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Spector Waste Paper Corporation - Ruling 2, March 9, 1993

Ruling 2, March 9, 1993


In the Matter of an Application filed
pursuant to ECL Article 27 and
6 NYCRR Part 360 to construct and
to operate a solid waste transfer
station and recycling facility
at 10-14 Avion Drive, Town of Chili,
Monroe County by

DEC No. 8-2622-00050/1-0


On March 8, 1992, Ms. Quercia, Ms. Schwartz, Mr. Greenfield and I participated in a telephone conference during which Mr. Greenfield requested clarification of my rulings in this matter dated February 26, 1993. Lee Loomis, Chair of the Monroe County Environmental Management Council (EMC) did not participate in the telephone conference. Referring to page 10 of the rulings in this matter, and to Conditions Nos. 13 and 19 of the draft permit to operate (Exhibit 3A for identification), Mr. Greenfield requested clarification about: (1) the two hour reaction time, (2) the role the Greater Rochester International Airport (GRIA) would play in developing the bird control plan, and (3) the other approvals needed to implement the bird control plan.

The Reaction Time

The rulings dated February 26, 1993 state, "the reaction time from when a bird hazard condition is identified at the Facility to when the Department determines how the Applicant should respond to the bird hazard could be prolonged" (page 10). Referring to draft permit Condition No. 19, Mr. Greenfield asserted a two hour reaction time seemed adequate and requested clarification of the ruling.

The reaction time discussed in the rulings does not relate to the Applicant's two hour reaction time as proposed in draft permit Condition No. 19. The County correctly noted the Department's Region 8 office hours are not the same as the hours of operation for the airport and the Applicant's proposed facility. According to the County, therefore, the Department Staff would not be able to provide notice to the Applicant of potential non-compliant conditions in a timely manner. I accepted the County's position, and concluded in the rulings that the Department Staff's reaction time could be prolonged because the Department Staff would not be available at certain times when the Applicant's facility and the airport are operating.

The Role of the GRIA

During the telephone conference, Mr. Greenfield stated he would develop a bird control plan to avoid a hearing. However, Mr. Greenfield requested clarification about the role the GRIA would have in developing the bird control plan, and who would approve the plan.

The GRIA's role in developing the bird control plan would be advisory and the Region 8 Department Staff would have final approval of the bird control plan. As I indicated in the rulings, 360-1.11(a) does not enable the Department to delegate inspection rights or enforcement authority to the Monroe County Director of Aviation, a bird control advisory group, or the County. To date, the County and the GRIA have not identified any other legal authority that would require, or allow, the Department to delegate inspection rights and enforcement authority.

However, in developing an approvable bird control plan, I expect the Applicant and the Department Staff would earnestly consider the GRIA's recommendations because the GRIA has expertise and experience in managing bird hazards.

Other Approvals for the Bird Control Plan

Mr. Greenfield asked me to identify any additional approvals for the bird control plan. However, any additional approvals are a function of the bird control plan. An example of other approvals that may be needed would be any permits from federal, state and local agencies to manage wildlife nuisances. Also, if the bird control plan calls for shotgun patrols, the Applicant should determine whether permits for firearms are necessary.

Changes to the Draft Permit to Operate

Although specific modifications to the draft permit to operate (Exhibit 3A for identification) were not finalized during the telephone conference, the County expressed a concern about any proposed changes. However, during the Issues Conference, the Applicant requested that Condition No. 19 not be modified. In addition, the Department Staff stated that Condition No. 13 would not be modified, and suggested adding a condition that required the Applicant to prepare a bird control plan and to implement it as required by the plan.

Extension of the Schedule for Appeals

To provide time for preliminary discussions about the bird control plan, the Applicant, the County, and the Department Staff agreed to extend the appeal schedule. Appeals from the February 26, 1993 rulings in this matter must be postmarked by April 2, 1993. Replies must be postmarked by April 9, 1993. Appeals and replies must be sent to the Office of the Commissioner, New York State Department of Environmental Conservation, 50 Wolf Road, Albany, New York 12233-1010. One copy of the appeals and the replies must be sent to the Administrative Law Judge and to each person listed on the attached Service List.

Daniel P. O'Connell
Administrative Law Judge

Dated: Albany, New York
March 9, 1993

To: Attached Service List

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