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Getty Terminals Corp., Inc. (Kingston) - Decision, December 7, 1994

Decision, December 7, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

DECISION OF THE COMMISSIONER

This Decision relates to an appeal taken by Getty Terminals Corp. Inc. ("Getty"), regarding its Rensselaer terminal, and Kingston Oil Supply Company ("Kingston"), regarding its Catskill terminal (collectively referred to as "the Appellants"). The appeals challenge special license conditions that the Staff of the Department of Environmental Conservation seeks to impose on their major oil storage facility licenses for the 1993-1994 license years. The appeals were consolidated by Administrative Law Judge ("ALJ") Kevin J. Casutto at the request of all parties because the Appellants are wholely owned subsidiaries of the same company and because the only question in the Kingston appeal is also presented in the Getty appeal. Upon review of the hearing report of ALJ Casutto, I adopt its findings, conclusions and recommendations except as set forth below.

Appellant Getty maintains that the natural clay deposit at its Rensselaer terminal is adequate to satisfy the requirements of 6 NYCRR 613.3(c)(6). It argues that the Staff interpretation of the Department's guidance document relating to secondary containment systems for above-ground petroleum storage tanks, Spill Prevention Operations Technology Series No. 10 ("SPOTS 10"), is inappropriate because it would result in a liner requirement for spill containment that is as stringent as the one used for permanent disposal in solid waste landfills. Getty argues that, if the SPOTS 10 is to be used as guidance, the permeability standard for the liner, 1x10-7 cm./sec., should be implemented as an average rather than a maximum permeability.

Ultimately, the dispute concerns whether the natural clay meets the narrative standard in 6 NYCRR 613.3(c)(6), i.e., whether it will prevent spills from permeating, draining, infiltrating or otherwise escaping to ground or surface waters before cleanup occurs. I concur with ALJ Casutto that Getty has failed to sustain their burden of proof with respect to this standard.

While it presented evidence concerning various factors that would affect compliance, Getty has not shown how the assumptions it made with respect to soil permeability, depth of clay and rapidity of clean up would adequately restrain the movements of a petroleum spill such that the regulatory standard would be satisfied. The analysis is also seriously flawed in that it does not account for secondary porosity of the on-site clays as a major factor in transmitting a petroleum spill to groundwater. The evidence of actual petroleum contamination at the Getty site further suggests that the natural clays are not adequate to prevent discharges to ground and surface waters. For these reasons, Getty's analysis failed to demonstrate compliance with the regulatory standard.

This conclusion is in no way dependent on the use of the guidance value for liner permeability that appears in SPOTS 10. While the SPOTS 10 document is available to provide guidance on the implementation of various regulatory standards, it is not legally binding. Since the parties dispute the appropriateness of the guidance value, this issue is being decided with reference to whether the standard in regulation itself would be met.

With respect to the two other issues set for adjudication, I concur with the conclusions reached in the Hearing Report. The rules require that the secondary containment system minimize the amount of soil contamination that will occur in the event of a spill [6 NYCRR 613.3(c)(6)(ii)]. In ALJ Casutto's November 3, 1993 Issues Ruling, he held that the crushed stone ballast the Getty proposes to use to protect the clay liner in the secondary containment system constitute soils for purposes of this rule. None of the parties have contested that ruling. Therefore, in order to prevail Appellant Getty had to show that the stone ballast it proposed to use was the minimum necessary to achieve the stated purpose. For the reasons set forth in Hearing Report, Getty failed to make this showing.

Finally, the record demonstrates that, contrary to the assertion of both Appellants, periodic testing of the liner can be accomplished without permanently compromising its integrity. Staff has already suggested such a methodology for doing so.

For the above reasons, the appeals are denied. However, for the reasons below, the implementation of this Decision will not be immediately implemented.

The parties have indicated that the time period for the licenses has expired and that the Staff have issued new licenses for the next permit cycle. Staff maintains that the new licenses were issued in error and has issued a letter "withdrawing" them. The Appellants contest the Staff's authority to unilaterally withdraw the new licenses.

At present, it is impossible to determine the legal effect of Staff's letter and the status of the new licenses. Staff is directed to submit a copy of the new licenses that were sent to the Appellants. ALJ Casutto will establish a schedule for the parties to submit written arguments concerning the status of these licenses and any related questions. Pending receipt of his recommendation on this question, the implementation of this Decision will be held in abeyance.

IN WITNESS WHERE OF, the Department of Environmental Conservation has caused this Decision to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York this 7th day of December, 1994.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: LANGDON MARSH, COMMISSIONER

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

Hearing In the Matter

- of -

Appeal of Major Oil Storage Facility Special License Conditions to Article 12 of
the New York Navigation Law and Title 6, Part 610 and Title 17, Part 30 of
the Official Compilation of Codes, Rules and Regulations of the State of New York by,

GETTY TERMINALS CORP., INC.
AND
KINGSTON OIL SUPPLY COMPANY,

APPELLANTS.

DEC LICENSE NOS. 4-1560 AND 4-1360

SUMMARY

Appellants appeal from imposition of special license conditions in the 1993-1994 Major Oil Storage Facility licenses for their two terminals located in the Port of Rensselaer, New York and in Catskill, New York. The primary issues on appeal are whether Appellants may use the naturally occurring clay soil and crushed stone at the Rensselaer terminal to meet the regulatory requirements for secondary containment. Appellants thereby seek to avoid the costs of upgrading the containment system at that terminal. Appellants also challenge an inspection requirement, asserting that periodic in-depth integrity inspections will permanently damage the clay liners at their two terminals. Appellants' evidence primarily consists of expert opinion testimony that the existing secondary containment system meets the regulatory requirements of 6 NYCRR Section 613.3(c)(6). Appellants' opinion testimony is based upon interpretation of quantitative data obtained through analysis of samples collected by Appellants' engineering consultant. Both Appellants and Staff concede that for several technical issues presented in this consolidated appeal, no generally accepted engineering practices are recognized.

The appeals were consolidated by the ALJ upon request of the parties, because common issues for hearing were presented regarding Staff's requirement of periodic inspection and testing of the secondary containment systems at both terminals. In evaluating the three substantive issues identified for adjudication, Appellants failed to show by a preponderance of the evidence that their interpretation of analytical data and regulatory standards was more likely correct than Staff's interpretation. Therefore, Appellants failed to carry their burden of proof.

The report concludes that Appellants failed to demonstrate that permeability and secondary porosity features of native clay soils at their Rensselaer terminal meet the regulatory standards of 6 NYCRR Section 613.3(c)(6), for secondary containment at Major Oil Storage Facilities; Appellants failed to show that more than 6 inches of crushed stone ballast is required at the Rensselaer terminal to meet the regulatory requirement of minimal soil contamination in the event of a petroleum product spill (6 NYCRR 613.3[c][6][ii]); and Appellants failed to show that periodic in-depth integrity inspection of the clay secondary containment liner at either facility will permanently damage either containment system.

This report recommends denial of Appellants' appeal of special license conditions for the Rensselaer and Catskill terminals. It further recommends that Appellants be ordered to immediately implement the contested special license conditions at both terminals, pursuant to a schedule and plan approved by Staff.

PROCEEDINGS

Pursuant to Article 70 of the Environmental Conservation Law of the State of New York ("ECL") and Article 12 of the New York Navigation Law ("NL") and Title 6, Parts 610 and 624, and Title 17, Part 30 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"), consolidated appeals from special conditions imposed by Staff in renewal of two major oil storage facility licenses were held before Administrative Law Judge ("ALJ") Kevin J. Casutto, New York State Department of Environmental Conservation, Office of Hearings. Licensee Getty Terminals Corp. appealed from license conditions imposed in its 1993-1994 year renewal license for its Port of Rensselaer terminal (the "Rensselaer terminal"). Licensee Kingston Oil Supply Co. appealed from a license conditions imposed in its 1993-1994 year renewal license for its Catskill terminal (the "Catskill terminal"). Licensees Getty Terminals Corp. and Kingston Oil Supply Co. are both wholly owned subsidiaries of parent corporation Getty Petroleum Corp. ("Appellants" or "Getty").

A legislative hearing and issues conference for the Rensselaer terminal appeal were duly noticed and were held on July 14, 1993. A legislative hearing and issues conference for the Catskill terminal appeal were duly noticed and were held on July 15, 1993. No public comments were received at either legislative hearing, nor were any applications for party status received. One person appeared, solely to observe, at the Catskill terminal legislative hearing and issues conference. Therefore, Appellants and Staff were the only parties in this action.

The ALJ identified adjudicable issues in each matter. Following the determination on adjudicable issues, Appellants requested consolidation of the two actions for adjudicatory hearing. Staff joined in the request for consolidation. The ALJ granted the parties' request for consolidation, by ruling dated December 8, 1993 because the sole issue identified for adjudication regarding the Catskill facility is the same as one of three adjudicable issues identified in the Rensselaer terminal matter.

The ALJ directed the parties to pre-file expert testimony comprising their direct cases. The parties' pre-filed testimony was received on February 18, 1994. The consolidated adjudicatory hearing was initially scheduled to commence in April, 1994, but was adjourned due to Appellants' scheduling conflict. The hearing was rescheduled, and held, on June 14, 1994 through June 16, 1994 at the Desmond Hotel, Albany-Shaker Road, Albany, New York.

At the conclusion of the adjudicatory hearing, the ALJ set a schedule for filing closing briefs. The hearing transcript was received by the Office of Hearings on July 7, 1994. The hearing record closed on July 29, 1994, with receipt of the parties' closing briefs.

On August 9, 1994 the ALJ received a letter from Staff concerning Staff's purportedly mistaken issuance of new licenses to Appellants for the Catskill and Rensselaer terminals. The new licenses authorize the same activity as the licenses appealed from, but are issued for a period of five years, rather than one yearRecent amendment to NL 174(2) authorizes issuance of licenses for a period not to exceed five years. NL 174(2), as amended L. 1992, c. 584 2 [eff. July 24, 1992]. The previous provision authorized issuance of licenses for a one year period, from April 1 through March 31. On August 10, 1994 the ALJ received a copy of Appellants' response, addressed to the Commissioner. Appellants assert that Staff's issuance of new permits for the Rensselaer and Catskill terminals, renders the present appeals moot. Staff counters that since permit issuance was mistaken, Staff may withdraw the permits and that this mistaken permit issuance has no effect on the present action. On August 11, 1994 at Staff's request, a conference telephone call was held between the ALJ and the parties. The ALJ directed Staff to address its concerns to the Commissioner, since matters addressed in that correspondence are not directly related to this action.

Introduction

MOSF's are regulated pursuant to Navigation Law Article 12 (Oil Spill Prevention, Control and Compensation), Title 17 of the Official Compilation of Codes, Rules and Regulations of the State of New York, Part 30 (Oil Spill Prevention and Control - Licensing of Major Facilities) and 6 NYCRR 610 (Certification of Onshore Major Facilities).

Appellants Getty Terminals Corp. and Kingston Oil Supply Co. are corporations with offices at 125 Jericho Turnpike, Jericho, New York. Appellants' Rensselaer and Catskill facilities have been operated as oil storage facilities for decades, by Appellants or their predecessors in interest. Since the beginning of the Major Oil Storage Facility ("MOSF") license program in the late 1970's, the two facilities have operated continuously under MOSF license authority.

Appellants' Rensselaer terminal, located at 49 Riverside Avenue, Rensselaer, New York, accommodates an average daily throughput of 280,000 gallons, and has a total storage capacity of 13,708,523 gallons. This terminal is comprised of two tank farms, called the north tank farm and the south tank farm. The lands of Bray Terminals separate the two tank farms. Appellants applied to the New York State Department of Environmental Conservation ("the Department") for renewal of their Rensselaer terminal MOSF License for the 1993-1994 license year; Regional Staff issued the requested license. However, the license contains special license conditions, contested by Appellants, concerning the secondary containment system.

Pursuant to 6 NYCRR 610.5(a)(4), the requirements of 6 NYCRR 613.2 through 6 NYCRR 613.9 became applicable to MOSF licensees, including Appellants, in December, 19906 NYCRR 610.5(a)(4) became effective 30 days after its November 27, 1985 filing date - - i.e., December 27, 1985. 6 NYCRR 613.3(c) requires compliance within five years of the effective date of that regulation. Since 6 NYCRR 613.3(c) only became applicable to MOSF's on December 27, 1985, compliance is required by December 27, 1990. . Staff asserts it is imposing special license conditions similar to those at issue in this appeal in all MOSF licenses to carry out the regulatory standards of 6 NYCRR 613.3(c) for secondary containment. The contested special conditions are summarized as follows:

  1. Submission of an engineering plan for upgrading secondary containment system, on or before April 15, 1993 [Special Condition (3)(d)];
  2. Implementation of an engineering plan on or before June 15, 1993 [Special Condition (3)(e)]; and
  3. In-Depth Integrity Inspection and Certification of secondary containment systems, to be submitted by July 15, 1993, and thereafter every five years [Special Condition (3)(j)].

Appellants seek to have these special license conditions stricken from the Rensselaer license, asserting that the existing secondary containment system at the Rensselaer facility meets the regulatory standards of 6 NYCRR 613.3(c)(6) for secondary containment. Further, Appellants assert that in-depth integrity inspection will permanently damage the effectiveness of the clay liner at the Rensselaer terminal.

Appellants submitted two upgrade plans to Staff for the Rensselaer terminal, identified as the June, 1991 and July, 1991 plans. The June plan required upgrading approximately half the containment area of the two tank farms with imported clay of a higher quality than the existing, or native ("in-situ") clay. The plan called for the upgraded liner to be covered by crushed stone, to a depth of 6 inches. Staff rejected this plan, insofar as it determined that the non-upgraded portions of the containment system are not adequate.

The July plan proposed to upgrade the entire containment system of both tank farms with imported clay, covered by crushed stone to a depth of 6 inches. Appellants have shown that although they submitted the July plan, they never withdrew the June plan. Appellants continue to assert the adequacy of the June plan in meeting the regulatory standards.

The Issues Ruling

By issues ruling dated November 4, 1993 the ALJ identified three issues for adjudication with respect to the Rensselaer terminal:

  1. Pursuant to the regulatory standards of 6 NYCRR 613.3(c)(6), does the present secondary containment system using the existing clay deposit as a liner, meet regulatory standards regarding permeability and related characteristics, including desiccation cracks and fissures.
  2. Pursuant to the regulatory standards of 6 NYCRR 613.3(c)(6), what is the minimum amount of stone covering sufficient to provide ballast for the secondary containment system liner while minimizing the amount of soil contamination in the event of a spill.
  3. Whether the in-depth integrity inspection requires disturbing the secondary containment system in a manner that will permanently compromise the effectiveness of the containment system.

In a separate issues ruling dated November 4, 1993 addressing the Catskill terminal, the ALJ identified one adjudicable issue, the same as Rensselaer terminal issue #3 summarized above. The parties did not appeal from the ALJ's issues rulings.

The Adjudicatory Hearing

An adjudicatory hearing on the consolidated administrative action was held, as scheduled, on June 14, 1994 through June 16, 1994. Staff appeared and was represented at the hearing by David H. Keehn, Esq., Assistant Regional Attorney, Region 4, Schenectady, New York. Staff called as witnesses Region 4 staff members Mark Domagala, Engineering Geologist I and Mark Klotz, Environmental Engineer 2 (and a licensed professional engineer in the state of New York).

Respondents appeared and were represented by Robert G. Del Gadio, Esq., Uniondale, New York. Respondents presented three witnesses: Brian J. McCarthy, an employee of Appellants' consulting engineering firm, GEO Engineering, Inc., from April, 1987 through June, 1993 (presently employed as an Engineer III, Jersey Central Power and Lighting Company, New Jersey and a licensed professional engineer in the State of New Jersey); William H. Mc Tigue, President and founder of GEO Engineering, Inc. and a licensed professional engineer in the states of New Jersey and New York; and George Pough, Terminal Superintendent at the Rensselaer terminal.

Rulings on Pre-Filed Testimony

At hearing, Staff made a motion to make several ministerial corrections to the pre-filed affidavits of Domagala and Klotz. Appellants did not object, and Staff was granted permission to do so (both the Klotz and the Domagala affidavits had sub-exhibits attached to them, which were identified alphabetically). Concerning the Klotz pre-filed testimony (Exhibit 11), Appellants successfully objected to admission of certain portions of that testimony. Appellants' hearsay and relevancy objections to Exhibit 11-U were sustained. That exhibit is a letter from Staff to Bray Terminals, Inc. ("Bray"), characterizing a settlement reached with Bray. The Bray terminal is located between Appellants' north and south Rensselaer terminal tank farms. Exhibit 11-U was redacted, and was not considered in reaching a determination in this action. Appellants' hearsay objection was sustained with respect to portions of Klotz paragraphs 44 and 45. Portions of those paragraphs were redacted, as shown in Exhibit 11, and were not considered in reaching a determination in this action.

APPELLANTS' POSITION.

Appellants asserted for the first time in their closing brief, that because the 1993-1994 license expired on March 31, 1994 the Department no longer has jurisdiction to hear the appeal, and the issues presented are moot. This argument must be rejected. As noted above, pursuant to NL 174(2), MOSF licenses issued prior to prior to July 24, 1994, were required to be issued annually (licenses issued after that date may be issued for a period not to exceed five years). However, the facilities essentially are engaged in continuing operation. Therefore, unless Appellants come forward with a showing that they no longer operate the facilities as MOSF's, for this appeal it is assumed that Appellants continue to operate these facilities as MOSF's, and that Staff continues to assert the contested special license conditions in any future licenses that may be issued for these facilities. Appellants have not made any such showing in this consolidated action.

1. Permeability and Secondary Porosity Features of the In-situ Clay Liner

The primary issue in this action is whether the in-situ clay soil deposit in the secondary containment area of the Rensselaer terminal is of the kind, quality and size such that it meets the requirements of 6 NYCRR 613.3(c)(6)Staff's authority to impose license conditions requiring inspection and certification to ascertain continued compliance with the standards articulated in 6 NYCRR Section 613.3(c), is based upon NL Article 12 (and NL 174[2]). to function as the liner portion of a secondary containment system for the terminal. As stated above, Appellants have upgraded approximately half of the liner area with imported clay.

Based upon Appellants' interpretation of quantitative test results and its qualitative assessment of the site, Appellants asserted that, for those portions of the liner that have not already been upgraded with imported clay, the depth, permeability and secondary porosity features of the in-situ clay meet the regulatory requirements of 6 NYCRR 613.3(c)(6).

2. Crushed Stone Ballast

Appellants seek to use in-situ crushed stone as ballast for the in-situ clay liner. Concerning Staff's requirement of no more than 6 inches of stone covering (ballast) for the clay liner, Appellants assert that an in-situ large size crushed stone at the Rensselaer facility meets the regulatory standard. Because the large stone provides less surface area than an equivalent depth of smaller stone would provide, Appellants assert that more than 6 inches of ballast is required to provide a surface area similar to what would exist if a smaller stone size had been utilized. Additionally, Appellants assert that spilled petroleum product will be recovered more readily from the crushed stone, since it can be pressure washed and the petroleum product can be recovered from the runoff.

3. Periodic In-Depth Integrity Inspection

With respect to both the Rensselaer terminal and the Catskill terminal, Appellants assert that disturbing the clay liner to test and inspect in-depth liner integrity, will result in permanent, irreparable damage to the liner. This is the sole license condition contested with respect to the Catskill terminal licenseThis is because the secondary containment system at the Catskill facility has already been upgraded with imported clay, and is covered with crushed stone to a depth of 6 inches. Staff has accepted this upgrade.

Particular to the Catskill terminal, Appellants assert that an additional factor affects whether periodic testing can be accomplished without permanently compromising the integrity of the containment system. High water levels produced by the Hudson River rise above the elevation of the Catskill secondary containment system. Therefore, in addition to providing liner protection against weather and traffic, the stone ballast at the Catskill facility acts as a counterweight against the excessive groundwater pressure produced during periods of high Hudson River water levels. Appellants further contend that absent the three foot depth of stone ballast high river levels would produce water pressures resulting in rupture of the clay liner and flooding of the secondary containment area. Accordingly, Appellants conclude that in addition to reasons asserted above concerning inspection and testing of the Rensselaer terminal containment system, removal of ballast to test integrity of the liner at the Catskill terminal is not possible.

Nonetheless, Appellants' witness Mc Tigue conceded on cross-examination that portions of the ballast could be removed, testing done, and the liner replaced, during periods of lower river water levels.

STAFF'S POSITION

Background

Staff asserts it is imposing special license conditions similar to those at issue in this appeal, in all MOSF licenses to achieve compliance with the regulatory standards of 6 NYCRR 613.3(c)(6) for secondary containment, effective, December, 1990.

Regarding the Rensselaer terminal, by letter dated July 3, 1991 (Exhibit 11-S), Staff rejected Appellants' June, 1991 plan. Appellants then submitted a revised plan, identified as the July, 1991 plan, which Staff verbally accepted. The June, 1991 plan proposed to upgrade the existing clay liner only in certain portions of the secondary containment system with imported clay of greater impermeability. Staff rejected that plan, in part, because Staff determined that the existing clay was not sufficiently impermeable and exhibited secondary characteristics (cracks and fissures) that would compromise the efficacy of the liner. Staff determined that the entire liner should be upgraded with imported clay to improve these characteristics, to achieve compliance with the standards of 6 NYCRR 613.3(c)(6).

Appellants have since implemented the June, 1991 plan at the Rensselaer terminal - - i.e., portions of the liner for each tank farm has been upgraded with imported clay to improve impermeability and other characteristics of the liner (these areas are identified by shaded portions of Hearing Exhibit 5/ Mc Tigue 1, a map of the Rensselaer terminal dated July, 1991).

Staff asserts that the upgraded portions of the liner meet the standards of 6 NYCRR Section 613.3(c)(6), and that the remaining portions of the liner for both tank farms must be upgraded in a like manner to meet the regulatory standards. Additionally, Staff asserts that the stone ballast covering the entire liner should be only 6 to 8 inches deep to minimize soil contamination in the event of a spill, consistent with the standards of 6 NYCRR Section 613.3(c)(6). Staff asserts that ballast in upgraded areas of the facility meet this standard, whereas in non-upgraded areas of the containment system, the stone ballast varies from 12 inches depth, to as much as 3 feet depth.

Lastly, Staff asserts that other facilities at the Port of Rensselaer, including the Bray Terminals, located between the two tracts of land comprising Appellants' facility, have similar geology to the Rensselaer terminal. Staff contends that those facilities have installed secondary containment systems acceptable to Staff, similar to that proposed in Appellants' July, 1991 plan, which Staff approved.

With respect to the Catskill facility, Staff asserts that in-depth integrity inspections would require removal of a total of approximately one square foot surface area of the liner, by removal of 3-inch diameter tube test samples of ballast in approximately 10 locations (i.e., pursuant to SPOTS 10, one sample per 10,000 square feet of liner area). Staff asserts this sampling can easily be completed and the stone ballast replaced, during periods of low Hudson River water levels.

1. Permeability and Secondary Porosity Features of the In-Situ Clay Liner

Staff does not contest Appellants' quantitative test results, but reached a different conclusion based upon its interpretation of those results. Additionally, during visual inspection of test pits excavated by Appellants, Staff secondary porosity features (cracks and fissures) and observed indications of petroleum contamination, the existence of which Appellants deny.

Concerning the quantitative data, Staff interprets the plasticity index chart to show that the variability of clay soil sample permeability values is too great, and therefore, the clay deposit does not meet the regulatory standard. (Ex. 5/Mc Tigue 10)

2. Crushed Stone Ballast

Staff asserts that excessive amounts of ballast exist in those areas of the containment system for which the liner was not upgraded, contrary to the requirement in 6 NYCRR Section 613.3(c)(6) that contamination of soil be minimized. Staff asserts that ballast to a depth of no more than 6 inches, will accomplish the purposes of protecting the clay liner from weathering and vehicle wear, while meeting the regulatory standard of minimizing soil contamination in the event of a spill.

3. Periodic In-Depth Integrity Inspection

Staff asserts that GEO Engineering, Appellants' engineering consultant, concedes that the ballast may be removed from above the clay without causing any damage to the clay. Further, Staff asserts that Appellants' engineering consultant, GEO Engineering, has conducted sampling and testing programs at other similar facilities that involved the removal of a 3-inch diameter plug from the clay liner. Staff has indicated that it would accept such a testing methodology for Appellants' Catskill and Rensselaer facilities. Therefore, Staff asserts that periodic in-depth integrity inspections can be performed without permanent damage to the containment system.

FINDINGS OF FACT

Background

  1. MOSF's are regulated to Navigation Law Article 12 (Oil Spill Prevention, Control and Compensation), Title 17 of the Official Compilation of Codes, Rules and Regulations of the State of New York, Part 30 (Oil Spill Prevention and Control - Licensing of Major Facilities) and 6 NYCRR Part 610 (Certification of Onshore Major Facilities). MOSF licenses are issued annually, from April 1st to March 31st.
  2. Both Getty Terminals Corp. and Kingston Oil Supply Co. (";Appellants(", are corporations with offices at 125 Jericho Turnpike, Jericho, New York. Appellants are wholly owned subsidiaries of Getty Petroleum Corp.
  3. Appellants operate a major oil storage facility, located at 49 Riverside Avenue, Rensselaer, New York (";the Rensselaer terminal(". That facility accommodates an average daily throughput of 280,000 gallons, and has a total storage capacity of 13,708,523 gallons.
  4. Appellants' operate a major oil storage facility, known as the Amos Post Catskill Terminal, located at Lower Main Street, Catskill, New York (";the Catskill terminal(". That facility accommodates an average daily throughput of 28,950 gallons, and has a total storage capacity of 2,364,460 gallons.
-- Permeability and Secondary Porosity Features of the In-Situ Clay Liner
  1. Appellants accept that Spill Prevention Operations Technology Series No. 10 (";SPOTS 10(" is the Department's applicable guidance document on secondary containment systems for aboveground petroleum storage tanks, and should be applied in deciding this action.
  2. Appellants' Rensselaer and Catskill terminals are each located in a "high risk region" within the meaning of SPOTS 10, due to each terminal's close proximity to the Hudson River.
  3. Therefore, SPOTS 10 requires liner permeability not greater than 1.0 x 10-7 cm/sec. for the clay containment system liner at both the Catskill and Rensselaer terminals.
  4. The in-situ clay deposit underlying Appellants' Rensselaer terminal secondary containment system varies in depth from 2 to as much as 70 feet depth.
  5. Regarding the Catskill terminal, Appellants have already upgraded the complete secondary containment liner with imported clays to achieve compliance with 6 NYCRR 613.3(c)(6) and SPOTS 10.
  6. Regarding the Rensselaer terminal, Appellants submitted two upgrade plans to Staff for the Rensselaer terminal, identified as the "June, 1991" and the "July, 1991" plans.
  7. Staff rejected the June plan, which required upgrading approximately half the containment liner area with imported clay of a higher quality than the in-situ (existing, or native) clay.
  8. Appellants' July plan proposed to upgrade the entire containment liner area with imported clay so that the resultant clay liner would have a maximum permeability of 1.0 x 10-7 cm/sec. Although Appellants submitted the July plan, Appellants did not withdraw the June plan from consideration and continued to assert its adequacy in meeting the regulatory standards of 6 NYCRR 613.3(c)(6).
  9. Appellants have implemented the June, 1991 plan - - i.e., portions of the liner have been upgraded with imported clay to improve impermeability and other characteristics of the liner. (These areas are identified by shaded areas in Exhibit 5/Mc Tigue 1, a map of the facility prepared by Appellant's engineering consultant, dated June, 1991). The portions of the liner that have been upgraded with imported clay are not at issue.
  10. As part of the Rensselaer terminal site assessment, Appellants excavated a total of 32 test pits on three occasions: November, 1990 (12 test pits), April, 1991 (15 test pits), and June, 1992 (5 test pits). Appellants' quantitative test results, obtained from these test pit samples are correct, including those resulting from the November, 1990. All these test pits and soil samples were obtained before any portion of the secondary containment system was upgraded by Appellants.
  11. The Summary of Geotechnical Laboratory Testing Data chart prepared by Appellants' engineering consultant (Ex. 5/Mc Tigue 7), for test pit samples obtained in November, 1990, shows that a saturated hydraulic conductivity of 7.0 x 10-7 cm/sec was obtained for a sample from test pit 5; a saturated hydraulic conductivity of 5.9 x 10-6 cm/sec was obtained for a sample from test pit 7; and a saturated hydraulic conductivity of 1.8 x 10-7 cm/sec was obtained for a sample from test pit 10. No saturated hydraulic conductivity test was performed for samples obtained from test pits 9 and 12, or for samples obtained from three other test pits.
  12. Test pits 9, 10 and 12 were located in non-upgraded (in-situ) areas of the north tank farm containment system of the Rensselaer terminal. Test pits 5 and 7 were located in areas of the south tank farm containment system of the Rensselaer terminal which were subsequently upgraded (test pit locations are identified on Ex 5/Mc Tigue 5, a map of the containment area).
  13. During field inspections, Staff identified petroleum contamination in groundwater of three test pits in the non-upgraded area of the Rensselaer facility secondary containment area:
    1. On April 19, 1991 Staff observed the presence of petroleum product in groundwater in two test pits (test pits 1 and 2 of the April, 1991 excavations). Staff observed a sheen on the water surface, characteristic of the presence of petroleum product, and noted the odor of petroleum in those test pits. (Domagala Affidavit, Ex. 8, 13).
    2. On June 24, 1992, Staff observed the presence of petroleum product in groundwater in a third test pit (test pit 5 of the June, 1992 excavations), located between storage tanks five and six in the south tank farm. Staff observed a sheen on the water surface, characteristic of the presence of petroleum product, and noted the odor of petroleum in that test pit. (Domagala Affidavit, Ex. 8, 15).
  14. Additionally, Appellants' quantitative data identifies petroleum contamination in three monitoring wells at the Rensselaer terminal that were installed in non-upgraded portions of the containment system. Test results from two of these wells show no petroleum contamination in 1989, and presence of benzene (a petroleum constituent) in 1990 and 1991, respectively. This indicates that petroleum contamination occurred after 1989 in these two monitoring wells. The third monitoring well was installed in March, 1991. Quantitative test results indicate photo-ionization readings of 180 at intervals of 5 to 7 feet depth, and 130 at 10 to 12 feet depth. These test results indicate petroleum contamination within the clay unit, extending vertically through the clay to a depth of at least 12 feet. (Ex. 8, 16).
  15. On April 19, 1991, test pits were excavated with a backhoe. The action of the backhoe caused a smearing of the test pit walls.
  16. In Staff's inspection of test pits on April 19, 1991, Staff used a 4-inch bladed paint scraper/putty knife tool to chip away some clay and reveal in-situ features.
  17. Secondary porosity features exist in the in-situ clay deposit at Appellants' Rensselaer terminal.
-- Crushed Stone Ballast
  1. At the Rensselaer terminal secondary containment areas, the purpose of the crushed stone ballast is to provide protection to the underlying clay liner against the damaging effects of weather conditions, desiccation and vehicular traffic.
  2. In those areas of the Rensselaer facility secondary containment system for which the liner has been upgraded, Appellants have placed 6 inches of crushed stone ballast over the reworked clay liner.
  3. In those areas of the Rensselaer facility secondary containment system for which the liner has not been upgraded, the depth of crushed stone or other soil overburden covering the in-situ clay deposit, is as much as 2.4 feet in depth.
-- Periodic In-Depth Integrity Inspection
  1. At the Catskill terminal, periodic high Hudson River water levels occur which rise above the elevation of the Catskill secondary containment system.
  2. At the Catskill facility, the stone ballast also acts as a counterweight against excessive groundwater pressure, produced during periods of high river water levels.
  3. Sampling necessary to test the continued integrity of the clay liners at both facilities may be accomplished by obtaining approximately one 3" diameter tube sample of the liner material for every 10,000 square feet. Therefore, a total of approximately 10 samples would be necessary for an in-depth integrity inspection of the Rensselaer terminal containment system (and then repair of the sampled areas with imported clay of appropriate characteristics, in accordance with good engineering practices).
  4. Appellants' witness Mc Tigue conceded on cross-examination that the liner can be disturbed for testing and adequately repaired.
  5. Staff has approved this procedure acceptable for testing of clay liners at other MOSF terminals.

DISCUSSION

Jurisdiction and authority to initiate this administrative action is based upon Environmental Conservation Law Section 3-0301, Navigation Law, Article 12 and 6 NYCRR Parts 610 and 624, and Title 17 NYCRR Part 30.

Generally, in a hearing challenging a permit modification that is not based upon new statutory or regulatory requirements, the burden of proof should be on Staff, as in the current 6 NYCRR Part 624. However, where, as here, the purpose of the modification is compliance with new regulatory requirements, then the new permit conditions are analogous to issuance of a new permit. In such circumstances, Appellants bear the burden of proof to show that they can meet the new regulatory standards. This burden must be met by a preponderance of the evidence.

In evaluating the three substantive issues identified for adjudication, Appellants have not carried their burden of proof. The evidence presented by Appellants largely consists of expert opinion that the existing secondary containment system meets the regulatory requirements of 6 NYCRR 613.3(c)(6). This opinion, presented by Appellants' two expert witnesses, McCarthy and Mc Tigue, is based upon their interpretation of quantitative data that was obtained through analysis of samples collected by GEO Engineering.

Staff does not contest the quantitative data resulting from that analysis. However, Staff reaches a different conclusion than Appellants based upon Staff's interpretation of those quantitative test results.

I. Permeability and Secondary Porosity Features of the In-Situ Clay Liner

Pursuant to 6 NYCRR 613.3(c)(6), secondary containment systems must be constructed so spills of petroleum and chemical components of petroleum will not permeate, drain, infiltrate or otherwise escape to the groundwaters or surface waters before cleanup occurs; and the containment system must be capable of containing the stored product. (6 NYCRR 613.3[c][6]). To provide further guidance on secondary containment systems for aboveground petroleum storage tanks located in New York, the Department has issued the guidance document, Spill Prevention Operations Technology Series, No. 10, issued May 15, 1991 (SPOTS 10). SPOTS 10 provides guidance on when secondary containment is needed and approaches to achieving compliance with performance standards of 6 NYCRR Part 613. Appellants accept the use of SPOTS 10. The SPOTS 10 guidance document addresses both permeability and secondary porosity features of various types of containment systems. Briefly, permeability is a medium's resistance to movement of a fluid through the medium; secondary porosity features are irregularities in the medium, such as cracks or fissures, which would allow movement of fluid around the medium.

The parties are in agreement that in the instance of MOSF secondary containment, any spill will be cleaned up in a matter of days. Appellants present a twofold argument regarding issues of permeability and secondary porosity. First, Appellants assert that the standard which Staff requires through the SPOTS 10 guidance, is not appropriate to short term containment required for MOSF's. Here, Appellants claim that the SPOTS 10 permeability standard of 1.0 x 10-7 cm/sec. was derived for landfill liners, where leachate will continuously be in contact with the liner material. Because a spill will be cleaned up in a matter of days, Appellants assert that a more relaxed standard should apply to MOSF secondary containment liner permeability.

Secondly, Appellants assert that the depth of the in-situ clay deposit at the Rensselaer facility, from 2 feet to as much as 70 feet in depth, provides additional assurance that spilled product will not reach surface or ground waters prior to cleanup.

Staff asserts that permeability standards of SPOTS 10 are appropriate and necessary to protect natural resources, in this case including groundwater and the Hudson River, in the event of a spill.

No fact finding is required to address Appellants' first argument comparing the landfill permeability standard to the MOSF secondary containment system permeability standard. Appellants present a policy argument, that because the MOSF containment system need only capture the spilled product for a period of days rather than the long term containment intended for a landfill, the solid waste landfill liner permeability standard is not necessary for MOSF secondary containment. However, many factors other than permeability of the liner material must be considered in drawing such an analogy. Under the Department's landfill liner requirements (6 NYCRR Part 360), a double composite liner is required, whereas for MOSF's, only a single six inch non-composite liner is required by Staff. Even though the permeability standard which Staff requires is the same in both instances, i.e., 1.0 x 10-7 cm/sec., Appellant's analogy to landfill liner permeability requirements is not persuasive in light of the great difference in the types of liners required for the respective facilities.

Following is a discussion of Appellants' other arguments and evidence regarding permeability issues.

a. The Tube Samples

Appellants' Rensselaer terminal is in a "high risk region" within the meaning of SPOTS 10, due to its proximity to the Hudson River. SPOTS 10 requires a permeability of at least 1.0 x 10-7 cm/sec. for the clay containment system liner at both the Catskill and Rensselaer terminals.

Appellants have argued that a mean saturated hydraulic conductivity value should be applied in evaluating the analytical sample test results. Under that theory, some secondary hydraulic conductivity values less than the maximum would be acceptable, if the arithmetic mean of all soil samples obtained within the same unit exhibits a secondary hydraulic conductivity value consistent with the standard of 1.0 x 10-7 cm/sec. If variability from 1.0 x 10-7 cm/sec. is small, then there will likewise be a small difference in actual permeability between a mean and a maximum standard. However, if variability is great, then there will be a more substantial difference in permeability between a mean and a maximum standard. One of Staff's concerns is that the variability of permeability values obtained for the Rensselaer terminal is too great. Staff likens this to a bucket with a hole in it; the hole representing the most permeable end of the spectrum of variability values. Staff has consistently asserted throughout the proceeding that Appellants must meet the maximum secondary hydraulic conductivity standard of 1.0 x 10-7 cm/sec.

Appellants upgraded portions of the Rensselaer terminal to meet this maximum criterion, and Staff does not contest the adequacy of those portions of the liner. However, samples obtained from test pits 5, 7 and 10 in November, 1990 did not meet this maximum criterion of 1.0 x 10-7 cm/sec. The most permeable sample is approximately 60 times more permeable than the 1.0 x 10-7 cm/sec. standard.

Both Appellants and Staff have asserted that the clay deposit underlying the Rensselaer terminal (and adjacent MOSF terminals in the area) is a single unit - - i.e., that single unit soils tend to exhibit more similar characteristics (including variability of secondary hydraulic conductivity values) than soils in multiple units. Therefore, the range of variability encountered in one area is representative of the range of variability of the unit. Test pits 5 and 7 (of the November, 1990 excavations) were located in areas of the containment system that have subsequently been upgraded. Staff asserts that because the clay deposit is a single unit it is reasonable to assume that other areas of the containment system also do not meet the maximum criterion of 1.0 x 10-7 cm/sec.

b. The Monitoring Wells

Through evaluation of groundwater monitoring well data supplied by Appellant, Staff has documented that petroleum contamination existed in three monitoring wells at the Rensselaer facility in portions of the containment system where the liner has not been upgraded. Test results from two of these wells showed no petroleum contamination in 1989, and presence of benzene in 1990 and 1991, respectively. The third monitoring well was installed in March, 1991. Quantitative test results indicate photo-ionization readings of 180 at intervals of 5 to 7 feet depth, and 130 at 10 to 12 feet depth. These test results indicate petroleum contamination within the clay unit, extending vertically through the clay to a depth of at least 12 feet. (Ex. 8, 16).

Appellants assert that the test results, obtained by their former consultant, are unreliable. However, Appellants did not demonstrate the unreliability of the results or provide any evidence to show that these results were unreliable.

c. Field Observations

- Observations of Petroleum Contamination

During visual inspection and testing of test pits that Appellants excavated in April, 1991 and June, 1992, Staff identified petroleum contamination in groundwater of three test pits in the non-upgraded area of the Rensselaer facility secondary containment area. On April 19, 1991 Staff observed the presence of petroleum product in groundwater in two test pits (test pits 1 and 2 of the April, 1991 excavations), consisting of a sheen on the water surface, characteristic of the presence of petroleum product, and the odor of petroleum. On June 24, 1992, Staff observed the presence of petroleum product in groundwater in a third test pit (test pit 5 of the June, 1992 excavations), located between storage tanks five and six in the south tank farm, consisting of a sheen on the water surface, characteristic of the presence of petroleum product, and the odor of petroleum. (Domagala Affidavit, Ex. 8, 13 and 15).

Appellants' engineering consultant McCarthy, who was present at the site on both occasions but did not enter all test pits, testified at hearing that he did not observe any evidence of contamination in any test pits. When asked if he recalled refusing Staff's invitation to enter test pits where Staff observed contamination, McCarthy responded that he did not recall. Staff's observation of oily sheen on groundwater and odor of petroleum product is sufficient to sustain a finding that in-situ soils are not adequate to function as a clay liner component of the Rensselaer terminal secondary containment system. Moreover, Staff's observations were not rebutted by Appellants' evidence, regardless of whether Staff invited McCarthy into these test pits. In evaluating this evidence, I credit Staff's testimony identifying evidence of petroleum contamination in the test pits.

- Observations of Secondary Porosity Features

To determine the existence of secondary porosity features in the in-situ clay deposit, Appellants excavated the test pits with a backhoe. Appellants observed no secondary porosity features in the test pits. However, both Klotz and Domagala did observe secondary porosity features (cracks, fissures and macroporesA pore in soil large enough in size that water is not held in it by capillary attraction. ) in certain test pits in the non-upgraded areas of the secondary containment system. These features could allow transmission of fluids and jeopardize liner integrity.

Staff asserts that the action of the backhoe blade caused a smearing of the revealed clay surface constituting the test pit walls, thereby covering any possible secondary porosity features that may exist. Therefore, Staff used a paint scraper/putty knife tool with a 4-inch blade to chip away some clay and reveal in-situ features.

McCarthy asserted that Staff's choice of tool and chipping technique actually created the secondary porosity features that Staff observed in the clay test pit walls. However, both McCarthy for Appellants and Klotz for Staff, conceded that no generally recognized engineering practice exists for revealing the existence of secondary porosity features in this type of setting. Each exercised his own professional judgment, used a different tool and technique, obtained different results and came to different conclusions about the existence of secondary features in the in-situ clay deposit. Further, Staff provided an equally plausible explanation for its technique and choice of tool, in contradiction to McCarthy's opinion. McCarthy's criticism of Staff's choice of tool and technique is unpersuasive, and is rejected.

Domagala stated Staff's experience is that in-situ clays serving as secondary containment, must usually be reworked and compacted to increase the permeability to the maximum criterion. This is in part because secondary porosity features usually occur in natural clay deposits.

Appellants were not able to rebut by credible evidence the cumulative facts that the backhoe blade in clay material would be expected to smear the excavated test pit wall, thereby covering any secondary features that might otherwise be observed, or Staff's testimony identifying the existence of such secondary features in test pits located in non-upgraded areas of the containment system. Accordingly, Appellants' assertion that secondary porosity features observed by Staff were created by Staff's chipping action to reveal test pit walls, must be rejected.

- Summary of Permeability Issues

In evaluating the various evidence on permeability issues, I conclude that Staff has raised sufficient concern regarding characteristics of the in-situ clay soil, that Appellants have not carried their burden of proof on this issue. Tube samples obtained from test pits 5, 7 and 10 in November, 1990 did not meet the maximum criterion of 1.0 x 10-7 cm/sec. The most permeable sample was approximately 60 times more permeable than the 1.0 x 10-7 cm/sec. standard. Further, both Appellants and Staff agree that the clay deposit underlying the Rensselaer terminal (and adjacent MOSF terminals in the area) is a single unit - - i.e., that single unit soils tend to exhibit more similar characteristics (including variability of secondary hydraulic conductivity values) than soils in multiple units. Therefore, the range of variability in permeability encountered in one area is representative of the range of variability of the unit.

Monitoring well test results indicate actual petroleum contamination within the clay unit, extending vertically through the clay to a depth of at least 12 feet. Appellants did not demonstrate the unreliability of the results or provide any evidence to show that these results were unreliable. Staff's monitoring well evidence alone shows that over a period of 1 or 2 years, the in-situ clay is in fact unable to prevent transmission of petroleum product to groundwater, contrary to Appellants' assertion that it can do so.

This monitoring well data shows that either the in-situ clay is not sufficiently impermeable, or that it has secondary porosity features that is in fact unable to prevent transmission of petroleum product to groundwater over a period of 1 or 2 years. Further, the possibility of secondary porosity features being a factor in transmission of product to groundwater is confirmed by Staff's demonstration of the existence of secondary porosity features in the in-situ clay. Although Staff has not demonstrated that the in-situ clay will not adequately contain petroleum product for the much briefer time period within which spill response and remediation would occur, Staff has raised substantial concern whether the in-situ clay would in fact perform adequately, even for such brief periods of time.

The SPOTS 10 guidance document does not explicitly state whether the criterion of 1.0 x 10-7 cm/sec. is intended as a mean or a maximum standard. However, if it is a mean standard, then the guidance would necessarily contain some reference to acceptable ranges of variability in permeability values around that mean. The absence of any such language in the guidance document requires a conclusion that the permeability criterion set forth in SPOTS 10 is a maximum criterion. That is, SPOTS 10 requires that variability in permeability values for a clay liner located in a high risk region, may not exceed 1.0 x 10-7 cm/sec. Viewing the data in the context of maximum permeability criterion requires a conclusion that in-situ clay at the Rensselaer terminal is not acceptable as liner material within the meaning of 6 NYCRR 613.3(c)(6). Additionally, Staff identified actual petroleum contamination in some test pits during field inspections.

Appellants bear the burden of proof in this proceeding. In evaluating all the evidence on permeability and secondary porosity features, Appellants have failed to show by a preponderance of the evidence that the in-situ clay deposit is capable of containing spills of petroleum and chemical components of petroleum so it will not permeate, drain, infiltrate or otherwise escape to groundwaters before cleanup occurs, and that the containment system is capable of containing the stored product. (6 NYCRR 613.3[c][6]). Appellants should be required to upgrade those portions of the containment system which have not yet been upgraded as proposed by Appellants in their July, 1991 plan.

II. Crushed Stone Ballast

6 NYCRR 613.3(c)(6)(ii) requires that, "[i]f soil is used for the secondary containment system, it must be of such character that any spill onto the soil will be readily recoverable and will result in a minimal amount of soil contamination."

Through expert testimony, Appellants have asserted that the crushed stone ballast will allow greater recovery of spilled product. However, Appellants' assertion is not relevant. Staff's position is that if not for the use of a clay liner at these terminals, no crushed stone would be necessary. In fact, the use of crushed stone to capture spilled product, would be contrary to the regulatory standard of minimal soil contamination. 6 NYCRR 613.3(c)(6)(ii).

Staff allows the use of stone ballast when a clay liner containment system is proposed, only as a necessary measure to protect the clay liner from unacceptable deterioration that would otherwise occur if the liner remains exposed. Therefore, the purpose of the stone ballast is to provide protection to the underlying clay liner against the damaging effects of weather conditions, desiccation and vehicular traffic - - not to capture spilled petroleum product. The focus of this issue must be, "what is the minimal amount of crushed stone necessary to protect the liner from deterioration."

Lastly, Appellants have not persuasively shown that ballast in excess of 6 inches is necessary in meeting the regulatory standard of "minimal soil contamination." Instead, in their closing brief, Appellants have argued, based upon Domagala's cross-examination testimony, there is no reasonable assurance that the ballast can be removed without damaging the clay liner. This is not relevant. The issue is not whether the liner will be damaged, but whether it will be irreparably damaged. Therefore, Appellants' arguments must be rejected.

III. Periodic In-Depth Integrity Inspection

Appellant seeks to avoid periodic inspection of liner integrity by claiming that sampling will permanently compromise the liner integrity. Staff stated small portions of the ballast may be removed and a 3-inch "tube sample" taken for analysis, without permanently compromising the liner's effectiveness. Further, Staff stated such test areas of the liner would have to be repaired with clay of appropriate permeability characteristics. On cross-examination, Appellants' witness Mc Tigue acknowledged that the clay liner can be disturbed for testing and adequately repaired.

Concerning the issue of whether an in depth inspection will permanently damage the liner integrity, Appellants assert that whatever testing methodology they might propose, Staff will find it unacceptable. Appellants claim that the method of testing and repair described above would not be acceptable to Staff. Therefore, Appellants conclude that the liner cannot be tested periodically, without permanently compromising the effectiveness of the liner. However, Staff has described a testing methodology which it deems acceptable, and Appellants' witness Mc Tigue has conceded that the liner can be disturbed for testing and adequately repaired. Accordingly, Appellants' argument is unpersuasive and must be rejected.

Although the regulatory standards do not specify the method of testing to be employed, the 3 inch diameter thin walled sample method described above is one method that is acceptable to Staff, and would satisfy this requirement. Appellants also may use any other method deemed acceptable by Staff.

CONCLUSIONS

Appellants failed to show by a preponderance of the evidence that permeability and secondary porosity features of the in-situ clay soils at the Rensselaer terminal meet the regulatory standards of 6 NYCRR 613.3(c)(6) (requiring that spills of petroleum and chemical components of petroleum will not permeate, drain, infiltrate or otherwise escape to the groundwaters or surface waters before cleanup occurs). 6 NYCRR 613.3(c)(6)(i). Those areas of the Rensselaer terminal containment system that have not yet been upgraded, should be upgraded as proposed by Appellants in their July, 1991 upgrade plan.

Appellants have failed to show by a preponderance of the evidence that more than 6 inches of crushed stone ballast is required at the Rensselaer terminal to meet the regulatory requirement that in the event of a spill, a minimal amount of soil contamination will occur. 6 NYCRR 613.3(c)(6)(ii).

Appellants have failed to show by a preponderance of the evidence that periodic in depth integrity inspection of the clay liner at either facility will permanently damage either containment system.

RECOMMENDATIONS

Upon consideration of the foregoing, and upon a review of the entire record of this consolidated action, Appellants' appeal of special license conditions for the Rensselaer terminal and the Catskill terminal should be denied.

Appellants should be ordered to implement immediately the contested special license conditions at both the Rensselaer and the Catskill terminals, pursuant to a schedule and plan approved by Staff:

  1. Regarding the Rensselaer terminal, Appellants should be ordered to immediately implement the contested special license conditions. Appellants should be ordered to implement the July, 1991 plan in non-upgraded areas of the secondary containment system. The liner should be reworked with imported clay, and should then be covered by crushed stone ballast placed to a depth of 6 inches.
  2. At both the Rensselaer and the Catskill terminals, Appellants should be directed to perform periodic in-depth integrity inspection. Appellants may use the 3 inch diameter thin walled sample method described above, deemed acceptable by Staff, or may use any other method acceptable to Staff.
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