid-November 2002, MVO employed Odor Science & Engineering, Inc. to conduct an odor assessment at the facility. The purpose of this assessment was to establish the extent to which odors from the facility could be detected off-site and to document the character and intensity of the off-site odors. This assessment determined that the odor plume from the facility carried no more than four miles from the facility and that nuisance odors occurred at a distance of up to 1.5 miles from the facility. Odor Science and Engineering concluded that the nature of the odors from MVO was similar to that of neighboring dairy farms, but could be distinguished. No dead animal smell was observed. The location and intensity of off-site odors depended upon factors such as weather conditions, time of day, and what activities were occurring at MVO's facility.

DEC Staff conducted an annual SPDES inspection of the facility on December 6, 2002. An inspection of the wetland system was not possible because it was frozen. The Industrial Wastewater Facility Inspection Report filled out during this inspection disclosed that MVO's general housekeeping, records, permits, reports, preventive maintenance, sampling and treatment system were all satisfactory. Also, during this inspection DEC Staff collected records from MVO, including copies of the required monthly water sample analyses. The results of this inspection are discussed more fully, later, as is DEC Staff's response.

Also in December 2002, DEC Staff collected various samples at MVO, including water samples from a nearby stream and the wetlands treatment lagoon, samples of finished compost from MVO, samples of raw sludge entering the plant, and samples from the active windrows. The laboratory results of these samples showed that all materials were within regulatory limits.

On January 2, 2003, DEC Staff wrote stating that no additional wastes streams would be approved because of the ongoing odor problems at the site. By letter dated February 24, 2003, DEC informed MVO of its intention to revoke MVO's permits.

New Regulations Governing Composting Facilities

On March 10, 2003, new regulations governing the composting of biosolids became effective (6 NYCRR subpart 360-5). Dr. Sally Rowland, DEC Staff's composting expert, testified that the change was prompted by changes in federal regulations and based upon DEC's experience with these facilities. She stated that these new regulations require enclosed tipping areas, mixing areas and processing (including curing) areas for composting biosolids and other sludges, and require that all air emissions be captured and treated before those emissions are released to the environment. Only finished compost products may be stored outside, in the open air. Dr. Rowland testified that her experience with odors from large facilities is that the size of the facility has an influence on odor potential and odor migration offsite. According to Dr. Rowland, MVO would have to comply with these new regulations and enclose its tipping, mixing and processing areas when its permit expires in October 2005 (6 NYCRR 360-5.5[d][12]).

Notice of Intent to Revoke

In its Notice of Intent to Revoke, DEC Staff cited five alleged violations committed by MVO as grounds to revoke MVO's solid waste and SPDES permits. At the hearing, DEC Staff withdrew one of the grounds. The four remaining are: 1) continuing off-site odors in violation of the solid waste permit; 2) MVO's acceptance of quantities of biosolids in excess of limits contained in the solid waste permit; 3) MVO's failure to comply with conditions requiring odor tracking in the solid waste permit; and 4) violations of effluent limits in the SPDES permit. Each is discussed separately, below.

Off-site Odors

The first ground cited by DEC Staff for revocation is the numerous off-site odor complaints. DEC Staff alleges that these continuing odor problems constitute a violation of both MVO's solid waste permit and of New York State law. These odor problems continued even after odor mitigation plans required by the September 2002 Consent Order were implemented.

Special condition #1 of MVO's solid waste permit requires that the facility be operated in strict conformance with 6 NYCRR subpart 360-1 (General Provisions) and 6 NYCRR former subpart 360-5 (Composting Facilities). DEC Staff asserts that the off-site odors constitute a violation of 6 NYCRR 360-1.14(m) and 6 NYCRR former 360-5.3(h). In addition, DEC Staff contends that the off-site odors constitute a violation of 6 NYCRR 211.2.

6 NYCRR 211.2 states:

Air Pollution Prohibited. No person shall cause or allow emissions of air contaminants to the outdoor atmosphere of such quantity, characteristic or duration which are injurious to human, plant or animal life or to property, or which unreasonably interfere with the comfortable enjoyment of life or property. Notwithstanding the existence of specific air quality standards or emission limits, this prohibition applies, but is not limited to, any particulate, fume, gas, mist, odor, smoke, vapor, pollen, toxic or deleterious emission, either alone or in combination with others.

6 NYCRR 360-1.14(m) states:

Odor Control. Odors must be effectively controlled so that they do not constitute nuisances or hazards to health, safety or property.

6 NYCRR former 360-5.3(h), in effect at the time of the violations, stated:

The facility must be designed and operated to control vectors and odors.

The record contains reports of approximately 700 individual odor complaints made to DEC Staff, the Town of Minden's official odor complaint line, as well as MVO's odor complaint line. These complaints were documented between September 2002 and March 2003. Appendix A summarizes the dates of off-site odor complaints from the Town of Minden's official odor complaint log and MVO's odor complaint log. In addition, DEC Staff members recorded off-site odors on days in July, October and December 2002, as well as January and February 2003. An odor log kept at the local school recorded odors in December 2002, January 2003 and February 2003.

The record also contains evidence that activities at the local school had to be curtailed and that the lives of numerous neighbors were adversely affected by MVO's operation. Even when all the paper sludge from Finch Pruyn had been composted in early November 2002, the odor complaints continued, though neighbors noticed a change in the type of odors.

Evidence in the record regarding these odors and their impacts on MVO's neighbors establish that these odors are a nuisance. These odors have annoyed, inconvenienced and caused discomfort for MVO's neighbors and interfered with the reasonable use and enjoyment of their property. Neighbors have had to cancel parties at their homes, have been unable to hang laundry out to dry, and have had their air conditioners and heating systems filled with these odors.

DEC Staff also alleges that these odors have caused health problems. The record includes some evidence that people are being sickened by the odors. DEC Staff introduced evidence, in the form of scientific studies and expert testimony, that odors from composting facilities can cause health problems. DEC Staff also introduced evidence of approximately a dozen health related problems linked to odors from MVO that were reported to either the Montgomery County or New York State Departments of Health. These reports included cases of people vomiting, experiencing headaches, burning eyes and throat irritation. In addition, several witnesses testified about being sickened by odors from MVO. The evidence establishes that MVO caused these health impacts.

MVO argues that while there maybe some odors from MVO, they do not warrant permit revocation. MVO argues that there is a well-orchestrated local campaign by local activists engaged in the pursuit of the closure of this facility. MVO argues that because many odor complaints on the various odor logs are made by a few neighbors, and that some of the complaints could not possibly be accurate, that this local campaign exists. However, MVO's own odor expert testified that he identified nuisance odors at a distance of 1.5 miles from the site.

Therefore, DEC Staff has carried its burden and shown that MVO has created persistent and continuing nuisance odors off-site and that in some cases these odors have caused health problems for neighbors. The record supports the conclusion that MVO has violated 6 NYCRR 211.2, 6 NYCRR 360-1.14(m), and 6 NYCRR former 360-5.3(h). These violations alone justify the revocation of MVO's solid waste permit.

Acceptance of Excessive Quantities of Biosolids

The second ground cited by DEC Staff for revocation is that MVO accepted quantities of biosolids in excess of the limit in the solid waste permit. Special condition 3 of the current version of the solid waste permit issued September 9, 2002 addresses MVO's acceptance of biosolids. Specifically, it states that MVO may only accept:

Biosolids (sludge) from municipal wastewater treatment facilities approved by the Department. The importation of Biosolids will be limited to no more than 100 tons per day for the initial 100 days of this permit.

DEC Staff alleges forty-six violations of this limit, based upon records maintained by MVO and subsequently shared with DEC Staff. At the hearing, DEC Staff entered evidence based upon MVO's business records for the months of September, October and November. DEC Staff did not submit any evidence regarding the single alleged violation that occurred in the month of December. The dates and quantities of biosolids accepted relating to the alleged violations are detailed in Appendix B of this report.

MVO does not dispute any of the information contained in Appendix B. Rather, MVO argues that the solid waste permit limit of 100 tons per day of biosolids should be computed by using a monthly average. Mr. Vigliotti testified that it was his understanding that daily limits were taken on average, based upon his experience with DEC Staff across the state. Mr. Vigliotti also testified that DEC Staff member George Elston had told him in May or June 2001 that small exceedences of daily limits were not considered violations because they had to be averaged. Mr. Elston testified that his recollection of the conversation was that he had told Mr. Vigliotti that he was not going to be "an iron-fisted bureaucrat" for a seven-ton overage (Transcript, at 624). DEC Staff asserts that Mr. Elston meant these small overages were violations, and that Mr. Elston was expressing his enforcement discretion. Only one of the alleged violations involves an overage of less than 7 tons. This alleged violation occurred on November 27, 2002 when MVO accepted 100.34 tons of biosolids.

If a monthly average is used for the months of September, October and November, MVO did not accept more than 100 tons per day on average of biosolids. Accordingly, MVO argues that DEC Staff has not proven these violations. DEC Staff disagrees and argues that the plain language of the permit, cited above, states that the permit limit is a daily limit and that no other limit or calculation is mentioned or can be reasonably inferred.

MVO attempts to bolster its argument by citing the definition of "approved design capacity" in DEC's solid waste management regulations (6 NYCRR 360-1.2[b][8]) which reads "the average daily tonnage to be received at a solid waste management facility...." However, MVO's solid waste permit does not include this term. Rather, the relevant language reads "the importation of biosolids will be limited to no more than 100 tons per day for the initial 100 days of this permit." The regulations do not provide a basis for any interpretation of this sentence other than the plain meaning.

Based upon the evidence in the record and the analysis above, DEC Staff has met its burden of proof and shown that MVO committed 45 separate violations of its solid waste permit. Each day that MVO accepted more than 100 tons of biosolids represents a separate and distinct violation. The dates of these violations are set forth in Appendix B.

Failure to Implement an Odor Tracking Program

The third ground cited by DEC Staff for revocation is the alleged violations of MVO's odor mitigation plan. The odor mitigation plan is embodied in a series of letters between MVO's consultant, Cameron Engineering & Associates, and DEC Staff. MVO agreed to implement these plans as a condition of the September 6, 2002 Order on Consent. Compliance with these plans was also required by Special Condition 2(e) of MVO's September 9, 2002 solid waste permit.

These odor mitigation plans required MVO to maintain a log of odor complaints received via telephone from the public and to "provide an administrative person whose responsibilities will include record keeping, sample collection, report generation and also responsibility for managing the Odor Tracking and Mitigation Plan. This individual will respond to the location of a called in odor complaint." (Letter (September 3, 2002), Ex. 15 at 1). DEC Staff alleges that while MVO did maintain an odor complaint log, it failed to send an employee to the location of the odor complaint to investigate approximately 120 times between September 13, 2002 and January 22, 2003.

The evidence introduced by DEC Staff as proof of these alleged violations is the Odor Complaint Log for this period as compiled by MVO (Exh. 16). The odor complaints were either taken in person, or, if the facility was closed, recorded on an answering machine. Thus, the Odor Complaint Log lists calls received at all times of the day and night. Three of the entries in the log are asterisked and explained by the footnote "after receiving the call David Paolelli, confirmed the odor at this location." Based upon this evidence, DEC Staff asserts that MVO failed to respond to any other complaint, which total over 100. According to DEC Staff, each of these alleged failures is a violation of MVO's permit and the consent order.

There are several problems with DEC Staff's logic. First, the language of the Odor Tracking and Mitigation Plan (quoted above) indicates that only a single employee would be assigned to investigate odor complaints. Therefore, it is reasonable to conclude that the consent order and permit conditions contemplated only a response from MVO during the time that that employee was on duty. This would significantly reduce the number of alleged violations. However, it is not necessary to calculate this number because DEC Staff has not carried its burden of proof regarding these alleged violations.

The odor complaint log only states on three occasions that Mr. Paolelli confirmed the odor, not that he did not respond to any other complaints. DEC Staff had the burden of proving that no response was undertaken by MVO. While it is more difficult to prove that an event did not happen, it is not impossible or unreasonable. Both Mr. Paolelli and Mr. Vigliotti were called as witnesses by MVO and could have been cross-examined on the response to odor complaints and whether or not an employee went to confirm such odors. DEC Staff did not ask these questions and the odor complaint log alone is not enough to prove that MVO did not investigate the odor complaints as required.

There are other statements in the record about the odor complaint log. For example, one neighbor testified that after registering complaints and receiving no response, she started her own complaint log. However, there is no indication as to which alleged violation this relates or whether this complaint was made during business hours, so it does not prove a violation. In addition, DEC Staff member George Elston stated that Mr. Paolelli did not start working for MVO until December 2002 and that he did not respond to any complaints before being hired. This is contradicted by a statement in MVO's closing brief which states that Mr. Paolelli was hired in October. Either way, there is nothing in the record to indicate that other employees did or did not respond to odor complaints.

DEC Staff failed to show by a preponderance of the evidence that MVO failed to respond to complaints recorded in its odor complaint log. Accordingly, these alleged violations have not been proven and cannot be used to form the basis for permit revocation.

Violations of the SPDES Permit

The fourth alleged violation cited by DEC Staff in its Notice of Intent to Revoke Permits involves alleged violations of MVO's stormwater SPDES permit on five different dates. MVO argues that the violations are most likely unrelated to the operation of the MVO facility and are so minor that they do not warrant permit revocation.

All stormwater that runs off the asphalt pad is captured and treated in a wetland treatment system. In this system wetland plants break down the organic matter in the wastewater and the system usually discharges into groundwater. When there is a heavy storm event of more than about one inch, a discharge to surface water occurs. MVO is required to test any discharge monthly and retain the records on site for a period of three years. The SPDES permit contains maximum levels for certain pollutants, including sulfate, iron and manganese.

During its December 2002 inspection, DEC Staff collected records from MVO, including copies of the required monthly water sample analyses. These analyses revealed that on five dates, violations of limits contained within the SPDES permit occurred. On November 19, 2001, a sample showed an elevated level of sulfate in MVO's discharge. On December 9, 2002, DEC Staff wrote "there was a single violation of the permit limit for sulfate. This may be an anomaly, since recent data has shown far lower levels of sulfate. Since there was only one violation of this sulfate limit, this is relatively minor but we will continue to monitor for this parameter" (Exh. 29).

The four other violations of the SPDES permit occurred in samples taken on February 2, 2002, February 27, 2002, March 21, 2002 and November 13, 2002. All these violations involve elevated levels of iron and manganese in MVO's discharge. On December 9, 2002, DEC Staff wrote that there "were several violations of the SPDES limit for iron and manganese in total. In reviewing the data, we found a sample that had been taken for (sic) a spring on the property that was high in iron and manganese. We have had similar facilities where iron and manganese were ultimately traced to groundwater high in these parameters entering the treatment facility. Your staff should sample the runoff from the pad, any groundwater source in the area, and the lagoon. This will determine the source of the iron and manganese being detected in the treatment outfall." Because the treatment system was frozen from the time of the inspection through the time the Notice of Intent to Revoke was filed, MVO had not yet sampled the groundwater (as of the date of the hearing).

It is unlikely that the elevated levels of iron and manganese are related to the operation of MVO because, as DEC Staff testified, these elements are not associated with the composting process. The single elevated level of sulfate was also characterized as relatively minor.

In its proposed Order, DEC Staff seeks the immediate revocation of the SPDES permit, while allowing for MVO to wind up operations over the next 90 days. If a storm event should occur during this time and a discharge occur from the facility, MVO would not have a permit to allow this discharge. MVO needs its SPDES permit in order to close its business. After that, the SPDES permit would be useless to MVO, since the composting operation would be closed.

For these reasons, I recommend that the Commissioner not revoke MVO's SPDES permit.

REMEDY SELECTION: PERMIT REVOCATION OR PERMIT MODIFICATION

All parties agree that the current solid waste permit does not adequately control off-site odors. DEC Staff and the Town want the permit revoked. If this were to happen, MVO could then apply for a new solid waste permit to compost biosolids, providing the facility was upgraded to enclose all tipping, mixing and processing areas, as required by the new regulations.

The Town also seeks a provision in the Commissioner's Order that would require that a bond be posted by MVO to cover any closing costs the Town may be forced to incur. The Town does not suggest an amount.

MVO is seeking a modification to the existing permit that would allow it to continue to operate while additional odor control measures are implemented. However, MVO and its experts do not believe that enclosing all processing areas (specifically curing areas) is necessary. There is no dispute among the parties that an outcome of a permit revocation hearing may be a Commissioner's Order modifying the permit (see Matter of A-1 Compaction Corp. DEC Commissioner's Decision and Order (June 22, 1994) (1994 WL 326619).

DEC Staff's Proposed Remedy: Permit Revocation

As stated above, DEC Staff seeks an Order of the Commissioner that would immediately revoke MVO's Solid Waste permit and SPDES permit. DEC Staff proposes the following closure schedule. On the date of the Order, MVO would immediately cease acceptance of waste. Within 30 days of the Order, MVO would provide DEC Staff with a current inventory of all materials present at the site, including materials which are or will be converted into compost, and those materials which will need to be disposed of at an appropriate solid waste management facility. Within 60 days of the Order, MVO would be required to remove all non-compost solid waste and provide receipts documenting proper disposal. Within 90 days of the Order, MVO would remove all compost from the facility either by selling it or otherwise appropriately disposing of it. Finally, not later than 90 days after the Order is signed, MVO would provide a certification by a NYS licensed professional engineer that the site has been properly closed in accordance with MVO's previously approved closure plan. Following closure, MVO would be free to reapply for new solid waste and SPDES permits, which would require compliance with the newly promulgated Subpart 360-5 regulations. The practical effect of this would be that MVO would have to contain all tipping, mixing and processing areas, and capture and treat all air emissions before releasing them to the environment.

MVO's Proposed Remedy: Permit Modification

MVO opposes the revocation of its permits and rather seeks an Order of the Commissioner modifying the solid waste permit and adjusting the SPDES permit to reflect the elevated levels of iron and manganese in the groundwater (if testing confirms this is the case). Since such modification would be the result of an enforcement action, the modifications may be exempt from the State Environmental Quality Review Act ("SEQRA"). DEC Staff indicates that a permit modification would be considered a major modification and require a SEQRA review.

MVO proposes a series of six measures to control off-site odors that would be incorporated in its modified permit. Each is discussed separately below, along with DEC Staff's comments.

1. Accepting Only "Digested" Biosolids

The first modification proposed by MVO involves limiting the types of biosolids that the facility would be allowed to accept. MVO believes this is the most important feature for controlling odors. Under its plan, MVO would only accept "digested" biosolids for composting. As discussed above, the amount of treatment that occurs at the WWTP varies from plant to plant. Biosolids that have received less treatment are often called "raw" solids, while those that have received more treatment are often called "digested." Raw solids have a far greater potential to emit odors than do digested solids. Mr. Cameron, one of MVO's experts, testified that by accepting only digested biosolids, a 40-50% reduction in odor-generating potential could be expected, compared to raw biosolids. DEC Staff did not challenge this opinion or enter any evidence contrary to it. In his Order limiting MVO's input to 50 tons per day, Justice Best included a definition of "digested biosolid" which DEC Staff helped draft.

MVO argues that DEC Staff is at least partially to blame for the odor problems that have existed around the MVO facility since September 2002. MVO argues that it has sought DEC Staff's approval to accept biosolids from wastewater treatment plants which produce "digested biosolids," such as Yonkers and various NYC plants, which MVO would have substituted for "raw biosolids" from approved sources, such as Springfield. These requests were made during the late Summer and Fall 2002. However, DEC Staff did not act on these requests. In fact, Mr. Vigliotti testified that DEC Staff told MVO not to make any requests for additional sources of biosolids. MVO asserts that had DEC Staff approved the acceptance of digested biosolids, odor problems would have been significantly reduced. DEC Staff does not dispute that during late Summer 2002, it received requests from MVO to approve additional sources of biosolids at the facility and that it did not take action on them. DEC Staff stated it did not act because it did not want to exacerbate the odor problems at MVO, and that it was never told MVO's requested approval of these "digested" sources was intended to control odors.

As mentioned above, Justice Best has in essence initiated an odor control experiment in his Order. By limiting MVO to accepting 50 tons per day of digested biosolids for 90 days, Justice Best is testing MVO's assertions. Unfortunately, there is nothing in this administrative record regarding the progress or results of this experiment and the final results of this experiment will not be known until after this report is submitted to the Commissioner.

2. Increasing Bulking Ratio

The second modification would increase the amount of oxygen available to the composting process. MVO would increase its "bulking ratio," the ratio of wood chips to organic waste, from 2:1 to 3:1. This higher ratio would create more airspace in the composting pile and create less opportunity for anaerobic pockets to develop in the windrows and, thus, generate less odor.

3. Increasing Turning Frequency

The third permit modification proposed by MVO would increase the frequency of turning of the windrows. Presently, the windrows are turned every third day. The additional air introduced would reduce the chance of anaerobic decomposition and reduce odors. MVO proposes to turn each windrow every other day.

4. Construction of New Building

The fourth permit modification proposed by MVO involves the construction a building for the receipt, tipping and mixing (but not curing) of all materials. This building would also treat all air emissions before release. MVO proposes the following schedule. Within 120 days of the Order, MVO would submit plans (presumably to the Town of Minden Building Department) for the construction of a building. The building would be constructed and operated in a manner to capture and treat all air emissions with a bio-filter to reduce odors before release to the environment. Within 180 days of the issuance of a building permit, MVO will complete construction of the building.

DEC Staff agrees that the construction of this building would provide an incremental benefit in odor control, but believes that other sources of odors at the facility, including the curing areas, must also be controlled by containing them in an enclosure and treating the emissions.

5. Use of Static Aerated Pile

The fifth permit modification proposed by MVO involves changing the method by which the initial, and most odorous, stage of the composting process is accomplished. Specifically, MVO proposes that within 120 days of the Order, it would submit plans for the implementation of a static pile aeration protocol for the initial phase of composting.

According to information in the record, there are three methods by which organic waste is composted commercially in New York State. The method that provides the greatest odor control is composting that occurs inside an enclosed area where all gases are captured and treated through a bio-filter before release to the environment. The method that provides the least odor control is composting that occurs outside in long piles, or windrows, where all gases are released to the environment without any treatment. The third method, known as static piles, treats some but not all of the gases from composting waste. In this method, air is drawn through the piles via piping and then treated in a bio-filter before release to the environment.

DEC Staff criticizes MVO's proposed use of a static pile, pointing out that the blower that draws the air through the pile is not on continuously, but instead is controlled by the temperature of the pile. If the blower were on continuously, the pile would not compost properly because temperature and moisture levels would be kept too low. Thus, when the blower is not on, gases from the compost are released to the environment.

6. On-site Monitor

Sixth, MVO would fund an independent third-party monitor approved by DEC Staff. This monitor would provide for an objective assessment of off-site odor impacts. This monitor would submit a written report to DEC Staff by January 30, 2004 on the results of odor monitoring. If this report demonstrates the presence of nuisance off-site odors, MVO would be required to submit a permit modification for the complete enclosure of all waste unloading, waste storage and processing areas.

Modifying the SPDES Permit

Finally, MVO proposes, after additional testing, to modify the SPDES permit to account for the elevated levels of iron and manganese that occur in waters at and around the site.

Permit Revocation v. Permit Modification

All parties agree that the current permit does not adequately address odor problems but that the appropriate remedy is in question. DEC Staff seeks to have MVO's permits revoked and the facility shut down, with the possibility of reopening after major capital improvements are made to enclose areas for the receipt, tipping, mixing and processing of biosolids. This is a harsh remedy. It may result in the loss of seven jobs and jeopardize MVO's $2.5 million investment in the site. However, revoking MVO's permits will ensure that off-site nuisance odors are eliminated.

On the other hand, MVO's proposal lacks the measures necessary to address the off-site odor problem. While the proposed short-term solutions of accepting only digested biosolids and increasing bulking and turning are likely to reduce odors, the rest of the plan is lacking. There is no explanation provided as to why it would take four months to implement the use of static piles for the initial stage of composting. Under MVO's proposed Order, another summer would pass before the neighbors enjoyed the benefits of this odor reduction strategy. Nor is there an explanation as to why it would take four months to prepare plans for the building to enclose the receipt, tipping and mixing of biosolids, nor is there an explanation for why it would take six months to build it after permission was received. Thus, under MVO's proposal, it could be nearly a year until this critical portion of its proposal is completed and the neighbors could enjoy its benefits. In addition, MVO's proposal would allow it to receive 400 tons per day of biosolids before the building was complete.

The requirement that parties provide proposed Commissioner's Orders and comment on the proposed Orders of others was intended to build the record with regard to the appropriate remedy in this case. While DEC Staff's remedy works a hardship on MVO and its employees, MVO's remedy is lacking for the reasons addressed above. It may well be that there is a remedy that would allow MVO to continue to operate on a limited basis while construction occurred. Such a remedy could be considered a forced march which would allow MVO to operate on a limited basis so long as certain milestones were met. Such milestones might include continuing Justice Best's court ordered experiment of allowing only 50 tons per day of digested biosolids and requiring additional bulking and turning, then almost immediately requiring the use of aerated static piles and allowing a small increase in the amount of biosolids accepted. Only upon completion of the building for receipt, tipping and mixing of biosolids would MVO be allowed another modest increase in the amount of biosolids. Finally, only after MVO complied with the terms of 6 NYCRR subpart 360-5 would it be allowed to operate at its full 400 ton per day capacity. However, this is just speculation; no party has proposed such a remedy and no party has commented on it. In addition, I do not believe the record supports this type of creative solution and so I cannot recommend the same to the Commissioner.

The Town's request that a bond be required by MVO to cover costs of closing the facility is not supported by the evidence in the record. The Town requests the bond to cover any closing costs it might incur if MVO does not properly close the facility. However, DEC Staff's proposed Order allows for the orderly closure of MVO's facility which allows enough time for all materials on the site to finish composting. This finished compost has a market value and it is unlikely that MVO would leave it on the site. Even if it did, the material would not be odorous. The fact that the Town does not suggest an amount of the bond, nor does it present any evidence regarding any of the closing costs it might incur also makes it impossible to grant the Town's request. The Town did not enter any evidence or retain any expert witnesses regarding closing costs. Nor did the Town present evidence of MVO's immanent bankruptcy. Accordingly, there is nothing in the record to support the Town's request.

CONCLUSION

DEC Staff has met its burden of showing that MVO is responsible for serious and repeated off-site odors that created a nuisance for the surrounding community. DEC Staff has also met its burden of proving that MVO committed 45 violations of its solid waste permit by accepting more than 100 tons per day of biosolids during September, October and November 2002. DEC Staff has failed to meet its burden of proving that MVO violated its permit relative to implementation of the odor control plan. Finally, DEC Staff has shown only minor violations of the SPDES permit.

RECOMMENDATION

I recommend that the Commissioner Order the immediate revocation of MVO's solid waste permit on the grounds that MVO has failed to comply with the terms and conditions of this permit and New York State law related to the permitted activity. I concur with DEC Staff's proposed Order which provides ninety days for the orderly closure of the site and removal of all materials. I recommend that the Commissioner not revoke MVO's SPDES permit. Finally, I recommend that the Commissioner not include language in the order requiring the posting of a closure bond.

To: Lawrence R. Schillinger Esq.
Young, Sommer ... LLC
Executive Woods,
5 Palisades Drive
Albany, NY 12205

Ann Lapinski, Esq.
Senior Attorney
NYSDEC Region 4
1150 North Westcott Road
Schenectedy, NY, 12306-2014

John D. Hoggan, Jr., Esq.
LeBoeuf, Lamb, Greene & MacRae
99 Washington Avenue
Suite 2020
Albany, NY 12210-2820

¹ A violation alleging MVO's failure to maintain appropriate records on site was withdrawn by DEC Staff.

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