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Gas Stop Service Station - Order, March 17, 2000

Order, March 17, 2000

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Alleged Violations of Article 19
of the Environmental Conservation Law and Parts 200 and 230 of Title 6 of the Official Compilation of Codes,
Rules and Regulations of the State of New York

- by -

GAS STOP SERVICE STATION

a/k/a PIT STOP SERVICE STATION
TASK OIL CORP. and
DIRUK, INC.,

Respondents

ORDER

DEC Case No. R1-1999-0913-55

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint dated September 14, 1999, an administrative enforcement hearing was held before Susan J. DuBois, Administrative Law Judge ("ALJ") on December 9, 1999 at the Department's Region 1 Office located in Stony Brook, New York. The Department's Region 1 Staff appeared by Louise M. Aja, Esq., Assistant Regional Attorney. Respondents Task Oil Corp. and Diruk, Inc. appeared by Marvin E. Kramer, Esq., of the firm of Marvin E. Kramer and Associates, P.C., Garden City, New York.
  2. Upon review of ALJ DuBois's hearing report, a copy of which is attached, I concur with its Findings of Fact, Conclusions and Recommendations. The record in this case establishes that the Respondents violated §§230.2(f), 230.2(g) and 200.7 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") by failing to replace, repair and maintain components of the Stage I and Stage II vapor collection systems at the Respondent's gasoline dispensing facility, and by failing to remove from service a gasoline dispenser which had a defective Stage II component.
  3. The penalty requested by the Department Staff is warranted for the reasons articulated in the ALJ's hearing report.

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

  1. The Respondents are found to be in violation of 6 NYCRR §§230.2(f), 230.2(g), and 200.7.
  2. The Respondents, jointly and severally, are assessed a civil penalty of Ten Thousand Dollars ($10,000) which shall be due and payable thirty (30) days after the date of service of a conformed copy of this Order upon the Respondents.
  3. The Respondents are ordered to strictly comply with the terms and conditions in the Compliance schedule which was attached to the Complaint and which is attached to and made part of this Order.
  4. All communications between the Respondents and the Department concerning this Order shall be made to the Department's Region 1 Director, Building 40, SUNY Campus, Stony Brook, New York 11790-2356.
  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: John P. Cahill, Commissioner

Dated: Albany, New York
March 17, 2000

TO: Gas Stop Service Station
1210 Grand Avenue
Baldwin, New York 11710

Pit Stop Service Station
1210 Grand Avenue
Baldwin, New York 11710

Attn.: Stanley Coven
Task Oil Corp.
180 East Railway Avenue
Patterson, New Jersey 0777503

Attn.: Stanley Coven
Task Oil Corp.
3078 Ira Road
Bellmore, New York 11710

Diruk, Inc.
c/o Gas Stop Service Station
1210 Grand Avenue
Baldwin, New York 11710

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Alleged Violations of Articles 19 of the Environmental Conservation Law and Parts 200
and 230 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of
New York by

GAS STOP SERVICE STATION
a/k/a PIT STOP SERVICE STATION
TASK OIL CORP.
and
DIRUK, INC.,

RESPONDENTS

Case No. R1-1999-0913-55

PROCEEDINGS

Pursuant to Part 622 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR Part 622"), an administrative enforcement hearing was held to consider allegations by the New York State Department of Environmental Conservation (the "Department") against the following Respondents: Gas Stop Service Station, 1210 Grand Avenue, Baldwin, New York 11710, also known as Pit Stop Service Station, 1210 Grand Avenue, Baldwin, New York 11710; Task Oil Corp., 180 East Railway Avenue, Patterson, New Jersey 07053, also listed in the Complaint as being located at 1162 East Railway Avenue, Patterson, New Jersey 07501, or 3078 Ira Road, Bellmore, New York 11710, or care of Gas Stop Service Station, 1210 Grand Avenue, Baldwin, New York 11710; and Diruk, Inc., c/o Gas Stop Service Station, 1210 Grand Avenue, Baldwin, New York 11710.

The Department Staff alleged that the Respondents had violated Environmental Conservation Law ("ECL") Articles 19 and 17 and 6 NYCRR §220.7 and Part 230 on or about May 27, 1999 with regard to the maintenance and operating condition of the Stage I and Stage II vapor collection systems at the gasoline dispensing facility owned, operated and maintained by the Respondents.

The Respondents were served with a Notice of Hearing and Complaint by certified mail, return receipt requested, on or about September 18 or 20, 1999.

The Department Staff was represented at the hearing by Louise M. Aja, Esq., Assistant Regional Attorney, DEC Region 1, Stony Brook, New York . Respondents Task Oil Corp. and Diruk, Inc. were represented at the hearing by Marvin E. Kramer, Esq., of Marvin E. Kramer and Associates, P.C., Garden City, New York. Respondents Gas Stop Service Station and Pit Stop Service Station did not appear at the hearing.

On October 12, 1999, Mr. Kramer made a motion to dismiss the charges on the basis that the Nassau County Board of Health had already initiated a proceeding regarding alleged air contamination from the facility and that the Board of Health and the Department of Environmental Conservation have concurrent jurisdiction over the matter. The Department Staff opposed this motion on the basis that the two proceedings arose from inspections on different dates, that the Department's Complaint relates to the functioning of the vapor recovery systems, and that there was no administrative hearing in the Nassau County matter. On November 18, 1999, Administrative Law Judge ("ALJ") Kevin J. Casutto denied the motion to dismiss. ALJ Casutto's's ruling also stated that the Respondents were precluded from pursuing any counterclaim in this action (see "Answer," below, regarding the proposed counterclaim).

The hearing was then transferred to ALJ Susan J. DuBois due to ALJ Casutto's schedule in other hearings. The hearing in the present matter took place on December 9, 1999 at the Department's Region 1 Office in Stony Brook, before ALJ DuBois.

The Department Staff called as witnesses Gary Zimmerman, Air Resources Technician; Ajay Shah, P.E., Regional Air Pollution Control Engineer; and Karen Sottile, Environmental Engineer I. The Respondents called no witnesses.

The transcript of the hearing was received on January 10, 2000 and the hearing record was closed on that date.

The Charges and Relief Sought

The Department Staff alleged that the Respondents own, operate and maintain a gasoline dispensing facility in Nassau County, which facility is required to install and properly operate stage I and stage II vapor collection systems. The Department Staff further allege that on or about May 27, 1999 these systems were not operating effectively since the Reid vapor pressure caps were missing on two tanks, and since a hose on a gasoline dispenser nozzle was torn but the dispenser was not removed from service.

The Department Staff requested that the Respondents be assessed a civil penalty in the amount of ten thousand dollars and be ordered to strictly comply with a compliance schedule which included repair of the systems.

The Answer

Counsel for the Respondents submitted an Answer which stated that "Pit Stop Service Station, Inc." and Task Oil Corp. were alleging certain things as their answer. The Answer begins by stating, "The Respondents herein, PIT STOP SERVICE STATION, INC. ("PIT STOP") and TASK OIL CORP. and as for their Answer to the Plaintiff's Complaint alleges:..." (emphasis in original). The Answer did not state what answer, if any, the other two Respondents were making. At the hearing, counsel for the Respondents state that he was representing Task Oil Corp. and Diruk, Inc. He stated that Pit Stop is not an entity but instead is a trade name of an automotive repair shop, that Gas Stop is a registered trademark belonging to the late Michael Markowitz, and that Gas Stop has never been at the location in question.

The Answer denied the Department Staff's allegation regarding who are the owners and operators of the facility, and denied having knowledge or information sufficient to form a belief as to paragraphs 4 through 6 of the Complaint; these paragraphs describe the May 26, 1999 inspection, allege violations of particular regulations, and cite the related penalty provisions. The Answer did not respond to the Complaint's allegation that the facility is required by 6 NYCRR Part 230 to install and properly operate stage I and stage II vapor collection systems.

The Answer stated two affirmative defenses: (1) that the conditions complained of were created by a pressure testing company, who was an agent of the Department and who refused to make repairs due to an alleged unpaid bill; (2) that the Board of Health of Nassau County has concurrent jurisdiction and had commenced an administrative enforcement proceeding as to the same subject matter and events as the DEC Complaint. The Answer also stated a counterclaim against the Department, alleging that the Complaint was frivolous and that the "Defendants" were entitled to receive reimbursements of all legal fees costs and disbursements incurred in connection with this matter.

Regulatory provisions

6 NYCRR §230.2(f) provides, in pertinent part, that: "Owners and/or operators of gasoline storage tanks, gasoline transport vehicles and gasoline dispensing sites subject to stage I and/or stage II vapor collection or vapor control system requirements must: (1) install all necessary stage I and/or stage II vapor collection and control systems, and make any modifications necessary to comply with the requirements; ... (3) replace, repair or modify any worn or ineffective component or design element to ensure the vapor-tight integrity and efficiency of the stage I vapor collection and vapor control systems..."

6 NYCRR §230.2(g) provides that: "(1) Daily visual inspections of components of stage II vapor collection systems must be performed to ensure the integrity and efficiency of the system. (2) Dispensers with defective stage II components must be removed from service, locked and sealed to prevent vapor loss from operational dispensers until approved replacement parts are installed."

6 NYCRR §200.7 provides that: "Any person who owns or operates an air contamination source which is equipped with an emission control device shall operate such device and keep it in a satisfactory state of maintenance and repair in accordance with ordinary and necessary practices, standards and procedures, inclusive of manufacturer's specifications, required to operate such device effectively."

Both 6 NYCRR Part 200 and 6 NYCRR Part 230 are regulations adopted by the Department under the statutory authority of Environmental Conservation Law Article 19 (Air Pollution Control).

FINDINGS OF FACT

  1. The facility in question is a gasoline dispensing facility which is located at 1210 Grand Avenue, Baldwin, New York, which is in Nassau County. The facility is subject to the requirements of 6 NYCRR Part 230 regarding stage I and stage II vapor recovery systems. There are two gasoline tanks at the facility, each of which has a design capacity of 8,000 gallons.
  2. The Respondents in this matter are: Gas Stop Service Station, 1210 Grand Avenue, Baldwin, New York 11710, also known as Pit Stop Service Station, 1210 Grand Avenue, Baldwin, New York 11710; Task Oil Corp., 180 East Railway Avenue, Patterson, New Jersey 07053, also listed in the Complaint as being located at 1162 East Railway Avenue, Patterson, New Jersey 07501, or 3078 Ira Road, Bellmore, New York 11710, or care of Gas Stop Service Station, 1210 Grand Avenue, Baldwin, New York 11710; and Diruk, Inc., c/o Gas Stop Service Station, 1210 Grand Avenue, Baldwin, New York 11710.
  3. Task Oil Corp. is the owner of the tanks. Diruk, Inc. is the facility operator. Task Oil Corp. is the property owner. Stanley Coven is the President of Task Oil Corp.
  4. The stage I and stage II vapor recovery systems at issue in this matter are systems for recovering gasoline vapors displaced during delivery of gasoline from a transport vehicle to a storage tank (stage I) and during refueling of a vehicle (stage II). The components of these systems include pressure caps on the tops of the vent stacks, which caps control emission of vapors, and gasoline dispensing hoses that have an outer layer through which displaced air and gasoline vapor are carried back from the vehicle.
  5. On May 27, 1999, Gary Zimmerman, a technician in the Department's Region 1 Office, inspected the Respondents' facility. On that date, the vapor pressure caps were missing from the vent stacks of both tanks. There was also a rip more than one inch long in the outer layer of one of the gasoline dispensing hoses. Either the absence of a pressure cap or a rip in the hose would cause the related vapor recovery system or systems not to operate effectively, and gasoline vapors would escape. The dispenser with a ripped hose had not been removed from service nor made inoperable.
  6. The Complaint was served upon the Respondents by certified mail, return receipt requested. The Complaint was received on September 18, 1999 by Respondents Gas Stop Service Station, Pit Stop Service Station, Task Oil Corp. and Diruk, Inc., all at the 1210 Grand Avenue, Baldwin, New York address. The Complaint was also received by Task Oil Corp. on September 20, 1999 at 180 East Railway Avenue, Patterson, New Jersey.

DISCUSSION

The Department Staff presented evidence which was credible and which established a prima facie case that the Respondents violated the regulations as alleged. The Respondents presented no evidence which controverted the Department Staff witnesses regarding the condition of the equipment or the operating status of the gasoline dispenser with the torn hose, nor did the Respondents' questions undermine the Department Staff's direct case.

Although the Answer identified two affirmative defenses, the Respondents called no witnesses in support of their assertions that the conditions complained of were caused by another entity. They also did not prove their assertions through questioning the Department Staff's witnesses nor through the exhibits in evidence. The second affirmative defense, regarding enforcement by the Nassau County Board of Health, was addressed in the ruling on the October 12, 1999 motion to dismiss. This motion was denied by ALJ Casutto. Based on my review of the correspondence which the parties submitted regarding the motion to dismiss, I concur with ALJ Casutto's ruling. As ALJ Casutto noted, the DEC Complaint and the Nassau County Board of Health Complaint allege different violations on different dates, for the same facility.

The Department Staff entered into evidence a copy of a Registration Application for the Storage of Flammable/Combustible Liquids, which Ms. Sottile had obtained from the Office of the Fire Marshall of Nassau County pursuant to a Freedom of Information request (Exhibit 9). This form identifies the facility location, the tank owner, the facility operator and the property owner for the gasoline dispensing facility which is the subject of this hearing. The application form is filled out in what appears to be the handwriting of at least three different people. It is signed by Stanley Coven, President of Task Oil Corp. and is dated June 6, 1997. Three different "Diruk" names appear on the form and the attached Storage Identification and Information form. "Diruk, Inc." is listed as the business name in the section of the application which pertains to the facility location. "Diruk Service Station, Inc." is identified as the facility operator. "Diruk Service Center" is identified as the facility name on the Storage Identification and Information form.

At the start of the hearing, Mr. Kramer stated that he was the attorney for "Task" and "Diruk." He did not dispute that the "Diruk" names on Exhibit 9 indicate the Respondent Diruk, Inc., nor did he present any proof that an entity other than Respondent Diruk, Inc. is the operator of the facility which is the subject of the Complaint. It is reasonable to conclude that the names Diruk, Inc., Diruk Service Station, Inc. and Diruk Service Center, which appear on Exhibit 9, all are the entity which is a Respondent in this hearing.

Service of the notice of hearing and Complaint was accepted by all four Respondents, as demonstrated by postal return receipts (Exhibit 2). Four of the receipts, one for each Respondent, were delivered to the Respondents at the same address (1210 Grand Avenue, Baldwin, New York). All four of these receipts have signatures of the addressee or agent which are illegible but which appear similar to each other. These demonstrate that all four entities were served, and that someone, likelier than not one individual, at the same address accepted service for all four Respondents. This supports imposition of a penalty on the Respondents jointly and severally, if the Commissioner concludes that there were violations. In addition, there was no evidence that Pit Stop Service Station and Gas Stop Service Station are merely trade names or trademarks as asserted by Mr. Kramer at the hearing, particularly since "Pit Stop Service Station, Inc." was one of the two entities on whose behalf Mr. Kramer submitted an Answer.

The Department Staff has requested imposition of a $10,000 penalty. This amount is the statutory maximum penalty for one violation on one day. No factors are present here which would support a reduction from the requested penalty. The relief sought is reasonable and appropriate.

CONCLUSIONS

  1. The Respondents violated 6 NYCRR §200.7 and §230.2(f) by failing to replace, repair and maintain components (i.e., the pressure caps and the hose) of the Stage I and Stage II vapor recovery systems at the gasoline dispensing facility which the Respondents own and operate.
  2. The Respondents violated 6 NYCRR §230.2(g) by failing to remove from service the gasoline dispenser which had a defective Stage II component (i.e., the torn hose).
  3. Environmental Conservation Law §71-2103 provides, in pertinent part, that "...any person who violates any provision of article nineteen or any code, rule or regulation which was promulgated pursuant thereto...shall be liable, in the case of a first violation, for a penalty not less than two hundred fifty dollars nor more than ten thousand dollars for said violation and an additional penalty of not to exceed ten thousand dollars for each day during which such violation continues.... In addition thereto, such person may be enjoined from continuing such violation as hereinafter provided." 6 NYCRR Parts 200 and 230 are regulations promulgated pursuant to ECL Article 19.

RECOMMENDATION

I recommend that the Commissioner issue an Order which finds that the Respondents violated 6 NYCRR §200.7, §230.2(f) and §230.2(g). I further recommend that the Respondents, jointly and severally, be assessed a civil penalty in the amount of ten thousand dollars ($10,000) as requested by the Department Staff, and that the Respondents be ordered to strictly comply with the terms and conditions in the compliance schedule which was attached with the Complaint.

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