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Gruner, Robert - Recommended Decision, October 29, 1998

Recommended Decision, October 29, 1998

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the matter

of

the application for renewal of a waste transporter permit by Robert Gruner
pursuant to Environmental Conservation Law Article 27 and Title 6 of the
Official Compilation of Codes Rules and Regulations of the State of New York, Part 364

RECOMMENDED DECISION

File No.3-5100-00035/00001-0

Permit No. 56-046

PROCEEDINGS

In April, 1993, Robert Gruner, P.O. Box 352, Highland, New York 12528 (the "Applicant"), applied to the Department of Environmental Conservation (the "Department" or "DEC") for renewal of his waste transporter permit.(1)

The permit authorizes him to transport septage from septic tanks and other specified sources, and apple cider wastes, for disposal in the "Gruner Lagoons," surface impoundments located on North Riverside Road, Town of Lloyd, Ulster County, New York. The permit also authorizes him to transport sewage from Town of Lloyd pump stations for disposal at a Town of Lloyd manhole.

On September 30, 1993, the DEC Region 3 Staff ("Staff") notified the Applicant that it would not renew the use of the Gruner Lagoons for waste disposal because groundwater monitoring data indicated a contravention of the 6 NYCRR §703.5 standard for chlorobenzene. On October 18, 1993, the Applicant requested a hearing. The Applicant has continued operations to date under his old permit pursuant to the State Administrative Procedures Act.

On November 24, 1993, the DEC Office of Hearings and Mediation Services ("OHMS") received the Staff's request to schedule a hearing, and the undersigned, Frank Montecalvo was designated as the Administrative Law Judge ("ALJ") who would hear the matter. Following my request for information needed to schedule the hearing, the parties agreed to postpone the hearing while they attempted to settle the matter.

After four years, on March 31, 1998, the Staff requested that the hearing be scheduled because settlement attempts had been unsuccessful. The Notice of Public Hearing (the "Notice") was issued April 29, 1998, and was published May 6, 1998, in the DEC's Environmental Notice Bulletin and the Highland Mid-Hudson Post. The Notice was also directly mailed April 29, 1998, to the clerks of the Town of Lloyd and Ulster County, as well as to other persons deemed interested. The Notice required that petitions to intervene in the proceeding be filed by June 8, 1998, and that written comments could be mailed or given to me at or before the hearing.

I received no written comments and no petitions to intervene.

As advertised in the Notice, I convened the public hearing at 7:00 PM on Monday, June 15, 1998, at the DEC Region 3 Headquarters, 21 South Putt Corners Road, New Paltz, New York. The Staff were represented by John M. Kennedy, Esq., Regional Attorney. The Applicant was represented by Whiteman, Osterman, and Hanna; Philip H. Dixon, Esq., of counsel. Other than the parties and myself, no one else appeared.

I convened the issues conference at the same place on the following day at 9:30 AM. The parties reviewed, added to and/or corrected the draft exhibits and service lists which I previously prepared and distributed. The documents comprising the application and the Staff's response were identified, and potential hearing issues were discussed. Additional documents reflecting the parties' respective positions were marked for identification.

Because it appeared that the parties' disagreement was primarily over the law and its application rather than over facts, the parties agreed to file simultaneous briefs and replies over the summer to further detail their positions. The issues conference concluded shortly after 12 noon.

The final replies were received on September 15, 1998. The position summaries, discussion, ruling and recommendation made below are based upon the exhibits and the issues conference transcript. The list of exhibits, revised to include the additions made at the issues conference and the post-conference briefs, is attached as Appendix A, below. The corrected Official Service List is attached as Appendix B, below.

SUMMARY OF THE STAFF'S POSITION

The Staff point out that where a waste transporter disposes of septage in a surface impoundment, 6 NYCRR §364.4(b)(2) requires a "demonstration that the surface impoundment will have no significant adverse impact on public health, safety or welfare, the environment or natural resources" before a permit will be issued. This provision also applies to renewals pursuant to the Uniform Procedures regulations. The Staff argue that the Applicant has not made this demonstration because groundwater monitoring data from Monitoring Well #2 ("MW2"), down gradient from the Gruner Lagoons, shows chlorobenzene concentrations exceeding the 6 NYCRR §703.5 standard(2) of 5 micrograms per liter (5 parts per billion, "ppb") for chlorobenzene in class GA (a drinking water classification) fresh groundwater by a factor of 12. The Staff say that they were not aware of this condition until after 1992.

The Gruner site is immediately adjacent to an inactive hazardous waste site (the "Mead" site). The Staff attribute the chlorobenzene to the Gruner site and not the Mead site because (1) other wells down gradient from the Mead site do not have chlorobenzene (but do show other kinds of organic chemical contaminants) and (2) sludge tested from pits at the Gruner site had high levels of chlorobenzene while that from the Mead site did not.

The Staff note that the purpose of ECL Article 17 ("Water Pollution Control") is safeguarding "the waters of the state from pollution by preventing any new pollution and abating [pre-existing] pollution ..." ECL 17-0103. The Staff point to United States vs 27.09 Acres of Land, 760 F. Supp. 345 (SDNY 1991), a federal case concerning the need for an environmental impact statement, and note the court's statement that "the threatened introduction of contaminants into drinking water, even if not in actual violation of applicable drinking water standards, is itself plainly significant." Id. at 353. Thus, the Staff argue that the introduction, in any amount, of the substances listed in 6 NYCRR §703.5 constitutes impermissible pollution which has an adverse impact on the environment, and that the standards promulgated therein are the levels at which enforcement and/or remediation actions must be taken. The Staff argue that the exceedence of a groundwater standard is, ipso facto, a "significant adverse environmental impact" and that given such a condition, the Applicant cannot show that his activities will have no significant adverse impact on the environment or natural resources.

If the Applicant continues operations, the Staff fear that "hydraulic loading" from additional septage disposal will spread the contamination.

SUMMARY OF THE APPLICANT'S POSITION

Although the Applicant questions the validity of data from MW2 due to construction activities which disturbed the well, the Applicant does not contest the chlorobenzene readings themselves. The Applicant attributes the chlorobenzene to a particular disposal project in 1979 that involved 3 lagoons, two of which are now closed. That project involved disposal of wastes from the Town of Lloyd wastewater treatment plant and was done under the approval and supervision of the Ulster County Health Department.

The Applicant argues that he has a prima facie case for renewal under the Department's Hearing Procedures at 6 NYCRR §624.9(b)(3) because there has been no change in the permitted activity, environmental conditions or applicable law and regulations since his permit was last issued. The Applicant points out that his operations have not changed over the years and that his permit had previously been renewed after the detection of chlorobenzene in MW2 at levels exceeding the standard. The Applicant notes that in 1986, sampling showed 16 parts per million ("ppm") chlorobenzene in the sludge in one of his pits, and none in MW2. Investigation of the Mead site (supervised by DEC personnel other than the regional solid waste staff) showed chlorobenzene levels in MW2 of 13, 31, and a range of 41-69 ppb during the years 1990, 1991, and 1993 respectively.

The Applicant points out that monitoring wells adjacent to and down gradient from MW2 and hundreds of feet within the boundary of Applicant's site, including a well in the bedrock aquifer, show no detectable levels of chlorobenzene. Thus the Applicant contends that the chlorobenzene is not migrating off site and is in no danger of doing so. The Applicant's February, 1998, data shows chlorobenzene levels in MW2 at 60 ppb, indicating to the Applicant that levels may have peaked. The nearest down gradient drinking water well is approximately three-eighths to one-half mile away. Homes in the immediate area have been hooked up to public water as part of the Mead site remediation. These things indicate to the Applicant that there is no threat to public health or to the environment.

The Applicant argues that a mere exceedence of a ground water standard in and of itself does not necessarily constitute a significant threat to public health or the environment (which the Applicant contends is the appropriate standard to use). The Applicant points out that the Department's inactive hazardous waste site regulations lists exceedence of a groundwater standard as only one of several factors that the Commissioner may consider in determining whether a site constitutes a significant threat to the environment. Furthermore, those regulations state that the "mere presence" of hazardous waste at a site or in the environment is not a sufficient basis for finding that there is a significant threat to the environment. (See 6 NYCRR §375-1.4)

Noting that he has no economically feasible alternative disposal location, the Applicant makes his final point: a denial would only terminate his livelihood -- it would not remediate the groundwater. Pointing to the several lagoons at his site, the Applicant suggests that he be allowed to continue his operation using the pits that do not contain chlorobenzene.

DISCUSSION

Permit issuance standards or criteria are applicable to renewals per the Uniform Procedures regulations. See 6 NYCRR §621.13(c). For a renewal, a prima facie case of compliance with these requirements is routinely made by showing that there have been no changes in the permitted activity, environmental conditions or applicable law and regulations since the permit was last issued. 6 NYCRR §624.9(b)(3).

The evidence of chlorobenzene in a ground water monitoring well down gradient from the Applicant's surface impoundments raises concern that the impoundments no longer are demonstrated to have "no significant adverse impact on public health, safety or welfare, the environment or natural resources" as required by 6 NYCRR §364.4(b)(2). It is immaterial whether this evidence is viewed as a potential rebuttal of the Applicant's prima facie case or as a defect in the case. Plainly, the issue here is whether the chlorobenzene in MW2 negates any previous determination that the impoundments would not have a "significant adverse impact."

Both the Applicant and Staff argue their positions in terms of a "threat," but each speaks of something different. Relying on its interpretation of ECL Article 17 (Water Pollution Control) and a federal case, Staff's position is that a threatened discharge of contaminants to drinking water justifies not renewing the permit. The Applicant, on the other hand, suggests that the proper standard is a threat to public health or the environment as that concept is used in the DEC's Inactive Hazardous Waste Disposal Sites regulations (6 NYCRR Part 375). The Applicant essentially argues that no such threat exists here, thus the permit should be renewed.

I cannot rely on the federal court's construction of "significant impact" in United States vs 27.09 Acres of Land as suggested by Staff because it was made in a context different from that here. The Staff indicated that the federal case was about the need for an environmental impact statement. In that context, the court's calling the threatened introduction of contaminants to drinking water "significant" would be the court's assessment of the need to study the potential impact further. This is different from an assessment of the potential impact itself, which is required by §364.4(b)(2).

Staff's contention that ECL Article 17 makes "impermissible" the introduction of contaminants to water "in any amount" is incorrect. Article 17 sets forth a permitting system which limits the rates at which contaminants will be allowed to be discharged to water.

In effect, the Staff already determined that the threatened introduction of chlorobenzene to the ground water was not expected to be a problem in this Applicant's situation when it repeatedly permitted the Applicant to use an unlined impoundment (or impoundments) known as far back as 1986 to contain chlorobenzene at levels in the parts per million range (some three orders of magnitude greater than levels found in the ground water now).

Even now, with chlorobenzene in the ground water, the existence of a "threat" to public health or the environment is questionable since the nearest drinking water well is a distance away and the chlorobenzene has apparently not migrated very far. Thus, the Applicant may be correct that the site does not present a "threat," at least not in the Part 375 sense.

However, the Part 375 standards are essentially for determining the need to clean up a site after damage has been done. Since the §364.4(b)(2) standard is intended to prevent damage before it occurs, I cannot appropriately rely on Part 375 to make a determination here.

There is clearly an "adverse impact" that is "significant" (the words used in §364.4(b)(2)). Based on the limited facts that the parties seem to agree upon, it can be inferred that chlorobenzene from the Applicant's site has migrated to the ground water in an amount sufficient to cause a contravention of the ground water standard at MW2 -- an "adverse impact" to the "environment." The February 1998 data suggest that this migration continues to this day. Such adverse impact to the environment is legally "significant" because ECL §17-0501 prohibits anyone from directly or indirectly discharging matter to the state's waters that causes or contributes to a contravention of the standards. Even though the Staff have not charged the Applicant with violating ECL §17-0501 (making its liabilities and remedies unavailable for consideration here), the statute provides the applicable standard. This is because all parts of the ECL (including implementing regulations) must be harmonized and construed as a whole (See McKinney's Statutes §§ 97 and 98). In other words, the "causing or contributing to" (but not the mere existence of) the contravention of a ground water standard must be viewed as a significant adverse impact to the environment under 6 NYCRR §364.4(b)(2) because it is prohibited under ECL §17-0501. A renewal should not be granted where it would authorize a prohibited act.

The fact that the Staff previously permitted use of the impoundments, whether or not they were then aware of a contravention of the standard, does not require them do so now after it appears that continuing the practice would be illegal. The government cannot be estopped from enforcing its laws or carrying out its duties (City of New York vs NYSDEC, 89 AD2d 274, 276 (3rd Dept.'82)), even when the results are harsh (see Parkview Associates v City of New York, 71 NY2d 274, 282 (1988)). Thus, the Staff may deny a renewal which would authorize an illegality.

While the Staff have treated the site as a whole, the regulations do not require this. "Impoundment" is defined at §364.1(c)(13) as a "depression ... excavation, or diked area formed primarily of earthen materials ... which is designed to hold an accumulation of solid waste in semisolid or liquid form ..."

The limited information in this record indicates that of the several impoundments on the Applicant's site only three of them contain chlorobenzene, purportedly from the 1979 disposal project. These would be the ones expected to cause or contribute to the contravention of the chlorobenzene standard. The other impoundments do not appear to contain significant levels of chlorobenzene nor do the routine sludges disposed of by this Applicant. Impoundments not containing chlorobenzene would be incapable of discharging same in violation of §17-0501, thus they cannot be "significant" in that sense. Presuming that they provide "hydraulic head" capable of moving contamination from other sources down gradient, as Staff argues, they do not appear to be significant given the limited migration thus far and the distance to drinking water wells. Nor would providing such head be a prohibited discharge under §17-0501.

In conclusion, the available facts support the Department denying the Applicant permission to use the impoundments which contain chlorobenzene, and granting the renewal as to those impoundments where chlorobenzene is not present or is present in negligible amounts.

RULING

Based on the parties' presentations and the discussion above, there are no material facts in dispute which would require an adjudicatory hearing to resolve.

RECOMMENDATION

I recommend that the renewal be denied as to those impoundments containing chlorobenzene and be granted as to impoundments where chlorobenzene is not present or is present in negligible amounts.

RECOMMENDED DECISION

This determination is being distributed as a Recommended Decision pursuant to 6 NYCRR §624.13(a)(2)(ii) [i.e., directed by the Commissioner] to provide an opportunity to the parties to correct any perceived error. Pursuant to §624.13 (a)(3) all parties to the hearing have fourteen days after receipt of the recommended decision to submit comments to the Commissioner. Replies will be permitted thereafter. The schedule is as follows: Comments must be received on or before November 18, 1998, and replies must be received on or before November 25, 1998. Comments and replies should be sent to the service list and to the following address: Commissioner John Cahill, c/o G. S. Peter Bergen, Esq., Assistant Commissioner; Department of Environmental Conservation; 50 Wolf Road; Albany, NY 12233-1550.

ORDER OF DISPOSITION

Subject to remand from the Commissioner following consideration of any comments and replies which might be filed herein, absent the existence of issues requiring adjudication, the record is closed, the adjudicatory hearing is canceled pursuant to 6 NYCRR §624.4(c)(5), and the application is remanded to Department Staff for continued processing as may be required, leading to renewal of the permit in a manner consistent with the recommendation herein.

_____________/s/_____________
Frank Montecalvo
Administrative Law Judge
Albany, New York

Dated: October 29, 1998

Appendices:

Appendix A - Exhibits

Appendix B - Official Service List

To: Official Service List by facsimile and mail

1. Statutory and regulatory provisions applicable to processing this type of application are: the Environmental Conservation Law ("ECL") Article 3 Title 3 (General Functions), Article 70 (Uniform Procedures), Article 27 Title 3 (Waste Transporter Permits); and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Parts 621 (Uniform Procedures), 624 (Permit Hearing Procedures), and 364 (Waste Transporter Permits).

2. Water quality standards for taste-, color- and odor-producing, toxic and other deleterious substances.

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