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Cole, Alan / Snow White Laundry - Order, May 13, 1994

Order May 13, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violation of Article 17, Water Pollution Control, of the Environmental Conservation Law

- by -

ALAN J. COLE
d/b/a SNOW WHITE LAUNDRY,

Respondent

ORDER

Case No. R7-0628-91-08

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint dated September 28, 1992 an administrative enforcement hearing was held before Francis W. Serbent, Administrative Law Judge ("ALJ") on October 28, 1992 at the Department's Region 7 Office ("Staff"), 615 Erie Boulevard West, Syracuse, New York 13126, concerning allegations against ALAN J. COLE, 40 W. Sixth Street, Oswego, New York 13126 ("Respondent") of unpermitted wastewater discharge at Respondent's SNOW WHITE LAUNDRY, Route 3, Village of Hannibal, Oswego County. Department's Region 7 Staff appeared by Jennifer Powell, Esq., Assistant Regional Attorney for Region 7. The Respondent was represented by Earle E. Thurston, Esq., PO Box 218, South Street, Cato, New York 13033.
  2. The record demonstrates that the Respondent did not have a valid State Pollutant Discharge Elimination System ("SPDES") permit for any of the operations he was conducting during the period charged in the complaint. However, the hearing report submitted by the ALJ concludes the Respondent does not need a SPDES permit for the activity he is undertaking.
  3. The record of the hearing supports the conclusion that Respondent admitted the need for a SPDES permit. In fact, his request for a permit without any reservation of right to contest the need for a permit, standing alone, is itself such an admission. Respondent only contests whether the SPDES permit should require a system with the design capacity recommended by Department Staff, not the need for a permit.
  4. Under such circumstances, the Respondent's need for a SPDES permit has been adequately proven.
  5. I concur with the ALJ that the issue of the design capacity of the water pollution control system should not be determined in the context of this enforcement action.
  6. In determining the relief appropriate for this case, I have taken into account the total circumstances of this case.

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

  1. The Respondent is found to have violated ECL 17-0803 in that he discharged wastewater in the waters of the State without a SPDES permit for a period of time beginning on or about April 13, 1990 until at least September 28, 1992.
  2. For the aforementioned violations, Respondent is assessed a civil penalty of FIVE THOUSAND DOLLARS ($5,000). This penalty shall be due and payable sixty (60) days after the service of a conformed copy of this Order on Respondent.
  3. Respondent shall submit an approvable plan, schedule and application to address the on-going discharge within sixty (60) days of the service of this Order. The Staff may extend this period of time for good cause.
  4. Respondent shall complete any necessary construction within thirty (30) days after its permit application is approved and complete construction pursuant to a schedule approved by Staff.
  5. In the event that Respondent's permit is denied, he shall cease any discharge immediately upon receipt of the notice of denial from Staff. This is without prejudice to the Respondent's right to request a hearing on any denial by Staff.
  6. In the event that Respondent does not comply with the terms of this Order, he shall cease any discharge immediately upon receipt of a notice of such violation from Staff. This is without prejudice to any right the Respondent may have to a hearing concerning such violation.
  7. All communications between the Respondent and the Department concerning this Order shall be made to the Regional Director, Department of Environmental Conservation, Region 7, 615 Erie Boulevard West, Syracuse, New York 13204-2400.
  8. The provisions, terms and conditions of this Order shall bind the Respondent, his agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondent.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: LANGDON MARSH, ACTING COMMISSIONER

Dated: Albany, New York
May 13, 1994

TO: Alan J. Cole
(Certified Mail)
d/b/a Snow White Laundry
40 West Sixth Street
Oswego, New York 13126

Alan J. Cole
(Certified Mail)
Snow White Laundry
Route 3
Hannibal, New York 13074

Earle E. Thurston, Esq.
(Certified Mail)
PO Box 218
South Street
Cato, New York 13033

Jennifer Powell, Esq.
(Interagency Mail)
Assistant Regional Attorney
Region 7, NYSDEC
615 Erie Boulevard West
Syracuse, New York 13204-2400

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

50 Wolf Road
Albany, New York 12233-1550

In the Matter

- of the -

alleged violation of the Environmental Conservation Law Article 17, Water Pollution Control

- by -

ALAN J. COLE
40 WEST SIXTH STREET,
OSWEGO, OSWEGO COUNTY, NY
dba SNOW WHITE LAUNDRY
ROUTE 3, VILLAGE OF HANNIBAL, OSWEGO COUNTY

Respondent

Case No. R7-0628-91-08

Report

- by -

____________/s/____________
Francis W. Serbent
Administrative Law Judge

Proceeding

On October 5, 1992, a Notice of Hearing and a Complaint dated September 28, 1992, Case No. R7-0628-91-08, ("Complaint") was mailed to ALAN J. COLE, 40 W. Sixth Street, Oswego, NY 13126 ("Respondent") for an alleged unpermitted wastewater discharge at the Respondent's business, SNOW WHITE LAUNDRY, Route 3, Village of Hannibal, Oswego County ("Laundry"). The Notice of Hearing and Complaint is from the New York State Department of Environmental Conservation (the "Department"), through the Department's Region 7 Office (the "Staff" or "Department Staff"), 615 Erie Boulevard West, Syracuse NY. The Complaint was served by certified mail, item #P328 973 385 with a return receipt filed signed by the Respondent, dated October 13, 1992. This proceeding is pursuant to the Environmental Conservation Law ("ECL") Article 17 Water Pollution Control; ECL Article 71 Title 19, Enforcement of Titles 1 Through 11 and 15 Through 19 inclusive of Article 17 and Spills of Bulk Liquids; and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 622 (Uniform Enforcement Hearing Procedures).

The hearing was held as noticed on October 28, 1992 at the Department's Region 7 Headquarters before Francis W. Serbent, Administrative Law Judge ("ALJ"). At the hearing, the Respondent admitted to due and timely service. The testimony and evidence was examined on the record. At the hearing, the ALJ requested the Staff to provide the status pursuant to the ECL Article 70 Uniform Procedures and 6 NYCRR Part 621 (collectively "Uniform Procedures") of the Respondent's State Pollutant Discharge Elimination System ("SPDES") application. The Staff submitted, on November 13, 1992, an affidavit of the Region's deputy permit administrator in response. The verbatim transcript of the hearing was received on December 17, 1992. The record was thereafter closed on January 29, 1993 upon receipt of the post hearing submittals.

Appearances

For this proceeding, the Respondent is represented by Earle E. Thurston, Esq., PO Box 218, South Street, Cato, NY 13033. Testifying were Alan Cole, owner and operator of Snow White Laundry and Michael Brennan PE, design engineer, 7299 Port Street, Pulaski, NY.

Department Staff is represented by Marc S. Gerstman, Esq., General Counsel and Deputy Commissioner (Jennifer Powell, Esq., Assistant Regional Attorney, of Counsel). William McCarthy PE, environmental engineer on Staff, testified.

Complaint

The Department Staff alleges that the Respondent discharged wastewater into the waters of the State without a SPDES permit in violation of ECL 17-0803 (SPDES permits; application) from twenty (20) washing machines for a period of time beginning on or about April 13, 1990 until the present (the Complaint is dated September 28, 1992) and from a one bay manual car wash since April 13, 1990 until August 14, 1992. The original Complaint was amended at the hearing to acknowledge that the car wash operation and related wastewater flow ceased prior to August 14, 1992.

The Department Staff requests the following relief:

a finding that the Respondent violated ECL 17-0803;

a civil penalty of fifty thousand ($50,000.00) dollars pursuant to ECL 71-1929 and corrective action:

(1) submittal of an approvable plan, schedule and application within sixty (60) days [plus an additional fifteen (15) days if revisions are necessary]; (2) start construction within thirty (30) days of approval; (3) complete construction according to the approved schedule and (4) immediately cease all discharges upon notice from the Department for failure of the Respondent to comply with the schedule; and such further relief as may be just and proper.

The Staff's Positions

The Staff reasons that since the Respondent discharges from a pipe onto the ground, there is a violation of ECL 17-0803 (discharging of pollutants from an unpermitted point source into the ground waters of the State).

In its post hearing memo, the Staff contends that since it discovered the discharge, it has accommodated and attempted to work with the Respondent to meet Staff's reasonable requirements. The Staff denies it delayed the issuance of a SPDES permit for the proposed subsurface disposal system based on a septic tank and sand filter and argues that even if it did, the delay would only mitigate the amount of the penalty.

Answer: The Respondent denies the cause of action.

Affirmative defenses:

  1. The laundry operations have existed for over twenty years;
  2. The Respondent was unaware of any obligations, requirements or alleged violations until notified by the Department Staff sometime in 1991;
  3. Immediately upon notification by Staff, an engineer was retained in a good faith effort to comply and abide by the Staff's requirements;
  4. Conflicting responses were received from the Staff concerning the treatment of wastewater from the Laundry with and without the manual car wash. The Respondent resolved any dispute by subsequently dismantling the car wash operation;
  5. The Staff has relied on inappropriate, inapplicable and unverified data to arbitrarily and unreasonably rejected the proposals for design flows;
  6. The Staff has acted unreasonably in applying standards that are not applicable and are not enforceable;
  7. The Respondent is ready, willing and able to proceed but has not secured the necessary permits from the Staff;
  8. Consequently, the Respondent requests that the Complaint be dismissed and a determination of what (design) standards apply so that the laundry can be brought into compliance.

Respondent's Position

The Respondent is prepared to install a subsurface disposal system, a type of system that is not in dispute. The issue is the hydraulic size of the proposed disposal system. The Respondent's design flow of 7,000 gallons per day ("gpd') is justified by its records, tests and experience. The Staff's insistence of a design flow 11,000 gpd is based on other empirical criterion and not justified by the Respondent's submitted data.

Staff is unreasonable in its refusal to approve the proposed disposal system. The Staff's requirements would in effect create such a cost and hardship as to effectively cause the closure of the laundry with substantial loss of income and equity.

In its post hearing memo the Respondent contends that:

  1. The ALJ has the authority and discretion to consider this proceeding as both an enforcement and permit hearing.
  2. Staff's actions have been arbitrary, flawed, based upon inexperience and the refusal to approve the Respondent's proposed system as designed is improper.
  3. Respondent's proposed design meets the regulatory requirements and the permit to construct should be granted.
  4. Environmental damage, if any, was minimal.
  5. Economic hardship is a practical consideration.

The Respondent concedes that an updated wastewater system is needed to replace an existing system in use by the laundromat for approximately the past twenty years and before that by prior commercial operations.

The Respondent has continually pursued its proposed design of 7,000 gallons per day (gpd) based on data and the Staff has unreasonably required an oversized design of 11,000 gpd.

Official Notice: The Commissioner's civil penalty policy

General considerations for the requested order (in the Complaint) for corrective actions:

This enforcement action was initiated in October 1992, two years after the Respondent, as an Applicant, submitted its initial application for a SPDES permit in October 1990. The Respondent proposes a subsurface wastewater treatment and disposal system, including filtration and disinfection prior to discharge. During the active processing of the SPDES application between October 1990 and October 1992, no enforcement action was taken. During the technical review of the application and the several exchanges of review comments by the Staff and responses by the Applicant/Respondent, an impasse was reached on the quantity of the design flow. It appears that the Parties consider the processing of the application is suspended in their anticipation that this enforcement proceeding would resolve the question of the appropriate design flow.

The processing of the Respondent's application is not a matter for this enforcement proceeding. The application would be appropriately considered pursuant to ECL Article 70 and 6 NYCRR Part 621, Uniform Procedures and if necessary, 6 NYCRR Part 624, Permit Hearing Procedures. The Respondent as an Applicant, did not exercise any of the provisions available pursuant to 6 NYCRR 621.5 (e.g. if the Staff fails to mail notice of its determination of completeness or incompleteness within 15 days from the date of receipt, the application or resubmitted application shall be deemed complete.) Nor did the Respondent exercise any of the provisions of 6 NYCRR 621.9 (e.g. the so-called 5-day letter), that provides that if the Department fails to mail a decision to the Applicant within five working days of receipt, the application shall be deemed approved and a permit deemed granted. If the final decision is a denial, the Applicant may request a hearing on the denial or the conditioned permit.

Likewise, the Staff did not rigorously and definitively process the application and various reapplications pursuant to Uniform Procedures. The Staff did not mail a notice of incomplete application for each response to review comments. Nor did the Staff mail a final decision (i.e. presumably a denial) on the Respondent's application pursuant to 6 NYCRR 621.9. The stalemate prompted the Staff's Complaint dated September 28, 1992 that initiated this enforcement proceeding.

The prompt processing of the application pursuant to Uniform Procedures may have resolved the question of design flow and obviated the initiation of this enforcement action. Further, it is both possible and probable that the Applicant's design flow proposed is appropriate and the Staff delay on that basis is in error.

Nonetheless, although the application has not been evaluated, the following synopsis is presented here as the SPDES permit application may relate to penalty considerations, if any, and impact this proceeding:

For the design flow, the Staff relies on a Department publication titled "Design Standards for Wastewater Treatment Works 1988 Intermediate Sized Sewerage Facilities" ("Standards"). The Standards indicate the expected flow rate of 580 gallons per day per laundromat machine and is the basis of Staff's design flow of 11,000 gallons per day ("gpd"). The Respondent/Applicant proposes an estimated design flow of 7,000 gpd based on its experience of actual flow measurements at a similar laundromat and comparing incomes with the subject laundromat to arrive at the design flow estimate. The Respondent/Applicant relies on the Standards provision within the section titled "Design Flow" that states "Alternatively, water-usage data can be used to estimate wastewater flow, if it is available for an establishment."

The Foreword to the Standards indicates, among other things, "This publication has been prepared to assist design engineers, owners, managers, and others who may require information and guidance for intermediate-sized sewerage facilities." Hence the "Standards" are intended to be optional guidance rather than a specified law.

Discussion on Certain Evidence

  1. The Staff offered as evidence a memorandum dated April 13, 1990 by a Staff engineer who has since retired from State service and was not available for cross examination. The memorandum was made in the regular course of the Department's business, (i.e. after a site visit in response to a complaint), and was admitted as evidence. The complaint (source unknown) alleged that wastewater from the Respondent's Laundry was discharged into tributary 6 of Ninemile Creek (the allegation was not supported by the memorandum).
  2. The Staff witness who did appear testified that he saw one pond at the site of the wastewater discharge and that he did not recognize any type of treatment system at the site. His testimony was contradicted by the Staff's memo description of April 13, 1990 and the testimony of the Respondent's Engineer which referenced two ponds and treatment systems at the site. Since both engineers have more experience in this location and field practices of wastewater treatment, the testimony that there was one pond and no treatment system is rejected.
  3. The Staff witness stated that at the time of his site visit he had just over one year experience with the Department; he would not know common treatment systems used in the past and this was his first experience with a laundromat. His answers at times were inconclusive, evasive, non-responsive, speculative and confused. His testimony was not based on accurate observations, was without justification or supported by facts in the record. In the absence of pertinent experience or specific knowledge, his conclusions are rejected.

Findings of Fact

  1. Respondent admits it operates a self-service laundry business known as the Snow White Laundry ("Laundry") located on Route 3, Woodruff Road in the Village of Hannibal, Oswego County.
  2. The Laundry is approximately twenty (20) years old and has been the Respondent's property for approximately the last ten (10) years. The Laundry site is a former milk processing plant active in the 1920's, 1930's and 1940's.
  3. The Laundry is equipped with twenty (20) washing machines and fourteen (14) dryers. Until 1992 it provided a bay for a self service car wash. No capacity changes at the Laundry occurred during Respondent's ownership until the car wash was discontinued and dismantled prior to August 14, 1992. [The car wash was dismantled to resolve a dispute with the Staff concerning the review standards for evaluating the proposed design of the replacement wastewater treatment facilities.]
  4. The wastewater from the washing machines and the car wash (until the car wash was eliminated) is pumped from a sump outside the building over the crest of a hill and discharged (the "site").
  5. From the Staff engineer's memo of April 13, 1990 following a site visit " ... the wastewater was in fact pumped up on the hill and discharged on the ground, after which it was `treated' in two ponds in series and eventually dissipated into the soil without forming an observable flow into surface waters."
  6. On October 21, 1990, no discharge of wastewater was observed at the site but some erosion and bent vegetation was noted in the vicinity of the end of the pipe. The end of the pipe is approximately one hundred feet distant from the pond area.
  7. The Department groups the designated waters of the state into classes and there are no classified surface water ponds listed on the site. A wastewater treatment unit, such as a pond or lagoon would not be a classified water.
  8. The existing surface discharge is approximately 100 feet upstream of the ponds and is the location of an unmaintained wastewater treatment and disposal system. Overland flow, irrigation and infiltration-percolation are basic methods of waste discharge application pursuant to 6 NYCRR 700.(1)(a)(20). Treatment works are defined at ECL 17-0105.9 to mean, among other things, disposal field, lagoons or other installed works for the treatment and disposal of waste water. [Note that ponds and lagoons are used synonymously in this report.]
  9. The ponds were dug at some unknown time prior to the Respondent's ownership. In the opinion of the Respondent's Engineer, whose local north country and Jefferson County practice has some experience with milk processing plants, a common design in the past would include dug ponds to receive and treat discharged wastewaters.
  10. In preparing its application for a SPDES permit, The Respondent caused percolation and deep hole subsurface soil tests on its lot in the vicinity of the wastewater disposal area and ponds that revealed four to six feet of sand over hardpan or clay. No groundwater was reported on site. The testimony of the Staff and the Respondent was silent on the presence of groundwater at the site.
  11. The Region 7 files have no record of its Staff issuing a SPDES permit for laundry discharges at the Respondent's site. The record is silent regarding any search for a SPDES permit for a dairy or milk processing plant. The hearing record is silent regarding any search for a State wastewater construction or operating permit for either a laundromat, dairy or milk processing plant. [Note: By normal operation of the ECL Article 17 and regulations thereunder, a permit would have existed at one time for the facility. ECL Article 17 Titles 5 and 7 both mandate permits. The current 6 NYCRR 652.4 (last revised 4-30-72, prior to the effective date of September 1, 1973 for SPDES permits) states:

    "(b) Industrial waste ... (2) Applications for approval of plans and specifications and issuance of construction permits and operating permits shall be submitted directly to the central office ..." and at 652.8(a)(2): "Permits shall be non-transferable." ]

Conclusions

The Complaint alleges: "ECL 17-0803 makes it unlawful to discharge pollutants into the waters of the state from any outlet or point source without a SPDES permit." There are no facts in the record to support either conclusion that the discharge was to surface or goundwater or that the discharge carried pollutants.

  1. The Respondent's Laundry wastewater discharges at and, at least in part, into an unmaintained but still functioning wastewater treatment and disposal system ("existing system"). The surface discharge of the Laundry wastewater is in fact subjected to treatment prior to disposal. The Laundry discharges to an existing field with a vegetative cover over sand followed by ponds that enable both overland flow and infiltration-percolation of the discharge. Both are land application techniques identified in 6 NYCRR 700(a)(20) Land application techniques. The plants, soil surface and soil matrix would enable the removal of certain wastewater constituents as described in 6 NYCRR 700(a)(21) Land utilization practices. Additional treatment is by two ponds in series.
  2. The existing system is a barrier to pollution. It is reasonable to believe pollutants have been reduced and may have been eliminated. By definition in ECL 17-0105.17, a pollutant is, among other things, an industrial discharge into water that may cause or might reasonably be expected to cause pollution of the waters of the state in contravention of the water quality standards. No pollution is alleged and there is no evidence that the treated or partially treated Laundry wastewater contain any pollutants that may cause or contribute to a contravention of surface water or groundwater quality standards.
  3. Although the Respondent has no SPDES permit, a SPDES permit or a non-transferable construction or operating permit would have normally been issued by the central office in prior programs for industrial wastewater discharges such as that from the former milk processing plant.
  4. The ponds have no discrete outlets and the ponds do not constitute "waters of the state" as defined in ECL 17-0105.2. There is no evidence that wastewater discharged from the Laundry entered the surface waters of the State. No Laundry wastewater was observed flowing into any surface water.
  5. There is no evidence that wastewater discharged from the Laundry entered the groundwater of the State.
  6. There is no evidence of groundwater at the site to receive the Laundry wastewater. No Laundry wastewater was observed flowing into any ground water. Although soil tests were made on site, the was no record of finding groundwater and no notation of the ground water elevation. Only the six feet of sand over hardpan or clay was reported in the testimony. Absent any record of the presence of groundwater on or under the site, I am compelled to conclude that a sandy hillside is not a saturation zone of groundwater pursuant to 6 NYCRR 700(a)(15) Groundwater and (37) Saturation zones.
  7. There is no evidence a discharge of pollutants to the waters of the State or of the violation as alleged in the Complaint of ECL 17-0803 that states: "... it shall be unlawful to discharge pollutants to the waters of the state from any outlet or point source without a SPDES permit ..."

Recommendation

  1. It is recommended that the Complaint be dismissed.
  2. For the corrective action that is sought in the Complaint, it is recommended that the processing of the Respondent's application be handled with rigorous adherence to the time frames pursuant to 6 NYCRR Part 621 and 624. A final decision on the application and the completion of the application processing pursuant to UPA would provide the relief or lead to the relief that both the Respondent and the Staff seeks.
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