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Getty Terminals Corp., Inc. (Kingston) - Supplemental Decision, April 20, 1995

Supplemental Decision, April 20, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

-of-

Appeal of Major Oil Storage Facility Special License Conditions Pursuant 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 CO.,
APPELLANTS

DEC License Nos. 4-1560 and 4-1360

SUPPLEMENTAL DECISION

April 20, 1995

SUPPLEMENTAL DECISION OF THE COMMISSIONER

This supplemental decision addresses a procedural issue raised by Getty Terminals Corp., Inc. and Kingston Oil Supply Co. (collectively, "Appellants") during the pendency of a hearing convened pursuant to New York Navigation Law, Article 12, 6 NYCRR Part 610 and 17 NYCRR Part 30. Hearings convened under these statutes and regulations allow a licensee to appeal to the Commissioner the proposed conditions offered by Staff. Appellants challenged Staff's proposed conditions for their Rensselaer and Catskill major oil storage facility ("MOSF") licenses for the period of April 1, 1993 through March 31, 1994.

The attached Hearing Report on Remand by Administrative Law Judge ("ALJ") Casutto is accepted as my decision in this action, subject to my comments below. A short discussion is necessary to understand the events leading to this Supplemental Decision.

ALJ Casutto presided over the initial administrative hearing on June 14 through June 16, 1994. After close of the record in that proceeding, but before issuance of the Commissioner's Decision, Staff notified the ALJ that renewal licenses had been mistakenly issued to Appellants for the two facilities but that Staff had summarily withdrawn those renewal licenses by letter notice to Appellants.

Appellants responded that they had received the MOSF license renewals (effective for the period of 1994 through 1999) for their two facilities. Appellants claimed that the licenses were duly issued by Staff on or about April 1, 1994, and that Staff lacks authority to summarily withdraw them. Appellants asserted that Staff must pursue a revocation or modification process pursuant to 6 NYCRR Part 621. Appellants also asserted that the then-pending appeal should be dismissed as moot, since Staff issued the renewal licenses.

Staff's position is that its renewal of the licenses is a nullity or, in the alternative, that Appellants should not be able to take advantage of the renewal because the licenses were issued in error and there was no reliance by the Appellants on the renewed licenses. In either event, the Staff maintains that it may summarily withdraw the licenses without any further proceedings and that it need not institute a revocation or modification proceeding pursuant to 6 NYCRR 621.14.

The license status issue was brought directly before the Commissioner by Appellants. The Commissioner then directed the ALJ to review the matter by remanding the issue for further proceedings. The Commissioner's December 7, 1994 Decision therefore only resolved the disputes as discussed by ALJ Casutto regarding the 1993-1994 MOSF licenses. In that decision the Commissioner denied the Appellants' appeal and confirmed the findings of the ALJ that Staff had properly applied regulatory requirements to Appellants' two MOSF facilities in the contested license conditions. This Supplemental Decision now turns to the procedural issue of license status.

In some situations where governmental regulatory action is not in compliance with the law, the courts have held that the state is not estopped from correcting such action in order to conform with statutory mandates. See, e.g., Matter of Parkview Associates v. City of New York, 71 NY 2d 274 (1988), US cert. den., 488 US 801 (1988); Scruggs-Leftwich v. Rivercross Tenant's Corp., 70 NY 2d 849, 851-852 (1987). Here, however, the Staff's issuance of the licenses does not violate any law, procedural or substantive. The renewal licenses were duly issued by the duly authorized member of Staff. I agree with the ALJ that, while issuance of the licenses may have been an error of judgment, such action was not illegal.

Staff cites no authority for its alternative argument that a governmental agency can withdraw license authority where the licensee knew or should have known that the governmental action was in error. While such a withdrawal may be supported by equitable authority, it has not been established that Appellants knew or should have known that the licenses were mistakenly issued. Staff's own permit administrator did not recognize his error until some four months after he issued the renewals.

As noted in the Hearing Report on Remand, the conditions in the renewal licenses that Staff sought to withdraw are similar in most respects to the conditions in the contested renewals. Therefore, this Supplemental Decision will have little if any impact on my earlier Decision of December 7, 1994.

I hereby sustain Appellants' position that the renewal licenses were duly issued and effective. The time period during which Appellants could have contested any of the conditions in the latest renewal licenses has long since expired. Therefore, Appellants are now foreclosed from appeal of any conditions in the renewal licenses. Barring any change in facts, Appellants are bound by my December 7, 1994 Decision on substantive conditions of the current licenses, pursuant to the doctrine of res judicata.

In conclusion, I agree with and adopt the ALJ's recommendations as set forth in his Hearing Report on Remand. Staff may not summarily withdraw the renewal licenses issued on or about April 1, 1994. Instead, Staff must comply with the procedures of 6 NYCRR 621.14 in the event Staff wishes to seek modification or revocation of those licenses.

The December 7, 1994 Commissioner's Decision regarding the consolidated appeal from license conditions of Appellants' 1993-1994 MOSF licenses is vacated on the procedural grounds that Staff's issuance of 1994-1999 renewal licenses mooted the then-pending appeal from conditions of the 1993-1994 licenses.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Supplemental Decisionto be signed and issued and has filed the same with all documents relating thereto in its office in the County of Albany, New York on this 20th day of April, 1995.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: MICHAEL D. ZAGATA, COMMISSIONER

Dated: April 20th, 1995

SUMMARY

This Report on Remand addresses the legal issue of the effect of Staff's issuance of renewal licenses to Appellants during pendency of the appeal-in-chief. The renewal licenses were duly issued by the NYSDEC Region 4 Regional Engineer, the duly authorized Major Oil Storage Facility license administrator for that Region. It is well settled that an agency is bound by its own regulations. Therefore, the Department is limited to modifying or revoking the renewal permits in accordance with 6 NYCRR Part 621. The Report concludes that Staff lacks authority to summarily withdraw the duly issued renewal licenses under the existing circumstances.

The Report recommends that Appellants' procedural appeal regarding Staff's purportedly mistaken issuance of renewal licenses for the Rensselaer terminal and the Catskill terminal should be granted. The December 7, 1994 Commissioner Decision issued on the appeal-in-chief should be vacated. In the event Staff wishes to seek modification or revocation of the renewal licenses, Staff should be directed to commence an appropriate proceeding pursuant to 6 NYCRR, Part 621.

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"). The Commissioner's Decision on the appeal-in-chief remanded for further hearing, a procedural issue regarding Staff's issuance and withdrawal of renewal licenses during the pendency of the appeal. In the Matter of Getty Terminals Corp., et al., Decision of the Commissioner, December 7, 1995.

The ALJ identified adjudicable issues in each matter on the appeal-in-chief. Following the determination on adjudicable issues, the ALJ granted the parties' joint request for consolidation, by ruling dated December 8, 1993. Appellants and Staff were the only parties in this action. The consolidated adjudicatory hearing on the appeal-in-chief was held, on June 14, 1994 through June 16, 1994 at the Desmond Hotel, Albany-Shaker Road, Albany, New York. Staff appeared and was represented at the hearing by David H. Keehn, Esq. Respondents appeared and were represented by Robert G. Del Gadio, Esq. The adjudicatory 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 (the "renewal licenses") to Appellants for their Catskill and Rensselaer terminals. The renewal licenses indicate an effective date of April 1, 1994, and an expiration date of March 31, 1999. Those licenses generally authorize the same activity as the licenses appealed from, but are issued for a period of five years, rather than one year. However, language and some requirements differ with respect to license conditions which were at issue in the appeal-in-chief. [Relevant license conditions of the respective licenses are attached to this Report as "Appendix A"].

On August 10, 1994 the ALJ received a copy of Appellants' response, addressed to the Commissioner. Appellants asserted that Staff's issuance of renewal licenses for the Rensselaer and Catskill terminals, rendered the appeals moot. Additionally, Appellants requested a hearing on Staff's withdrawal of the licenses. Staff countered that since license issuance was mistaken, Staff may withdraw the licenses and that this mistaken license issuance had no effect on the appeals. Neither party had provided copies of the renewal licenses to the ALJ. On August 11, 1994 the ALJ directed Staff to address its concerns regarding the renewal licenses to the Commissioner, since matters regarding those licenses were not directly related to the consolidated appeal.

The Commissioner's Decision on the appeal-in-chief denied the appeals and required Appellants to implement the contested special license conditions at both the Rensselaer and the Catskill terminals, pursuant to a schedule and plan approved by Staff. However, implementation of that Decision was held in abeyance, and the appeal was remanded to the ALJ for further proceedings. The Commissioner remanded the issue of legal effect of Staff's letters of withdrawal of the renewal licenses. Decision of the Commissioner, supra. This Decision essentially granted Appellant's August 10, 1994 request for hearing on Staff's withdrawal of the renewal licenses. Decision of the Commissioner, supra.

Therefore, this remand solely addresses the procedural issue of the effect of Staff's issuance of the renewal licenses (and Staff's authority to withdraw the licenses). The parties continued to be represented by their respective counsel, as set forth above. Staff provided copies of the renewal licenses to the ALJ on December 13, 1994.

On remand, a briefing schedule was set, requiring filing of initial briefs by January 12, 1995 and reply briefs by January 20, 1995. Staff filed initial and reply briefs. Appellant stated it would rely upon their August 10, 1994 letters to the Commissioner for their briefs on remand, but then filed an additional reply brief, which has been accepted into the record. Neither party filed a statement of facts, but the facts underlying the issue on remand are evident from the record on the appeal-in-chief and on remand. The record on remand closed with receipt of reply briefs on January 20, 1995.

STAFF'S POSITION

Staff asserts that due to clerical error, it mistakenly sent license renewal applications to Appellant for their two facilities, at the time that Staff sent out Major Oil Storage Facility ("MOSF") license renewals to other facilities and mistakenly issued renewal licenses to Appellants on or about April 1, 1994. The renewal licenses do not contain the same conditions appealed from in the consolidated appeal.

Staff asserts its error is self evident because it would not have sent the applications or issued the renewal licenses if it believed such action could be a basis for a claim by Appellants that the renewal licenses had the effect of mooting the appeal on the 1993-1994 licenses. The Staff Engineer who prepared the renewal application packages was aware of the pending appeal, but believed that the contested conditions in the 1993-1994 licenses, as modified (if at all) by the Commissioner, would be incorporated into the renewal licenses upon issuance of the Commissioner's Decision in that proceeding. Staff asserts its Engineer did not consult the Staff attorney before issuing the renewal licenses. Once the Staff attorney learned of the new license issuance - - approximately four months after the fact - - Staff acted to withdraw the renewal licenses by letters dated August 9, 1994.

Staff asserts the license withdrawal is within its authority because an administrative agency has the authority to correct errors it has committed where there has been an irregularity in vital matters.

Staff asserts its withdrawal of the renewal licenses is not a revocation of authority under 6 NYCRR 621. Appellants are authorized to continue their operation under the 1993-1994 licenses during pendency of the appeal pursuant to State Administrative Procedures Act ("SAPA") 401. Reliance upon the agency's action is a condition precedent to prohibiting an agency from correcting an error. Appellants did not rely upon the agency's action in this instance, because they were already authorized to continue their operations under authority of the previous licenses, and the extending provisions of SAPA 401.

Lastly, Staff asserts that if Appellants' analysis were accepted, then Staff would be required to immediately seek modification of the licenses pursuant to 6 NYCRR 621, so that the licenses would comply with the requirements of the Commissioner's Decision of December 7, 1994. Otherwise, Staff asserts, Appellants would operate their facilities pursuant to licenses that contain conditions already adjudicated to inadequately protect the environment. The modified conditions, identical to those appealed from under the 1993-1994 licenses, would be required to be upheld pursuant to the doctrine of res judicata.

In support of its position, Staff cites In the Matter of Modern Landfill, Inc. v Jorling, 161 AD2d 1112, 1113 (1990), Drew v State Liquor Authority, 2 NY2d 624 (1957) and In the Matter of Parkview Associates v City of New York, 71 NY2d 275, 525 NYS2d 176, 519 NE2d 1372 (1988).

APPELLANTS' POSITION

By letters dated August 10, 1994 addressed to the Department's Commissioner, Appellants assert that Staff lacks authority to withdraw duly issued licenses. Appellants further dispute that Staff's issuance of the renewal licenses was due to clerical error. Appellants assert that Staff's intended withdrawal of the licenses amounts to a summary revocation, and that the licenses may only be revoked pursuant to the provisions of 6 NYCRR 621.14. Appellant's letters request a hearing on Staff summary revocation.

Appellants assert that 6 NYCRR 621.14(a) does not identify "clerical error" as a basis for license revocation. Additionally, Appellants assert that Staff failed to comply with 6 NYCRR 621(b), in that no notices of intent to revoke the licenses were sent to Appellants. Pursuant to 6 NYCRR 612.14(f) and (g), the renewal licenses remain in effect until there has been a Commissioner's decision on the status of the renewal licenses. Lastly, Appellants assert that caselaw cited by Staff is not relevant. Appellants' Reply to Staff's Initial Brief distinguishes the two cases cited by Staff in that brief from the present matter.

DISCUSSION

Upon the facts and circumstances recited above, Appellants are correct that Staff lacks authority to summarily withdraw the renewal licenses that Staff asserts were mistakenly issued. I find that Staff misconstrues the caselaw which it relies upon, as discussed at greater length below.

It is a well settled principle of administrative law that an administrative agency is bound by its own rules or regulations, which have the full force and effect of law. 2 N.Y. Jur. 2d, Administrative Law 107. The renewal licenses were duly issued by the authorized MOSF license administrator, the Region 4 Regional Engineer. No authority exists for Staff to withdraw the licenses on the basis that the permit administrator misunderstood the legal effect of issuing the renewal licenses. The agency's rules regarding modification or revocation of duly issued licenses are 6 NYCRR Part 621. Therefore, if Staff wishes to modify or revoke the renewal licenses, it must proceed with a modification or revocation action pursuant to 6 NYCRR, Part 621.

Caselaw

In support of its position that the renewal licenses may be withdrawn due to clerical error, Staff cites In the Matter of Modern Landfill, Inc. v Jorling, 161 AD2d 1112, 1113 (1990), Drew v State Liquor Authority, 2 NY2d 624 (1957) and In the Matter of Parkview Associates v City of New York, 71 NY2d 275, 525 NYS2d 176, 519 NE2d 1372 (1988). The cases cited by Staff are distinct from the present matter because in each of those cases the error or mistake was an error or mistake of law - - i.e., the government acted illegally and therefore its action was held to be void.

Staff has not even alleged that the purportedly erroneous agency action - - issuance of the renewal licenses - - was contrary to law. In fact, Staff concedes that the duly authorized administrator of MOSF licenses in the Region 4 Office knew that the appeal was pending, but issued the renewal licenses anyway. What Staff claims to be clerical error was, if anything, an error in judgment. The Regional Engineer (the MOSF license administrator) misconstrued the legal effect of issuance of the renewal licenses.

In Modern Landfill, the Department issued a revised permit that had the effect of authorizing an increase in landfill height from 37 to 180 feet, contrary to the requirements of the State Environmental Quality Review Act ("SEQRA" or "SEQR"). Despite that significant change in the terms of the permit, no SEQRA review was undertaken. The permittee contended that the agency acted in excess of its lawful authority in nullifying the revised renewal permit. The Court sustained the agency determination that the revised permit was a nullity because the agency erroneously failed to comply with its statutory duty under SEQRA. Modern Landfill, supra, at 1112-1113.

In Parkview, a building permit was issued which was contrary to existing City of New York zoning regulations. The Court sustained the determination of the Commissioner of Buildings that the permit was invalid when issued because it authorized construction in violation of zoning requirements. Supra at 280.

Lastly, Drew is cited by Staff for the general principle that administrative finality may not be invoked or applied where irregularity in vital matters has been demonstrated. However, Drew also holds that where there is no showing of irregularity in vital matters, the principle of administrative finality may be invoked and applied. Drew, supra at 627-628.

Drew, supra, involved recision of an approval of transfer of a licensed packaged liquor store to a new location. The contested administrative determination was alleged to have been based upon irregularity in vital matters, illegality or conduct tantamount to fraud. After approving the transfer the agency learned that the licensee's application for transfer contained inaccurate information or was incomplete - - i.e., irregularity in vital matters, or illegality or fraud, depending upon the licensee's state of mind. The Court of Appeals affirmed the Appellate Division order, requiring the matter to be remanded to the agency for an adjudicatory hearing regarding irregularities in the licensee's application for transfer. The Court of Appeals refrained from considering the effect of the Authority's determination until after an administrative adjudicatory hearing was conducted and a final agency determination issued.

In Modern Landfill and Parkview, it is clear that the government action at issue occurred under a mistake of law. Therefore, the government action in each of those cases was rendered void. In the present case, if the government action was void then Staff would not be required to comply with the 6 NYCRR, Part 621 modification/revocation process to "withdraw" the action, since it was never legally effective in the first place. However, such circumstances do not exist in the present matter.

Here, the irregularity which Staff identifies is poor judgment exercised by the MOSF license administrator in misapprehending the legal consequences of his actions. This "error" is not within the doctrine of "irregularity in vital matters" identified in the above cited cases because it is not an error or mistake of law. In this instance, the Department lacks power to reverse summarily its original determination. Drew, supra at 627-628.

Additional Issues

Staff has presented two equitable arguments to support its contention that the renewal licenses may be summarily withdrawn. These arguments are unsupported by citation to authority. First, Staff asserts that Appellants knew or should have known that the renewal licenses were mistakenly issued because no reason other than mistake exists to explain why Staff would issue renewal licenses that do not contain conditions contested in the previous licenses.

As to whether Appellants should have known that the renewal licenses were mistakenly issued, I find that such a contention is unreasonable. Staff concedes its own permit administrator did not think issuance of the renewal licenses was a mistake. Therefore, it is unreasonable to conclude that Appellants should have known that the licenses were mistakenly issued.

As to whether Appellants actually knew the licenses were mistakenly issued, an evidentiary hearing would be necessary to determine the issue. This would be a defense to an equitable estoppel argument, which Appellants have not asserted. In any event, such a hearing would not be an effective use of resources since Staff cites no legal authority to support its argument, and because issues in the case-in-chief have been decided and will likely apply to the relevant conditions in the new licenses.

Nonetheless, Appellants have not acted in good faith. The renewal licenses were issued in April, 1994, more than two months prior to the adjudicatory hearing. Yet, prior to commencement of the adjudicatory hearing, Appellants never asserted the appeal should be dismissed or withdrawn due to newly issued licenses. Instead, the first time Appellants presented the fact that renewal licenses had been issued by Staff, was only after final briefs had been filed and the hearing record closed on the 1993-1994 licenses consolidated appeal. Even then, Appellants only acknowledged their receipt of the renewal licenses after Staff discovered its "mistake" and sent its August 9, 1994 letters notifying Appellants of Staff's summary withdrawal of the renewal licenses.

Secondly, Staff claims that Appellants' reliance upon the agency's action is a condition precedent to prohibiting an agency from correcting an error. However, Appellants do not dispute that even if the renewal licenses were deemed a nullity, Appellants' operations at both facilities continued under authority of the 1993-1994 licenses and the SAPA extending provision during pendency of the appeal. SAPA 401. Appellants do not assert that they detrimentally relied upon the renewal licenses, but instead that any revocation or modification of the licenses must occur within the provisions of 6 NYCRR Part 621 - - i.e., that an agency is bound by its own rules. Staff's detrimental reliance argument is not relevant.

Effect of the Procedural Determination

The license conditions requiring upgrade of the secondary containment system, are substantially the same in the renewal licenses and the previous licenses. With respect to the Catskill facility, no issue exists regarding upgrade of the containment system. Concerning the Rensselaer terminal, the pertinent license conditions do not indicate compliance dates. This correction should be made by Staff, imposing reasonable compliance dates for the relevant provisions. To preclude Staff from imposing such dates would render the license conditions meaningless.

Since a dispute over further upgrade of the Rensselaer terminal secondary containment system has already been litigated, res judicata. The term res judicata is used broadly, to include collateral estoppel (issues preclusion). would apply to renewal of that dispute in the context of the renewal license, unless new factual issues are raised. The common law doctrine of res judicata stands for the proposition that a final judgment on the merits is conclusive as to the rights of the parties, and constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. Res judicata has been held to apply to administrative determinations and has been held to apply to Departmental proceedings. See, generally, Siegel, New York Practice, 2d Edition 442, et seq.; In the Matter of Steck and Philbin, Commissioner Order, Case Nos. 1-3421 and 1-3601 (March 29, 1993).

Regarding In-Depth Integrity Inspection and Certification, Staff must move to modify the renewal licenses if Staff seeks to require an earlier inspection and certification than the July 15, 1998 requirement in the renewal licenses.

Lastly, in the event the Commissioner adopts the findings, conclusions and recommendations of this report, then since Appellants successfully asserted the position that the renewal licenses are valid, their time to appeal from license conditions contained in those licenses began on the date Appellants received the licenses, on or about April 1, 1994, and has already expired. 17 NYCRR 30.7(c); See, also, 6 NYCRR 610.5(e). Therefore, Appellants may not appeal from conditions of the renewal licenses.

CONCLUSIONS

  1. The Commissioner's Decision on appeal granted Appellant's August 10, 1994 request for hearing on Staff's purported withdrawal of the renewal licenses. Therefore, this remand solely addresses the legal issue of the effect of Staff's issuance of renewal licenses during pendency of the appeal-in-chief.
  2. The renewal licenses were duly issued by the NYSDEC Region 4 Regional Engineer, the duly authorized MOSF license administrator for that Region.
  3. The Department is bound by its own rules, and therefore is limited to modifying or revoking the renewal permits in accordance with 6 NYCRR Part 621. Staff lacks authority to summarily withdraw duly issued renewal licenses under the existing circumstances.

RECOMMENDATIONS

Upon consideration of the foregoing, and upon a review of the entire record of the appeal-in-chief and proceedings on remand, Appellants' procedural appeal regarding Staff's purportedly mistaken issuance of renewal licenses for the Rensselaer terminal and the Catskill terminal should be granted.

  1. The December 7, 1994 Commissioner Decision on appeal from conditions of the 1993-1994 licenses should be vacated.
  2. In the event Staff wishes to seek modification or revocation of the renewal licenses, Staff should be directed to commence an appropriate proceeding pursuant to 6 NYCRR, Part 621.

APPENDIX A

The contested license conditions of the 1993-1994 licenses are summarized as follows:

* Submission of an engineering plan for upgrading secondary containment system, on or before April 15, 1993 [Special Condition (3)(d)];

* Implementation of an engineering plan on or before June 15, 1993 [Special Condition (3)(e)]; and

* 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)]The first two conditions are contested only with respect to the Rensselaer terminal. The third condition summarized above was contested with respect to both the Rensselaer terminal and the Catskill terminal (Appellants have already upgraded the secondary containment system of the Catskill terminal to Staff's satisfaction)..

Relevant special license conditions of the 1995-1999 renewal licenses are summarized as follows:

* Testing of Secondary Containment System

The secondary containment system shall be tested according to the guidance provided in the Department's technical guidance memo, SPOTS 10. The Plan must contain a description of the procedures and methods used to inspect and test the effectiveness of the system along with the results of permeability tests and geological studies showing the groundwater flow direction, minimum travel time for the lightest product stored within the secondary containment area to contact the groundwater or a subsoil profile.

Test Results to be Submitted by ____________________. [Special Condition (3)(c)].

* Engineering Plan For Upgrading Secondary Containment System

If the secondary containment system does not meet the standards set forth in 6 NYCRR Section 613.3(6), then an engineering plan, certified by a licensed Professional Engineer, preferably a New York State licensed Engineer, must be submitted tot the DEC Regional Office describing how existing systems will be improved. This plan should include the composition and permeability of the existing soil; the methodology that will be used to upgrade the secondary containment system, such as a synthetic liner; the specifications of the material to be used, procedures on installation; and the proposed permeability of the resulting containment system.

This Plan must be submitted to and approved by the DEC Regional Office before construction is started.

Engineering Plan to be Submitted by _________________. [Special Condition (3)(d)].

* Implementation of Engineering PlanThis caption and subparagraph designation were omitted from the Rensselaer renewal license.

After the engineering plan to improve the secondary containment system has been reviewed and is acceptable to the Department, owner or operator will begin implementation of the proposed secondary containment system.

Construction to be completed by _______________. [Special Condition (3)(e)].

* Inspection Certification of Secondary Containment Systems

Secondary containment systems must be inspected and certified monthly that the secondary systems still meet the standards set forth in 6 NYCRR Section 613.3(c)(6). Certification must identify any deficiency found during the inspection and any subsequent repairs rendered. See Section 613.6(a) and (c).

The Department will accept documented monthly inspections that are "visually performed" if these are performed in conjunction with in-depth integrity inspections performed on a frequency not to exceed five years, with such in-depth inspection conducted and certified by a licensed Professional Engineer. The Regional Office must be notified prior to any modification and repairs to the secondary containment systems. The Regional Office will decide if additional information or plans are required.

In-depth Integrity Inspection and Certification to be submitted by July 15, 1998 and thereafter every five years. [Special Condition (3)(j)].

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