By HEATHER NELLIS
Recorder News Staff
HAGAMAN -- An administrative law judge recently ruled in favor of the state Department of Environmental Conservation in its complaint against the BCD Tire Chip Manufacturing company in the village, and says it either has to apply for a state permit, or close its doors.
The company is challenging the decision, however, and sought a stay on the order that was approved by Fulton County Judge Richard Giardino Monday.
Administrative Law Judge P. Nicholas Garlick's decision, rendered on March 26, affirms DEC's stance that the tire chips produced by BCD should be regulated as waste tires, and should have a permit for the number of chips stored at the facility.
With that determination, Garlick decided that during seven months in 2011, the William Street company was in violation of the environmental conservation law which prohibits storage of more than 1,000 tires without appropriate permits.
DEC records indicate there were the equivalent of 22,000 to 27,500 waste tires in the form of chips in piles behind the tire-shredding facility during an inspection two years ago.
Garlick recommended DEC Commissioner Joseph Martens impose a $31,000 penalty, and give the company 10 days to decide whether it wants to file for the permit or shut down, to which Martens agreed.
DEC's original request from the law judge was the revocation of the company's registration, and removal of all waste tires, but Garlick said the company should be given a choice to file for the permit because of the company's past cooperation, and the fact there were no recorded violations prior to the current dispute.
"The requirement for a permit for facilities like BCD is very important," Garlick wrote. "However, in this case, this is balanced by the fact that BCD was registered, regularly inspected by DEC staff, and apparently completely open and forth-coming about its operations."
Albany Attorney Dean Sommer, who represents the company and its owner, Brian Conlon, said, "We're disappointed with the decision, because we think the facility is part of the solution, not the problem."
Sommer says there's nothing in environmental conservation law that addresses the tire-derived aggregate that the facility makes out of waste tires. He said products like the ones Conlon's facility makes are used for road-bank stabilization, in landfills for water migration liners, and ball fields and playgrounds.
Garlick disagreed, affirming the agency's argument that, "although not specifically defined in the statute or regulation, tire-derived aggregate is the equivalent of chipped tires and therefore, are 'portions of tires' that are included in the definition of 'waste tires.'"
The law judge was also unpersuaded by the company's argument that the chips are a "manufactured product with value, and thus, not waste tires."
"The mere fact [the chips have] value as a product does not remove it from regulation as portions of waste tires," Martens wrote. He added that because the regulations are an "attempt to minimize the significant fire and other health threats posed by waste tires," it remains subject to regulation.
Both Garlick and Martens identified the facility as a significant fire threat, noting it's located in a residential area, referencing a July 7, 2006 fire there.
"Although the fire primarily involved an abandoned building at the site, it was the worst fire in Hagaman's history, which lasted for three days and involved over 35 fire departments from five different counties," Martens wrote in his order. "Given the very large, undifferentiated pile of tire chips at the facility, and the lack of compliance with appropriate regulatory pile size and setback requirements, any future fire at the facility involving tire chips could cause very severe impacts to the surrounding residential community."
Martens also addressed the company's argument that the chips are manufactured for beneficial use. He said the key term of that law is the word "use."
"Nothing in [the law] warrants the conclusion that [BCD's] storage of [chips] prior to being used for a beneficial purpose is now exempt from the department's permit requirements," his decision reads.
Sommer said a hearing has been scheduled at Supreme Court to decide the matter later this month. Until then, he said the company will continue to operate and chip tires, noting it employs 13 full-time staff members, and the company pays $16,000 in local property taxes.
"The state uses this facility, so the notion of putting them out of business and causing unemployment is ironic," he said.