It’s a Great Idea, So Why Prosecute Me?

JOHNSTOWN, N.Y. (CN) - New York environmental officials wrongly prosecuted a recycler for trying to find new uses for old tires, the company claims in court.

BCD Tire Chip Manufacturing has a plant in the tiny village of Hagaman, about a half-hour northwest of Schenectady, where it turns waste tires into 4-by-4-inch chips of rubber for landfill liners, embankment stabilizers and power plant fuel.

Some of the tires it reprocesses are from the lead defendant, the New York State Department of Environmental Conservation, the tire company claims.

Its plant annually produces as much as 7,500 tons of the chips, known as tire-derived aggregate, by processing some 750,000 scrap tires, according to its complaint in Fulton County Supreme Court. The product is shipped to public and private customers.

But the state Department of Environmental Conservation views BCD Tire as a solid-waste handler operating without a proper permit, and fined the company for storing 1,000 or more waste tires at its plant.

It also ordered BCD Tire to stop accepting scrap tires for processing, jeopardizing chip manufacturing and pending contracts.

BCD Tire says in its complaint that the state is applying old definitions and regulations, rather than relying on newer legislation meant to head off "the waste tire crisis."

An estimated 20 million waste tires are generated each year in New York alone, about one tire per resident, according to the state.

Since 2004, 95 illegal waste-tire stockpiles have been identified across New York, containing some 29 million tires.

Old-tire dumps can be a threat to the environment, according to the Rubber Manufacturers Association, the trade group for the U.S. tire industry. They provide breeding grounds for disease-carrying mosquitoes and a shelter for rats, snakes and other vermin. And hard-to-fight tire fires can produce heavy smoke and toxic runoff.

The Department of Environmental Conservation historically regulated waste tires in New York under a 1993 statute governing the collection, treatment and disposal of solid waste. But in 2003, lawmakers approved the Waste Tire Management and Recycling Act to protect public health and promote market development for waste tires.

As a result of the legislation, BCD Tire says in its complaint, New York was required to "proactively encourage recycling programs for waste tires, as well as promoting the use of waste tires to create products like tire-derived aggregate, or TDA, to serve as raw material substitutes."

But instead, the department, its commissioner and an administrative law judge who weighed the charges against the company "wrongfully ignore the plain meaning of the words actually used in the 2003 act, defining 'waste tires' and 'recyclables,' relying instead on an anachronistic interpretation rooted in the 1993 solid-waste regulations addressing problems as they existed in 1993," BCD says in the complaint.

Commissioner Joseph Martens also is named as a defendant.

"Based upon the Legislature's new definition of the term 'recyclables,' BCD is legally a 'recyclables handling and recovery facility' ... and only needs a registration with the [department]" to operate, rather than a solid-waste permit, the company says in its complaint.

BCD says it accepts as many as 5,000 waste tires a day from various sources - including the Department of Environmental Conservation - and turns them into rubber chips within 72 hours. The chips are shipped out in three to 100 days.

End-users include Madison County, near Syracuse, which is expanding its landfill and expects to use as many as 10,000 tons of chips in the project, and ReEnergy Holdings, which contracted for 60 tons of chips a week for use as tire-derived fuel for a power plant in Connecticut.

More recent contracts, for 8,400 tons of chips a year for an energy-recovery facility and for 15,300 tons for a landfill project, could be in jeopardy, according to the complaint.

The charges against the company date to 2011, when the Department of Environmental Conservation alleged that BCD Tire had "well in excess of 1,000 tire equivalents on the property," in violation of permit requirements for storage of waste tires.

BCD took the position that the chips it produced were "not a whole waste tire or portions of a whole waste tire under the plain language of the 2003 act," so no solid-waste permit was required.

The case went to Administrative Law Judge P. Nicholas Garlick, who found the company stockpiled chips derived from more than 1,000 waste tires; that the manufactured chips should be categorized as waste tires; and that the company lacked the required solid-waste permit. He assessed a civil penalty of $31,000.

Commissioner Martens endorsed the report, but also ordered that the company stop accepting scrap tires for processing.

BCD Tire contends the report and the commissioner's final order in the case are "both arbitrary and capricious, and irrational" not only under the definitions adopted in 2003 but also in failing to meet the goal of finding new uses for old tires.

"The new market use that the state has made a priority to create and promote show that [tire-derived aggregate] manufactured by BCD for specific end users cannot be 'solid waste,' ... as the TDA manufactured by BCD has value to BCD and others and is never abandoned by being disposed of or accumulated instead of abandonment," the complaint states.

The company asks the court to vacate the commissioner's order and find that it is operating properly without a solid-waste permit.

It is represented by Joseph Castiglione with Young/Sommer LLC in Albany.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit