Selected Aspects of the Waste Tire Abatement Program

30 Pages·2008·2.37 MB·English

Thomas P. DiNapoli OFFICE OF THE
COMPTROLLER NEW YORK STATE COMPTROLLER

DIVISION OF STATE
GOVERNMENT ACCOUNTABILITY

Audit Objective...............................2

NEW YORK STATE
Audit Results - Summary...............2

DEPARTMENT OF
Background.....................................3
ENVIRONMENTAL
Audit Findings and
Recommendations.......................4
CONSERVATION

Abatement Progress..........................4

Recommendation..............................8
Oversight of Abatement Activities...9

Recommendations...........................10
Use of Shredded Tires at
SELECTED ASPECTS OF
Landfills......................................11
Recommendations...........................13
THE WASTE TIRE
Enforcement of Legal
Requirements..............................13
ABATEMENT PROGRAM
Recommendations...........................14

Audit Scope and Methodology.....15

Report 2006-S-67
Authority.......................................15

Reporting Requirements..............15

Contributors to the Report..........15

Appendix A - Auditee Response..16
AUDIT OBJECTIVE The Department is required by the Act to
develop individual abatement schedules for
The New York State Department of each noncompliant waste tire site. However,
Environmental Conservation is responsible we found the Department has not developed
for overseeing the clean-up of noncompliant such schedules. In the absence of these
waste tire stockpiles. Our objective was to schedules, the Department did not have
assess the progress made in the clean-up established benchmarks that could be used to
efforts, particularly at the five largest measure the State’s progress in meeting the
noncompliant stockpiles in the State. 2010 goal. As a result, there is no way to
determine whether the State is on track to
AUDIT RESULTS - SUMMARY meet this goal. According to Department
records, as of September 2006, abatement was
Waste tires are a fire hazard and a potential completed or nearly completed at 37 of the 58
source of environmental and public health owner-abated sites and at 2 of the 37
problems. Under the Waste Tire Management Department-abated sites (which tend to be
and Recycling Act of 2003 (Act), the New larger). Abatement responsibility was still
York State Department of Environmental being negotiated for the remaining 20 sites.
Conservation (Department) is to oversee the
cleanup (or abatement) of waste tire When the Department assumes responsibility
stockpiles violating existing laws and for a site’s abatement, it is required by the Act
regulations. If property owners do not to seek beneficial uses for the waste tires. In
voluntarily comply with the abatement those cases, the Department arranges for the
requirements, the Department is to assume tires to be shredded and used either as fill in
responsibility for the cleanup and recover the highway construction projects or in the
costs from the owner. The abatement of all construction and operation of landfills (e.g.,
noncompliant waste tire sites is to be as landfill liners or covers). Most of the
completed by December 31, 2010. shredded material is supposed to be used in
highway projects, but there is no guarantee it
We examined abatement efforts at the five will be needed for such projects. We
largest noncompliant sites in the State, which recommend the Department develop
together contained an estimated 21 million alternative disposition plans for materials not
waste tires (about two-thirds of the total needed on highway projects. We also
number of waste tires at the 115 noncompliant recommend the Department strengthen its
sites identified by the Department). We oversight of landfills receiving shredded tires
found that 1 site (Cycletech, with 2.3 million to provide more assurance that the landfills
tires) had been fully abated and another are using the materials in a safe and
(Hornburg Tire, with 1.8 million tires) was environmentally-correct manner.
close to being abated. While some progress
had also been made at a third site (Fortino, At one of the largest noncompliant sites in the
with 8.1 million tires), most of the tires at this State (with 2 million tires), the abatement
site had not been abated. Little or no progress process has not begun because the
had been made at the other two sites (NY Department is still negotiating with the site
Tire/Izzo Property, with 2 million tires and owner. We found the negotiations have been
Mohawk Tire Recycling, with 6.8 million stalled since 2004 because the owner of the
tires). site denied the Department access. The
Department’s legal team is now asking the

Report 2006-S-67 Page 2 of 30
Commissioner to issue an enforcement order be accepted by landfills, large stockpiles may
directing the site owners to remove and accumulate. In fact, some of the largest
properly dispose of all waste tires on the site’s stockpiles in the State contain millions of
surface, as well as those beneath the surface. waste tires.
We recommend the Department decide,
without further delay, on the next step and To address this growing problem, the State
move as expeditiously as possible to initiate Legislature enacted the Waste Tire
the abatement process at the site. We also Management and Recycling Act of 2003
recommend the Department develop internal (Act). Under the Act, the New York State
guidelines for resolving issues related to sites Department of Environmental Conservation
where owners are not cooperative. (Department) is supposed to inventory and
clean up waste tire piles that violate existing
Our report contains ten recommendations for laws and regulations. Generally, such piles
improving the Department’s oversight of contain 1,000 or more waste tires and lack a
abatement efforts at noncompliant waste tire permit from the Department. To qualify for
sites. such a permit, site owners must meet certain
requirements that are intended to reduce the
This report, dated July 1, 2008, is available on
risk of fire and other dangers associated with
our website at: http://www.osc.state.ny.us.
waste tires.
Add or update your mailing list address by

contacting us at: [phone] or
The waste tire clean-up process, which is
Office of the State Comptroller
called abatement, may be undertaken by
Division of State Government Accountability
either the site owner or the Department. The
110 State Street, 11th Floor
Department encourages the site owner to
Albany, NY 12236
bring the site into compliance voluntarily.

However, if the site owner fails to act in a
BACKGROUND
timely manner, the Department is authorized

by the Act to assume responsibility for the
Waste tires are a potential source of serious
abatement process and recover all abatement
problems, especially when they are stockpiled
costs from the owner. Generally, the
in large numbers. They attract rats, provide
abatement process consists of removing
breeding locations for mosquitoes, and are
excess waste tires from the site and
susceptible to fires that are noxious and
establishing appropriate safeguards over the
difficult to extinguish. The fires produce a
tires that remain.
thick, black, foul-smelling smoke and, as the

tires melt, the oily discharge can flow into
When the Department assumes responsibility
nearby waterways or seep into the
for a site’s abatement, it is required by the Act
groundwater. If the tires are buried, as is
to seek beneficial uses for the waste tires that
sometimes the case, the dangers are
are removed from the site. To comply with
compounded. Fire departments located near
this requirement, the Department arranges for
large waste tire stockpiles often have
these tires to be shredded and used either (1)
emergency plans in place for managing the
as fill in highway embankments and other
difficulties associated with tire fires.
road construction projects overseen by the

Department of Transportation (DOT) or (2)
In New York State, an estimated 18 to 20
in the construction and operation of landfills
million tires are discarded each year and
(e.g., as landfill liners or covers). The cost of
become waste tires. Since waste tires cannot

Report 2006-S-67 Page 3 of 30
shredding and transporting the excess tires is • Fortino, in Oswego County (8.1
included in the total cost of abatement, and million tires)
may be recovered from the site owner.
• Mohawk Tire Recycling, in Saratoga
The Act also established the Waste Tire County (6.8 million tires)

Management and Recycling Fund (Fund).
• Cycletech, in Columbia County (2.3
The costs incurred by the Department in
million tires)
abating waste tire sites are to be financed

initially by the Fund. Any costs the
• New York Tire/Izzo Property, in
Department is able to recover from the site
Suffolk County (2 million tires)
owners are to be returned to the Fund. The
Fund is supported by a $2.50 fee collected by • Hornburg Tire, in Chautauqua County
retailers for each new tire sold in the State. (1.8 million tires)
The retailers, who are required to accept old
tires from purchasers, are to retain 25 cents To prioritize the sites, the Department
per tire for their handling costs, and the developed a scoring system based on such
remaining $2.25 is to be remitted to the Fund. criteria as the total number of tires at the site;
the site’s proximity to aquifers, streams, and
The abatement of all noncompliant waste tire wetlands; and the site’s proximity to schools,
stockpiles is to be completed by December hospitals, and population centers. The three
31, 2010. At that point, the Act is to expire. sites with the highest scores (and, thus, the
To help ensure that this goal is met, the highest priority) were Fortino, Mohawk Tire
Department is required to develop a Recycling, and New York Tire/Izzo Property.
comprehensive Statewide Abatement Plan Cycletech and Hornburg Tire were also given
(Plan) covering all noncompliant waste tire high scores and were included among the 12
stockpiles and separate abatement schedules high-priority sites targeted by the Department
for each individual stockpile. The sites are to for initial abatement efforts.
be prioritized on the basis of their potential
adverse impact on public health, safety, the The Department initiated the abatement
environment, or natural resources. The Plan efforts in December 2003. Between then and
must also include a census of both the March 31, 2006, a total of $23.2 million was
compliant and the noncompliant sites, and the disbursed from the Fund, of which $17.2
estimated number of waste tires stored at each million was disbursed in the year ended
site. March 31, 2006. At the same time, a total of
$62.8 million in new tire fees and abatement
The Plan was to be submitted to the Governor cost reimbursements were deposited into the
and Legislature by September 12, 2004. The Fund, leaving more than $42 million available
Department submitted its initial Plan in July for future abatement activities.
2004, and updated it in September 2006. A
total of 115 noncompliant sites have been AUDIT FINDINGS AND
identified, and these sites were estimated to RECOMMENDATIONS
contain 31.2 million waste tires. About two-
thirds of these tires (21 million) were at the Abatement Progress
five largest sites, as follows:

We found that some abatement has taken
place, but a significant amount remains to be

Report 2006-S-67 Page 4 of 30
done. For example, the abatement process waste tires (1.94 percent of the Statewide
has been completed at one site (Cycletech, total) and were in various stages of the
with 2.3 million tires); and another abatement process.
(Hornburg, with 1.8 million tires) was close to
being abated. Some progress has been made For the 37 sites where the Department had
at a third site (Fortino, with 8.1 million tires). assumed responsibility, the abatement process
Little or no progress had been made at the had been completed for 2 sites, which
other two sites (NY Tire/Izzo Property, with 2 accounted for 2,516,600 waste tires (8.07
million tires) and Mohawk Tire Recycling percent of the Statewide total). The
(with 6.8 million tires). There is no way to Department abatement efforts were underway
determine whether the State is on track to at 6 sites containing 17,887,300 waste tires
complete the abatement process by the end of (57.34 percent of the Statewide total). For the
2010, because the Department has not remaining 29 sites where the Department was
developed individual abatement schedules for assuming abatement responsibility, contract
each noncompliant site. negotiations either had not begun (26 sites
accounting for 6,488,400 waste tires) or was
Status of Abatement Efforts still underway (3 sites accounting for 690,000
waste tires). These 29 sites represented 23.01
According to Department records, as of percent of the Statewide total of waste tires.
September 2006, site owners had assumed
responsibility for the abatement process at 58 The Department had not yet determined and
of the 115 noncompliant waste tire sites was in the process of establishing
identified by the Department. The responsibility for waste tire abatement at 20
Department had assumed responsibility for 37 of the 115 noncompliant sites. These 20 sites
sites, and responsibility had yet to be assumed contained 2,489,000 waste tires (7.98 percent
at the remaining 20 sites (negotiations of the Statewide total). The majority of these
between the Department and the site owners waste tires (about 2 million) were at a single
were underway). site, New York Tire/Izzo Property in Suffolk
County.
For the 58 owner-abated sites, the Department
verified that the abatement process had been Generally, the Department has assumed
completed at 29 sites and was nearly responsibility for the larger sites. Thus, even
completed at 8 others. These 37 sites though site owners are abating more than half
contained 519,554 waste tires, or about 1.66 the sites, nearly 88 percent of the waste tires
percent of the total number of waste tires are at sites being abated by the Department.
identified by the Department for the 115 The following table summarizes the status of
noncompliant sites. The remaining 21 owner- the abatement efforts as of September 2006:
abated sites contained a total of 605,100

Report 2006-S-67 Page 5 of 30
Status of Abatement Efforts as of September 2006
Number Percentage of Total
Responsibility Sites Status Number of Sites
of Tires Number of Tires
Completed 2 2,516,600 8.07
Department In Progress 6 17,887,300 57.34
Not Begun 26 6,488,400 20.80
Contract Underway 3 690,000 2.21
To Be Determined Under Negotiation 20 2,489,000 7.98
Completed 29 408,158 1.31
Site Owner Nearly Completed 8 111,396 0.35
In Progress 21 605,100 1.94
Total 115 31,195,954 100.00

At the owner-abated sites, the cost of The Department estimates that 16.7 million
abatement is borne by the owners. At the waste tires (53.5 percent of the Statewide
Department-administered sites, the costs are total) are at Fortino, Mohawk Tire Recycling,
initially financed by the Fund. However, the and Hornburg Tire. The Department expects
Department is required by the Act to recover that most of these waste tires (an estimated
these costs to the extent possible. At the two 16.1 million) will be used as fill in DOT
completed Department-administered sites, highway construction projects. The projects,
$5.88 million in abatement costs were which have been approved, are planned for I-
incurred. At the six sites where abatement is 87, I-84, and Route 219/15. The Department
in progress, the costs are expected to exceed has made the necessary arrangements with
$37 million. Most of these costs are incurred DOT, and DOT picks up the shredded tires
by contractors, who are overseen, according from the sites as they are needed in the
to the Department, by the Office of General projects.
Services (OGS).
The rest of the waste tires from these three
Our audit focused on abatement efforts at the sites will be used in the construction and
five largest sites. The Department has operation of public and private landfills. The
assumed responsibility for these efforts at abatement contractors are responsible for
four of the five sites, while responsibility is identifying the particular landfills. According
still being negotiated at the remaining site (the to the abatement contracts, if the shredded
New York Tire/Izzo Property in Suffolk tires fail to meet DOT’s specifications for
County). Abatement has been completed at highway construction fill, they are to be used
one of the four Department-administered sites at landfills. Generally, older tires,
(Cycletech in Columbia County). At the contaminated tires, and improperly-shredded
other three sites (Fortino in Oswego County, tires fail to meet the specifications.
Mohawk Tire Recycling in Saratoga County,
and Hornburg Tire in Chautauqua County) The tires are shredded at the sites by the
abatement is in progress. contractor. The shredded material is then

Report 2006-S-67 Page 6 of 30
stored at the sites until it is taken away for was used in a DOT highway project along I-
use. DOT’s material is stored in specially- 87 in Clinton County, and the remaining half
constructed concrete enclosures that prevent (1.2 million tires) was used in the
the material from washing away and reduce construction of two landfills in Seneca and
the risk of fire. Oneida counties.

At two of the sites (Hornburg Tire and At the fifth large site (the New York Tire/Izzo
Fortino), the contracts call for the abatement Property in Suffolk County), the Department
of 1.8 million and 8.1 million tires, has been negotiating with the owners for
respectively, at a total cost of $30.2 million. several years. (Department officials told us
Abatement began at Hornburg Tire in negotiations began before the Act became
December 2004 and at Fortino in February law.) The site includes both surface tires and
2005. As of September 14, 2006, a total of buried tires. Additional information about
2.8 million tires had been shredded at these 2 this site, and the reasons for the delays in the
sites (1.6 million at Hornburg Tire and 1.2 abatement process, are presented in the
million at Fortino). The shredded tires section of this report entitled Enforcement of
produced 21,483 tons of material that met Legal Requirements.
DOT’s specifications and 6,663 tons of
material that did not meet these specifications We conclude that some progress has been
(the non-DOT material was sent to landfills in made in the abatement of the five largest
Ontario and Chemung counties). It cost about noncompliant waste tire sites. One site
$15.5 million to shred the 2.8 million tires, or (Cycletech) is fully abated and another
$5.49 per tire. (Hornburg Tire) is close to being completed,
as 1.6 million of its 1.8 million tires or 91
At the third site (Mohawk Tire Recycling), percent have been shredded. Some progress
about 6.8 million tires are to be abated. A has also been made at Fortino, as 1.2 million
contract was initially awarded for this of its 8.1 million tires (nearly 15 percent)
abatement work, but the contract was have been shredded, but little or no progress
terminated in June 2005 because none of the has been made at the other two sites. It thus
shredded material met DOT’s specifications. appears that a significant amount remains to
Relatively few of the tires at the site had been be done if all five sites are to be fully abated
shredded, but no estimate was provided of the by the end of 2010, as is intended.
actual number. Two new contracts were
going to be awarded: one to remove the Abatement Schedules
shredded materials and the other to complete
the abatement process. The Act requires that the Department develop
a comprehensive Abatement Plan addressing
At the site where abatement was completed all noncompliant waste tire stockpiles in the
(Cycletech), the abatement contract was State. It also requires the Department to
awarded in August 2004, and the final develop a separate abatement schedule for
abatement status was verified by the each individual stockpile in the Plan. We
Department in November 2005. A total of 2.3 found the Department developed the
million tires were shredded and removed from comprehensive Statewide Plan as required.
the site at a total cost of $3.4 million. However, the Department has not completed
According to Department officials, about half separate abatement schedules for each waste
of the shredded material (1.1 million tires) tire site.

Report 2006-S-67 Page 7 of 30
Department officials stated that exact The abatement of all noncompliant waste tire
schedules could not be developed for the sites sites is to be completed by December 31,
when the Plan was first issued in 2004 2010. In addition, Department officials stated
because engineering evaluations and designs that they are positioning to abate the majority
had not yet been completed for the sites. The of the sites by 2009, providing a one-year
officials further stated that the schedule for window for those sites that are under legal
each site varies and is dependent on the action. However, in the absence of individual
specific conditions at the site. For example, abatement schedules for each site, the
several sites require significant infrastructure Department is unable to determine whether
work, including all necessary environmental the State is on track to meet the goal. We
safeguards, before abatement can begin. The recommend the Department develop complete
officials said this work could take between abatement schedules for each remaining
one and six months, depending on the site. noncompliant waste tire site, monitor actual
They also noted that shredded materials abatement activities at the sites against the
cannot be removed from sites until the schedules, and take corrective actions if any
materials are needed at their designated sites fall significantly behind schedule.
highway or landfill projects, and abatement
schedules can be affected by the need to wait Recommendation
for materials to be removed.
1. Develop complete abatement schedules
We acknowledge the validity of the for each remaining noncompliant waste
scheduling complexities cited by Department tire site, monitor actual abatement
officials. However, construction projects are activities at the sites against the schedules,
no less complex, and schedules are routinely and take corrective actions if any sites fall
developed for them. The Department, using significantly behind schedule.
an OGS contract, is employing four
engineering consulting firms to help with the (Department officials replied to our draft
planning of the abatement work at the report that, since the completion of the
Department-administered sites. Such firms audit field work, they have entered into
should be able to develop individual several contracts to direct contractors to
abatement schedules for each of these sites. load and transport waste tires for
beneficial use. In addition, in July 2007,
Department officials noted that the abatement they entered into 2 contracts to abate 15
contracts at the Fortino, Hornburg Tire, and sites and, in September 2007, they entered
Mohawk Tire Recycling sites contain work into another contract for 13 sites. They
schedules for the contractors, including also obtain weekly program status reports
scheduled end dates for the shredding process. on abatement progress and maintain a
We agree, but note that some abatement database on all sites.)
activities (such as the removal of the shredded
materials and the Department’s final Auditor’s Comments: We acknowledge
verification that abatement is complete) are that the Department has made progress
not included in these schedules. We also note and has developed certain documents, as
that contracts have been awarded at only a well as the database. However, as
few of the Department-administered sites. As indicted in the report, the Act requires the
a result, most of the sites lack even partial Department did not address the
schedules. recommendation.

Report 2006-S-67 Page 8 of 30
Oversight of Abatement Activities overall progress of the abatement activities
and performs a final inspection at each site to

confirm that the abatement process is, in fact,
In its oversight of abatement activities, the
complete. However, we found indications the
Department coordinates with two other State
Department may have delegated too much of
agencies: OGS and DOT. OGS awards the
its monitoring responsibility to OGS. For
abatement contracts and monitors the
example, while OGS maintains copies of the
contractors at the Department-administered
abatement contracts and other critical
sites. DOT picks up the shredded material
documentation (such as records of site
that meets its specifications, and uses the
inspections and records of shipments of non-
material in highway construction projects.
DOT materials to landfills), the Department

does not maintain copies of these records or
We found indications the Department may
contract documents. In the absence of these
have delegated too much of its oversight
materials, we question whether the
responsibility to OGS, particularly its
Department’s monitoring can be sufficiently
responsibility for monitoring the
thorough.
appropriateness and timeliness of abatement

activities at each noncompliant site. We
According to Department officials, since the
recommend the Department be more active in
Department gave OGS administrative
monitoring the performance of the abatement
authority over the abatement contracts, it is
contractors. We also found DOT may not be
not necessary for the Department to maintain
able to use all the materials being shredded
these records. We disagree, and note that the
for highway construction projects. We
Act requires the Department to serve as the
recommend the Department develop
lead agency in the abatement efforts.
alternative disposition plans for these
Therefore, the Department should maintain all
materials.
critical documentation relating to the

abatement process and should use these
Coordination with OGS
records to actively monitor the contractors’

performance in fulfilling the contracts.
OGS acts as the contract administrator for the

abatement contracts. It develops the RFPs on
In the event that questions should arise
the basis of the engineering consultants’
regarding completed clean-up efforts, the
design specifications and DOT’s shredding
Department, as lead agency, is the ultimate
specifications. It then solicits bids from
public steward responsible for whatever
prospective contractors, evaluates the bids,
currently-unanticipated environmental
and makes the actual contract awards. OGS
concerns might develop. Therefore, it is
also monitors the contractors’ progress in
essential that the Department obtain and
completing the abatement process and their
review all records that may be relevant to its
compliance with contract requirements (e.g.,
oversight and monitoring responsibilities for
the tires must be shredded in accordance with
waste tire abatement.
DOT’s specifications and any shredded

material not meeting these specifications must
Coordination with DOT
be shipped to landfills for use in the

construction or operation of the landfills).
On April 1, 2004, the Department and DOT

signed a Memorandum of Understanding
The Department retains ultimate authority
(MOU) concerning the usage of tire shreds
over the abatement process, as it monitors the

Report 2006-S-67 Page 9 of 30
that meet DOT specifications. The shreds are Nonetheless, in light of these delays, we
to be used to create a product developed by question whether it is prudent for the
DOT, known as GCP 19, that is considered to Department to rely solely on these indefinite
be an environmentally-acceptable, beneficial, arrangements. If there are delays in bidding
and economically-sustainable material usable the Orange County project or problems with
as fill in highway embankments and other the eventual contractor(s), the shredded
road construction projects. The MOU materials will continue to sit, and more
specified that DOT will be responsible, materials will be added as additional tires are
through its contractors, for picking up the tire shredded. Similarly, if other highway
shreds from Department-designated sites. projects are canceled or delayed in the future,
The MOU is set to expire on December 31, shredded materials could pile up at the sites
2010. that are still to be abated. If this happens, it
will be difficult for all the sites to be abated
We reviewed the coordination between the by 2010, as intended. DEC admits that it does
Department and DOT at two of the large not have any alternative plan for use of the
waste sites: Hornburg Tire and Fortino. As DOT shreds. The Department indicated that
was previously noted, abatement began at they are counting on DOT to use the shreds.
Hornburg Tire in December 2004 and at
Fortino in February 2005 and, as of Based on information in a report issued by a
September 14, 2006, a total of 21,483 tons of consultant firm, the scrap tire shreds have
material meeting DOT’s specifications had several uses such as playground materials,
been produced. It is expected that this athletic field surfacing, and horticultural
material will be used in three different DOT projects. These uses include both shreds that
projects: an I-87 project at Saratoga Springs, a meet DOT specifications as well as those that
Route 219 project at Springville, and an I- do not. We also found information that the
84/I-87 interchange project in Orange County. shreds are used for dock buffers, door mats,
and gymnasium mats. At the closing
As of September 14, 2006, none of the conference, DEC officials indicated that uses
material meeting DOT’s specifications had for the shredded materials have changed over
been picked up by DOT. According to DOT, time.
pick-ups for the I-87 Saratoga project were
scheduled to begin in October 2006, while We recommend the Department develop
pick-ups for the Orange County project were alternative disposition plans for shreds that
expected to begin during the summer of 2007. meet DOT’s specifications but cannot be used
The Orange County project was bid in by DOT in a timely manner. We also
November 2006. However, there were no recommend the Department work more
formal removal schedules for the materials closely with DOT to reduce the delays in the
and DOT is not committed by the MOU to removal of its materials, to the extent this is
adhere to any schedule. feasible.

We note that some of these materials have Recommendations
been awaiting disposition for more than a
year. According to Department officials, the 2. Maintain all critical documentation
materials have an unlimited shelf life and relating to the abatement process and
there are no health or safety hazards because actively monitor the contractors’
they are stored in special concrete enclosures.

Report 2006-S-67 Page 10 of 30