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Getty Terminals Corp., Inc. (Rensselaer) - Ruling, November 4, 1993

Ruling, November 4, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

of

Appeal from Special License Conditions of a Major Oil Storage Facility License issued
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
Title 6 of the Official Compilation of Codes, Rules and Regulations of
the State of New York, Part 610 (Certification of Onshore Major Facilities),

- by -

GETTY TERMINALS CORP., INC.
(City of Rensselaer Terminal),

Appellant.

ISSUES RULING

Summary of Rulings

This dispute concerns the validity of special license conditions requiring installation, periodic inspection and periodic certification of a secondary containment system at Appellant's bulk petroleum storage facility. Appellant has argued that Staff exceeded its authority in imposing the special license conditions and that these conditions are, in essence, unpromulgated rules. Further, Appellant asserts Staff improperly rejected Appellant's first proposed upgrade plan, because that plan fulfilled the requirements of 6 NYCRR 613.3(c) for secondary containment governing major oil storage facilities. I find that Staff may properly exercise its authority in imposing the license conditions because general statutory authority for special license conditions exists, and because Staff asserts those license conditions are necessary to assure compliance with the regulatory standards of the Major Oil Storage Facility licensing program.

However, I find that Appellant has raised several factual issues which require adjudication, regarding its contention that the existing secondary containment system meets the regulatory standards of 6 NYCRR 613.3(c), and that in-depth integrity inspection of the secondary containment system will permanently compromise the effectiveness of the secondary containment system.

Introduction

On July 14, 1993 at 10:00 a.m., a legislative hearing was held before Administrative Law Judge ("ALJ") Kevin J. Casutto, at Appellant's Getty Rensselaer terminal, 49 Riverside Avenue, Rensselaer, New York. On the same date and location, immediately following the legislative hearing, an issues conference was held. The stenographic record of the proceedings was received by the ALJ on August 18, 1993. Memoranda of Law and Replies were filed with this Office by the parties, by September 2, 1993.

Getty Terminals Corp., Inc., (the "Appellant") appeared by Law Offices of Robert G. Del Gadio, EAB Plaza, Uniondale, New York 11556-0150, David W. Denenberg, Esq., of counsel. Appearing with counsel were Paul J. Stendardi, Director of Terminals and Transportation, Getty Petroleum Corp., Gordon W. Rodgers, Terminal Manager, Getty Petroleum Corp. and George Pough, Terminal Superintendent, Getty Petroleum Corp.

Department Staff ("Staff") appeared by David H. Keehn, Esq., Assistant Regional Attorney, New York State Department of Environmental Conservation ("NYSDEC") Region 4. Appearing with counsel were Mark Klotz, Chemical Engineer for the Region 4 Spill Response/Bulk Storage program and Mark A. Domagala, Engineering Geologist for the Region 4 Division of Water program.

No members of the public appeared at the legislative hearing, nor were any written comments on this appeal received by the Office of Hearings. The deadline for receipt of filings for party status was July 9, 1993. No applications for party status were received; therefore, Appellant and Staff are the only parties to this proceeding.

Background

Appellant has applied to the New York State Department of Environmental Conservation ("the Department" or "DEC") for renewal of a Major Oil Storage Facility License, 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 Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (NYCRR), Part 610 (Certification of Onshore Major Facilities). Appellant's storage terminal facility, 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.

Regional Staff issued a license to Appellant for the 1993-1994 license year (commencing April 1, 1993). The license contains special license conditions regarding the secondary containment system, 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)].

Appellant submitted a secondary containment system upgrade plan in June, 1991, which Staff rejected (the "June 1991" plan). That plan proposed increasing the impermeability of the existing clay deposit in the containment area (the "existing clay") by reworking it with imported clay of greater impermeability, only in selected areas of the facility's secondary containment system (identified by shaded areas in Exhibit 9, a map of the facility), and proposed that the existing clay deposit covered by a stone ballast layer of 6 to 12 inches depth, was adequately impermeable to meet the regulatory requirements for the remainder of the site. Staff rejected the June, 1991 plan, by letter dated July 3, 1991 (Exhibit 10 1Eleven documents were marked as exhibits at the legislative hearing and issues conference for purposes of identification only.).

Appellant then submitted a revised upgrade plan dated July, 1991, but not submitted to Staff until August 12, 1991 (the "July, 1991" plan; the June, 1991 plan and the July, 1991 plan comprise Exhibit 8). Shortly after Staff's receipt of the July, 1991 plan, Staff verbally approved it in telephone communication with Appellant's engineering consultant. The July, 1991 plan proposed to upgrade all areas of the facility containment system with imported clay of greater impermeability. However, Appellant admits it has implemented the June 1991 plan, which Staff rejected.

Appellant's Position

Appellant appeals Staff's imposition of special license conditions in the renewal license, pursuant to the provisions of Navigation Law, Article 12, 17 NYCRR 30.7 and 6 NYCRR 610.5(e). Appellant seeks to have these special conditions deleted from the license, and has requested a hearing on these special license conditions. Appellant's letter of April 16, 1993, seeking appeal (Exhibit 6), set forth four grounds for appeal. They are:

  1. The contested license conditions are inappropriate because Appellant has fully complied with the requirements of 6 NYCRR 613.3, in that a secondary containment system is already in place at the facility;
  2. No statutory or regulatory provision requires submission of an engineering plan for upgrading the secondary containment system by any particular date. Nor does any statutory or regulatory provision require the implementation of such an engineering plan by a particular date. Therefore, Staff is without authority to impose such license conditions; such conduct is arbitrary and capricious, and is an abuse of discretion. Further, Staff's unilateral selection of dates was arbitrary and capricious, in that the dates were imposed without affording Appellant notice or an opportunity to be heard.
  3. The challenged special conditions are vague and ambiguous because Department Staff have failed to specifically set forth the work required to achieve secondary containment as prescribed by the regulations. By the imposition of vague and ambiguous standards, the cost of compliance becomes uncertain, undeterminable and clearly disproportionate to the likelihood of environmental harms addressed and the ends sought to be achieved;
  4. Staff unreasonably withheld their approval of Appellant's June, 1991 proposed engineering plan (now implemented), which Appellant asserts achieves the objectives described by 6 NYCRR 613.3. Staff exceeded their jurisdiction in rejecting the June, 1991 proposed plan, which achieves the objectives described by 6 NYCRR 613.3.

At the issues conference, Appellant submitted an additional document which identified six proposed issues for adjudication (Exhibit 7). However, the two documents identify the same proposed issues, and merely group and enumerate the issues differently.

In elaborating on its proposed issues at the issues conference and in its briefs, Appellant raised the issue that Staff's imposition of the contested license conditions amount to an unpromulgated rule. Appellant asserts that the license conditions exceed what is required to implement the regulations, and that an agency's authority to impose license conditions cannot go beyond implementation of regulatory provisions.

Lastly, at the issues conference, Appellant specifically challenged the in-depth integrity inspection and certification license requirement (special license condition 3j), although Appellant did not specifically refer to this issue in either document setting forth Appellant's proposed issues (Exhibits 6 & 7).

Staff's Position

Staff asserts it is imposing special license conditions similar to those at issue in this appeal, in all MOSF licenses, in order to effectuate the regulatory standards of 6 NYCRR 613.3(c) for secondary containment, which became effective in December, 1990. By letter dated July 3, 1991 (Exhibit 10), Staff rejected Appellant's June, 1991 plan. Appellant then submitted a revised plan, identified as the July, 1991 plan, which Staff 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 also exhibited secondary characteristics (cracks and fissures) which 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).

Appellant has since 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 9, a map of the facility (prepared by Appellant's engineering consultant, dated June, 1991). Staff asserts that the upgraded portions of the liner meet the standards of 6 NYCRR 613.3(c), but that the remaining portions of the liner 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, to achieve compliance with the standards of 6 NYCRR 613.3(c) whereas the ballast is at least 12 inches deep, to as much as 3 feet deep in parts of the containment area.

Staff asserts that although 6 NYCRR 613.3(c) sets forth the standards for secondary containment systems, the means to achieve an adequate major oil storage facility (MOSF) secondary containment system are dependent upon a number of variables requiring site specific engineering analysis of characteristics of the facility. Consequently, Staff argues that all the types of secondary containment systems which would fulfill the regulatory requirements are not capable of being delineated by regulation, and are appropriately addressed through special license conditions. Concerning Appellant's contention that Staff did not clearly state what was required by way of containment upgrade, Staff responds that it is untenable for Appellant to argue that it does not know what was expected of it regarding upgrade of its secondary containment system because Staff already found the July, 1991 upgrade plan acceptable.

Lastly, Staff asserts that other facilities at the Port of Rensselaer, including the Bray Terminals, which is located between the two tracts of land comprising Appellant's facility, have installed secondary containment systems acceptable to Staff, similar to Appellant's July, 1991 plan, which Staff approved.

Discussion

Appellant's presentation of proposed issues for adjudication at the issues conference and in briefs, has largely remained unfocused and unclear, despite having been given a number of opportunities to be more specific in identifying proposed issues both during the issues conference and via briefs. Appellant has confused the standard of proof at an issues conference with the standard of review in CPLR Article 78 proceedings (i.e., whether agency action was arbitrary and capricious). I have attempted to focus and address this and Appellant's other proposed issues to the greatest extent possible. Essentially, Appellant raises two groups of issues:

1) Appellant raises issues of law, asserting that:

a) as a matter of law, Staff lacks authority to impose the contested, or any other, special license conditions because every requirement imposed by Staff must be a law or promulgated rule; and

b) that the only function Staff performs in reviewing an MOSF license application, is to determine whether the applicant meets the standards set forth by law or rule; and

c) that Staff's license conditions are not intended to achieve compliance with the rules, but instead create additional standards.

2) Appellant raises factual issues, asserting that:

a) the existing secondary containment system meets the regulatory standards of 6 NYCRR 613.3(c), with respect to ballast depth;

b) the existing secondary containment system meets the regulatory standards of 6 NYCRR 613.3(c), with respect to permeability and other characteristics of the existing clay liner; and

c) an in-depth integrity inspection will require disturbing the secondary containment system in a manner that will permanently compromise the effectiveness of the liner component of the secondary containment system.

1. Staff's Legal Authority for Requiring the Special License Conditions

a. Statutory and Regulatory Authority

The Major Oil Storage Facility (MOSF) regulatory program, created by Navigation Law (NL), Article 12 is a licensing program (see, also, 17 NYCRR Part 30 and 6 NYCRR Part 610). Navigation Law 174(2) provides general statutory authority to impose license conditions to carry out the purposes of NL Article 12 (see, NL 171, Purposes). It is because every detail of a regulatory program cannot be specified by statute or regulation, that license conditions specific to the circumstances of each license application are authorized and appropriate. The language of NL 174(2) suggests that the Department's role in licensing goes beyond mere review to ascertain compliance with license standards, but further, on an ad hoc basis, the Department may impose license conditions to assure a licensee meets the regulatory standards. Accordingly, I reject Appellant's argument that Staff's role in reviewing an MOSF license application is limited to determining whether an applicant meets the standards articulated in the rules. Staff's authority in review of an MOSF license application also includes authority to impose conditions reasonably necessary to ascertaining compliance with regulatory standards.

b. 6 NYCRR 613.3(c): The Regulatory Standard for Secondary Containment

The provisions of 6 NYCRR 613.3(c), became effective five years after the effective date of promulgation of that regulation - - i.e., the regulation became effective thirty days after its filing date of November 27, 1985, and the requirements of that subpart became effective December 27, 1990. 6 NYCRR 613.3(c)(6) requires installation of secondary containment system, and states, in part, that:

"[t]he secondary containment system must be constructed so 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. The secondary containment system may consist of a combination of dikes, liners, pads, ponds, impoundments, curbs, ditches, sumps, receiving tanks or other equipment capable of containing the product stored. . .[emphasis supplied]."

6 NYCRR 613.3(c) sets forth performance standards for secondary containment systems, which can only be applied on a site specific basis. This regulatory provision provides authority for Staff to require installation of a secondary containment system, and also provides performance standards for such systems. Staff's authority to impose license conditions requiring inspection and certification to ascertain continued compliance with the standards articulated in 6 NYCRR 613.3(c), is based upon NL Article 12 (and NL 174[2]). 6 NYCRR 613.3(c) reasonably requires not only installation of a secondary containment system which is effective at the time of installation, but one of continued efficacy. Therefore, it follows that the licensing agency has authority to assure the continued effectiveness, or as Staff has termed it, "integrity", of that system.

I note that, had Staff promulgated a rule to require periodic inspection and certification at all MOSF's, it would not be required to defend its action on an ad hoc basis, as it may be required to do with respect to special license conditions. However, absent a rule requiring periodic in-depth integrity inspection and certification, these requirements may be imposed via special license condition if the license condition is reasonably necessary to achieve the standards set forth in 6 NYCRR 613.3(c). The license conditions requiring periodic inspection and certification are not additional regulatory standards, as Appellant's argument appears to assume. Instead, the license conditions, enable Staff to accomplish its oversight function in assuring that the secondary containment system continues to meet the regulatory standards of 6 NYCRR 613.3(c).

This principle applies to Appellant's other challenges to Staff's authority to impose the contested license conditions, including authority to impose engineering requirements, submit plans, or set dates for implementation of the special license condition requirements - - however, such requirements must be reasonably necessary to assuring compliance with regulatory standards.

c. Inspection Requirements of 6 NYCRR 613.6 and 613.7

6 NYCRR 613.6 provides for inspections and inspection reports, and 6 NYCRR 613.7 provides for additional testing and inspection requirements. Appellant asserts that because 6 NYCRR 613.6 and 613.7 describe inspections to be performed at MOSF's, Staff is limited to the enumerated inspections and cannot require more. Since the in-depth integrity inspection is not specified in the regulation, Appellant asserts that Staff has no authority to impose such an inspection requirement; that the regulatory scheme has already provided for all the MOSF inspections which the agency deems necessary, and therefore the agency cannot now require additional inspections by special license conditions.

Pursuant to 6 NYCRR 610.5(a)(4), the requirements of 6 NYCRR 613.2 through 6 NYCRR 613.9 are applicable to MOSF licensees, including Appellant. It is fundamental that the regulations set minimum standards with which a licensee is required to comply. This is supported by the language of 6 NYCRR 613.6(a), which requires that licensees inspect the facility at least monthly. Therefore, 6 NYCRR 613.6 and 613.7 provide minimum inspection requirements for licensees. Staff may impose additional requirements, including additional inspection and certification requirements, if those additional requirements are reasonably necessary to ascertain compliance with the regulatory standards of the licensing program.

In light of the above discussion, Staff's alternative argument, that a strict interpretation of 6 NYCRR 613.6(a), which requires monthly inspection of the "facility", may be construed to require monthly inspection of secondary containment system integrity as well, (because the secondary containment system is part of the "facility"), need not be considered. Whether or not Subpart 613.6(a) provides specific authority for such inspection, Staff has authority to impose the in-depth integrity inspection and certification requirements as a matter of law, if those requirements are reasonably necessary to assure compliance with the regulatory standards set forth in Part 613.3(c)(6).

2. Adequacy of the Current Secondary Containment System (Compliance With the Standards of 6 NYCRR 613.3[c])

Staff asserts the June, 1991 plan, as implemented, is deficient in meeting the standards of 6 NYCRR 613.3(c) in two respects. First, Staff asserts that the amount of crushed stone ballast which covers the liner is excessive. Second, Staff asserts the characteristics of the existing clay liner (in those areas of the containment system for which the clay was not upgraded with imported clay) is not sufficiently impermeable and exhibits substandard secondary characteristics (desiccation, fissures and cracks); and therefore does not provide secondary containment required by 6 NYCRR 613.3(c). Further, Staff asserts that the periodic inspection may be accomplished without compromising the effectiveness of the secondary containment system. Therefore, Staff imposed special license conditions to limit the ballast cover of the entire containment system to a depth of no more than 6 to 8 inches, and to require Appellant to upgrade the remaining areas of the containment system with imported clay to improve impermeability and secondary characteristics of the existing clay deposit.

Appellant asserts that the June, 1991 upgrade plan meets the regulatory standards of 6 NYCRR 613.3(c). Appellant has implemented this upgrade plan, even though Staff rejected the plan as deficient. Appellant argues, therefore, that the contested special license conditions requiring an upgrading and periodic inspection and certification of its current secondary containment system, go beyond implementation of the regulatory standards set forth in 6 NYCRR 613.3(c), and are therefore in excess of Staff's authority. Accordingly, Appellant seeks to adjudicate whether the present secondary containment system, upgraded pursuant to the June, 1991 plan, meets the requirements of 6 NYCRR 613.3. Additionally, Appellant asserts that periodic inspection of the system will result in permanently compromising the effectiveness of the secondary containment system, in contravention of the standards of 6 NYCRR 613.3(c) and NL 171. Pursuant to 6 NYCRR 624.6(c), Appellant has thereby raised adjudicable issue of fact, as to whether Appellant's present secondary containment system meets the regulatory standards of 6 NYCRR 613.3(c). A number of sub-issues are raised within this general issue, principally:

a. Ballast

By letter dated July 3, 1991 (Exhibit 10), Staff rejected the June, 1991 plan and provided Appellant with detailed technical and scientific information which it required in order to more fully assess the plan. Regarding depth of ballast, that letter stated that the proposed 12 inches of cover material over the liner allows for too much soil contamination in the event of a spill, and that 6 to 8 inches of cover is generally adequate.

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 [emphasis supplied]." Staff asserts that the ballast over the liner should consist of no more than 6 to 8 inches of cover, to minimize soil contamination in the event of a spill. I reject Appellant's assertion that the stone ballast is not "soil" within the meaning of 613.3(c)(6)(ii). This term is not defined in the regulation or statute. Lacking any regulatory definition of this term, I find that the stone ballast material is reasonably within the meaning of the term "soil" 2"soil [GEOL.] 1. Unconsolidated rock material over bedrock. 2. Freely divided rock-derived material containing an admixture of organic matter and capable of supporting vegetation." Dictionary of Scientific and Technical Terms, Daniel N. Lapedes, Editor, McGraw-Hill Book Company [1974].

However, Appellant asserts it has placed 12 inches of ballast over the upgraded areas, and as much as three feet of ballast over other areas of the containment system. Therefore, a factual issue is presented regarding the minimum amount of ballast necessary at this site to meet the regulatory requirements of 6 NYCRR 613.3(c)(6)(ii).

b. Permeability and Other Characteristics of the Existing Clay Liner

As stated above, Staff reviewed Appellant's initial upgrade plan, the June 1991 plan, and provided Appellant with detailed technical and scientific information which it required in order to more fully assess the plan. (Exhibit 10). Among other comments, Staff stated that secondary porosity features (desiccation, cracks and fissures) were noted in the existing clay deposit, which do not appear to meet the requirements of 6 NYCRR 613.3(c)(6); and that Appellant's reference to the Department's guidance memorandum, Technical Operating Guidance Series ("TOGS") 4.1.10, is inappropriate since it was withdrawn more than one year earlier. Additionally, Staff found the existing clay deposit not sufficiently impermeable. However, it is important that, for those areas of the liner which Appellant upgraded withimported clay of greater impermeability (in accordance with both the June, 1991 and July,1991 plans), Staff finds the liner characteristics acceptable in meeting the requirements of 6 NYCRR 613.3(c)(6).

Based upon its interpretation of the term "constructed" as it appears in 6 NYCRR 613.3(c)(6), Staff has argued that existing geology may never be utilized as part of the secondary containment system, because the system must be "constructed". Such a regulatory construction would lead to the anomalous result that, if Appellant's existing clay liner were found to meet the regulatory standards for secondary containment, it would nonetheless have to be in some way altered, so that it would be "constructed". This interpretation is rejected.

Appellant responded to Staff's rejection of the June, 1991 plan by submitting its July, 1991 plan, which proposed to upgrade the entire clay liner with imported clay and limit stone ballast depth to six inches. Staff found the July, 1991 plan acceptable. However, in arguing that the June, 1991 plan is adequate, Appellant asserts that the existing clay deposit meets the permeability standards set forth in both TOGS 4.1.10 and Spill Prevention Operations Technology Series 10 ("SPOTS 10"; Issued May 15, 1991 3Staff provided a copy of SPOTS 10 and the previously issued license (license year 1990-1991) to the ALJ, following the combined legislative hearing and issues conference. Those documents are part of the record in this case.). Staff advised Appellant in its July 3, 1991 letter, that the TOGS guidance memo had been withdrawn more than a year before. The current license identifies SPOTS 10 (See, Special License Condition [3][c]) as the applicable guidance document. Therefore, I find that Appellant has raised an adjudicable factual issue - - i.e., whether characteristics of the existing clay deposit meet the standards of 6 NYCRR 613.3(c), with respect to permeability and secondary features. Staff's motion for a ruling that the permeability characteristics which Appellant claims for the existing clay do not meet the standards of SPOTS 10 (Staff's Reply Brief, p.5), is denied without prejudice, and may be renewed following Appellant's presentation of its direct case.

c. Consequences of Inspection on Liner Performance

Lastly, Staff asserts that the requirement of in-depth integrity inspection and certification of the secondary containment system assures the continued efficacy of the clay liner component which it requires to be installed at this facility, and more generally, assures the continued efficacy of the secondary containment system. According to Staff, the liner (even those areas which have been upgraded with imported clay) has been and will continue to be subjected to the stresses and weathering of the changing seasons. Staff asserts this weathering may result in desiccation, cracks, fissures or other aging defects which will compromise the continued effectiveness of the liner. Since the liner is covered by ballast and may not be readily visually inspected, the in-depth integrity inspection and certification requirements are intended to determine the condition of the liner. Staff thereby accomplishes its oversight role, by assuring that the secondary containment system continues to meet the standards of 6 NYCRR 613.3(c).

However, Appellant asserts that the in-depth integrity inspection requires disturbing the containment system in a manner that will permanently compromise the effectiveness of the clay liner. Therefore, Pursuant to 6 NYCRR 624.6(c), Appellant has raised an adjudicable factual issue - - i.e., whether the in-depth integrity inspection requires disturbing the containment system in a manner that will permanently compromise the effectiveness of the liner component of the secondary containment system.

Summary of Rulings

  1. No issue is presented regarding liner upgrade for those areas of the secondary containment system which have been upgraded with imported clays.
  2. The legislative intent in creating the Article 12 licensing program, was to authorize the licensing agency to impose special license conditions on license applicants to effect the purposes of Article 12. Every detail of a regulatory program cannot be specified by statute or regulation. Therefore, special license conditions specific to the circumstances of each license application are authorized and appropriate.
  3. Staff acted within its authority in imposing the special license conditions upon Appellant, because Staff asserts the special license conditions are necessary to its oversight role of assuring Appellant's present and continued compliance with the regulatory standards of 6 NYCRR 613.3(c).
  4. 6 NYCRR 613.6 and 613.7 set minimum standards with which an MOSF licensee is required to comply. Staff may properly impose additional requirements by special license condition, including additional inspections and certifications, if those additional requirements are reasonably necessary to assure compliance with the regulatory standards of 6 NYCRR 613.3(c). Staff has properly exercised its authority in imposing the special license conditions requiring upgrading, periodic inspection and periodic certification of the secondary containment system.
  5. Issues of fact requiring adjudicatory hearing have been raised concerning whether the current secondary containment system, upgraded pursuant to the June, 1991 plan, meets the regulatory standards of 6 NYCRR 613.3. More particularly:
    1. 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.
    2. whether the present secondary containment system, utilizing the existing clay deposit as a liner, meets the standards of 613.3(c), regarding permeability and related characteristics, including desiccation cracks and fissures.
  6. Staff's motion for a ruling that the permeability characteristics which Appellant claims for the existing clay, do not meet the standards of SPOTS 10 (Staff's Reply Brief, p.5), is denied without prejudice, subject to renewal following presentation of Appellant's direct case.
  7. An issue of fact requiring adjudicatory hearing has been raised concerning 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.
  8. On or about November 22, 1993, Staff shall arrange a conference telephone call with Appellant and the ALJ to discuss scheduling for the adjudicatory hearing in this matter.

Appeals

Pursuant to 6 NYCRR 624.4(f) and 624.6(d), these Rulings on party status and issues may be appealed in writing to the Commissioner within three business days of receipt of the Rulings. However, I am extending the time period for filing such appeals to November 12, 1993. Reply briefs to any such appeals must be filed by November 19, 1993. Any appeals and replies must be addressed to the office of Commissioner Thomas C. Jorling, NYSDEC, Room 604, 50 Wolf Road, Albany, New York 12233-5500, and must be received by that office by the dates indicated herein. A copy of all such appeals, briefs and related filings must also be sent to the ALJ's attention at the Department's Office of Hearings, and to the other party at the address indicated below. Transmittal of documents shall be made in the same manner to all persons.

/s/
Kevin J. Casutto
Administrative Law Judge
Albany, New York

Dated: November 4, 1993

TO: David W. Denenberg, Esq.
Law Offices of Robert G. Del Gadio
EAB Plaza
Uniondale, New York 11556-0150

David H. Keehn
Assistant Regional Attorney
NYSDEC Region 4 Office
2176 Guilderland Avenue
Schenectady, New York 12306

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