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Becker Wrecking & Salvage Corp - Order, November 24, 1992

Order, November 24, 1992

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violation of Article 27 of
the New York State Environmental Conservation Law, and 6 NYCRR Part 360

- by -

Becker Wrecking and Salvage Corp. and Gary Becker; Albany Port District Commission; City of Albany

Respondents

ORDER

Case No. R4-0833-90-07

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint dated July 8, 1992, an enforcement hearing was held before Administrative Law Judge ("ALJ") Frank Montecalvo on August 26 and October 14, 1992. The Department of Environmental Conservation (the "Department") appeared by Ann Lapinski, Esq., Assistant Regional Attorney. Becker Wrecking and Salvage Corp. and Gary Becker appeared by Rutnik & Rutnik (John Whelden and Kimberly Galvin, Esqs., of counsel) (however, no appearance was made on October 14, 1992). The Albany Port District Commission appeared by DeGraff, Foy, Holt-Harris & Mealey (William S. Helmer, Esq., of counsel). The City of Albany appeared by Thomas A. Shepardson, Esq., Assistant Corporation Counsel.
  2. On or about October 15, 1992, the Department withdrew its charges against Respondents Albany Port District Commission and the City of Albany based on an agreed upon settlement with them.
  3. Upon review of the ALJ's Hearing Report (copy attached) and the record of this proceeding, I concur with its Findings of Fact, Conclusions of Law, and Recommendations which establish that Respondents Becker Wrecking and Gary Becker violated 6 NYCRR 360-1.7(a)(1)(ii) [operating a solid waste management facility without a permit] by maintaining a waste pile at a Site in the City and County of Albany, N.Y., at the Port of Albany, without having a permit from the Department to do so; and also violated 6 NYCRR 360-1.5(a)(2) [disposing of solid waste], since they placed solid waste in the pile at the Site.
  4. In determining an appropriate penalty and other relief, I have taken into account the circumstances of this case as established in the hearing record.

NOW, THEREFORE, have considered this matter, it is ORDERED that:

  1. Respondents Becker Wrecking and Salvage Corp. and Gary Becker are found to have violated 6 NYCRR 360-1.7(a)(1)(ii) [operating a solid waste management facility without a permit] for having maintained the waste pile at the Site without having a permit from the Department to do so; and that said violation continued for a period of excess of 850 days.
  2. Respondents Becker Wrecking and Salvage Corp. and Gary Becker are found to have violated 6 NYCRR 360-1.5(a)(2) [disposing of solid waste] for having placed solid waste in the pile at the Site.
  3. The charges against Becker Wrecking and Salvage Corp. and Gary Becker for allegedly violating 6 NYCRR Subpart 360-7 are dismissed.
  4. Respondents Becker Wrecking and Salvage Corp. and Gary Becker are, jointly and severally, to:
    1. pay a civil penalty of $40,000 to the Department within 30 days of this Order for the violations of 6 NYCRR 360-1.7(a)(1)(ii) and 360-1.5(a)(2);
    2. within 15 days of this Order, submit a plan for the remediation of the Site;
    3. within 45 days of this Order, remove and properly dispose of all solid waste currently stored at the Site; and
    4. within 30 days of removal of waste material from the Site, report to the Department on the disposal of solid waste from the Site.
  5. All communications between Respondent and the Department concerning this Order shall be made to the Director, New York State Department of Environmental Conservation, Region 4 Headquarters, 2176 Guilderland Avenue, Schenectady, NY 12306.

For the New York State Department
of Environmental Conservation

/s/
By: THOMAS C. JORLING, COMMISSIONER

Dated: November 24, 1992
Albany, NY

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

Office of Hearings
50 Wolf Road
Albany, New York 12233-1550

In the Matter of

the Alleged Violation of Article 27
of the New York State Environmental Conservation Law and 6 NYCRR Part 360 by

Gary Becker;Becker Wrecking and Salvage Corporation;
Albany Port District Commission;
City of Albany

Respondents

Case No. R4-0833-90-07

HEARING REPORT

-by-

/S/
Frank Montecalvo
Administrative Law Judge

Proceedings

Pursuant to a Notice of Hearing and Complaint (copy attached hereto as Appendix A) dated July 8, 1992, duly served July 8, 1992, the New York State Department of Environmental Conservation (the "Department" or "DEC") Region 4 Staff (the "Department Staff" or "Staff") initiated a civil administrative enforcement proceeding, conducted in accordance with the State Administrative Procedure Act ("SAPA") and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 622, against Becker Wrecking and Salvage Corp. and Gary Becker, Port of Albany, Albany, NY 12202; the Albany Port District Commission, Port of Albany, Albany, NY 12202, and the City of Albany, City Hall, Albany, NY 12207, (collectively, the "Respondents"), in the matter of the alleged violation of Article 27 of the New York State Environmental Conservation Law ("ECL") and 6 NYCRR Part 360.

Answers were filed on behalf of each Respondent.

Upon the request and/or consent of all parties, commencement of the adjudicatory hearing was adjourned from July 29, 1992 to August 26, 1992.

The hearing was convened before Administrative Law Judge ("ALJ") Frank Montecalvo on August 26, 1992 at Five Rivers Environmental Education Center, Game Farm Rd., Delmar, NY 12054. Ann Lapinski, Esq., Assistant Regional Attorney, appeared on behalf of the Department Staff. Rutnik & Rutnik (John Whelden and Kimberly Galvin, Esqs., of counsel) appeared on behalf of Becker Wrecking and Salvage Corp. and Gary Becker. DeGraff, Foy, Holt-Harris & Mealey (William S. Helmer, Esq. of counsel) appeared on behalf of the Albany Port District Commission. Thomas A. Shepardson, Esq., Assistant Corporation Counsel, appeared on behalf of the City of Albany.

Testimony was taken from Staff witness Howard M. Vics, then the matter was adjourned to September 23, 1992.

On September 14, 1992, Department Staff advised that the September 23 and October 14 hearing sessions would be scheduled for the City of Albany Library.

On September 16, 1992, Respondents Becker Wrecking and Salvage Corp. and Gary Becker advised that they had filed a bankruptcy petition on September 14, 1992, and that it was their position that this administrative proceeding was stayed as to them. On September 18, 1992, the ALJ advised Respondents Becker Wrecking and Salvage Corp. and Gary Becker that the proceeding would continue as scheduled because enforcement actions are not stayed by bankruptcy petitions pursuant to the exception provided under 11 USC 362 (b)(4).

Upon the September 22, 1992 request of Department Staff, continuation of the hearing was adjourned to October 14, 1992 to allow time for settlement of the matters against certain Respondents.

The hearing continued on October 14, 1992 at the Albany Public Library. Respondents Becker Wrecking and Salvage Corp. and Gary Becker did not appear. Staff and the remaining Respondents appeared. Testimony was taken from Mr. Vics, James A. Sacco, Jr., and Frank Keane. Staff then rested its case. The Respondents present indicated that they expected to execute a settlement agreement with Staff by the next day, and therefore they would not put on a case unless the expected execution did not occur. Following Staff's closing argument, the proceeding was adjourned to a conference call the next day between those parties that were present for the purpose of determining whether or not a settlement had been reached and, if not, whether the Respondents who were present would be putting on a case.

In the October 15, 1992 conference call between the ALJ, Staff, and Respondents Albany Port District Commission and the City of Albany, later that day confirmed in writing by Staff, the ALJ was advised that a settlement agreement had been reached with those Respondents, and, based thereon, Staff was withdrawing its case against those Respondents. The ALJ then advised all parties in writing October 16, 1992, that the record would close on receipt of the stenographic transcript.

The record closed on October 26, 1992 upon receipt of the stenographic transcript.

Because Staff has withdrawn its case against Respondents Albany Port District Commission and the City of Albany, the balance of this Hearing Report pertains to Respondents Becker Wrecking and Salvage Corp. and Gary Becker only.

The Charges:

Three causes of action are alleged. All pertain to an alleged waste pile located at the Port of Albany, City and County of Albany, NY (the "Site"):

First Cause of Action - Respondents violated 6 NYCRR 360-1.7(a)(1)(ii), operating a solid waste management facility without a permit, through maintaining the waste pile at the Site.

Second Cause of Action - Respondents Gary Becker and Becker Wrecking violated 6 NYCRR 360-1.5(a)(2) by disposing of solid waste at the Site.

Third Cause of Action - Respondents violated 6 NYCRR 360-7, the Department's regulations concerning construction and demolition debris, because some of the waste material in the pile constitutes construction and demolition debris as defined in 6 NYCRR 360-1.2(b)(33).


The Relief Requested:

Staff requests that the Commissioner order Respondents to:

  1. pay a civil penalty of $40,000;
  2. within 15 days of the Commissioner's Order, submit a plan for the remediation of the Site;
  3. within 45 days of the Commissioner's Order, remove and properly dispose of all solid waste currently stored at the Site;
  4. within 30 days of removal of waste material from the Site, provide a report to the Department regarding the disposal of solid waste from the Site; and such other relief as ordered by the Commissioner.

The Answer:

Respondents Becker Wrecking and Salvage Corp. and Gary Becker essentially denied all the violations alleged.

Findings of Fact ("FF")



Respondents Becker Wrecking and Gary Becker:

  1. Respondent Becker Wrecking and Salvage Corporation ("Becker Wrecking") is a corporation incorporated in the State of New York having its principal office at the Port of Albany, Albany, N.Y.
  2. Respondent Gary Becker is President of Becker Wrecking and is responsible for its daily operations.

    The Site:

  3. Becker Wrecking leases from the Albany Port District Commission ("APDC") two parcels of property located in the City and County of Albany at the Port of Albany. One parcel has the dimensions 600 feet by 75 feet and is 1.033 acres in size. The other parcel has the dimensions 600 feet by 35 feet, and is oriented parallel to and north of the first parcel, separated from the first parcel by a distance of 35 feet (referred to as a "right of way" in testimony). Reference is made to the July 1, 1985 lease agreement between Becker Wrecking and APDC (Exhibit 3 in the record, exhibit A attached thereto) for the exact description of the leased premises. The leased parcels, the "right of way" in between the leased parcels, and any areas contiguous thereto covered by the pile of materials referred to below are hereinafter called the "Site." (The Site was generally described in the record as measuring approximately 150 feet wide by 600 feet deep).
  4. The Site is sufficiently proximate to the Hudson River to make it likely that groundwater underlies the Site at a shallow depth, raising concern that water quality of groundwater and the river might be affected by activities that take place on the Site.

    Activities/conditions on the Site:

  5. At all times relevant herein, Becker Wrecking conducted business at the Site consisting of receiving, handling, processing, and shipping of scrap and building salvage, and those operations pertinent thereto, as well as maintaining its offices there. Becker Wrecking's business operations included the separation bricks and other items (such as doors and antique fixtures) from other materials for reuse. Whole bricks would be placed on pallets and non-whole bricks would be reduced to different sized aggregate. The bricks and brick chips would then be held out for sale to the public.
  6. On April 6, 1990, Mr. Vics of Department Staff visited the Site and took photos thereof. At that time the Site contained a pile of materials, with the dimensions approximately 150 feet by 300 feet with variable height ranging from zero to greater than 15 feet. The pile occupied the western 300 feet or half of the Site. Materials in the pile consisted of wood, stone, brick, concrete, scrap metal, plaster type material, dirt, a refrigerator, an hot water heater, some wood doors, and some carpet remnants. The materials appeared to be both older (darker, weathered appearance) or recently placed (lighter, fresh appearance). Mr. Vics subsequently revisited the Site on April 16, April 26 and April 30, 1990, and took photos on the last two occasions that essentially indicate continuation of the conditions observed on April 6, 1990. Some of the materials observed on April 26 appeared to Mr. Vics to be beyond the boundary of the leased premises. In at least one location, some of the materials on April 30 appear to have been piled to a height of at least 12 feet.
  7. On May 2, and May 8, 1990, Mr. Vics again visited the Site, and took photos indicating the continued presence of the pile of materials. On May 2 Mr. Vics observed that some of the materials in the pile in a location he believed to be outside the boundary of the leased premises were being moved and placed on top of materials adjacent to one of the buildings on Site.
  8. On or about May 8, 1990, Mr. Vics discussed what he considered to be violations related to the pile of materials with Mr. Becker. As confirmed by letter from Mr. Vics to Mr. Becker dated May 21, 1990, and not responded to by Mr. Becker, Mr. Vics understood that Mr. Becker had agreed that the Site would be cleaned of accumulated construction and demolition debris in three phases: 1) removal of debris from the Port Railroad's property (west of Becker Wrecking's leased premises) by June 15, 1990; 2) removal of debris from the 35 ft. right of way running east-west through the center portion of the Site; and 3) removal and disposal of all other construction and demolition debris accumulated on Becker Wrecking's property which could not be recycled or recovered as part of its business operation. Only phase 1 has been completed.
  9. On May 30, 1990, Mr. Vics flew over the Site and caused pictures of the Site and nearby areas to be taken. The pile of materials complained of in the western portion of the Site appears from overhead to be several piles of debris traversed by pathways or vehicular tracks.
  10. Mr. Vics visited the Site again on January 7 and May 10, 1991, and March 30, 1992, and took more photos of the pile of materials. The pile had grown in size since April, 1990. On May 10, 1991, the pile extended further eastward than it did in April 1990, and contained material that had not been present a year earlier, including wood (some from lath in plaster), concrete, and shingles. During the March 30, 1992 visit, a "lot of brick" and waste tires were noted.
  11. The pile was still on the Site when Mr. Vics again visited on August 17 and 21, 1992; and therefore was in existence for a period in excess of 850 days (at least from April 6, 1990 through August 21, 1992).
  12. Based on the nature of Becker Wrecking's operations, the nature of the material in the pile (including "freshness") and the fact that the pile grew in size over time, Becker Wrecking placed a significant portion (if not all) of the materials in the pile, and maintained the pile's presence on the Site as a storage place for such materials.
  13. Based on the nature of Becker Wrecking's operations and the nature of the material in the pile, the materials in the pile are refuse, and may be called "solid waste."
  14. Based on the nature of Becker Wrecking's operations and the nature of the materials in the pile, most of the solid waste in the pile resulted from building demolition and related activities, and may be called "construction and demolition debris."
  15. The pile ranges between 16,000 to 24,000 cubic yards in volume based on an average depth ranging between 10 and 15 feet.

    Existence of DEC permits:

  16. No Applications have been filed, nor permits issued by the Department relative to the pile of materials at the Site.

    Avoided costs and potential impacts:

  17. Assuming a range of disposal costs of $10 to $50 per cubic yard (typical costs during the last ten years), it would have cost roughly between $160,000 and $1,200,000 to dispose of the materials in the pile. Assuming the materials in the pile weigh 0.75 ton per cubic yard (a reasonable estimate based on the materials in the pile and the densities for such materials listed in the Civil Engineering Handbook), it would currently cost roughly between $720,000 and $1,170,000 to dispose of the materials locally (either at the North Albany Demolition Landfill (at $60.00/T) or the Town of Colonie Landfill (at $65.00/T).
  18. Leachate forms when water comes in contact with solid waste. Because the pile of materials on Site is solid waste, leachate will form whenever it rains. Leachate can adversely affect the quality of water it comes in contact with. Because of the Site's location, concern is raised that the quality of groundwater and the Hudson River water could be affected by the presence of the pile of materials on Site.]

Conclusions of Law ("CL")

General

  1. The DEC is empowered to regulate the operation of solid waste management facilities pursuant to Article 27 of the ECL and regulations promulgated thereunder at 6 NYCRR Part 360.
  2. The materials in the pile on the Site are "solid waste" pursuant to 6 NYCRR 360-1.2 (Definitions) (a)(1) since they are refuse.
  3. The materials in the pile on Site were "disposed of" pursuant to 6 NYCRR 360-1.2 (Definitions) (a)(3) since they were deposited and/or placed on land so that the materials or constituents thereof may enter the environment or be discharged into ground water or surface water (e.g. leachate from the materials in the pile on Site could carry constituents thereof into the environment, etc.).
  4. Most of the solid waste in the pile on the Site is also "construction and demolition debris" pursuant to 6 NYCRR 360-1.2 (Definitions) (b)(33) since the waste falls among the specific items listed in the definition.
  5. The pile on the site is a "solid waste management facility" pursuant to 6 NYCRR 360-1.2 (Definitions) (b)(145) since it was used for storing solid waste.
  6. Maintenance of the waste pile on the Site constitutes "operation" of a solid waste management facility pursuant to 6 NYCRR 360-1.2 (Definitions) (b)(102) since it was operation of the facility after the initial receipt of solid waste.
  7. Becker Wrecking and Gary Becker are "operators" of the solid waste management facility pursuant to 6 NYCRR 360-1.2 (Definitions) (b)(103) since they are "persons" [(b)(108)] in charge of the facility with the authority and knowledge to make and implement decisions regarding operating conditions at the facility.

    First Cause of Action:

  8. Respondents Becker Wrecking and Gary Becker violated 6 NYCRR 360-1.7(a)(1)(ii) [operating a solid waste management facility without a permit] since they maintained the waste pile at the Site without having a permit from the Department to do so.

    Second Cause of Action:

  9. Respondents Gary Becker and Becker Wrecking violated 6 NYCRR 360-1.5(a)(2) [disposing of solid waste] since they placed solid waste in the pile at the Site.

    Third Cause of Action:

  10. Although most of the materials in the pile on Site constitute "construction and demolition debris" under the regulations, this fact alone does not appear to be sufficient to make 6 NYCRR Subpart 360-7 (Construction and Demolition Debris Landfills) applicable. Said subpart "pertains to landfills ... into which only construction and demolition debris is placed" (360-7.1 (Applicability) (a), emphasis added). Whether or not the waste pile constitutes a "landfill" (defined at 6 NYCRR 360-1.2 (b)(88)) was not addressed (although the record implies that the pile is not the permanent placement of solid waste that seems to be contemplated by the "landfill" definition). Even if the pile is a "landfill," Staff admits it does not contain "only construction and demolition debris" (see Complaint 14). For these reasons, the applicability of the Subpart is questionable, and, therefore, no violation can be found.
  11. In addition, because the Complaint did not identify a specific regulatory provision of the Subpart allegedly violated, it is impossible to compare the elements of an alleged violation to the facts on record.

    Authorized relief:

  12. The Commissioner is authorized to order Respondents Becker Wrecking and Gary Becker to pay the civil penalty of $40,000 requested by Staff. ECL 71-2703(1) provides for a maximum civil penalty of $2,500 for the initial day of violation of Article 27 or any rule or regulation issued thereunder, and a maximum of $1,000 per day for each day thereafter that the violation continues. The violations found under CL 8 and CL 9 above continued for a period in excess of 850 days (see FF 11), thus the requested penalty is but a small fraction of the authorized penalty for either violation (which would exceed $850,000).
  13. The Commissioner is authorized to order Respondents Becker Wrecking and Gary Becker to submit a plan for the remediation of the Site within 15 days of the Order; to remove and properly dispose of all solid waste currently stored at the Site within 45 days of the Order; and to provide a report to the Department regarding the disposal of solid waste from the Site within 30 days of removal of waste from the Site; all as requested by Staff. ECL 71-2727 authorizes the Commissioner to require the taking of such remedial measures as may be necessary or appropriate when violations of Article 27 or its regulations are found. Such violations were found under CL 8 and CL 9 above. Given the large volume of waste and the concern for water quality stated in the Findings above, the remedial steps appear to be appropriate and authorized.

Recommendations

  1. It is recommended that the Commissioner find that Respondents Becker Wrecking and Gary Becker violated 6 NYCRR 360-1.7(a)(1)(ii) [operating a solid waste management facility without a permit] for having maintained the waste pile at the Site without having a permit from the Department to do so; and find that said violation continued for a period in excess of 850 days.
  2. It is recommended that the Commissioner find that Respondents Becker Wrecking and Gary Becker violated 6 NYCRR 360-1.5(a)(2) [disposing of solid waste] since they placed solid waste in the pile at the Site.
  3. It is recommended that the Commissioner dismiss the alleged violation of 6 NYCRR Subpart 360-7.
  4. It is recommended that the Commissioner order Respondents Becker Wrecking and Gary Becker jointly and severally to:
    1. pay a civil penalty of $40,000 to the Department within 30 days of the Order for the violations of 6 NYCRR 360-1.7(a)(1)(ii) and 360-1.5(a)(2);
    2. within 15 days of the Order, submit a plan for the remediation of the Site;
    3. within 45 days of the Order, remove and properly dispose of all solid waste currently stored at the Site; and
    4. within 30 days of removal of waste material from the Site, report to the Department on the disposal of solid waste from the Site.
  5. The relief requested by Staff is recommended without adjustment because it is authorized by law, appears justified for the reasons stated in Staff's closing argument (copy attached hereto as Appendix B), and no argument against same was advanced.

Appendices:

A. Notice of Hearing and Complaint

B. Staff's closing argument

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