D E C banner
D E C banner

Disclaimer

The New York State Department of Environmental Conservation has added a link to a translation service developed by Microsoft Inc., entitled Bing Translator, as a convenience to visitors to the DEC website who speak languages other than English.

Additional information can be found at DEC's Language Assistance Page.

Frontier Chemical Waste Process, Inc. - Order, April 7, 1994

Order, April 7, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

a Proceeding under the Environmental Conservation Law to Revoke the Permit and Terminate
All Authority to Operate a Hazardous Waste Management Facility held

- by -

FRONTIER CHEMICAL WASTE PROCESS, INC.
and
EAGLE VISION ENVIRONMENTAL CORPORATION, INC.,

Respondents

ORDER

DEC Index No. C9-5194-03-93

WHEREAS:

  1. This Order is issued with reference to the Notice of Hearing and Motion for Summary Order (the "Motion") dated April 26, 1993 regarding the captioned matter. Answering papers on behalf of both Respondents were submitted on June 17, 1993. The matter was adjourned by agreement of the parties until February 14, 1994.
  2. A motion for summary order shall be granted if, upon review of all the papers and proof submitted, it is concluded that the cause of action, or a defense thereto, is established as a matter of law [6 NYCRR 622.10(c) and CPLR 3212(b)]. The attached Hearing Report and Ruling on Motion for Summary Order (the "Report") submitted to me by Administrative Law Judge ("ALJ") Susan J. DuBois only refers one cause of action to me for a final determination. A hearing will be required with respect to the other causes of action.
  3. The Motion and the answering papers establish that a summary abatement order was issued to both Respondents on December 4, 1992 in response to conditions at a hazardous waste management facility located at 4626 Royal Avenue, Niagara Falls, New York and that a modification thereto was issued on December 11, 1992. The Respondents failed to comply with the summary abatement order and the modification.
  4. Frontier Chemical Waste Process, Inc. was authorized to operate the facility under a permit (Permit #2295) which had been issued under former Part 360 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"). This authorization was extended pursuant to Section 401(2) of the State Administrative Procedures Act.
  5. Permits issued by the Department of Environmental Conservation may be revoked on the grounds of noncompliance with an Order of the Commissioner. As set forth in the Report, the incontrovertible facts also demonstrate that revocation of the permit and termination of all authority to operate the facility are appropriate in this case.
  6. A hearing will be required on the issue of the extent of any civil penalties, if any, that may be assessed for the violation of the summary abatement order and modification. That hearing should be held together with the hearing related to the other causes of action contained in the Motion.

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

  1. Both Respondents are found to have violated the terms of December 4, 1992 summary abatement order and the December 11, 1992 modification. The Department's Motion for Summary Order pursuant to 6 NYCRR 622.10 is granted with respect thereto.
  2. Permit #2295 is hereby revoked and all authority to operate a hazardous waste management facility at 4626 Royal Avenue, Niagara Falls, New York by Frontier Chemical Waste Process, Inc., Eagle Vision Environmental, Inc. and/or the transferee of either is hereby terminated.
  3. This Order does not relieve the Respondent's from complying with the terms of the above-referenced summary abatement order and the modification or any other outstanding order.
  4. The issue of the amount of civil penalties for such violation is remanded to ALJ DuBois for purposes of conducting a hearing. That hearing shall be conducted together with a hearing on all other causes of action raised in the motion for summary order.
  5. The provisions, terms and conditions of this Order shall bind the Respondents, their officers, directors, agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondents.

For the New York State Department
of Environmental Conservation

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

Dated: Albany, New York
April , 1994

TO: Frontier Chemical Waste Process, Inc.
Eagle Vision Environmental, Inc.
c/o Dr. Gerry Norton
1324 Seven Springs Boulevard, #119
New Port Richey, FL 34655

Norman R. Dobiesz
P.O. Box 12556
St. Peterburg, FL 33733-2556

Neil Gingold, Esq.
Hancock & Estabrook
Counselors at Law
1500 Mony Tower I
P.O. Box 4976
Syracuse, NY 13221-4976

Deborah W. Christian, Esq.
Associate Attorney
NYSDEC
Division of Environmental Enforcement
50 Wolf Road
Albany, NY 12233-5500

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

a Proceeding under the Environmental Conservation law to Revoke the Permit and Terminate
All Authority to Operate a Hazardous Waste Management Facility held by

FRONTIER CHEMICAL WASTE PROCESS, INC.

and

EAGLE VISION ENVIRONMENTAL CORPORATION, INC.,

Respondents

HEARING REPORT AND RULINGS

DEC Index No. C9-5194-03-93

On April 26, 1993, the Department made a Motion for Summary Order in the above matter. The Motion for Summary Order pertains to a hazardous waste management facility at 4626 Royal Avenue, Niagara Falls, New York (the "facility"). On June 17, 1993, the Respondents Frontier Chemical Waste Process, Inc. ("Frontier") and Eagle Vision Environmental Corporation, Inc. Eagle Vision was also referred to as "Eagle Vision Environmental, Inc." in the Respondents' documents opposing the motion for summary order. ("Eagle Vision") submitted documents opposing the Motion for Summary Order. The June 17, 1993 documents were submitted on behalf of both Respondents.

The Motion for Summary Order alleged that the Respondents: violated a Summary Abatement Order issued to both Respondents on December 4, 1992 (DEC Index No. C9-5194-12-92) and the December 11, 1992 Modification of the Summary Abatement Order; violated conditions of the permit for the Frontier facility (Permit #2295); violated Order on Consent #86-96, issued to Frontier on July 14, 1986; violated Order on Consent #C9-0001-89-05, issued to Frontier on January 30, 1990; violated Order on Consent #R9-3058-90-01, issued to Frontier on April 11, 1992; and violated Parts 370 et seq. of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR), the regulations pertaining to hazardous waste management.

The matter was adjourned by agreement of the parties until February 14, 1994. On that date, the Department Staff wrote to Administrative Law Judge ("ALJ") Edward H. Buhrmaster, who was at that time the ALJ for this matter, and requested that a ruling be made on the Motion for Summary Order since discussions regarding a potential transfer of the permit had ended without the transfer taking place. The matter was then assigned to me, due to schedule considerations, to make a ruling.

As discussed further below, the Motion for Summary Order is granted in part and denied in part. I am recommending that an Order be issued with regard to the violation of the Summary Abatement Order and the Modification of the Summary Abatement Order, which were violated by both Respondents. It is not disputed that the Respondents failed to comply with the Summary Abatement Order and the Modification of the Summary Abatement Order, although there is a disputed issue regarding what penalties, if any, should be imposed for this violation. With regard to the parts of the motion which are denied, certain facts are not in dispute and these are identified in the present ruling.

The hearing on the disputed allegations will begin on a date at York.

Alleged Violation of Summary Abatement Order

The Motion for Summary Order alleges that the Respondents failed to comply with a Summary Abatement Order and the Modification to the Summary Abatement Order. The Motion for Summary Order seeks revocation of Permit #2295 and termination of all authority to operate a hazardous waste management facility at 4626 Royal Avenue, Niagara Falls, New York by Frontier, Eagle Vision and/or the transferee of either. The Motion for Summary Order also seeks imposition of a penalty against both Respondents for violation of the Summary Abatement Order and for the other violations listed above.

The following facts relevant to this alleged violation are not in dispute:

On December 4, 1992, a Summary Abatement Order was issued to both Frontier and Eagle Vision regarding the facility at 4626 Royal Avenue, Niagara Falls (DEC Index No. C9-5194-12-92). A Modification to the Summary Abatement Order was issued on December 11, 1992 (Exhibit F of the Department Staff's Motion for Summary Order). Paragraph 12 of the Modification to Summary Abatement Order states that the Respondents have waived in writing their opportunity to be heard on the issuance of the Order and to present proof that the conditions set forth in the Order do not present an imminent danger to the health or welfare of the people of the State or have not resulted or will not result in irreversible or irreparable damage to the natural resources of the State. Paragraph 12 further states that the Order shall be deemed the equivalent of a civil judgement after trial and may be filed and enforced as a judgement without the need for any further proceedings whatsoever.

In the fall of 1992, the continuation of utility service to the facility was unreliable due to Frontier's poor payment history. This was so both with regard to natural gas (which the facility relied on for heat) and electricity. The lack of heat and/or electricity would significantly increase the likelihood of a release of hazardous waste. At that time, the staffing of the facility was also grossly inadequate to maintain minimal operations. These conditions were as set forth in more detail in the December 4, 1992 affidavit of Frank Shattuck, P.E. (Exhibit A of the Summary Abatement Order, which is Exhibit E of the Motion for Summary Order). The contents of the December 4, 1992 affidavit were reasserted by Mr. Shattuck in his March 26, 1993 affidavit (Exhibit G of the present Motion for Summary Order).

The Summary Abatement Order required that the Respondents ensure that utility service to the facility not be interrupted for lack of payment, ensure that sufficient staff is on the premises, and move off site all wastes that had been stored at the facility for over 6 months. The Summary Abatement Order further required that if these conditions were not met, the Respondents must take certain measures to initiate closure of the facility. The actual terms of the Summary Abatement Order and the Modification to Summary Abatement Order are as stated in these two documents, which are Exhibits E and F of the Motion for Summary Order.

The Respondents failed to comply with the Summary Abatement Order and the Modification of the Summary Abatement Order. On December 22, 1992, the Department of Environmental Conservation (the "Department") requested that the U.S. Environmental Protection Agency ("EPA") perform an emergency response action at the facility. The EPA performed site stabilization activities as described in paragraph 4 of the April 2, 1993 affidavit of Thomas Vickerson (Exhibit H of the Motion for Summary Order).

The above undisputed facts support revocation of the permit, but there are disputed facts which would be relevant to imposition of a penalty on one or both of the Respondents for violation of the Summary Abatement Order and the Modification of the Summary Abatement Order (the "Modification"). The Respondents have not contested the facts in the above four paragraphs, but the Respondents offered reasons why the Respondents failed to comply with the Summary Abatement Order and the Modification, and asserted that Eagle Vision "apparently did not manage the day to day operations at Frontier" (paragraph 6 of June 17, 1993 affidavit of Neil M. Gingold, Esq.). The affidavit, at the same paragraph, concedes that Eagle Vision was named a respondent in the Summary Abatement Order and the Modification. The argument about transferring the permit to an entity other than the Respondents, as opposed to revoking the permit, is now moot.

Regardless of whether the Respondents were unable to comply or were unwilling to comply with the Summary Abatement Order and the Modification, they failed to comply. The uncontested facts support revocation of the permit and termination of authority to operate the facility, even if one assumes that the statements in the affidavits submitted on behalf of the Respondents are true.

Noncompliance with an Order of the Commissioner is one of the grounds on which a permit may be revoked (6 NYCRR 621.14(a)(5)). In the present case, the noncompliance is particularly severe since the Respondents failed to comply with a summary abatement order which was issued in response to conditions that posed an imminent threat of environmental harm. In addition, the affidavits submitted by the Respondents indicate that they would not be able to comply with the conditions of the permit in the future. The possibility of transferring the permit to a different company is no longer a factor in deciding whether to revoke the permit.

While the facts not in substantial dispute warrant permit revocation, the affidavits submitted by the Respondents do demonstrate the existence of a triable issue of fact regarding the amount of civil penalties which should be imposed for violation of the Summary Abatement Order and the Modification of the Summary Abatement Order.

Alleged Violations of Permit, Orders on Consent and Regulations

Some, although not all, of the alleged violations are in question and will need to be determined in the hearing. In addition, as discussed in a subsequent section, there are questions regarding whether Eagle Vision would be responsible for violations at the facility in addition to Frontier being responsible.

The issue regarding whether some of the alleged violations occurred is not due to contrary facts offered by the Respondents but is due to the conclusory nature of some of the statements by the Department Staff regarding these violations (portions of paragraph 7 of the April 16, 1993 affidavit of Mark J. Hans, P.E.). Although the Respondents have not offered any factual assertions in response, the information in the record at present does not support granting a motion for summary order regarding these allegations.

While the alleged violations cited in Paragraph 7 of Mr. Hans's affidavit are stated in a conclusory manner, at least some of these allegations correspond to the specific factual allegations in paragraphs 7 and 8 of his affidavit of December 4, 1992(Exhibit C of the Summary Abatement Order, which is Exhibit E of the Motion for Summary Order).

The Respondents did not dispute the assertions of Mr. Hans's December 4, 1992 affidavit at the time when the Summary Abatement Order was issued and did not dispute them in the affidavits which the Respondents submitted in June 1993 regarding the Motion for Summary Order. Indeed, the Respondents answering documents stated that the Respondents would not be able to contest allegations about conditions at the facility in late November and early to mid December 1992, These paragraphs of Mr. Gingold's affidavit refer to November and December of 1993, but due to the context and due to the fact that the affidavit was made on June 17, 1993, these paragraphs are understood as referring to November and December of 1992. for other reasons in addition to lack of specificity (paragraphs 19, 22 and 23 of the June 17, 1993 affidavit of Mr. Gingold). The lack of specificity would apply to parts of paragraph 7 of Mr. Hans's April 16, 1993 affidavit, but not to paragraphs 7 and 8 of his December 4, 1992 affidavit, which are quite specific.

Thus, the statements in paragraphs 7 and 8 of Mr. Hans's December 4, 1992 affidavit are undisputed. It is ordered that they are established as undisputed facts for all purposes in this action. The cited paragraphs are attached as Appendix A of this ruling.

The following additional facts are not in dispute and it is ordered that they are established for all purposes in this action:

  1. Neither of the Respondents made the required payments for the costs of the on-site monitors, as described in the April 2, 1993 affidavit of Karen M. Mohan.
  2. Neither of the Respondents paid the $100,000 penalty imposed by Order on Consent #R9-3058-90-01, as described in paragraph 3 of the April 21, 1993 affidavit of Jeffrey T. Lacey, Esq. That paragraphs's description of the orders on consent issued to Frontier is also not in dispute.
  3. The permit status and nature of the former operations at the facility are as described in paragraphs 4 and 5 of Mr. Hans's December 4, 1992 affidavit and in paragraphs 3 through 5 of Mr. Hans's April 16, 1993 affidavit.
  4. The description of the facility and of conditions at the facility in 1992, as stated in paragraphs 4 and 5 of the December 4, 1992 affidavit of Carol Jones, is not in dispute. The cited paragraphs are attached as Appendix B of this ruling.

Eagle Vision as a Responsible Party

There is a factual dispute about the role of Eagle Vision with respect to both the facility and the other Respondent. This dispute centers around whether Eagle Vision was responsible for the day-to-day operations of the facility under the terms of a management contract with Frontier, as asserted by the Department Staff, or whether Eagle Vision had a more limited role and did not actually manage day-to-day operations, as asserted in the documents submitted by the Respondents.

This factual dispute is relevant to the issue of penalties for violation of the Summary Abatement Order and the Modification, and to whether any such penalties should be imposed on the Respondents jointly. The dispute is also relevant to the alleged violations of permit #2295, of the orders on consent and of the hazardous waste regulations, since the relationship of Eagle Vision to Frontier and to the facility's operations relates to whether Eagle Vision, in addition to Frontier, was subject to the requirements in question. Frontier was responsible for the facility's compliance with the permit and Part 373 (as the permit holder) and for compliance with the orders on consent to which it was a party, but there are questions regarding whether and to what degree Eagle Vision was also responsible.

The Orders on Consent issued to Frontier bind not only Frontier but also certain others. Order on Consent File No. 86-96/ R9-1794-86-07, paragraph VIII states that, "...the provisions, terms and conditions of this Order and Schedule A shall be deemed to bind Respondent, and in their corporate capacities, its officers, directors, agents, servants, employees, successors and assigns and all persons, firms and corporations acting under or for it, including but not limited to those who may carry on any or all of the operations now being conducted by Respondent." Similar provisions appear in the other orders on consent.

Since the role of Eagle Vision is in dispute, there is a question whether Eagle Vision is one of the entities bound by the orders on consent and by permit #2295. There is also a question whether Eagle Vision violated 6 NYCRR Part 373. The role of Eagle Vision will need to be determined as part of the hearing. There is only limited information in the affidavits submitted by the Department Staff and the Respondents on this question. The statements by Mr. Hans (paragraph 6 of his December 4, 1992 affidavit attached with the Summary Abatement Order), Mr. Lacey (paragraph 5 of December 4, 1992 affidavit) and Mr. Gingold (paragraphs 6 and 31 of June 17, 1993 affidavit) put this in dispute. Mr. Gingold's statement at paragraph 6 is based partially on his own experiences in doing work for Frontier, and is not based solely on the statement by Dr. Norton. I have not relied on Dr. Norton's statement of June 16, 1993 and his earlier letters for the purposes of making a ruling on the motion for summary order, since these documents were not sworn or affirmed statements and since Dr. Norton's May 20, 1993 letter contradicts his own February 22, 1993 letter on this point.

The affidavits suggest that the facts regarding the disputed issue of Eagle Vision's role in these matters will overlap to a considerable extent with the facts regarding the penalty issue. Thus, although the record as it presently exists contains no disputes regarding Frontier's liability for a subset of the alleged violations of Part 373, the permit and the orders on consent, these matters are not being referred to the Commissioner for issuance of an order at the present time due to their overlap with the penalty issue.

The motion for summary order and the Respondents' answering papers are deemed to be the Complaint and the Answer, respectively. The uncontested violation of the Summary Abatement Order and the Modified Summary Abatement Order by both of the Respondents named in those orders is being referred to the Commissioner for confirmation of the ruling and with a recommendation to grant a portion of the relief sought, that relief being revocation of the permit.

Ruling: It is undisputed that the Respondents are in violation of Summary Abatement Order C9-5194-12-92 and the Modification to Summary Abatement Order C9-5194-12-92. The motion for summary order and the answering papers of the Respondents support granting an Order which revokes the permit for the facility and terminates authority to operate, and denial of the Motion with respect to the other allegations and requested relief.

Recommendation: I recommend that an Order be issued which revokes Permit #2295 (the permit issued for the facility) and terminates all authority to operate a hazardous waste management facility at 4626 Royal Avenue, Niagara Falls, New York, for the failure of both Respondents to comply with the Summary Abatement Order and the Modification of the Summary Abatement Order. I further recommend that the matter be remanded for a hearing on the outstanding questions. Even though some of the alleged violations have been established, it is not clear who is the responsible party or parties.

_____________/s/_____________
Susan J. DuBois
Administrative Law Judge

  • PDF Help
  • For help with PDFs on this page, please call 518-402-9003.
  • Contact for this Page
  • Office of Hearings and Mediation Services
    NYS DEC
    625 Broadway, 1st Floor
    Albany, New York 12233-1550
    518-402-9003
    Send us an email
  • This Page Covers
  • Page applies to all NYS regions