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HomeMy WebLinkAbout02/24/2011 Solid Waste ForumELIZABETH A. NEVILLE TOWN CLERK REGISTRAR OF VITAL STATISTICS MARRIAGE OFFICER RECORDS MANAGEMENT OFFICER FREEDOM OF INFORMATION OFFICER Town Hall, 53095 Main Road PO Box 1179 Southold, NY 11971 Fax (631) 765-6145 Telephone: (631 ) 765 - 1800 www.southoldtown.northfork.net AGENDA SOUTHOLD TOWN BOARD SOLID WASTE FORUM February 24, 2011 7:00 PM POLICY: At scheduled Town Board meetings, the attending public is encouraged to briefly address the Town Board relating to agenda resolutions prior to their enactment; the public will also be given time at the conclusion of the regularly scheduled business agenda to address the Board on any given topic. ONLINE ACCESS: The Agenda is generally available the Friday before the meeting. The video of the meeting is usually available 1-2 hours after the meeting. Minutes with adopted resolutions are available 1-2 days after the meeting. A full copy of the minutes, agenda and meeting video can be viewed in one &two ways: (1) The town website: southoldtown.northfork.net Scroll down to Town Clerk Gateway - On line, click; scroll down again to Town Clerk Gateway - on line, click You will be redirected to the Town Clerk on line site, click the "Yes" box to go into the site. (2) www.townclerk.com Enter zip code 11971 in box on lower right hand side and "enter". On the left hand side of screen a dark blue box will pop up, you will see "Town of Southold, Long Island, NY", click on this and another box will pop up that will tell you that you are being directed to another site click on "Yes" to go into the Town Clerk site. Go to the date of the meeting and click on "Minutes Packet" this is the full copy of the resolutions. (Scroll to bottom of page for KEY to symbols). You can view the live video of the meeting by clicking on the camera symbol. All of this information is available 24/7. If you would like help navigating the site, please feel free to call my office 631-765-1800. CALL TO ORDER 7:00 Pl*l I~leeting called to order on February 24, 2011 at Meeting Hall, 53095 Route 25, $outhold, NY. DISCUSSION Overview of Southold Town Waste Management Plan a. Town Code b. State Code Sbuthold Town Meeting Agenda - February 24, 2011 Page 2 c. Other Towns 2. Overview of Finances of Solid Waste District 3. Statistical Information of Solid Waste Stream a. Destination of current Waste Stream b. Recycling: Destination and Income 4. Discussion of State Code a. Miscellaneous Case Law 5. Possible Next Steps a. Change Town Code? b. Adopt Carting License? c. Change State Code SCOTT A. RUSSELL SUPERVISOR Town Hall, 53095 Route 25 P.O. Box 1179 Southold, New York 11971-0959 Fax (631) 765~1823 Telephone (631) 765-1889 OFFICE OF THE SUPERVISOR TOWN OF SOUTHOLD Southold Town' Solid Waste Forum February 24, 2011 Agenda Overview of Southold Town Waste Management Plan a. TOwn Code b. State Code c. Other Towns 2. Overview of Finances of Solid Waste District Statistical infmmation of Solid Waste Stream a. Destination of current Waste Stream b. Recycling: Destination and Income Discussion of State Code a. Miscellaneous Case Law Possible Next Steps a. Change Town Code? b. Adopt Carting License? c. Change State Code Page 1 of 1 Neville, Elizabeth From: Sent: To: Cc: Subject: Beltz, Phillip Thursday, February 17, 2011 3:10 PM Andaloro, Jennifer; Neville, Elizabeth; Bunchuck, Jim; Al Krupski, Jr.; Bill Ruland; Christopher Talbot; Louisa Evans; Orlando, Vincent; Russell, Scott Woodhull, Ruthanne; Foote, Nancy; Berliner, Sandra MEETING REMINDER NOTICE Importance: High There will be a public information meeting to discuss garbage and recycling on Thursday, February 24th at 7 p.m. at the Town Hall meeting room. Room set-up as follows: · Town Board and Town Attorney (Jen) will sit on dais · Two microphones in the audience for question and answer · No Allen video needed for the evening Jim, as discussed, you will be present in the audience in the event you are needed to provide information. Kindly let me know that you will be there. Thank you. 2/24/2011 To~n of $outhold PC/Codebook for IVindo~s § 233-3. Town Transfer Station. [Added 7-31-1973; amended 7-24-1979 by L.L. No. 1-1979; 10-9-1984 by L.L. No. 9-1984; %15-1986 by L.L. No. 7-1986; 9-23-1986 by L.L. No. 12-1986; 5-3-1988 by L.L. No. 11-1988; 2-5-1991 by L.L. No. 1-1991; 11-26-1991 by L.L. No. 26-1991; 11-26-1991 by L.L. No. 27-1991; 9-10-1993 by L.L. No. 20~1993; 12-%1993 by L.L. No. 25-1993; 5-3-1994 by L.L. No. 6-1994; 11-24-1998 by L.L. No. 24-1998] A. No person shall deposit or cause to be deposited in or on any transfer station maintained by a waste district in the Town of Southold any waste of any kind except under the direction of the attendant in charge, whether such direction is given personally or by another person by his authority or by a sign or signs erected at the transfer station by the authority of the Town Board or attendant. (1) Residential self-haulers and commercial self-haulers. (a) No cans, corrugated cardboard, glass, plastic or newspaper as defined herein shall be deposited at any Town of Southold Transfer Station unless separated fi.om any and all solid waste, trash, rubbish and vegetative yard waste. They are to be deposited only at designated areas within such Town disposal area. (b) Nonrecyclable waste. [1] Residential self-haulers. Nonrecyclable waste generated by residential self-haulers shall be disposed of only in a Town garbage bag as defined herein and deposited only at designated areas within the transfer station.. [2] Commercial self-haulers. Nonrecyclable waste generated by commercial self-haulers may be either: Iai Disposed of in a Town garbage bag and deposited at designated areas within the transfer station; or [bi D.isposed of at the designated areas within the transfer station upon paying the appropriate charge as set by Town Board resolution for the weight of nonrecyclable waste deposited. (2) Private residential refuse haulcm/carters. (a) The owners or occupants of all residences within the Town which utilize cellection services provided by persons licensed to collect refuse pursuant to the provisions of this article shall place recyclables in separate containers at curbside for collection on such day or days as the licensee serving such residence shall designate. (b) It shall be unlawful for any person to place out for collection any container in which 1 refuse is mixed with recyclables. Town of SouthoM PC/Codebook for Windows (c) It shall be unlawful for any person to collect refuse from a residence which is mixed with recyclables or thereafter to commingle different types ofrecyelables or to mix recyclables with refuse. (d) Recyclables collected by private residential refuse haulers/carters and transported to the transfer station shall be deposited in areas designated by appropriate landfill personnel. (e) Nonrocyclable waste. Ill The owners or occupants of all residences within the Town which utilize collection services provided by persons licensed to collect refuse pursuant to the provisions of this article shall place nonrecyclable waste in Town garbage bags for collection on such day or days as the licensee serving such residents shall designate. [2] It shall be unlawful for any Person to place out for collection any nonrecyclable waste which is not in a Town garbage bag. It shall be unlawful for any person to collect nonrecyclable waste from a residence which is not in a Town garbage bag. [3] Nonrecyclable waste in Town garbage bags collected by private residential refuse haulers/carters and transported to the transfer station shall be deposited only in areas designated by appropriate landfill personnel. (3) Private commercial refuse haulers/carters. (a) The owners or occupants of all commercial establishments within the Town which utilize collection services provided by persons licensed to collect refuse pursuant to the provisions of this article shall place recyclables in separate containers at curbside for collection on such day or days as the licensee serving such business shall designate. Co) (c) It shall be unlawful for any commercial establishment to place out for collection any container in which refuse is mixed with recyclables. It shall be unlawful for any commercial establishment to place out for collection any container in which one type of recyclable is mixed with any other type or types of recyclables. (d) It shall be unlawful for any private commercial refuse hauler/carter to collect refuse from any commercial establishment which is mixed with recyclables or thereafter to 2 Town of Southold PC/Codebook for Y~indows commingle different types ofrecyclables or to mix recyclables with refuse. (e) Recyclables collected by private commercial refuse haulers/carters and transported to the transfer station shall be deposited in areas designated by appropriate personnel. B. No garbage, refuse, rubbish or other material that does not have its origin within the Town of Southold shall be deposited or disposed of in the Town transfer station. C. No vehicle shall be permitted to transport refuse into any transfer station maintained by the Town of Southold unless such vehicle displays a valid permit or the operator pays the applicable single-entry fee, except that vehicles owned and operated by any of the following entitled shall be permitted to transport refuse into any transfer station maintained by the Town of Southold, provided that at least one valid permit and/or license has been issued to the particular entity: the State of New York, the County of Suffolk, the Village of Greenport and fire districts, school districts and park districts located within the Town of Southold. D. The attendant at the transfer station is authorized to prdhibit the disposal of discarded motor vehicles and/or discarded fuel tanks having a capacity in excess of 550 gallons at the transfer station. Eo All municipal recyclables must be deposited in the appropriate location of the transfer station owned by the Town of Southold. Laws of New York - Page 1 of 1 ~ 27-0106. State solid waste management policy. In the interest of public health, safety and welfare and in order to conserve energy and natural resources, the state of New York, in enacting this section, establishes as its policy that: 1. The following are the solid waste management priorities in this state: (a) first, to reduce the amount of solid waste generated; (b) second, to reuse material for the purpose for which it was originally intended or to recycle material that cannot be reused; (c) third, to recover, in an environmentally acceptable manner, energy from solid waste that can not be economically and technically reused or recycled; and (d) fourth, to dispose of solid waste that is not being reused, recycled or from which energy is not being recovered, by land burial or other methods approved by the department. 2. State government must make an essential contribution to the development and implementation of environmentally, economically and technically viable solid waste management programs through fulfilling its responsibilities to provide programs which promote waste reduction and the expansion of markets for recovered materials, clearly articulated,, responsive and consistently applied regulatory structures, and a full range of technical assistance to local governments. A state-local partnership, in which the basic responsibility for the planning and operation of solid waste management facilities remains with local governments and the state provides necessary guidance and assistance, must be forged. 3. This policy, after consideration of economic and technical feasibility, shall guide the solid waste management programs and decisions of the department and other state agencies and authorities. http://public.legjnfo.state.ny.us/LAWSSEAF.cgj?QUERYTYPE=LAWS+&QUERYDAT... 2/18/2011 Laws of New York ' Page 1 of 1 § 120-aa. Source separation and segregation of recyclable or reuseable materials. 1. The legislature hereby finds that it is in the public interest, in order to further the purposes of the state policy on solid waste management articulated in section 27-0106 of the environmental conservation law, for a municipality to adopt a local law or ordinance to require the source separation and segregation of recyclable or reuseable materials from solid waste. 2. a. Pursuant to the authority of this section, no later than September first, nineteen hundred ninety-two, a municipality shall adopt such a local law or ordinance to require that solid waste which has been left for collection or which is delivered by the generator of such waste to a solid waste management facility, shall be separated into recyclable, reuseable or other components for which economic markets for alternate uses exist. For purposes of this section, the term "economic markets" refers to instances in which the full avoided costs of proper collection, transportation and disposal of source separated materials are equal to or greater than the cost of collection, transportation and sale of said material less the amount received from the sale of said material. h. For purposes of this section, "components" shall include paper, glass, metals, plastics, garden and yard waste, and may include other elements of solid waste. c. Prior to exercising the authority of this section to enact such a local law or ordinance, the municipality shall' hold a public hearing relating to its proposed provisions and shall give due consideration to existing source separation, recycling and other resource recovery activities in the area, to the adequacy of markets for separated materials, and to any additional effort and expense to be incurred by residents in meeting the proposed separation requirements. The authority provided in this section shall be in addition to and without limitation upon the authority vested in municipalities under any other statute. d. In fulfillment of the provisions of this section a municipality may use public lands or buildings or private lands or buildings, open to the public, upon written consent of the owner, as a recycling center or depot for the storage of recyclable materials. The office of general services and any other agency, authority or commission holding title to lands or buildings in the name of the people of the state shall fully cooperate with any person acting under the authority of this section to establish a recycling program, provided that such use is not inconsistent with the principle purpose of such lands or buildings, subject to local zoning restrictions. http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDAT... 2/18/2011 SW District Revenue Sources (zolo) · · · · · · · · · · · · · · · · · · · · · · · Taxes Scale Fees Yellow Bags Permits/Single Entry Recyclables Compost Site Misc $0 $2,184,000 (53%) $854,000 (21%) $543,000 (13%) 64,000 (4%) $153,000 (3.4 %) $147,000 (3.6%) $94,000 (2%) $5OO,OOO Total: $4,139,000 $1,000,000 $1,500,000 $2,000,000 $2,500,000 $3,000,001 SW DistriCt Expenditures by Category (2010) · · · · · · · · · · · · · · · · · · · · · · · $1,200,000 $1,000,000 $800,000 $600,000 $400,000 $200,000 $0 $1,026,000 (28%) $847,000 (23%) $806,000 (22%) Total: $3,686,000 $382,000 $294,000 $236,000(6%) $59,000(2%) $36,000 (1%) \~s. Southold Town Waste Stream Composition (2010) Tons 5000I · · · · · · · · · · · · · · · · · · · · · 4OOO 3000 2000 IOO0 4274 3463 3406 Total: 23,868 2475 2278 2051 1974 1883 1811 253 Incoming Materials Southold Town Household Recyclables (2010) Tons 1400 · · · · · · · · · · · · · · · · · · · · · · · 1200 t 1~o4 1000 800 669 6oo 40O 2O0 0 News/Mixed Paper Cardboard 540 488 322 119 72 Glass Metal (scrap) Clothing Cans/Plastic Waste Oil Outgoing Recyclables Total: 3,406 37 30 25 Boat Wrap E-Waste Tires Town of Southold Rec~clin~ Marketing Arrangements (Februar~ 2011) Recycled Recycling Vendor Ultimate Destination/ Product Product Re-Use Firm Name Cost or Income to Town Newspaper Town of Isllp Income: Export Markets (IMA) $50/ton Glass None - glass is Occasional use by residents; crushed and None exploring markets stockpiled on site Tires Meridian, Inc. Cost: Incineration (fuel) South Windsor, CT $1350/traile r load Mixed Metals Jet Sanitation, Income: New metal products (including Islandia, NY/ $100- appliances) Gershow Recycling $175/ton Medford, NY Tin and Omni Recycling, Income: New Metal Products Aluminum Babylon, NY None Cans* Plastic (#1 Omni Recycling, Cost: New Plastic Products and #2 loose Bablyon, NY None mixed)* Cardboard Jet Sanitation, Income: Fiber pulp for recycled paper Islandia, NY; $40/ton products Gershow Recycling Medford, NY Used Motor Strebels Laundry, None Fuel for Strebels's used oil Oil Westhapton, NY furnance Household Care Cost: Recycled Metals/Save HHW Batteries Environmental, $210/drum Disposal Landing, NJ Vehicle P&K Metals Income: Recycled for metals Batteries Coram, NY $40/ton Leaves & Southold Town Income: Leaf Compost/Woodchips Brush $150,000/yr Clean Wood Southold Town None Stock piled for use by residents Used · St. Vincent de Re-Used if possible, or Clothing Paul None manufactured into new textile · Big Brothers/Big products Sisters of Long Island Universal Shrink-Wrap Commodities Income: from Boats Service, Islip. $20/ton *Cans and mixed, loose plastic are shipped co-mingled to Omni. Page2 of 8 17 Mise.3d 1125(A), 851 N.Y.S.2d 7~, 2007 WL 3340847 (N.Y.Sup.), 2007 N.Y. Slip Op. 52148(U) Page 1 (Table, Text in WESTLAW), Unreported Disposition (Cite as: 17 Misc.3d II2S(A), ~007 WL 3340847 (N.Y.Sup.)) "to oparate a recyclabla materials handling, separa- (Tho dec/sion of thc Court is referenced in a table in tho New York Supplement.) Supreme Court, Nassau County, New York. SANITARY DISTRICT NO. 1, Tow~ of Hemp. stead, Petitioner-, Plaintiff, The STATE of New York DEPARTMENT OF EN- V/RONMENTAL Conservation, John Pavacic as Regional Permit Administrator of the State of New York Department of Environmental Conservation and Elliot Spi~a- as Attorney General of the State of New York, Respondents-, Defendants. No. 21669/06. Aug. 10, 2007. Jaspan Schlesinger Hoffman LLP, Garden City, At- torneys for Petitioner-Plaintiff. Nathaniel M. Swergold, Esq., Cedurhurst, General Counsel for petitioncr-Pla/ntiff. Andrew M. Cuomo, Attorney General of the State of New York, New York, Attorney for Respond- eots-Defundants. tion and recovery facility and refuse transfer station (hereinafter referred to as the Facility')". The DEC opposes the petition and interposes two (2) eountor- cisims. Tho petition and counterclaims are determ- ined as follows: The verified petition/complaint alleges, /nter alia, thag "[b]y letter dated Febmmy 15, 2006, the Office of the Attorney General, by Assistant Attor- ney General Lisa Falner, Esq., informed the DIS- TRICT that[w]e have learned that thc Dis~et is vi- olating state law by not operating a source separa- tion recycling program for residences or business within the district as required by General Municipal Law § 120-aa' ". (DISTRICT's Exhibit "G''). The petition/complaint further alleges that, "[b]y letter dated August 28, 2006, the DEC advised the Dis- triet that it determined that Sanitary Dis~ict No. 1 is not conducting source separation of recyelablea as anticipated and required under ... the Permit ... [and] the failure to implement a source separated recycling program as described in the permit plication is a violation of the aforementioned Per- mit and both state and local law'" (DISTRICT's Exhibit "J'). The petition/complaint additionally alleges that the August 28, 2006 letter "notified tho District that ~ processing and ~view of the DISTRICT's ap- plication for ~newal of the Permit was suspended pursuant to 6 NYCKR Part 621.3[e], which provides that[o]recesalng and review of an uppliea- fion may be suspended w/th written notice to the applicant ff an enforcement action has been eom- meneed or is commenced against the applicant for alleged violations of law related to the activity for which tho permit is sought or for alleged violations of the ECL [F~virunmental Conservation Law] ...' related to the facility or site" (emphasis as provided). The pofition/eomplaim al~o alleges that, "[b]y letter dated December 1, 2006, the District demanded that the DEC resume the review and pro- cessing of the Permit Renewal Applica- WILLIAM R. LaMARCA, J. *1 in this hybrid CPLR Article 78 proceeding/ declaratory judgment action, the petitioner, SANIT- ARY DISTRICT NO.I, TOV~N OF HEMPSTEAD (hereinafter referred to as the "DISTRICT"), seeks judgmont, i~ter alia, compelling the respondents, THE STATE OF NEW YORK DEPART~ OF ENVIRONMENTAL CONSERVATION, JOHN PAVACIC as Regional Permit Administrator of the STATE OF NEW YORK DEPARTMENT OF EN- VIRONMENTAL CONSERVATION, and ELLIOT SPITZER, the then Attorney General of the STATE OF NEW YORK (hereinafter collectively referred to as the "DEC"), to resume review and processing of the DISTRICT's application to renew its permit © 2011 Thomson Reuters. No Claim to Orig. US Gev. Works. ttps://web2~west~aw~c~m/print/printstream~aspx?sv=Sp~it&prft=HTMLE&mt=-7~&vr-=2~ 2/22/2011 Page 3 of 8 17 Mis~.3d 1125(A), 851 N.Y.S.2d 74, 2007 WL 3340847 (N.Y.Sup.), 2007 N.Y. Slip Op. 52148(U) (Table, Text la WESTLAW), Unreported Disposition (Cite as: 17 Mlsc.3d 1125(A), 2007 WI, 3340847 (N.Y.Sup.)) tion[but][t]bo DEC has failed and refused to do so" (DISTRICT's Exin'oit "M"). The petit/on/complaint asserts three (3) causes of action. The fa,st, mandamus to compel, aileges, inter a/ia, that "[c]omrary to thc sta~mant in the DEC's letter dated August 28, 2006, suspending the processing and review of the District's Permit Re- newal Application pursuant to 6 NYCRR Part 621.3[e], the District is not now nor has it ever been, subject to an enforcement action nor has it re- ceived a notiee of violation from the DEC relative to thc Facility or Permit". This cause of action fur- ~ alleges that "[biased on the fact that no en- forcemant action has been or is commenced, the DEC is without jurisdiction to suspend review of the District's permit ranewal application pursuant to 6 NYCRR Part 621.3". The DISTRICT seeks "a judgment compelling the DEC to revi~v and pro- eeas ils Permit Renewal Application ia accordance with applicable law and regulations". *2 The second cause of action (mandamus to review), alleges, inter alia, that "[c]ontrary to the determination sot forth in thc August 28, 2006 let- ter, at all times since thc issuance of the Permit, for the post 11 years, the District has operated thc Fa- cility under the Supervisiun of the DEC monitor, in compliance with the terms thereof, including the operation of a re~ycllng program as described in thc permit application". This cause of actint~ lubber al- leges that "the determination that the District is op- erating the Facility in violation of the terms of its Permit is made in violation of lawful procedure, is affected by an error of law, is erbia'ary and capri- cious and an abuse of discretion and must b~ an- nulled'. The third cause of action for a declaratory judgment, alleges, inter Mia, that "[t]ha Dis~ict's existing program achieves the statutory goal of General Municipal Law § 120-aa and is a compat- ible practice pursuant to Article 6 of Chapter 28 of the Town Code of the Town of Hempetend ". The DISTRICT so~ks "a declaration that it is not in vi- elation of GM[L][Ganeral Municipal Law] § P~e2 120-aa and that thc Facility is and has be~n oper- ated in a manner consistent with the terms of its Permit and applicable law". The respondents have asserted two (2) counter- claims in their answer. Tho first counterclaim al. leges, inter alia, that "[p]umuant to ECL x 71-2703, the State is entitled to an injunction prevanling the District from further operatiun of thc Facility in vi- olation of the Permit[and thaq tho District should bo ossoased civil penalties of up to $7,500.00 for each violation of thc Pexmit and an additional $1,500.00 for each day the violation has contin- ued'. Thc s~ennd enuntomlaim ailnges, inter alia, that "It]bo District is a municipality that is man- dated by GML § 120-aa (a}(2) to adopt a local law or ordinance requiring its r~idenls to soun~ separ- ate reeyelablas for which economic markets ~xist for alt~uste uses [and that][qha District has not ad- opted a law or ordinance nxluiring its residents to source sq:qunt~ paper, metals, glass and plastic". This count~01aim fu.nher alleges that "[tire District should bo enjoined to adopt an ordinance requiting ils residenls to soumo soperate paper, at minimum, metals, glass and plastic, and to implement that or- dinance within 90 doy~ of tho Coures determination of this counterclaim in favor of the DEC". The resolution of this Article 78 proceeding/ declaratory judgmant action essentially mm, on the interpretation to bo given to the provisions of GML x 120-us, which is entitled: "Source separation and segregation of recyclable or reuseable ma- terfals". Subdivision I provides as follows: The legislature hereby fmde that it is in the public interest, in order to further the purposes of the state policy on solid waste management artic- uinted in section 27-0106 of the environmantal conservation law, for a municipality to adopt a local law or ordinance to require the source oep- station and sogregatiun of recyclablo or renseable materials from solid waste. *3 Subdivision 2 provides, in relevant part, as follows: 2011 Thomson Reuters. No Chim to Orig. US Gev. Works. https://web2'westlaw'c°m/prinffprintstream'aspx?sv=Split&pfft-HTMLE&m .t=70&w=2.0... 2/22/2011 Page 4 of 8 17 M/sc.3d 1125(A), 851 N.Y.S.2d 74, 2007 WL 3340847 ('N.Y. Sup.), 2007 N.Y. Slip Op. 52148(U) (Table, Text in WESTLAW), Unreported Disposition (Cite as: 17 Misc.3d 1125(A), 2007 VeL 3340847 (31.Y.Sup.)) Pursuant to the authority of this section, no later than September first, nineteen hundred ninety-two, a municipality shall adopt such a Icc,- al law or ordinance to require that solid waste which has b~n left for collection or which is d~- livared by the generator of such waste to a solid waste management facility, shall be separated /n- to recyclable, renaeable or other components for which economic markets for alternate uses exist. Thc Court of Appeals has stated that "the con- ~truction given statutes end regulations by the agency responsible for their adminish'ation, if not irrational or unreasonable, should be upheld." ( Howard v. Igyman, 28 N.Y.2d 434, 322 N.Y.S.2d · 683, 271 N.E.2d 528[C.A.1971]; s~e, also, Steck ~: Jorling, 219 A.D.2d 727, 631 N.Y.S.2d 727 [2nd Dept. 1995] ). The DEC states in its memorandum of law that, "[i]n 1988, the New York State Legialatem, recog- nizing the need to reduce the enviroemental bur- dens created by solid waste diepo~l, ~amended General Municipal Law x 120-aa to mandate that all municipalities in the State enact a law or ordin- auce requiting the hnptementation of a source- separation recycling program by no later than September 1, 1992". It/s further stated that, "[i]n a source suparatlon recycling program, residents, business and other waste generators separate recye- lable material, such as paper, metal, glass and plastic, from theft regular garbage and put these cyclables out or deliver them separately for collec- tion. The municipality then receives from its resid- enta clean, unnontam/unted recyclables to ecll dir- ectly or to deliver to a recyclables proceasor for sale, and thus reduces the economic end ear/mn- mental burdens of incinerating or laudfilling them". In the DISTRICTs memorandum of law, coun- sel argues that the respondents' interpretation of GML § 120-aa "ignores the fact that the statute does not explicitly require all residents and busi~ neases to source separate. It simply requires that ro- cyclables be separated". Counsel fu~her argues that "the statute is written in the disjunctive. The waste Page 3 can either be separated at the time it is left for col- lactlon or prior to delivery to a solid waste man- agement facility~, Counsel points out that "Ilia this case, the District separates the recyclables and de- livers the source separated materkds to the Town for d/spesql". It is the DISTRICT's position that the cost of specialized compartmentalized pickup equipment, additional personnel to operate same, insurance cesta, and the risk factor of additional personnel and equipment would exceed the cost of the Facility ilself separating recyclable mate~iais. The Coma finds the argument of the DIS- TRICT's counsel to bo without marit. The DIS- TRICT's Facility ia clearly not the source (i .e., generator) of the waste material; rather, it is a solid waste management facility within the mesnin~ of the statute. The plain meaning of GML § 120-aa is that recyclable end renacablc materials must be ecp- mated from solid waste before they are delivered to the DISTRICT's Facility. Therefore, the Court finds that the DEC's consh'ucfion of GML § 120-an is neither irrational nor unreasonable and will be up- held. *4 The meaning of the term "municipality" used in GML § 120-aa warrants some discussion. The Appellate Division, Second Department, has stated that "It]he term municipality' appears in dozens of statutes, and many of those statutes con- ta/n their own deftnition of the term. While some statutm 1/mit the definition of municipal/ty' to counties, cities, towns, and v/llages [examples omitted], other statutes define the terra much more broadly" ( Jericho F/ater District v. One Call Users Council, lac., 37 AD3d 136, 826 N.Y.S.2d 65812nd Dept.2006] ). In this case, GML § 120-aa does not contain a definition of the term "municipality". § 2 of the GML does defme the term "municipal corporation" as including "only a county, town, city and village". Similarly, § 66(2) of the General Construction Law (GCL) defines "municipal corporation" as including "a county, city, town, v/llage and school d/strict". However, the Appellate D/v/sion, Second Department, stated 2011 Thomson Reuters, No Claim to Orig. US Gov. Works. https://web2~west~aw~c~m/print~printstr~am~aspx?sv=Sp~it&prft=HTMLE&mt=7~&vr=2~~~~~ 2/272011 Page 5 of 8 17 Misc.3d 1125(A), 851 N.Y.S.2d 74, 2007 WL 3340847 (N.Y. Sup.), 2007 N.Y. Slip Op. 52148(10 (Table, Text in WESTLAW), Unreported Disposition (Cite as: 17 Misc3d 1125(A), 2007 WL 3340047 (N.Y.Sup.)) in Jericho that "[t]be terms municipalitiea~ and mu- materiah from solid waste. nicipal corporation[s],'., are not necessarily inter- changeable[and that] [iJt is not appropriate to look at the definition of municipal corporation' (appearing in an article of thc General Consh'uction Law entitled Classification of Corporations and Definitions') to discern the mearfing of the term mu- nicipatities,' while disregarding tho numerous Now York atatu~s that d~fme municipally ". Jericho Fr'ater District v. One Call Users Council, Inc., Supra. Even though thc General Municipal Law docs contain a general definition for the term "municipal corporation" (GML § 2), it doea not contain a gen- era/ definition of the term "municipality". Both terms are defined, however, in other sections with limited application (c.g., GML §g 77-bill[a], 239-h [2], 502[2] ). Therefore, it is not appropriate to equate the general definition for "municipal corpor- ation'' contained in GML § 2 with the term "municipality" used in § 120-aa. As analyzed in the Jericho ~Yater District case, the Legislature used the term "municipality" without defining it thus, making the term ambiguous. In Jericho F/ater Dis- trict, the Appallate Division, Second Department, stated that "[w]hero such an ambiguity exists in a statute, it becomea[the court's] duty to construe thc statutc, as best it can, to effectuate thc Legislature's intent (see, McKiooey's Cons Laws of NY, Book 1, Statutes § 92[a]; Matter of Tompkins CounO~ Sup- port Collection Unit v. Chamber/in, 99 N.Y.2d 328, 335) ". (Jericho l~gater District v. One Cull Users Council, Inc., Supra. at p 140). In thc case at bar, the Legislature's intent is ex- pressed in GML x 120-aa itself. Subdivision I raads as follows: The Legislature hereby finds that it is in the public interest, in order to further the purposes of the state policy on solid waste management artic- ulate, d in section 27-0106 of the environmental conservation law, for a municipality to adopt a local law or ordinance to require the anurc~ scp- aratien and segregation of recyclable or renseabla Page4 *5 Thc Town of Hempstead has adopted an ordinance to comply with the statute (i.e., Chapter 128, Article VI, of the Code of thc Town of Hemp- stead), x 128-67(D) of the Town Code provides that "[i]ndcpendent sanitary districts [i.e., like SAN1TARY DISTRICT # 1] and incorporated vil- lages located within the geographical boundaries of the town should adopt or implement similar laws or regulations to comply with this ARicie and New York State law". There is nothing to Indicate that the Legislature intended to exclude independent Sanitary Districts in the State from the mandate of the statute. Indeed, such a construction would bo contrary to the pur- poses of thc State-wide policy expressed in ECL § 27-0106 and GML § 120-aa., which is likewise re- fleeted in § 128-66 of the Code of the Town of Hempstead. Consequently, thc Court holds that an independent Sanitary District, such as Sanitary Dis- trier # 1 of the Town of Hempstead, is a "municipality" within the meaning of GML § 120-as and, as such, must comply with thc statute. Based on the foregoing, the first cause of ac- tion of the petition is resolved against the DIS- TRICT. § 621(e) of 6 NYCRR provides, in relevant part, as follows: Proceasing and revi~v of an application may be suspended by written notice to the applicant if an enforcement action has been or is commenced against the applicant for alleged violations of the ECL or other environmental laws administered by the depamuent at the facil/Vy or site that is the subject of the application. The alleged violations may be related to thc activity for which the per- mit is sought or to other provisions of law admin- istered by the department. Enforcement proceedings have now been com- menced against the DISTRICT in the form of the countemlaims nsscrted In the respondents' answer. Therefore, the DEC is authorized under 6 NYCRR © 2011 Thomson Reuters. No Claim to Orig. US Gev. Works. https://web2~wes~aw~e~m/print/printstream~aspx?sv=Split&prft=HTMLE&mt=-7~&vr=2.~~~~ 2/22/2011 Page 6 of 8 17 Mise.3d 1125(A), 851 N.Y.S.2d 74, 2007 WL 3340847 (N.Y.Sup.), 2007 N.Y. Slip Op. 52148(13) (Table, Text in WESTLAW), Unreported Disposition (Cite us: 17 Mlse.3d 1125(A), 2007 VeL 3340847 (N.Y.Sup.)) § 621(e) to suspend the processing and review of the DISTRICT's permit renewal application until the enforcement counterclaims am resolved. The fact that the DEC suspended processing and review prior to asserting the countemlaims is no longer rel- evant. Counsel for the DISTRICT argues that "the DEC is not entitled, by its own admission, to force the provisions of General Municipal Law § 120-as. It is the DISTRICT's position that the at- tempt to assert an enforcement action by way of a counterclaim in this hybrid action-proceeding is a nullity and the DEC must be compelled to resume review of the Districts P~it because it has no en- forcemunt power with respect to GML § 120-as '. The Court disagrees. The Atlorney General has tho authority to enforce GML x 120-aa, either on his own initiative or at the request of the DFC. § 71-27:27 of the ECL provides in relevant part, as follows: 2. The attorney general, on his own initiative, or at the reqtw, st of the commissioner, may initiate any appropriate action or proceeding to enforce any provision of article 27 or 71 or any rule or regula- tion promulgat~t thereto and any order issued or penalty assessed pursuant to this title. *6 Furthennore,§ 63 of the Executive Law provides in relevant part, as follows: The attorney-general shall: 1. Prosecute and defend all actions and pro- ceedings in which the state is interested, and have charge and control of all legal business of the de- paranents and bureaus of the state, or of any of- rice thereof which requires the services of attor- ney or counscl, in order to protect the interest of the state, .... Consequently, there is statutory authority for the respondents' assertion of the enforcement coun- temlaims. Counsel for the DISTRICT additionally argues that the DEC should be estopped from asserting the two (2) counterclaims. The Court of Appeals has made clear that estoppel ngainst n government agency is foreclosed "in all but the rarest eases'." ( NY State Med. T/'ansps. .4ss'n v. Perales, 77 N.Y.2d 126, 564 N.Y.S.2d 1007, 566 N.E.2d 134[C.A.1990], quoting Matter of Parkview Assocz. v. City of New ]'orlg 71 N.Y.2d 274, 282, cert den 488 U.S. 801: see, also, 57 N.Y. Jur2d, Estoppel, Ratification, and Waiver §§ 44, 46). This is not one of those rare cases. The Court also notes that the DISTRICT was apparently created by the Hemp- stead Town Board pursuant to L 1928, ch 516, and is a political subdivision of the State, as is the Town of Hempstead. It would have to be a very extreme case before the Court would even unusider tho application of the doctrine of equitable estoppel to prevent the State from enforcing its public pol/cy over one of its political subdivisions. The second cause of action is resolved against the DISTRICT as well. The standard of review in a proceeding in the nature of mandamus to review is "whether the agency determination was arbitrary and capricious or affe~tnd by an error of law". ( Seherbyn v. Wayne-Finger Lakes Bd. of Coop. Ed. Ser¥&, 77 N.Y.2d 7:53, 570 N.Y.S.2d 474, 593 N.E2d $62[C.A. 1991] ). The August 28, 2006 let- ter (DISTRICT's Exhibit "J") reads in relevant part, as follows: The New York State Department of Environ- mental Conservation (Departmenf) has determ- ined that Sanita.,y District No. I is not conducting source separation of recyclables as anticipated and requ/red under permit 1-2820-01335/00001 (the Permit'), previonsly issued by the Depart- ment. Relevant to this cause of action is Special Con- dition No. I of the Permit (DISTRICT Exhibit "B"), which reads as follows: The Pcrmittee, Five Towns Recycling Co., Inc., must strictly conform to the provisions of the Permit; 6 NYCRR Pan 360, Five Towns Recyc- ling Co., Inc. Application for a Permit to Operate © 2011 Thomson Reuters. No Claim to Orig. US Gev. Works. https://web2~west~aw~c~m/printtprin[stream~aspx~sv=Sp~it&p~=HTMLE&mt=7~&vr~2~ 2/22/2011 Page 7 of 8 17 Misc.3d 1125(A), 851 N.Y.S.2d 74, 2007 WL 3340847 (N.Y.Sup.), 2007 N.Y. Slip Op. 52148(U) (Table, Text in WESTLAW), Unreported Disposition (Cite as: 17 Misc.3d I125(A), 2007 WL 3340847 (N.Y.Sup.)) a Recyclablos Mat~ais Handling, Separation and on the roadways. Recovery Facility & Refuse Transfer Station,' prepared by Cameron Engineering, P.C. dated May 1994, and ail related reports and correspond- ences, approved by the Deportment. Thus, the Permittee was required to conform to the provisions of both the Permit and thc Permit Application. (DISTRICT's Exhibit "A'). Tho Assistant Attorney General points out cer- tain language appearing in Section 1.1 of the Permit Application. On page one it is stated that: "Newspapers are collected separately by the Dis- trict...." On page four it is stated that: "The Five Towns Facifity w/Il enable the District to expand its recycling program to includa glass, plastics and metals in addition to newspaper to meet and oxcaed the State's goal". Since the DISTRICT has not im- plemented procedures for the source separation of l~oyclable and renseable materials, the DEC's termination that the DISTRICT was "not conduct- ing source separation of recyclablos as anticipated and required" under the Permit is not arbitrary or capricious or erroneous as a matter of law. *7 As to the third cause of action, the DIS- TRICT is not cntitied to the declaratory judgment sought. While the DISTRICT has adopted an ordin- ance (Exhibit "B" to Reply Affmnation of Laurel R. Krctzing, Esq.) that seems to comply with GML § 120-ca (see Art/ale III thereof), Section 101.2 of Article 1 negates that compliance. Section 101.2 reeds in relevant part as follows: Thc District finds that: ... C. The Dislrict, as a rear-yard collection Dis- trier has determined that the District Facility when operational will ~ost serve the goai of en- hanced recycling and, at the same time, reduce the total cost of processing solid waste material by eliminating the cost of specialized compart- montailzed pick-up equipment, additional person- nai to operate the same, insurance costs, and, the risk factor of additional personnel and equipment Page 6 The respondents are, therefore, granrexl judg- ment instead declaring that the DISTRICT has viol~ ated GML § 120-aa(2)(a) by not adopting an ordin- anco requ/ting that" solid waste left for collection or which is delivered by the generator of such waste to a solid waste management facility, shall be sep- arated into recyclable, ronaeabla or other compon- ents for which economic markets for aiteranta uses exist". The respondents are further granted judg- ment declaring that the DISTRICT has been oporat- hag the Facility in a manner not conalstent with the terms of the Permit Application and Permit. Turning to the counterclaims, counsel for the DISTRICT requests that the counte~lalma be severed end states that "the D/strict should be given an opportunity to conduct discovery followed by an exddentiary heating". This request is granted. Ques- tions of fact have been raised as to the existence of "economic markets" es defined /n GML § 120-se (2)(a) for veduas waste mater/als. The counter- ch/ms are hereby severed and shall continue as a separate plenary action. The parties may conduct discovery, if they be se advised. ORDERED, that the parties shall appear for a Preliminary Conference on October 16, 2007, at 2:30 P.M. in Differentiated Case Management Part {DCM) at I00 Supreme Court Drive, Mineola, New York, to schedule all discovery proceedings. A copy of this order shall be served on all parties and on DCM Case Coon/inator Richard KotowskL There will be no adjournments, except by formal application pursuant to 22 NYCRR § 125. All fu~her requested relief not specifically granted is denied. Submit judgment on notice as to the causes of action in the petition. N.Y. Sup.,2007. Sanitary Dist. No. 1, Town of Hempstaed v. State Dept. of Environmental Conservation 2011 Thomson Reuters. No Claim to Orig. US Gev, Works. https://web2~wes~aw.e~m/print/printstream~aspx?sv=Sp~it&p~`ft-HTMLE&mt=-7~&w=2~ 2/22/2011 Page 8 0£8 17 Mis~.3d 1125(A), 851 N.Y.S.2d 74, 2007 WL 3340847 (N.Y.Sup.), 2007 N.Y. Slip Op. 52148(U) (Table, Text in WESTLAW), Unreported Disposition (Cite as: 17 Misc~3d 1125(A), 2007 WL 3340847 (~N.Y.Sup.)) 17 Mis¢.3d 1125(A}, 851 N.Y.S.2d 74, 2007 WL 3340847 CN.Y. Sup.), 2007 N.Y. Slip Op. 52148(U) END OF DOCUMENT Page 7 © 2011 Thomson Reuters. No Claim to Orig. US Gev, Works. https://web2~west~aw.c~m/prin~printstream.aspx?sv=Sp~it&prft=HTMLE&mt=7~&vr=2.~... 2/22/2011 New York State Department of Environmental Conservation Regional Director, Region One Stony Brook Unive~ity 50 Circle Road, Stony Brook, New York I 1790 - 3409 Phone: (631) 444-0345 · Fax: (63 I) 444-0349 Website: www.dec.nv.~ov Acting Commissioner February 18, 2011 Honorable Scott Russell Supervisor Town of Southold PO Box 179 Southold, New York 11971 Re: General Municipal Section 120-aa Dear Supervisor Russell, I write now in furtherance of our discussion of earlier today regarding statutory requirements related to recycling in New York State and the relative roles of state and local governments with regard to applicable state laws. As I had indicated, the state statutory requirements were embodied by the State Legislature in the Solid Waste Management Act of 1998, which, in part, amended the general municipal law by adding a new section, 120-aa, a copy of which is enclosed for your reference. As you will note, the law states that the legislature found it to be in the public interest for a municipality to adopt a local law "to require the source separation and segregation of recyclable or reusable materials from solid waste," and that such local law should "require that solid waste that is left for collection...shall be separated into recyclable, reusable or other components..." As can be clearly determined, the statutory hierarchy requires that local governments implement and enforce local laws requiring recycling, consistent with the language cited above. I hope this information is helpful. Should you require anything further, do not hesitate to contact this office. Sincerely, PETER A. SCULLY Regional Director PAS;jam Ajay Shah, Regional Engineer Syed Rahman, Regional Solid Waste Engineer Carl Fritz, Environmental Engineer