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C&G Auto Service Station and Clinton Graham - Ruling, October 24, 2003

Ruling, October 24, 2003

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of Alleged Violations of Articles
17 and 71 of the New York State Environmental
Conservation Law, Article 12 of the New York State
Navigation Law, and Parts 612 and 613 of Title 6 of
the Official Compilation of Codes, Rules and Regulations
of the State of New York, by

C&G AUTO SERVICE STATION and
CLINTON GRAHAM,
Respondents

RULING ON MOTION FOR ORDER
WITHOUT HEARING

DEC File No. R2-20021001-319

October 24, 2003

Summary

On September 17, 2003, the Staff of the Department of Environmental Conservation ("DEC Staff") moved for an order without hearing against C&G Auto Service Station, 145-165 Wolcott Street, Brooklyn, New York 11231 and Clinton Graham ("Respondents"), concerning alleged violations at a petroleum bulk storage facility at 109-67 Sutphin Boulevard, Jamaica, New York (the "Facility"). On October 6, 2003, Respondents replied in opposition to the motion. As discussed below, the motion is granted with respect to liability on the first and third causes of action and denied with respect to the other causes of action. A hearing will be scheduled.

Proceedings

The motion was made pursuant to section 622.12(a) of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR 622.12(a)"), which provides that, "In 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." The motion was accompanied by: an affirmation by David S. Rubinton, Esq., Assistant Regional Attorney in the DEC Region 2 Office, Long Island City, New York; a copy of the June 17, 2003 notice of hearing, pre-hearing conference and complaint in this matter; an affidavit by Brian Gaudreault, Vice President of Brookside Environmental, Inc. ("Brookside") ; an affidavit by Michelle Tipple, Engineering Geologist in the DEC Region 2 Office; and exhibits accompanying each affidavit.

DEC Staff moves for an order from the Commissioner of the Department of Environmental Conservation finding that Respondents violated Article 17 of the Environmental Conservation Law ("ECL"), Article 12 of the Navigation Law, and the rules and regulations thereunder, which Respondents are charged with having committed, and requiring Respondents to undertake certain activities as more specifically set forth in the complaint. The complaint alleges violations associated with the removal of petroleum bulk storage tanks at the facility in late August and early September, 2001.

On October 6, 2003, Ralph Pennington, Jr., Esq., Bellerose, New York, submitted a response on behalf of Respondents, opposing the motion. Respondents submitted an affirmation in opposition by Mr. Pennington; an affidavit by Frank Ramsey, of Ramsay [sic] Construction Corporation; exhibits cited in Mr. Ramsey's affidavit; and a copy of the July 8, 2003 answer, with an August 17, 2001 letter from Brookside Environmental to Clinton Graham which was apparently included with the answer.

Positions of the parties

DEC Staff

The affirmation that accompanies the motion for order without hearing alleges that Respondents violated ECL Article 17, Navigation Law Article 12 and 6 NYCRR "by removing tanks from their site without notifying DEC and without a permit issued by DEC, by failing to correctly register its used oil bulk storage facility, and by discharging pollutants, such as petroleum, into the waters of the State... ."

The complaint sets forth five causes of action: 1) that Respondents violated 6 NYCRR 613.9(c) by removing tanks from the site without notifying the Department; 2) that Respondents violated Navigation Law 176 by disposing of contaminated soil without notifying the Department of the work; 3) that "Respondents improperly registered its [sic] used oil bulk storage facility" in violation of ECL 17-1009 and 6 NYCRR 612.2; 4) that by allowing the discharge of petroleum, Respondents violated Navigation Law article 12, section 176 and ECL 17-0303; and 5) that by failing to notify the Department of the discharges of petroleum, Respondents violated Navigation Law article 12, section 176, ECL 17-1743 and 6 NYCRR 613.8.

Respondents

Respondents argue that there are triable issues of fact and, therefore, the motion should be denied. The affidavit from Mr. Ramsey states that Respondents hired Brookside to remove tanks from the site, but a financial dispute arose between Brookside and Respondents, and Brookside did not complete the work. The affidavit also states that Respondents retained Mr. Ramsey's company to complete the project. Respondents dispute the number of tanks that the DEC Staff allege were removed and maintain that the soil was not contaminated. Respondents also contest the penalty proposed by DEC Staff.

Motions for orders without hearing

Section 622.12 of 6 NYCRR governs motions for order without hearing in DEC enforcement hearings. Among other provisions, this regulation states 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 judgement under the CPLR [Civil Practice Law and Rules] in favor of any party. Likewise, where the motion includes several causes of action, the motion may be granted in part if it is found that some but not all such causes of action or any defense thereto is sufficiently established. Upon determining that the motion should be granted, in whole or in part, the ALJ will prepare a report and submit it to the [C]ommissioner pursuant to section 622.18 of this Part" (6 NYCRR 622.12(d)).

This section further provides that, "The motion must be denied with respect to particular causes of action if any party shows the existence of substantive disputes of facts sufficient to require a hearing" (6 NYCRR 622.12(e)).

A recent Decision and Order of the Commissioner discussed the showing the parties must make in a motion for order without hearing and in the replies to such a motion, and the evaluation of these filings (see Matter of Richard Locaparra, d/b/a L&L Scrap Metals, DEC Case No. 3-20000407-39, Final Decision and Order of the Commissioner [June 16, 2003]). This discussion was summarized in a subsequent ruling by Administrative Law Judge Daniel P. O'Connell (see QP Service Station Corporation et al., DEC Case No. R2-20021001-319, Ruling on Motion for Order Without Hearing [July 8, 2003]), as follows:

The party moving for summary judgment has the burden of establishing "his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing judgment' in his favor (CPLR 3212, subd [b])" (Friends of Animals v. Associated Fur Mfrs., Inc., 46 NY2d 1065, 1067 [1979]). The moving party carries this burden by submitting evidence sufficient to demonstrate the absence of any material issues of fact (see Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]). The affidavit may not consist of mere conclusory statements but must include specific evidence establishing a prima facie case with respect to each element of the cause of action that is the subject of the motion. Similarly, a party responding to a motion for summary judgment may not merely rely on conclusory statements and denials but must lay bare its proof (see Hanson v. Ontario Milk Producers Coop., Inc., 58 Misc 2d 138, 141-142 [Sup Ct. Oswego County 1968]). The failure of a responding party to deny a fact alleged in the moving papers constitutes an admission of the fact (see Kuehne & Nagel, Inc. v. Baiden, 36 NY2d 539, 544 [1975]).

If a motion for order without hearing is denied, 6 NYCRR 622.12(e) provides that the ALJ may ascertain what facts are not in dispute or are incontrovertible. The ruling will specify what facts, if any, will be deemed established for all purposes in the hearing.

Discussion and rulings

The allegations as summarized in the notice of motion and the accompanying affirmation differ in some respects from the allegations stated in the complaint, and are stated in less detail than those in the complaint. This discussion follows the format of the allegations as set forth in the complaint.

First cause of action: DEC Staff allege that Respondents violated 6 NYCRR 613.9(c) by removing tanks from the site without notifying the DEC. This regulation requires that, "The owner of a tank or facility which is to be permanently closed must notify the department within 30 days prior to permanent closure of the tank or facility pursuant to the requirements of section 612.2(d) of this Title." Section 612.2(d) requires notification to the DEC, on forms supplied by the DEC, of substantial modifications to petroleum bulk storage facilities.

The parties do not dispute that Respondents caused some number of tanks to be removed from the site. Ms. Tipple's affidavit states that she reviewed the Department's records and discovered that DEC was never notified of any petroleum tank removal (affidavit, paragraph 7). Mr. Pennington's affirmation refers to Brookside having failed to "properly comply with Federal and State law by not obtaining the proper permit for the tank removal and notifying DEC of said project." Respondents do not, however, state or provide any proof that Brookside was responsible for providing this notification. The August 17, 2001 work proposal from Brookside, which is attached with the Respondents' papers opposing the motion, makes no mention of Brookside taking responsibility for this notification. The facility information reports attached with Ms. Tipple's affidavit list Mr. Graham as the owner of the facility, and Respondents admit this in their answer.

The owner of the facility is responsible for this notification, even if the owner contracts with a third party to provide the notice. Since the papers and proof in the record establish that Mr. Graham is the owner of the facility and that the notification was not provided, liability has been established. In addition, no substantive issue of fact sufficient to require a hearing exists with regard to Brookside's role in this notification, even with regard to factors that may be considered under the Department's civil penalty policy.

Ruling No. 1: The motion for order without hearing is granted with regard to liability on the first cause of action. The facts contained in the Findings of Fact below are established for all purposes in the hearing.

Second cause of action: DEC Staff allege that Respondents violated Navigation Law section 176 by disposing of contaminated soil without notifying the Department of the work. The complaint does not specify which portion of Navigation Law section 176 Respondents allegedly violated. It would appear, however, to be section 176(7)(c) which provides, in part, that, "A person may...with the consent of the commissioner, commence cleanup and removal of the discharge... ."

A substantive dispute of fact exists regarding whether the soil was contaminated. Mr. Gaudreault's affidavit states that approximately 40 cubic yards of soil was contaminated with gasoline and waste oil, and that Brookside stockpiled and covered this soil. Mr. Gaudreault's affidavit states that Brian Graham (Brookside's project manager) later observed that the soil had been removed from the site, and that review of Brookside's records indicated that Brookside did not remove the soil (Gaudreault affidavit, paragraphs 7, 8, and 11). In contrast to this, Mr. Ramsey's affidavit states that the soil was not contaminated, and that, "There was no sight of contamination of the subject soil in my presence" (Ramsey affidavit, paragraph 10). Ms. Tipple's affidavit reports Mr. Gaudreault's observations, but does not provide any observations by Ms. Tipple or other DEC employees, nor results of any tests of the soil (Tipple affidavit, paragraphs 5 and 6).

There is no factual dispute that Respondents caused the soil to be removed from the site and did not report the removal of the soil to DEC. Mr. Ramsey's affidavit states that he was retained by Respondents for work that included removing excavated soil and that removal of the soil to a waste dump site in Pennsylvania was not reported since the soil was not contaminated (Ramsey affidavit, paragraph 10).

Ruling No. 2: The motion for order without hearing is denied with regard to liability on the second cause of action. The affidavits submitted by the parties do establish, however, that Respondents caused excavated soil to be removed from the site and did not notify the Department about disposal of the soil.

Third cause of action: The DEC Staff allege that "Respondents improperly registered its (sic) used oil bulk storage facility" in violation of ECL 17-1009 and 6 NYCRR 612.2. These statutory and regulatory provisions require owners of petroleum bulk storage facilities to register the facilities with the Department, on forms provided by the Department. Section 612.2 also requires notification to the Department when facilities are substantially modified.

Ms. Tipple's affidavit states that she reviewed the Department's records on two occasions, in March and July 2003. On both occasions, she found that the site was listed as "active" and the tanks were registered as being temporarily out of service. On March 21, 2003, Ms. Tipple phoned Mr. Clinton Graham and left a voice mail message for him to submit proper tank status documentation to the DEC immediately (Tipple affidavit, paragraphs 7, 7 and 8; the affidavit contains two paragraphs numbered 7).

Ms. Tipple's affidavit states, at paragraph 9, that, "To date, no adequate report relating to the site has been submitted to DEC." In the context of the affidavit, the report mentioned refers to an accurate petroleum bulk storage registration application. Respondents did not submit any proof that they submitted a registration application providing updated information about the facility and did not otherwise contest this cause of action. Indeed, Mr. Ramsey's affidavit states that, "I intend to submit to DEC the proper tank status documentation immediately." (Ramsey affidavit, paragraph 13.)

Respondents did, however, dispute the number of tanks that were at the site and that were removed. This will need to be clarified, as will the status of the registration at the time when the hearing takes place, since the record does not currently provide a basis for findings as a matter of law on these questions and they may be relevant to the relief to be ordered by the Commissioner.

Ruling No. 3: The motion for order without hearing is granted with respect to liability on the third cause of action. The number of tanks and the status of the registration at the time of the hearing will be adjudicated with respect to the remedial action sought by the complaint.

Fourth cause of action: The DEC Staff allege that by allowing the discharge of petroleum, Respondents violated Navigation Law article 12, section 176 and ECL section 17-0303.

A substantive dispute of fact exists regarding whether petroleum was discharged. Mr. Gaudreault's affidavit describes a leak from tanks at the site into the surrounding soil, and states that approximately 40 cubic yards of soil were contaminated (Gaudreault affidavit, paragraphs 7 and 8). Mr. Ramsey's affidavit states that the soil was not contaminated (Ramsey affidavit, paragraph 10).

An additional reason for denying the motion with regard to this cause of action is that it is not clear what section of the Navigation Law Respondents are alleged to have violated. The text of paragraph 27 of the complaint alleges a violation consisting of "allowing the discharge of petroleum," but the cited section of the Navigation Law requires removal of unexplained discharges of petroleum by or under the direction of the department. Also, the nature of the violation of ECL 17-0303 is not clear since that section does not prohibit or require any specific conduct by the public.

Ruling No. 4: The motion for order without hearing is denied with respect to the fourth cause of action.

Fifth cause of action: The DEC Staff allege that by failing to notify the Department of the discharges of petroleum, Respondents violated Navigation Law article 12, section 176, ECL 17-1743 and 6 NYCRR 613.8.

Substantive disputes of fact exist regarding this allegation. If the discharge in question is a leak from the tanks to the soil, discovered while the tanks were being removed, DEC Staff's own motion papers include a statement that Brookside (at the time it was working for Respondents) reported the discharge to DEC at a particular date and time, and the discharge was assigned a DEC spill number (Gaudreault affidavit, paragraph 7).

Respondents contest this allegation in several ways. Mr. Pennington's affirmation states that DEC failed to submit any documentary confirmation of the spill report, any test results or any affidavit by a DEC employee who has personal knowledge of the alleged incident. Mr. Pennington suggests that the financial dispute between Brookside and Respondents was the motivation for Brookside reporting a spill to DEC, and that Brookside did not report this spill to its client the Respondents (Pennington affirmation, paragraphs 6 and 10). Mr. Ramsey's affidavit states that the soil was not contaminated (Ramsey affidavit, paragraph 10).

Ruling No. 5: The motion for order without hearing is denied with respect to the fifth cause of action.

Findings of Fact

The following findings are deemed established for all purposes in this hearing:

  1. Respondent Clinton Graham is registered with the Department as the owner of a petroleum bulk storage facility located at 109-67 Sutphin Boulevard, Jamaica, New York 11435.
  2. Respondents caused some number of petroleum storage tanks to be removed from the facility on or about August and September, 2001.
  3. DEC was never notified of any removal of petroleum tanks from the facility.
  4. Following removal of the tanks, Respondents caused excavated soil to be removed from the site of the facility. Respondents did not report to the DEC that the soil was removed.
  5. As of October 6, 2003, the date of Mr. Ramsey's affidavit, Respondents had not submitted a petroleum bulk storage registration application to the DEC providing updated information about the facility to reflect the removal of the tanks or the current status of the facility.

Further proceedings

A hearing will take place on the causes of action for which the motion for order without hearing was denied, and on the penalty and other relief to be required by the Commissioner for all causes of action established either in this ruling or after the hearing. Since there are outstanding factual issues concerning both the Respondents' liability and the relief, I reserve making a recommendation about the relief requested by Staff until after the hearing.

I will set the date, time and place for the hearing after contacting counsel for the parties about their schedules.

_________/s/__________
Susan J. DuBois
Administrative Law Judge

Albany, New York
October 24, 2003

To: David S. Rubinton, Esq.
Ralph Pennington, Jr., Esq.

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