Civil Rights/ Under penalty of perjury term paper 42173

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XXXXXXXXXX, an attorney duly admitted to the practice of law in the State of New York, affirms the following under penalty of perjury:

1. I am the attorney for Karta Corporation in connection with the pending permit application before the New York Department of Environmental Conservation (the �Department�) I am fully familiar with the facts and circumstances of the proceeding.

2. I submit this affirmation in opposition, in part to the Staff�s request to submit additional evidence not only after the hearings have been closed but after final briefs have been submitted by both parties in connection with the record.

3. Absent from Staff�s motion is any justification as to why this material was not submitted prior to the dates established for the submission of briefs by the parties.

4. The Department Staff in its proposed draft permit included a provision that would prohibit the acceptance of any tanks at the facility. This draft permit condition was a new condition and was purportedly offered by Staff as its response to the tragic accident that occurred on October 4, 2004.

5. Karta has instituted procedures that require the inspection of all incoming loads, the segregation in a designated area of all tanks that may have contained explosive substances including gasoline, or flammable compressed gasses.

6. No cutting or use of torches is permitted in the vicinity of such storage area and no tanks will be cut unless they have been certified by _______________, an independent authority to be free of flammable substances.

7. Karta Corporation has no objection to the inclusion of these conditions in a modified permit for the facility.

8. Karta offers no objection to the admission of Staff�s Exhibit �A� , the Police Investigation Report or Staff�s Exhibit �G�, the Report of the U.S. Department of Labor and Occupational Safety and Health Administration prepared after its investigation of the incident. These documents are official reports of government investigative agencies and are both probabitive and documents that Karta believes accurately reflect the circumstances of the tragic accident and the extent of OSHA violations at the facility.

9. Karta objects to the introduction of the newspaper articles because they are not reliable, contain inaccuracies and include statements by individuals who have interests in other proceedings arising out of the incident. They are prejudicial and contain no relevant information that is not contained in the Police or OSHA Reports, Exhibits �A� and �G�, respectively. As noted previously, Karta does not oppose admission of these documents into the record.

10. Karta similarly objects to the inclusion of the inspection reports and photos without an opportunity to cross-examine the inspector(s) who prepared the reports or took the photos. The documents are not clear nor as Staff shown why admission of these documents is necessary for its case. Karta concedes that empty tanks previously used to store compressed flammable gases are part of the waste stream that is accepted at the facility. The admission of these documents after the close of the hearing is potentially prejudicial to the Applicant and not relevant to the issues in dispute.

11. Karta objects to the inclusion of Staff�s Condition 38A in that tanks are routinely found in debris from demolition and construction sites and that such tanks particularly large tanks used for the storage of compressed gas have been successfully recycled at the Karta facility for many years.

12. As Staff�s attorney apparently concedes, the Part 360 regulations do not prohibit the acceptance of empty propane tanks and such tanks are routinely accepted at other facilities. (See Affirmation of Vincent Altieri, Esq. at ¶ ¶ 21-23.

13. The Applicant reiterates the position stated in its brief, that if the Department seeks to impose a permit condition on its own initiative that a Permittee opposes, the Department must comply with its own regulations regarding such actions 6 NYCRR § 621.14, which guarantee a permittee the right to a hearing to oppose such Department initiated permit conditions. Without, waiving at of its rights, Karta has offered to accept a permit condition substantially equivalent to that outlined in paragraphs of this Affirmation, hereof.

14. Karta opposes the introduction of the photos offered as Staff�s Exhibit �I�. The photos are misleading, impossible to interpret, and do not represent typical operating conditions in Building Number �6�

15. Photo P8240038 shows a roll-on roll-off truck without a container. It does not show a truck unloading. within the facility. In addition the truck photo is taken when it appears that there are no workers present or any sorting of high recyclables from MSW. As described in Mr. Cartalemi�s testimony during the hearing that hand sorting is done on the tipping floor of Building 6.

16. Photos P8240039 and P8240040 appear to be a yard truck pulling a loaded container from under the sorting station in Building 6. This is not a vehicle, either a compactor or roll-on-roll-off �unloading or tipping its load.

17. Photo P8300045 appears to be a roll-on roll-off tipping directly onto the conveyor in Building 6 that moves waste directly to the conveyor. This material is not sorted, both because it is presorted by the generator and is directly baled or because it does not contain a sufficient percentage of recyclable material to justify sorting.

18. The piles to the left and right of the truck in photo P8300045 are piles of material that would be sorted. A truck tipping at those piles would have to move through the open door in order to fully discharge its load.

19. The effect of imposing a requirement that the doors be closed in Building 6 when trucks unload would end sorting of MSW at the facility. There would simply be insufficient space on the tip floor to accumulate material and sort. All material would have to be directly baled.

20. Karta would welcome a visit to its facility by the Administrative Law Judge and the other parties to allow the ALJ to directly observe its operations.


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