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Bianco, Peter Jr. d/b/a Bianco's Auto Repair - Commissioner Order, October 9, 2003

Order, October 9, 2003

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violations of Article 17 of the
Environmental Conservation Law of the State of New York, and Part 613 of
Title 6 of the Official Compilation of Codes, Rules and Regulations
of the State of New York

by

PETER BIANCO, JR.
d/b/a BIANCO'S AUTO REPAIR,
Respondent.

ORDER

Case No. R6-19991228-99

WHEREAS:

  1. The attached report submitted by Administrative Law Judge ("ALJ") Maria E. Villa, concerning the motion by Staff of the Department of Environmental Conservation ("Department Staff") for an Order Without Hearing is adopted as my decision in this matter. Section 622.12(d) of title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") provides that "[a] contested motion for order without hearing will be granted if, upon all the papers and proof filed, the cause of action or defense is established sufficiently to warrant granting summary judgment under the CPLR in favor of any party."
  2. Department Staff's motion for a summary order against respondent Peter Bianco, Jr. d/b/a Bianco's Auto Repair ("Bianco") for a violation of article 17 (Water Pollution Control) of the New York State Environmental Conservation Law ("ECL"), and part 613 of 6 NYCRR, should be granted.
  3. In determining the appropriate relief for the violations that were established, the facts of this case as determined in the ALJ's report have been taken into account.

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

  1. Department Staff's motion, pursuant to 6 NYCRR 622.12, for an order without hearing is granted.
  2. Bianco is adjudged to have violated article 17 of the ECL and part 613 of 6 NYCRR. Bianco owns a petroleum bulk storage facility at 274 South Street, Utica, New York, Oneida County (the "Facility"), and has failed to perform required tightness testing and/or to submit testing results in a timely manner.
  3. For the violation set forth in Paragraph II of this Order, Bianco is assessed a civil penalty of sixteen thousand dollars ($16,000). Eight thousand dollars ($8,000) of this penalty shall be suspended provided Bianco provides to Department Staff proof that Tanks 1 through 3 at the Facility have been tightness tested, or that the tanks have been permanently closed, thirty days after service of this Order upon Bianco. Payment of the portion of the penalty not suspended shall be made by certified check, cashier's check, or money order, payable to "NYSDEC," and mailed to the address below within thirty days of service of this Order upon Bianco. If Bianco does not comply, or the penalty payment is not timely made, the entire suspended portion of the penalty shall become due and payable upon due notification by the Department.
  4. All communications between Bianco and the Department concerning this Order shall be made to the Department's Region 6 Director, Dulles State Office Building, 317 Washington Street, Watertown, New York 13601-3787.
  5. The provisions, terms and conditions of this Order shall bind Bianco, its officers, directors, agents, servants, employees, successors and assigns and all persons, firms, and corporations acting for or on behalf of Bianco.

For the New York State
Department of Environmental Conservation


/s/
By: Erin M. Crotty, Commissioner

Dated: Albany, New York
October 9, 2003

To: Peter Bianco, Jr.
Bianco's Auto Repair
274 South Street
Utica, New York 13501

James T. King, Esq.
Regional Attorney
New York State Department of
Environmental Conservation
Division of Legal Affairs, Region 6
Dulles State Office Building
317 Washington Street
Watertown, New York 13601-3787

STATE OF NEW YORK: DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violations of Article 17 of the Environmental
Conservation Law of the State of New York (ECL), and Title 6 of the Official
Compilation of Codes, Rules and Regulations of the State of New York
(6 NYCRR) Part 613 by

PETER BIANCO, JR.,
d/b/a BIANCO'S AUTO REPAIR,
Respondent.

Report Concerning Motion for
Order without Hearing

DEC Case No. R6-19991228-99

August 25, 2003

PROCEEDINGS

The Staff of the New York State Department of Environmental Conservation ("Department Staff") moved for an order without hearing against Respondent, Peter Bianco, Jr. d/b/a Bianco's Auto Repair. Department Staff's motion was dated December 11, 2002, and served upon Respondent on December 12, 2002.

The motion asserted that Respondent is in violation of Article 17 of the Environmental Conservation Law ("ECL") and Part 613 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"). Department Staff maintained that no material issue of fact exists and that the Department is entitled to judgment as a matter of law for the violations alleged. The motion sought an order from the Commissioner (1) requiring Respondent, within thirty days of service of the Commissioner's order, to complete tightness testing, or permanently close, the three 3,000 gallon underground storage tanks at Bianco's Auto Repair, 274 South Street, Utica, New York (the "Facility"); (2) assessing a civil penalty in the amount of sixteen thousand dollars, with eight thousand dollars suspended if Respondent complied with the Commissioner's order; (3) allowing Department Staff access to the Facility to determine compliance; and (4) reserving Department Staff's right to take further action for any matters not specifically alleged in the motion.

The motion was made pursuant to 6 NYCRR Section 622.12(a), which provides that "[i]n lieu of or in addition to a notice of hearing and complaint, the department staff may serve, in the same manner, a motion for order without hearing together with supporting affidavits reciting all the material facts and other available documentary evidence." Affidavits accompanying the motion were filed by Region 6 Environmental Engineers I Donald I. Johnson and Howard R. Mason, and by Region 6 Environmental Engineering Technicians II David F. Pickett and Jerome D. Alsante.

On December 17, 2002, Respondent sent a letter opposing the motion, as well as an Affidavit sworn to by Respondent. Respondent requested that Department Staff contact him to discuss a resolution of the matter. The parties were unable to reach a settlement, and Department Staff requested a ruling on the motion.

POSITIONS OF THE PARTIES

Department Staff's motion stated that Respondent violated Section 613.5 of 6 NYCRR, because the underground storage tanks at the Facility had not been tested for tightness as required under the regulations. According to Department Staff, the Facility consists of three 3,000 gallon bare steel underground storage tanks (Tanks 1 through 3), without cathodic protection, and one 550 gallon kerosene tank.

In its motion, Department Staff stated that Respondent purchased the property where the tanks are located on or about February 28, 1972, and that Respondent submitted a petroleum bulk storage application on December 16, 1991 to register the Facility. Department Staff's Motion ("Motion"), Exhibit A. According to that registration, the Facility consisted of three 1,000 gallon underground storage tanks. That information was corrected by application dated July 29, 1994, which indicated that the three tanks had a capacity of 3,000 gallons each. Motion, Exhibit B.

Respondent submitted a renewal application on January 29, 1997, and the Department issued a Petroleum Bulk Storage Certificate effective January 30, 1997, with an expiration date of January 6, 2002. Motion, Exhibits C and D. The exhibits to the Department's motion indicate that the tanks at the Facility are bare steel, without cathodic protection, and are temporarily out of service. Department Staff contended that the tanks were initially due to be tightness tested in December 1987, in accordance with Section 613.5(a)(1)(ii), and that the tanks should have been tested every five years thereafter, in accordance with Section 613.5(a)(1)(iv).

Department Staff's motion stated that on July 14, 1994, July 25, 1995, March 15, 1996, and April 4, 1997, the Department notified the Respondent by letter that the Facility's tanks were overdue for testing. Copies of those letters were provided as Attachments A, B, C, and D to the motion. According to Department Staff, the Department has not received any notice that the tanks at the Facility are permanently closed, that the tanks have been tightness tested, or that the Facility has transferred ownership.

Department Staff requested a total civil penalty of $16,000. Of that total amount, Department Staff recommended that half of the civil penalty (i.e., $8,000.00) be suspended if Respondent completed the corrective measures in the Commissioner's order, and that the balance be payable within thirty days of service of the Commissioner's order upon Respondent. According to Department Staff, Respondent avoided the costs of at least three tightness tests, for an economic benefit of at least $1,500. In addition, Department Staff's motion indicated that in cases of voluntary settlement, Region 6 seeks a gravity component of no less than $1,000 per tank in circumstances where tightness testing deadlines have not been met. According to Department Staff, Respondent failed to respond to four letters from the Department reminding him that the tanks at the Facility must be tested for tightness. As a result, Department Staff sought a payable penalty of $8,000, with suspension of the remaining $8,000 pending compliance with the Commissioner's order.

Department Staff also requested that the Commissioner order Respondent to perform tightness testing, or permanently close Tanks 1 through 3, within thirty days of receipt of the Commissioner's order. In addition, to assure compliance, Department Staff requested that the Commissioner order that the Department have access to Respondent's facility.

Respondent submitted a letter and affidavit, stating that he was willing to perform the required testing, as long as the cost did not exceed $500, but that he would be obliged to close his business if he were required to pay more than that amount. According to Respondent, the Facility had not sold petroleum products for over thirty years, and that the tanks had not been used since 1972, when Respondent purchased the Facility. Respondent stated that the Facility was operated only to perform automobile repairs. In addition, Respondent said that he had been advised that the tanks needed to be tested for tightness, that he had done so, and that a report was sent to the Department. Respondent stated that he was unable to locate a copy of the report and did not recall if he had retained a copy.

Respondent indicated that he is retired, receives Social Security, and only operates the business part-time. Respondent stated further that the Facility is the only property he owns, and that it is located in a depressed area in the City of Utica. Finally, Respondent requested that counsel for Department Staff contact him to discuss a resolution of the matter. As noted, the parties were unable to reach a settlement, and Department Staff requested a ruling on the motion.

DISCUSSION

Motion for Order without Hearing

Department Staff requested an order without hearing against Respondent pursuant to 6 NYCRR Section 622.12. That provision is governed by the same principles applicable to summary judgment, pursuant to New York Civil Practice Law and Rules 3212. Section 622.12(d) provides that a contested motion for an order without hearing will be granted if, upon all the papers and proof filed, the cause of action or defense is established sufficiently to warrant granting summary judgment under the CPLR in favor of any party. Section 3212(b) of the CPLR provides, in relevant part, that a motion for summary judgment shall be granted "if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. . . . [T]he motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact."

The party moving for summary judgment must submit evidence sufficient to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 (1986). The non-moving party may not rely merely on conclusory statements and denials, but must lay bare its proof. Hanson v. Ontario Milk Producers Coop., Inc., 58 Misc. 2d 138, 141-142 (Sup Ct. Oswego County 1968). If the non-moving party fails to deny a fact in the motion, that fact is deemed admitted. Kuehne & Nagel, Inc. v. Baiden, 36 N.Y.2d 539, 544 (1975); Richard Locaparra, d/b/a L&L Scrap Metals, Commissioner's Decision and Order, 2003 WL 21633072, *2 (June 16, 2003).

Part 613 of 6 NYCRR applies, in pertinent part, to all underground petroleum storage facilities with a combined storage capacity of over 1,100 gallons. Section 612.1(c)(10). Section 613.5(a)(1) specifically provides that "[t]he owner of any underground petroleum storage tank and connecting piping system must have the tank and pipes periodically tested for tightness as shown in Table 1 of this subdivision." Table 1 indicates that an unprotected, or "Category A" tank, must be initially tested when the tank is ten years old, and retested every five years thereafter, until the tank is permanently closed. An "unprotected tank" means "any underground tank which does not meet standards specified in section 614.3 of this Title. Examples of unprotected tanks include, but are not limited to, bare steel tanks . . .." Section 612.1(c)(30). According to the Department's motion, the tanks at the Facility are Category A bare steel tanks without cathodic protection, and have not been tested according to this schedule.

Section 613.5(a)(4) requires that tightness test results must be provided to the Department within thirty days of testing. A copy of the test report must be maintained by the facility's owner for at least five years. Section 613.5(a)(4)(iii). Section 613.5(a)(1)(v) provides that "[i]f for any reason, testing or inspection is not performed as required in this section, the tank or piping system must be replaced . . . or taken out of service . . .." Tanks that are temporarily out of service are subject to these testing and reporting requirements. Section 613.9(a)(2). If ownership of a facility is transferred, or if a tank is permanently closed, the owner or operator must notify the Department within thirty days. Section 612.2(b) and (d). Department Staff's motion asserts that Respondent has not notified the Department that the tanks have been tested, permanently closed, or that the ownership of the Facility has changed.

In this case, the only substantive dispute of fact that would require a hearing concerns whether the tanks at the Facility were ever tested for tightness. There is no dispute that the size and construction of the tanks subject the Facility to regulation under Part 613. The record does not support Respondent's contention that the tanks have been tested in accordance with the regulations, because other than unsupported statements in the Affidavit, Respondent has not provided any proof that the testing was performed and that a report of the results was submitted to the Department. This is insufficient to satisfy the non-moving party's burden, on a motion for order without hearing, to raise an issue of fact, and to refute Department Staff contention that it has no record that any testing was performed. Furthermore, it is undisputed that the tanks have not been permanently closed.

Pursuant to ECL 71-1929, any violation of Titles 1 through 11, or Title 19, of Article 17 or its implementing regulations subjects the violator to a penalty not to exceed $25,000 per day. The penalty sought by Department Staff ($16,000, with $8,000 suspended upon compliance) is appropriate, given the nature and circumstances of the violation, as described above. Although the Respondent indicated in the letter accompanying his submission that he would be unable to pay more than the $500 tank testing charge, no documentation of his inability to pay was provided. Therefore, I recommend that Department Staff's motion for an order without hearing be granted, and that the Commissioner find that Respondent violated Section 613.5(a)(1)(ii) and (iv) by failing to tightness test or permanently close the three 3,000 gallon underground storage tanks at the Facility, and that the penalty requested by Department Staff be imposed.

Department Staff also requested that the Commissioner order "that the Department shall have access to the facility to determine Respondent's compliance with the ECL, the regulations and this Order." Motion for Order Without Hearing, at ¶ V. This provision need not be incorporated in the order, because it duplicates provisions in the regulations regarding access. Given these provisions, there is no necessity that the order include the requested language.

FINDINGS OF FACT

The facts determined as a matter of law are as follows:

  1. Respondent owns and operates a petroleum bulk storage facility at 274 South Street, Utica, New York (the Facility). Respondent purchased the Facility on or about February 28, 1972.
  2. The Facility consists of three 3,000 gallon bare steel underground petroleum storage tanks, as well as a 550 gallon kerosene tank. The tanks are temporarily out of service. Respondent first registered the Facility (PBS # 6-600113) effective December 16, 1991.
  3. Respondent submitted an application to register the Facility on December 16, 1991.
  4. Department Staff inspected the Facility on April 29, 1994, and discovered that the information on the December 16, 1991 registration was incorrect. Specifically, the volume of the three underground storage tanks was determined to be 3,000 gallons, not 1,000 gallons as stated in the December 16, 1991 registration. On July 29, 1994, Respondent submitted an application to correct the information in the 1991 submittal.
  5. On January 29, 1997, Respondent submitted a renewal application. On January 30, 1997, the Department issued a Petroleum Bulk Storage Certificate, effective that day, with an expiration date of January 6, 2002. Under the column entitled "Testing Due Date," the notation "12/87" appears for each of the 3,000 gallon tanks.
  6. On March 25, 1997, Department Staff inspected the Facility, and discovered that a 550 gallon underground waste oil storage tank was located at the rear of the property. That tank had not been registered as required.
  7. Department Staff sent Respondent letters on July 14, 1994, July 25, 1995, March 15, 1996, and April 4, 1997, notifying Respondent that the Facility's tanks were overdue for testing.
  8. On January 3, 2002, the Department issued a PBS Registration Certification with an expiration date of January 6, 2007.
  9. The estimated cost of tightness testing the tanks would be approximately five hundred dollars ($500).
  10. The Department has not received any notification that the tanks are permanently closed, or have been tightness tested, or that the ownership of the Facility has changed.

CONCLUSIONS

  1. Respondent violated 6 NYCRR Section 613.5(a)(1)(ii) and (iv) by failing to tightness test the tanks at the Facility.
  2. The civil penalty requested by Department Staff is authorized, pursuant to ECL 71-1929, which provides for a penalty of up to $25,000 per violation per day, and injunctive relief.

RECOMMENDATION

I recommend that the Commissioner grant the relief requested by Department Staff in its motion for order without hearing, except that the order need not contain a provision allowing Department Staff access to the Facility.

____________/s/_______________
Maria E. Villa
Administrative Law Judge
NYS Department of Environmental Conservation
Office of Hearings and Mediation Services
625 Broadway, First Floor
Albany, New York 12233-1550

Dated: Albany, New York
August 25, 2003

To: Peter Bianco, Jr.
Bianco's Auto Repair
274 South Street
Utica, New York 13501

James T. King, Esq.
Regional Attorney
Division of Legal Affairs
NYSDEC Region 6
Dulles State Office Building
317 Washington Street
Watertown, New York 13601-3787

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