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Regal Recycling Company, Inc. - Summary Hearing Report, March 11, 2003

Summary Hearing Report, March 11, 2003

ALBANY, NEW YORK 12233-1550

In the Matter

- of the -

Application of Regal Recycling Co., Inc., for modification of its permit for a
solid waste transfer station and recyclables handling and recovery facility at
170-21 Douglas Avenue in Jamaica, Queens.

DEC Project Application No. 2-6307-00008/00009

Summary Hearing Report

- by -

Edward Buhrmaster

March 11, 2003


Background and Project Description

The Applicant, Regal Recycling Company, requests modification of its New York State Department of Environmental Conservation ("Department") permit for its solid waste transfer station and recyclables handling and recovery facility at 170-21 Douglas Avenue in Jamaica, Queens. The transfer station is authorized to handle putrescible waste as well as construction and demolition debris. The Applicant proposes that its permit be modified to increase the handling throughput capacity for the management of putrescible solid waste from 355 cubic yards (177.5 tons) per day to 1200 cubic yards (600 tons) per day, while maintaining the permitted throughput capacity for construction and demolition debris of 355 cubic yards (266 tons) per day. The Applicant proposes to reduce the on-site storage of construction and demolition debris from 2885 to 2000 cubic yards per day.

The proposed increase in putrescible solid waste throughput would result in, at most, 10 truck trips during peak hours of operation. The Applicant proposes to end the queuing of trucks and other vehicles associated with the facility's operation by maintaining a truck staging area proximate to the site and creating queuing spaces within the facility building. Existing truck traffic patterns would change to direct inbound trucks to Douglas Avenue. Proposed operations would be conducted within a fully enclosed building. Odor and dust suppressant measures would be employed, and the facility would operate Mondays through Saturdays.

The permit requiring modification by the Department is the Applicant's permit to construct and operate a solid waste management facility, which has been issued pursuant to Title 7 of Article 27 of the Environmental Conservation Law ("ECL") and Part 360 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR Part 360").

Pursuant to ECL Article 8 (the State Environmental Quality Review Act, or "SEQRA") and 6 NYCRR Part 617, the Department, as co-lead agency, issued a negative declaration dated January 18, 2002. The Department determined that the proposed increase in the facility's handling capacity for putrescible solid waste is an unlisted action that would not have a significant effect on the environment and, therefore, an environmental impact statement would not be required. The other co-lead agency, the New York City Department of Sanitation (DOS), issued a negative declaration on September 1, 2000.

A notice of complete application, dated January 18, 2002, was published in the Department's Environmental Notice Bulletin on January 23, 2002, and in Newsday on January 24, 2002.

Legislative Hearing

Pursuant to a notice of public hearing dated May 7, 2002, which was published in the May 8 edition of the Department's Environmental Notice Bulletin and the May 13 edition of the New York Post, a legislative hearing was held to receive public comments regarding the proposed permit modification. The hearing was held during the evening of June 11, 2002, at the First Presbyterian Church, 89-60 164th Street, in Jamaica, Queens. About 60 people attended, and the dozen or so who spoke voiced opposition to the proposal, saying that the expansion of putrescible solid waste operations would create air and noise pollution problems for neighborhood residents. Objections were also raised to additional truck traffic aggravating congestion on local streets.

A statement read on behalf of New York City Council Member Leroy Comrie (27th District, Queens) noted that while he understood the need for meeting the city's recycling needs after the shutdown of the Fresh Kills Landfill in Staten Island, the Jamaica community would assume an unfair burden if the modification is approved. Comrie said he already was receiving complaints of odors and heavy traffic in the neighborhood of the Regal facility, and said approval of the modification would be an environmental injustice because, in his opinion, a minority community had been unfairly targeted. Conceding that the facility operator had been active in the community and worked well with various organizations, Comrie also maintained that southeast Queens had been saturated with recycling sites and the addition of more putrescible waste in a largely residential community, already beset by toxic sites and chemical spills, would exacerbate the situation. Therefore, Comrie said the modification of the facility permit should be denied.

Also writing against the permit modification were State Senator Malcolm A. Smith (10th District), the New York Lawyers for the Public Interest (NYLPI) and the Organization of Waterfront Neighborhoods. E. Gail Suchman, a NYLPI attorney, submitted a letter dated May 31, 2002, challenging the Department's negative declaration and claiming the permit modification would have a significant adverse environmental impact on local residents and users of a park across the street from the Regal facility. Ms. Suchman also argued that, as a matter of law, the Department could not permit the facility because doing so would be in violation of siting regulations promulgated by DOS.

Issues Conference

Pursuant to the hearing notice, an issues conference was held on June 12, 2002, at the Department's Region 2 office in Long Island City. Department Staff was represented by John Nehila, assistant regional attorney. The Applicant was represented by Peter Sullivan of Sullivan, Chester and Gardner, 230 Park Avenue, Manhattan.

One petition requesting full party status was received, on behalf of the New York City Department of Sanitation (DOS). The petition, dated June 5, 2002, was submitted by Christopher G. King, assistant corporation counsel in the city law department's environmental law division. Mr. King also appeared at the conference and has participated throughout the subsequent proceedings in this matter.

DOS did not assert any issues for adjudication by the Department, but indicated it was prepared to offer evidence concerning the environmental review that was conducted, since, as noted above, DOS was co-lead agency under SEQRA.

At the time the hearing notice was released in early May, 2002, Department Staff took the position that it was willing to approve the requested permit modification subject to special conditions that would be part of a new permit for the facility. A draft permit was prepared by Department Staff, released to the public on June 3, and marked as Exhibit No. 9 at the issues conference. On May 28, 2002, the Appellate Division of State Supreme Court, First Department, issued its decision in Spitzer v. Farrell (294 A.D.2d 257; leave to appeal granted, 98 N.Y.2d 615 [2002]), annulling a negative declaration issued by DOS for a plan to truck trash collected in Manhattan to solid waste facilities in New Jersey. The court said that in making its determination that the plan would have no adverse environmental or health effects, DOS failed to identify (much less take a hard look at) the plan's potential impact on particulate matter less than or equal to 2.5 microns in diameter (PM 2.5), and therefore a new environmental assessment addressing all environmental concerns, including those related to PM 2.5 emissions, was required.

At the legislative hearing, Department Staff indicated that it was reviewing the court decision in order to determine what impact it would have on the Department's negative declaration in this matter. That negative declaration did not identify PM 2.5 as one of the pollutants of concern for this project; the pollutants identified were sulfur dioxide, nitrogen dioxide, carbon monoxide, and particulate matter less than or equal to 10 microns in diameter (PM 10). At the issues conference, Staff indicated a concern that in the absence of an analysis specific to PM 2.5, any permit the Department might issue could be nullified in a subsequent court challenge. Department Staff proposed a control date of 60 days from the date of the issues conference, at which time it would report its determinations to me and the other parties. I indicated that this was too much time, and said a conference call would be held on July 15, 2002, at which time Staff would be expected to state its position to me, the Applicant, and DOS. Mr. King said DOS was also reviewing the Spitzer decision as co-lead agency for this project.

Mr. Sullivan, on behalf of the Applicant, agreed it was unclear what impact the Spitzer decision would have, or whether the decision would be applied retroactively. The Applicant maintained that the engineering tools to perform a PM 2.5 analysis did not exist, that there were no government guidelines to determine PM 2.5 impacts, and that there were no background data against which project impacts could be compared. The Applicant agreed with me that any adjournment to consider the impact of the Spitzer decision should be time-limited, adding that the decision should not be allowed to "freeze" review of the pending permit application, which had been made several years earlier. One proposal offered by the Applicant, but rejected by DEC Staff, was that the permit modification be approved on the condition that a PM 2.5 analysis be done at some future point after guidelines for such an analysis are developed. DOS said PM 2.5 needed to be analyzed now in light of its public health impacts, adding that it was exploring approaches derived from those used in recent power plant siting cases.

I encouraged the conference participants' counsel to work with each other in advance of the July 15 call to see what agreements could be reached about the direction the hearing should take in light of the Spitzer decision, noting that if there remained disagreements about the approach to be followed, I would entertain arguments on the merits of various approaches the participants might propose.

During the conference there was some discussion of the draft permit. The Applicant said it did not dispute any of the permit terms, but wanted the permittee identified as Regal Recycling Company rather than "Michael and Peter Reali, M&P Reali Enterprises, Inc.," the identified owner/operator in Staff's draft permit. The Applicant was directed to provide whatever additional information bearing on Regal's record of compliance that Department Staff might need to consider this change.

Subsequent Proceedings

As planned, I held a conference call with counsel for the issues conference participants on July 15, 2002. At that time, DEC Staff indicated that an analysis of the facility's PM 2.5 impacts was required; however, Staff had not settled on a method by which that analysis should occur. Because Staff was still reviewing air impact data that had been provided by the Applicant's consultants, further discussion was deferred pending another conference call to be held on July 31, 2002.

During the call on July 31, the parties discussed the possibility of amending the negative declaration with an analysis of PM 2.5 impacts. According to Department Staff, there was agreement on a method by which the analysis could be performed (in other words, on the model to be used), but not on the model inputs, though this issue was still being considered. Once issues bearing on modeling were fully resolved, Staff said it would need a report summarizing the modeling exercise performed by the Applicant's consultants, and the conclusions that were drawn from it. DOS said that once the Applicant's report was finalized, DOS and the Department would have to consider what direction the SEQRA process would take. DOS proposed the idea of a modified negative declaration reciting the Applicant's additional work on PM 2.5, and the publication of the negative declaration for public comment. DEC Staff and the Applicant agreed on this approach., and another conference call was scheduled for August 28, 2002.

During the call on August 28, it was reported that the Applicant's consultants had submitted a revised report on PM 2.5 impacts. DOS indicated that it was satisfied with the report, and Department Staff said it would likely also accept the report if, on Staff's review, the final report was consistent with revisions DOS had proposed. The Department and DOS confirmed that their likely next step would be issuance of an amended negative declaration based on the supplemental assessment of PM 2.5 impacts, followed by public notice of their action and an opportunity for comment. I directed that, apart from publication of any public notice, notice be given by mail to those who submitted oral or written comments in response to the earlier notice of public hearing.

On October 28, 2002, the notice of amended negative declaration was issued jointly by Department Staff and DOS. The notice said that in assessing whether or not the proposed action would have significant impacts on the environment, emissions of PM 2.5 resulting from mobile sources and the operation of stationary sources had both been considered. The notice said that these identified areas of concern had been analyzed in a supplemental air quality review, compared with criteria found in 6 NYCRR 617.7(c) and found not to result in significant adverse impacts because the proposed modification would result in a decrease of PM 2.5 emissions from existing conditions. The notice also said that the Department and DOS, as co-lead agencies, had determined that the action proposed by the Applicant would not result in any significant adverse impacts from PM 2.5 on the environment and preparation of a draft environmental impact statement would not be required.

Public comments stemming from the October 28 notice were allowed until November 28, 2002, a deadline that was subsequently extended to December 16, 2002.

On January 10, 2003, I held another conference call with counsel for the issues conference participants. DOS and Department Staff were satisfied that, with the issuance of their revised negative declaration, a complete review of project impacts had been performed under SEQRA. Neither agency proposed any issues for Department adjudication.

As of January 10, Department Staff was still seeking additional information regarding the Applicant's record of compliance, and the Applicant was attempting to get such information from the New York City Environmental Control Board. It was agreed that once Staff received and reviewed that information, it would state in writing whether it had any fitness-related concern that could affect whether or in what form a permit would be issued. Department Staff reported that the Applicant had unresolved notices of Part 360 violations, but added that it did not want to hold up permit issuance while those matters were negotiated, and I confirmed that this was Staff's call to make.

On February 26, 2003, Department Staff counsel submitted a letter indicating Staff's satisfaction that the Applicant had submitted all the required record of compliance documents. Staff's letter said that, upon a review of those documents, Staff concluded that no fitness concerns exist which could affect permit issuance or terms. Staff also reported that it and the Applicant had recently agreed on the parameters of an order on consent which, when finalized and fully executed, would resolve the Applicant's outstanding Department violations.

A final conference call was held on March 4, 2003, with counsel for the issues conference participants. With the understanding that its concerns had been addressed and that there were no issues requiring adjudication by the Department, DOS agreed to withdraw its request for party status, thereby making a ruling on the request unnecessary.

It was understood that the Applicant required a variance from DOS siting regulations for its project to go forward. However, all parties to the issues conference agreed that it is not for the Department permit hearing to decide whether or on what terms a variance is appropriate, and issuance of a Department permit need not await a decision on the variance by the city.

In her May 31, 2002, comment letter, NYLPI attorney E. Gail Suchman had written that 6 NYCRR 360-1.11(a)(1) prevents the Department from permitting a facility in violation of local law. In fact, this regulation requires only that the provisions of permits issued by the Department assure, to the extent practicable, that the permitted activity will comply with applicable laws and regulations. The Department does not enforce, or issue variances to, regulations of the City of New York. Also, the Department's draft Part 360 permit contains General Condition No. 5 reminding the Applicant that, as permittee, it is responsible for obtaining any other permits or approvals that may be required for the subject work, and that it must comply will all applicable local, state, and federal regulatory requirements.


Given the actions of the issues conference participants resolving matters among themselves, no issues are proposed for adjudication in this matter, and the one request for party status has been withdrawn. Therefore, consistent with 6 NYCRR 624.4(c)(5), the adjudicatory hearing in this matter is hereby canceled and Department Staff is directed to complete whatever processing of the application is necessary to complete the requested permit modification.

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