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Waste Management of New York (Towpath) - Interim Decision, May 15, 2000

Interim Decision, May 15, 2000

50 Wolf Road
Albany, New York 12233-1010

In the Matter

- of -

Application for permits to operate a solid waste management facility,
the Towpath Environmental & Recycling Center, in the Town of Albion,
Orleans County.



Application No. 8-3420-00019/00005


May 15, 2000

Interim Decision of the Commissioner


This interim decision relates to appeals from the Rulings of the Administrative Law Judge on Party Status and Issues ("Rulings")(1) rendered December 31, 1999, by ALJ Edward Buhrmaster. The Rulings concern the permit application of Waste Management of New York, LLC, ("WMNY" or the "Applicant") to build and operate a solid waste landfill, recycling facility, and yard waste composting site at the former Orleans Sanitary Landfill ("OSL") located in the Town of Albion, Orleans County. The new facility would be known as the Towpath Environmental & Recycling Center.

Following a legislative public hearing on July 1, 1999, and an issues conference on July 20-22 and August 17-20, the ALJ found three issues for adjudication. Those issues concerned (1) the fitness of the Applicant, (2) the site hydrogeology and (3) the noise that would be generated by project operations. (Rulings, pp. 8-32). The ALJ found that over 20 proposed issues did not constitute issues for adjudication. (Rulings, pp. 32-70).


The Applicant seeks a variety of permits, including a 6 NYCRR Part 360 permit, from the Department to operate the proposed facility and to expand the former OSL site at 3511 Densmore Road in the Town of Albion, Orleans County. The proposed Towpath landfill would be developed in the eastern portion of an approximately 204 acre parcel, which includes the approximately 40 acre closed OSL site and previously disturbed land to the north and east. The site property is owned by the Estate of the Orleans Sanitary Landfill, Inc. and Irene M. Smith. Pursuant to a 48 year lease agreement, the estate bankruptcy trustee and Ms. Smith conveyed certain rights and obligations to WMNY, including the right to develop and operate the leased premises as a landfill for a term of 48 years. As a condition of the lease, WMNY is obligated to obtain all required permits to construct and operate a landfill on the site for the purposes of creating a revenue stream to be distributed to creditors of the Estate.

The footprint of the proposed landfill expansion comprises approximately 73 acres in the eastern portion of the 204 acre parcel, with the westernmost four acres of the proposed landfill overlaying the existing eastern slope of the closed OSL site. As proposed, the Towpath landfill would have a design capacity of 1,800 tons of solid waste per day, and would receive municipal solid waste, nonhazardous commercial and industrial waste, yard waste, and recyclables (paper, glass, plastic and metal).

The area of the proposed landfill expansion and the adjacent parcels has previously been used for waste disposal. During the 1950's, the Village of Albion operated an approximately one acre waste disposal site in the northwest portion of the landfill expansion footprint. Between 1968 and 1983, the McKenna Landfill site located immediately to the northeast of the proposed site, accepted waste.(2) The OSL site operated from 1983 to 1991.

In August 1991, after OSL had commenced closure activities, OSL filed for bankruptcy. Closure and post-closure of the OSL site since the bankruptcy filing has been managed by the bankruptcy trustee, who contracted with WMNY for implementation of a closure plan and post-closure activities. The OSL Landfill is now capped in accordance with the closure plan and WMNY continues to provide post-closure monitoring and maintenance activities.

The ALJ's Ruling on Fitness

In his December 31, 1999 ruling on fitness (Ruling, pp. 9-16), the ALJ found that the records of environmental compliance for the Applicant ("WMNY"), and its parent company Waste Management, Inc. ("WMI"), raise an adjudicable issue as to whether the Applicant is suitably fit to receive the permits requested from the Department. Additionally, the ALJ directed that the Applicant furnish environmental compliance information on USA Waste, a company that merged with WMI in 1998, and retained WMI's name, for the 10 year period preceding the merger.

In rendering his ruling on the Applicant's fitness, the ALJ relied on Applicant submissions that included a completed Record of Compliance form and a supplemented update received July 30, 1999, as well as two other consent orders submitted by Staff on November 2, 1999, but not identified in the Applicant's prior submissions. The ALJ then applied the Department's Record of Compliance Enforcement Guidance Memorandum ("EGM") issued August 8, 1991, and revised February 1993. The ALJ stated that the identified violations raised enough doubt about the Applicant's fitness that a reasonable person would inquire further into the circumstances of those violations that appeared most significant, and that such inquiry was warranted under terms of the EGM. The ALJ cited specific ECL violations, which justified the need to explore further "the underlying documentation" of those incidents. Those matters included a 1991 order assessing a $71,000 penalty for placing waste at a not yet permitted landfill in Fairport, a 1991 order assessing a $4,500 penalty for installing gas recovery wells without a permit at the Monroe Livingston Landfill, civil penalties ranging from $20,000 to $50,000 for ECL violations at transfer stations in other parts of New York during 1998 and 1999, and civil penalties imposed by a Virginia court arising from the transport and disposal of medical waste.

In finding that the record of compliance inquiry should also encompass WMI, the Applicant's parent company, the ALJ stated that the EGM applies:

not only to the "immediate entity" (WMNY) but to any corporation which "holds a substantial interest" in the permittee or applicant. WMI holds a substantial interest in WMNY because it owns it; WMNY is its subsidiary. (Ruling, p. 11).

A compliance disclosure for WMI submitted by the Applicant at the ALJ's request summarized 37 incidents, predominantly resolved by consent orders with civil penalties of $25,000 or more; five criminal matters were listed.(3) The incidents referred to by the ALJ included payment of a $3.8 million civil penalty in 1991 by Waste Management of Pennsylvania, a WMI subsidiary, for creating inaccurate records as to the volume of waste received at a landfill in Erie, payment of $10.1 million in 1991 and a plea of guilty by Chemical Waste Management, Inc. ("CWM"), a WMI subsidiary, for failing to report hazardous waste spills, and payment of a $1.9 million civil penalty in 1992 by CWM for alleged violations of Illinois environmental law. The ALJ stated that these incidents "are of sufficient gravity that the underlying documentation must be brought into the hearing record." (Ruling, p. 12).

The ALJ rejected a request by Stop Polluting Orleans County ("SPOC"), the intervenor group that proposed the fitness issue, to admit a 1992 58 page investigatory report on WMI prepared by the Office of the San Diego District Attorney in California. The report, which was critical of WMI's operations across the country, was denied receipt because the allegations were "for the most part too dated to be relevant to the company's expected future conduct. The EGM creates a 10-year window of review, and the report itself is already more than seven years old." (Ruling, p. 13).

As for USA Waste's compliance history, the ALJ found that because WMI merged with USA Waste in 1998, USA Waste's "record of environmental compliance over the last 10 years bears on the fitness issue here as least as much as the record of the pre-merger WMI." (Ruling, p. 14). Accordingly, the ALJ asked for ROC information on the pre-merger USA Waste to the same extent requested from WMI.


Appeals to the Commissioner on the Rulings by the ALJ concerning issues identified for adjudication were commenced by several parties. The Applicant, the New York State Department of Environmental Conservation staff ("Staff"), SPOC and the Town of Murray appealed the finding concerning the fitness of the Applicant. The Applicant, Staff and the Town of Murray appealed the finding regarding the site hydrogeology. The Applicant, Staff and the Town of Albion appealed the finding involving noise from the proposed expansion. For the reasons stated below, I adopt the ALJ's Rulings, except with respect to the ALJ's finding that the Applicant's fitness is an issue for adjudication.

Standards for Adjudication

(1) An issue is adjudicable if "it is raised by a potential party and is both substantive and significant." 6 NYCRR §624.4 (c)(iii). The terms "substantive" and "significant" are defined as follows:

(2) An issue is substantive if there is sufficient doubt about the applicant's ability to meet statutory or regulatory criteria applicable to the project, such that a reasonable person would require further inquiry. In determining whether such a demonstration has been made, the ALJ must consider the proposed issue in light of the application and related documents, the draft permit, the content of any petitions filed for party status, the record of the issues conference and any subsequent written arguments authorized by the ALJ.

(3) An issue is significant if it has the potential to result in the denial of a permit, a major modification to the proposed project or the imposition of significant permit conditions in addition to those proposed in the draft permit.6 NYCRR §624.4(c)(2),(3)

Where DEC and the applicant agree on the terms and conditions of the proposed permit, §624 states:

(4) In situations where the department staff has reviewed an application and finds that a component of the applicant's project, as proposed or as conditioned by the draft permit, conforms to all applicable requirements of statute and regulation, the burden of persuasion is on the potential party proposing the issue related to such component to demonstrate that the issue is both substantive and significant. 6 NYCRR §624.4(c)(4) (Emphasis added).

Prior Department decisions clearly establish that adjudication of issues occurs only where the ALJ has sufficient doubt about an applicant's ability to meet all statutory and regulatory criteria such that a reasonable person would inquire further (In the Matter of Hydra-Co. Generations, Inc., Interim Decision of the Commissioner, April 1, 1988) and where, in the ALJ's judgment, there is a reasonable likelihood that adjudication would result in amended permit conditions or project denial. In the Matter of Jay Giardina, Interim Decision of the Commissioner, September 21, 1990.

The burden on the intervening party in instances where Department staff and the applicant agree on the terms and conditions of the permit is not a superficial one. See, Matter of Citizens For Clean Air v. New York State Dep't of Envt'l Conservation, 135 A.D.2d 256, 260-261 (3d Dept. 1988)(court upheld burden imposed on potential interveners and further upheld the Commissioner's determination to exclude certain issues from adjudication). Conducting an adjudicatory hearing where "offers of proof, at best, raise uncertainties," or where such a hearing would "dissolve into an academic debate" is not the intent of the Department's hearing process. Matter of Adirondack Fish Culture Station, Interim Decision of the Commissioner, August 19, 1999, p. 8, citing In the Matter of AKZO Nobel Salt Inc., Interim Decision of the Commissioner, January 31, 1996.

While the intervenor's offer of proof at the issues conference need not necessarily be so convincing as to prevail on the merits, its offer must amount to more than mere assertions or conclusions. See, id. "The purpose of adjudication is not simply to develop or refine information concerning the project but rather to aid in decision making." In the Matter of Sithe/ Independence Power Partners, Interim Decision of the Commissioner, November 9, 1992. Moreover, where DEC staff and the applicant are not in disagreement over the terms and conditions of the proposed permit, the permit application and the draft permit prepared by DEC staff are prima facie evidence that a proposed project will meet all of the relevant statutory and regulatory criteria. See, In the Matter of Sithe/Independence Power Partners, L.P., Interim Decision of the Commissioner, November 9, 1992; see also, ECL §70-0119(1) and 6 NYCRR §624.4(c)(4).


Preliminarily, the Applicant's argument that the Department lacks the authority to review the fitness of an applicant in assessing whether to issue a permit is without merit. (App. Br., 1/28/00, pp. 30-32). Under New York law, it is axiomatic that agencies with licensing authority have implicit discretion to pass upon the fitness of an applicant. Matter of CC Lumber Co., Inc. v. Waterfront Commission of New York Harbor, 31 NY2d 350, 358 (1972); Matter of Barton Trucking Corp. v. O'Connell, 7 NY2d 299, 308-309 (1959). Prior willful violations of law are relevant on the issue of a license applicant's fitness. Matter of Olsen v. Town of Saugerties, 161 AD2d 1077 (3d Dept 1990); Matter of Al Turi Landfill, Inc., Index No. 4545/99, Leavitt, J. (Sup. Ct., Orange Co., February 1, 2000). Indeed, several previous Commissioner's Decisions have addressed an applicant's fitness to receive a Department permit. See e.g., Matter of Bio-Tech Mills, Inc., Decision of the Commissioner, May 18, 1983; Matter of American Transfer Company, Decision of the Commissioner, December 24, 1991.

The importance the Department places on the compliance history of permit applicants is reflected in agency policy documents and in administrative hearing decisions. The Department's Record of Compliance EGM, last revised in February 1993, advises that the suitability of an applicant to receive a Department permit, certificate, license or grant must be considered. Such review assures the Department that the applicant can be relied on to carry out the terms and conditions of the permit. Matter of American Transfer Co., Interim Decision of the Commissioner, February 4, 1991.

The ROC EGM review includes violations which have occurred within ten years of the date of completion of the ROC form, and applies not only to the applicant:

but to any other corporation, partnership, association or organization in which the permittee or applicant holds or has held a substantial interest or in which it has acted as a high managerial agent or director or any other individual, corporation, partnership or organization which holds a substantial interest or the position of high managerial agent or director in the permittee or applicant. (EGM, p. 5).(Emphasis added).

The highlighted language is relevant in the instant case as SPOC has alleged that the compliance history of the Applicant's parent company raises an adjudicable issue.

Significantly, there is no quantitative model or formula for determining how many violations or what amount of civil penalties render a person unsuitable to receive a permit. The EGM clearly emphasizes that the ROC review must be applied on a "case by case basis" and Department decisions adhere strongly to that principle. See, Matter of CECOS International, Inc., Decision of the Commissioner, March 13, 1990, p. 4; Matter of SES Brooklyn Co., L.P. et al., Fifth Interim Decision, September 9, 1993, p. 9. Indeed, the EGM and administrative decisions on fitness make clear that permit decisions which evaluate an applicant's record of compliance "are situation specific and require a careful balancing of facts and policy considerations." Matter of Laidlaw Environmental Services, Inc., Decision of the Commissioner, June 28, 1994, p. 1; Matter of CECOS International, supra, p. 3.

I find two inquiries particularly relevant to a determination on fitness. The threshold focus should be on the applicant with the principal inquiry being whether the actual compliance history of the permittee or applicant warrants permit denial or imposition of special conditions. See, e.g., In the Matter of Al Turi Landfill, Inc.,(4) Decision of the Commissioner, April 15, 1999 (holding that applicant was unsuitable to receive a Department permit rested on felony convictions of the three principals who would operate the new landfill); Matter of Laidlaw, supra, p. 1 ("principal issue is whether the problems for which LESI is responsible are so severe or pervasive that the grant of the subject permits on any terms is too risky"); Matter of American Transfer Co., supra, p. 2 (need to determine "the identity of the party who will be responsible for implementation of permit conditions and for remediation in the event of environmental degradation").

Appraising the fitness of the applicant or the permittee is consistent with past Department decisions and accordant with the EGM, which seeks to ensure that "the applicant is a fit and proper person to engage in the permitted or licensed activity." EGM, p. 3. (Emphasis added). In the case of large publicly held corporations, particularly those with offices, affiliates or related entities across the nation, the analysis of an applicant's compliance history should focus initially and chiefly on the applicant's compliance record within New York. See, Matter of Laidlaw Environmental Services, Inc., supra; Matter of CECOS International, Inc., supra; Matter of A-1 Compaction Corp., ALJ Hearing Report, p. 24.

In the event that the compliance history objections concern an entity related to the applicant, such as a parent company or affiliate, the next inquiry is whether such entity has held a "substantial interest" in the applicant (e.g. the applicant is a wholly owned subsidiary), or has acted as a "high managerial agent or director" in the applicant (e.g. applicant shares same board of directors or same corporate officers). (EGM, p. 5). If the related entity has held a "substantial interest" or maintained a "high managerial relationship" in the applicant, the query then becomes whether the interest or relationship amounts to a "substantial influence" over the management of the applicant's site. See, Matter of CECOS International. supra, p. 4.

In other words, the issue becomes the degree of control which the parent company or related entity exercises over the permittee/applicant. Where there is no proof that the applicant's compliance activities are "substantially controlled" by its parent (Matter of Laidlaw Environmental Services, Inc., Interim Decision of the Commissioner, December 21, 1993, p. 3) or where it appears that "local management is responsible for day-to-day operations" at the site (Matter of CECOS International, supra), the "substantial influence" concern diminishes. See, id.

Upon applying these principles to the instant case, I find that WMNY's record of compliance does not constitute an adjudicable issue. Moreover, a close review of the facts proffered by Staff further persuade me that no ROC problem exists with respect to WMNY.

The Applicant currently holds Department permits for several facilities in New York, including municipal solid waste landfills, all operated with Department oversight. (IC, Exhibit 13). The Applicant also has a lengthy permitting history with the Department. Unlike Al Turi where Department Staff raised the issue of the applicant's fitness, here Staff's submissions do not support permit denial on the basis of fitness.

Staff referred to a "long history of direct involvement with regulating WMNY in this part of the state, and with respect to the type of activity, i.e. landfill construction and operation, for which authorization is sought here." (Staff Appeal, 1/28/00, pp. 5-6). At the issues conference, Staff spoke favorably about the Applicant's compliance history and stated that its regional experiences with WMNY did not include events which would indicate WMNY is unsuitable to receive a permit. (IC, pp. 251-252, 228, 237-239).(5) Staff cited the Applicant's ownership and operation of the High Acres landfill in the Town of Perinton,(6) and noted that to its knowledge, no other WMNY violations in New York have prompted the Department or any other state agency to seek denial or revocation of a WMNY permit. (Id., p. 240-241). Staff also cited the Applicant's closure of the OSL, as a contractor for the bankruptcy trustee, and SPOC's acknowledgment that the Applicant did "everything they said they would" and "did a good job at that [capping the landfill]."(7) (Id., p. 266).

The Applicant's submissions on its compliance history involve compliance incidents in different parts of New York (five in the Rochester-Buffalo area) and date back to 1993. (Exhibits 13-A, 13-B). Staff also provided two more 1991 consent orders involving regional landfills; one assessed a $71,000 penalty for disposing waste in an unpermitted area and the other imposed a $4,500 penalty for installing gas recovery wells without a permit. Based on this record, I do not find that WMNY's compliance history is of such a "serious and persistent nature" that would justify permit denial (Matter of CECOS International, Inc., supra, p. 6), particularly where the draft permit includes express permit conditions agreed to by the Applicant and designed to address any compliance concerns. Those conditions require, inter alia, an on-site environmental monitor, a hydrogeologist monitor position, a financial assurance mechanism and monthly reporting of volume intakes. (Exhibit 20A; IC, pp. 241-244).

SPOC's arguments consist primarily of complaints about WMI and USA Waste. However, SPOC provides no offer of proof that the personnel of either will be substantially involved in the proposed project, or that the compliance history of the Applicant's local management is suspect. In fact, SPOC acknowledges that it does not take issue with the Applicant's compliance history in New York. (IC, p. 186, 187). The October 5, 1999, submission from the Applicant concerns violations by WMNY's out of state siblings, not entities with control or influence over the Applicant. SPOC offers no basis as to how this list of violations by these other entities creates such an influence as to warrant permit denial. The Applicant's October 5 submission also includes affidavits from WMNY personnel in the region where the proposed expansion would occur which indicate that day-to-day operational decisions are made at the local level without parent company involvement.(8)

Moreover, it is also appropriate to evaluate the compliance history of WMI relative to the size of its operations. See, Matter of Laidlaw Environmental Services, Decision of the Commissioner, supra. Submissions from the Applicant indicate that WMI is a large national operation with, inter alia, over 70,000 employees, 292 landfills, 295 transfer stations, 104 recycling facilities and 615 collection companies. The October 5, 1999 submission reveals 37 incidents (includes approximately 25 consent orders with civil penalties greater than $25,000 and five criminal matters) involving WMI facilities across the country dating back to 1989.

Additionally, the appeals of the ALJ's declination to consider a 1992 investigatory report on WMI prepared by the Office of the District Attorney in San Diego, California are unpersuasive. The ALJ properly found the report to be "for the most part too dated to be relevant to the company's future conduct." I agree with Staff that:

out of state conduct of the parent or sibling, each of which is a separate corporate entity with its own management structure, should be of less concern to DEC in a ROC inquiry when there is substantial, long-term, in-state institutional experience with an applicant. The question simply becomes one of speculation and attenuation. (Staff letter, 11/2/99. p. 3).

As for the ALJ's finding that compliance information on USA Waste, which merged with WMI in 1998, is relevant and necessary to assess the Applicant's fitness, I disagree. The intervenors offer no proof that former USA Waste personnel will have any influence or control in the day-to-day operations of the proposed Towpath project. Additionally, in a November 12, 1999 letter, the Applicant stated that WMI's twelve person board, as of November 10, 1999, is comprised of seven persons from the pre-merger WMI, four persons from the pre-merger USA Waste and a Chairman of the Board from neither company. Given this board composition, it would be difficult to accept that former USA Waste personnel would shape the compliance management strategies of WMI, its affiliates, or entities like the Applicant.

In summary, I find that the compliance history of the Applicant does not constitute an adjudicable issue. Based on this record, there is not sufficient doubt about the Applicant's ability to meet statutory or regulatory criteria applicable to the project. The Applicant has agreed to the conditions in the draft permit and has an operational history with Staff indicating an ability to perform the duties and obligations contained in the draft permit. The Applicant's compliance history as proffered here does not indicate an inability to meet those criteria. In addition, the compliance history of WMI does not rise to a level where the outcome of the permitting decision for WMNY, on this point, would be affected; the offers of proof do not demonstrate that the Applicant's compliance decisions or daily operations for the proposed project would be substantially influenced by the parent.

Other Matters

I have reviewed the remaining appeals to the ALJ's Rulings and find no reason to overturn the ALJ's findings on these other matters. Where the question is one of whether a factual dispute requires adjudication, substantial deference is given to the ALJ's judgment. See, In the Matter of Hyland Facility Associates, Interim Decision of the Commissioner, August 20, 1992. Accordingly, the ALJ's recommendations that the issues of site hydrogeology and noise be adjudicated are affirmed.

I have also reviewed and concur with the ALJ's rulings that no adjudication was necessary with respect to whether: (1) the Applicant could seek a variance from the regulatory requirements concerning the minimum depth of unconsolidated deposits underlying the proposed landfill; (2) the problems with seagull congregation at the landfill were adequately addressed; (3) the visual impact analysis by the Applicant was adequate; and (4) the National Historic Preservation Act, 16 U.S.C.A. §470, et. seq., provided an alternative basis to deny permits for the Towpath project.


For the reasons stated above, I concur with the ALJ's issues rulings, except for the ALJ's ruling as to the Applicant's fitness, which I conclude based on this record does not constitute an issue for adjudication within the meaning of 6 NYCRR §624. In view of my conclusion that fitness is not an adjudicable issue, and since the only issue proposed by SPOC was fitness, SPOC's petition for party status is denied. The issues of site hydrogeology and noise are remanded to the ALJ for further proceedings.

For the New York State Department
of Environmental Conservation
By: John P. Cahill, Commissioner

Albany, New York
May 15, 2000

1 References to the ALJ's December 31, 1999 Rulings are delineated as (Rulings, p. __). References to issues conference testimony are delineated as (IC, p. __) and refer to the testimony offered on July 21, 1999. References to exhibits refer to exhibits identified during the issues conference.

2 The privately owned McKenna Landfill is an 18 acre Class 2 site on the New York State Registry of Inactive Hazardous Waste Disposal Sites. In March 1998, WMNY entered into a consent order with the Department to develop and implement a closure remedial program, and to pay the State's oversight costs related to the closure activities. The Department recently approved WMNY's final design report and construction should begin this Spring.

3 This submittal from the Applicant also stated that WMI consisted of over 70,000 employees, 292 landfills, 295 transfer stations, 104 material recycling facilities, 615 collection companies, 16 waste-to-energy plants and 3 landfill gas-to-electric power facilities, and served 30 million customers. (Letter from Applicant, October 5, 1999).

4 The intervenors' assertions that Matter of Al Turi is analogous to the instant case are not persuasive. In Al Turi, the applicant was denied a permit on fitness grounds because the applicant and its three sole shareholders pled guilty to a variety of tax fraud, mail fraud and conspiracy charges involving, inter alia, the filing of false documents with and making false statements to a government agency. The three owners received prison sentences and fines, and were ordered to make millions of dollars in restitution. Such crimes relating to honesty and truthfulness indicated "deception and fraud against the government, and thus "bear[ed] directly on the applicant's suitability to receive a Part 360 permit." Id., p. 5. More pointedly, these same three principals would be the owners and operators of the proposed landfill expansion; here, the intervenors offer no proof that the principals behind WMNY are unsuitable to receive the proposed permit.

5 During its review of the permit application, it bears noting that Staff had the option to seek any additional information "reasonably necessary to make any findings or determinations required by law." See, 6 NYCRR §621.15(b).

6 See, Staff Appeal, 1/28/00, p. 6. The Applicant's management of the High Acres Landfill and its relationship with the Town of Perinton was favorably endorsed in a 2/25/99 letter from the Town Supervisor. (IC, Exhibit 18).

7 The Applicant's efforts at the OSL site were lauded by the bankruptcy court overseeing closure and post-closure activities. In Re Albion Disposal, 203 B.R.884,885 (Bankr. W.D.N.Y. 1996)("During the course of this bankruptcy case, Waste Management and the Trustee worked diligently to address the various concerns of the Town of Albion and to bring the landfill into compliance with environmental guidelines") aff'd in part and remanded in part, In re Albion Disposal, 217 B.R. 394 (W.D.N.Y. 1997).

8 The Town of Albion's objection to the affidavits submitted by WMNY is without merit. 6 NYCRR §624.4(c)(2) expressly allows for consideration of the application and "related documents, the draft permit, the content of any petitions filed for party status, [and] the record of the issues conference" in determining whether an adjudicable issue exists.

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