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Niagara Falls, City of - Decision, May 27, 1993

Decision, May 27, 1993

50 Wolf Road
Albany, New York 12233-1550

In the Matter of the application for a renewal of a State Pollutant Discharge Elimination System ("SPDES") Permit (NY 26336) pursuant to Article 17 of the Environmental Conservation Law ("ECL")

- by -


DEC Project No. 90-87-0860


May 27, 1993


This Decision relates to the Application of The City of Niagara Falls for a renewal of its State Pollutant Discharge Elimination System ("SPDES") Permit. The proceedings were resolved by Stipulation among the parties and acceptance by the Applicant of the terms and conditions contained in the Revised Draft Permit issued by Department Staff. I have reviewed and accept the Summary Hearing Report (the "Report") of Administrative Law Judge ("ALJ") Francis W. Serbent, submitted pursuant to Organization and Delegation Memorandum #85-13.

It is noted that the Ministry of Environment and Energy of the Province of Ontario officially withdrew as a party by letter dated April 8, 1993 and therefore takes no position regarding the revised Draft Permit.

I commend the parties to these proceedings for their cooperative efforts in reaching agreements which can be incorporated as permit conditions and which resolve the outstanding issues.

Accordingly this decision fulfills the requirements of 6 NYCRR 624.9. The Department Staff are directed to issue the permit incorporating the provisions set forth in the Revised Draft Permit which has been accepted by the Applicant.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Decision to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York this 27th day May, 1993


50 Wolf Road
Albany, New York 12233-1550

In the Matter of the Application for a renewal of a State Pollutant Discharge Elimination System("SPDES") Permit (NY 26336) pursuant to Article 17 of the Environmental Conservation Law ("ECL") by

1200 Buffalo Avenue
Niagara Falls, New York 14302

DEC Project No. 90-87-0860



Francis W. Serbent
Administrative Law Judge


The City of Niagara Falls, Niagara County, New York, (the "City") is the Owner and Operator of a municipal wastewater system, (collection, conveyance and treatment), with discharges into the Niagara River. The City applied to the New York State Department of Environmental Conservation (the "Department") for a renewal of its discharge permit #NY 0026336 in UPA application #90-87-0860, pursuant to the Environmental Conservation Law ("ECL") Article 17, Water Pollution Control, and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Parts 750 et seq. State Pollutant Discharge Elimination System ("SPDES"). The application was processed pursuant to the ECL Article 3 (General Functions), Article 8 (Environmental Quality Review), Article 70 (Uniform Procedures), and pursuant to 6 NYCRR Part 617 (State Environmental Quality Review - "SEQR"), Part 621 (Uniform Procedures), and Part 624 (Hearing Procedures).

The Department Staff determined the application to be for an exempt action and a Type II action (does not require the preparation of an environmental impact statement) pursuant to SEQR.

The application for a renewal was initially received on July 16, 1979, and noticed as complete on January 12, 1982, July 12, 1982 and April 8, 1985. At a pre-hearing issues conference held as noticed on May 15, 1985, it was announced that 6 NYCRR Part 701 (Classifications and Standards of Quality and Purity) and Part 702 (Special Classifications and Standards) were currently in the final formal stages of being revised and that the revised regulations would impact the draft permit under consideration. The proceeding was adjourned pending a re-evaluation of the draft permit in the light of the revised regulations.

A hearings request dated August 13, 1987 prompted the re-publication of a "Combined Notice of Complete Application and Public Hearing" in the Niagara Falls Gazette on October 12, 1987 (proof of publication filed) and in the Department's Environmental Notice Bulletin on September 23, 1987. A public hearing was started as noticed at 2:00 PM on November 17, 1987 in the Niagara Falls City Hall Council Chambers before Francis W. Serbent, Administrative Law Judge ("ALJ"). Six oral statements were made before approximately twenty-two people in attendance. A 7:00 PM session was scheduled for the same day and location with approximately twelve people attending, and no one presented a statement.

A pre-hearing conference to identify the parties to the hearing and to identify the issues to be adjudicated was held as noticed at 10:00 AM at the location noted above on November 18, 1987.

The issues were identified by written rulings of the ALJ on December 17, 1987. The rulings were appealed by the Applicant and the Industrial Liaison Committee of the Niagara Falls Area Chamber of Commerce ("ILC"). The Commissioner's Interim Decision of February 11, 1988 addressed the appeals, determined the issues and the initial hearing events were scheduled. However, the Parties' technical staffs were concurrently meeting outside of the hearing process from time to time, seeking a negotiated resolution or clarification of the issues. The Applicant requested extensions of time and on March 18, 1988 the hearing was adjourned to allow an opportunity for conflict resolution by conferences among the technical staffs of the parties.

In correspondence dated February 16, 1989, the Applicant requested a resumption of the proceeding and a pre-hearing conference was scheduled for March 16, 1989. The pre-hearing conference was held as scheduled at 10:00 AM at the Applicant's wastewater treatment plant, 1200 Buffalo Avenue, Niagara Falls, New York. A stipulation signed on that date by all the Parties (the "1989 Stipulation") was presented for the record and included a revised draft permit mutually agreeable to all the Parties.

Absent any issues, the hearing was adjourned. The 1989 Stipulation was reviewed in accordance with the Organization and Delegation Memorandum #85-13, "Effect of Stipulations on Decision Making in Permit and Enforcement Hearings". The revised draft permit was reviewed for adherence to the public notice requirements according to 6 NYCRR Part 624, "Permit Hearing Procedures" and 6 NYCRR Part 753 "Notice and Public Participation". A Hearing Report recommended acceptance of the 1989 Stipulation and the authorization of the SPDES permit as drafted.

The Parties continued to negotiate the terms and conditions of the draft permit along with the US Environmental Protection Agency ("EPA"). As a consequence, the City of Niagara Falls, the Industrial Liaison Committee of the Niagara Falls Area Chamber of Commerce and the Department Staff agreed by a stipulation to revising the draft permit of 1989. The Ministry of Environment and Energy of the Province of Ontario, Canada, ("Ministry") corresponded on April 8, 1993 with the Department's Commissioner Jorling to advise of their withdrawal as a party in this proceeding. The Ministry advises it would take no position on the revised SPDES permit but it is pleased with the more stringent permit which includes the diversion of dry weather flows from the Falls Street Tunnel. On April 16, 1993, the Department Staff submitted a stipulation signed by the remaining three Parties to the Proceeding, (not including the Ministry) and the revised draft SPDES permit ("the 1993 Stipulation").


The Parties were identified, without objection, as:

The Applicant, the City of Niagara Falls, City Hall Main Street, 14302, represented by its corporate counsel, Carl E. Mooradian, and by Berle, Kass and Case (Michael B. Gerrard, Esq., of Counsel), 45 Rockefeller Plaza, New York, NY 10111, and primarily by John R. Westendorf, an environmental engineer on the City's Staff, Robert E. Game, Director of the Department of Wastewater Facilities and others from time to time;

The Industrial Liaison Committee of the Niagara Falls Area Chamber of Commerce (the"ILC"), Barbara G. Northan, Chair, P.O. Box 787, 26th Street & Buffalo Avenue, Niagara Falls, NY 14302, represented by Whiteman, Osterman & Hanna (Philip H. Dixon, Esq., and John Hanna, Jr., Esq., of Counsel), One Commerce Plaza, Albany, NY);

Prior to April 8, 1993, the Ministry of Environment and Energy of the Province of Ontario, Box 2112, Hamilton, Ontario, L8N3Z9, represented originally by Terris, Edgecome, Hecker & Wayne and finally by Terris, Pravlik & Wagner, (initially James M. Hecker, Esq., and lastly Kathleen L. Millian, Esq., of Counsel), all at 1121 Twelfth Street, N.W., Washington, D.C. 20005; and

The Department Staff, represented initially by James D. Charles, Esq., and since 1989 by Annette M. Sansone, Esq., both Region 9 Staff Attorneys, 600 Delaware Avenue, Buffalo, NY 14202-1073, and, at times, by Joseph DiMura, P.E., and other Staff engineers.


The 1989 Stipulation is a package consisting of the agreement, the revised draft permit, a responsiveness summary explaining the permit revisions, a "matrix chart" showing the chronology of progress to resolution of issues, and a synopsis of each technical meeting. The 1989 Stipulation indicates the Parties' concurrence with the draft permit, that they take no issue with the draft permit, and that all Parties withdrew their requests for a hearing. The attached 1993 Stipulation is a package consisting of the agreement, the Ministry's letter of April 8, 1993 withdrawing as a Party, the draft permit, and the responsiveness summary for modifications to the 1989 draft permit including the background, summary and comparison of the 1993 draft permit to the 1989 draft. The signatories to the 1993 Stipulation agree to the revised draft permit as discussed with the EPA and have no issue for adjudication.

Although 6 NYCRR 624.9 indicates that a stipulation can result in the discontinuance of the hearing, the regulation further indicates that the Commissioner is responsible for the determination that the draft permit is consistent with the all applicable laws. The subsequent review of the 1989 Stipulation, the 1993 Stipulation, the revised draft permit, and a review of the record and the statutory and regulatory criteria indicates no identifiable impediment to the issuance of the permit as drafted.


Absent any record to the contrary and based on a review of the record, the ECL and the regulatory criteria, the Stipulation should be accepted and a SPDES permit should be issued as proposed.

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