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Kleen Aid Corp - Order, May 12, 1993

Order, May 12, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Alleged Violations of Articles 11 and 17 of the Environmental Conservation Law

- by -

KLEEN AID CORPORATION,

Respondent.

ORDER

Index # WP079-89
W3-0379-89-05

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint dated November 13, 1990, an administrative enforcement hearing was scheduled to be held on January 28, 1992, by Administrative Law Judge ("ALJ") Edward Buhrmaster. The Department of Environmental Conservation (the "Department") was represented by Michael J. Lesser, Esq., a senior attorney assigned to the White Plains sub-office. The Respondent did not appear or submit an answer. The Department was allowed to submit its proof by affidavits, which were received by the ALJ on December 31, 1992.
  2. Upon review of the attached Hearing Report, including its Findings of Fact, Conclusion and Recommendation, except as noted below.
  3. I find that the actual harm caused by the Respondent's violations together with the circumstances surrounding its default in this proceeding warrant imposition of the maximum fine permissible by law.

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

  1. The Respondent, Kleen Aid Corporation, is assessed a civil penalty of Eighty One Thousand Dollars ($81,000). This penalty shall be due and payable within 30 days from the date of service of this Order upon the Respondent.
  2. All communications between the Respondent and the Department concerning this Order shall be made to the Department's Region 3 Director, 21 South Putt Corners Road, New Paltz, New York, 12561.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: THOMAS C. JORLING, COMMISSIONER

Dated: Albany, New York
May 12, 1993

TO: Kleen Aid Corporation
P.O. Box 142
Monsey, New York 10952
ATTN: Edward Feder, President

Michael Lesser, Esq.
NYSDEC Division of Environmental Enforcement
Albany Field Unit (Room 415)
50 Wolf Road
Albany, New York 12233-5501

Alice McCarthy, Esq.
Assistant Counsel
NYSDEC Division of Environmental Enforcement
200 White Plains Road (5th Floor)
Tarrytown, New York 10591-5805

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 WOLF ROAD
ALBANY, NEW YORK 12233-1550

In the Matter of

Alleged Violations of Articles 11 and 17 of the Environmental Conservation Law

by

KLEEN AID CORPORATION

Index #WP079-89

W3-0379-89-05

HEARING REPORT

- By -

____________/s/_____________
Administrative Law Judge

Proceedings

The Department of Environmental Conservation (the "Department" or "DEC") issued a Notice of Hearing and Complaint, dated November 13, 1990, against Kleen Aid Corporation (the "Respondent"). This notice established a hearing date of January 30, 1991. The hearing was adjourned for the purpose of settlement by Administrative Law Judge ("ALJ") Judith Bentley. The matter was then reassigned to me and later rescheduled when the Respondent failed to sign a consent order, drafted by DEC, which would have resolved the charges.

The hearing was rescheduled for 10 a.m. on January 28, 1992, at the Department's White Plains sub-office, 202 Mamaroneck Avenue, White Plains, New York. The Respondent was informed of the new hearing date by a letter from me, dated January 13, 1992. The letter was sent to the Respondent by regular and certified mail addressed to Kleen Aid Corp. and sent to its last known address: P.O. Box 142, Monsey, New York (ATTN: Edward Feder, President).

The Department Staff appeared at the rescheduled hearing by Michael J. Lesser, who was then a senior attorney assigned to the White Plains sub-office. The Respondent did not appear or respond to the ALJ's letter. The copy of the letter sent by certified mail was returned to the ALJ, marked "UNCLAIMED". The copy of the letter sent by regular mail was not returned.

Because the Respondent failed to appear at the hearing and did not file an answer, I deemed it to have waived its right to a hearing, given proof of valid service of the notice and complaint [see 6 NYCRR 622.5(e)]. At its request, DEC Staff was allowed to present its evidence in affidavit form, with the understanding that once I received it, I would write my hearing report.

On December 31, 1992, I received the Department's evidence under a cover letter, dated December 30, 1992, from Mr. Lesser. My review of the Department's submission raised two issues of law as to which on April 1, 1993, I made a written request for briefing. A responsive brief was received from Mr. Lesser on April 13, 1993. The record then closed on that date.

Department Charges

The Respondent, Kleen Aid Corp., is alleged to have discharged ammonium laureth sulfate, a septic tank additive, into the west branch of the Saddle River near Tallman, Rockland County, on or about May 8, 1989.

There are four alleged causes of action:

  1. Discharge to a state waterway, in contravention of standards adopted by the DEC, in violation of ECL 17-0501;
  2. Discharge of waste from an unpermitted point source, in violation of ECL 17-0701;
  3. Discharge of a pollutant, without a valid State Pollutant Discharge Elimination System (SPDES) permit, in violation of ECL 17-0803; and
  4. Discharge of a deleterious substance in quantities injurious to fish life, in violation of ECL 11-0503(1).

Relief Sought

Pursuant to ECL 71-1929(1), the Department Staff seeks a penalty of $25,000 for each of the first three causes of action.

For the fourth cause of action, the Department Staff seeks a penalty of $1,000 plus an additional penalty, unspecified in amount, "for each fish destroyed by Respondent's action as alleged [in the complaint] in an amount as adjudged by the trier of fact for this proceeding as fair and equitable."

The complaint alleges that the discharge created a fish kill, "numbering up to but not limited to 500 fish," for a length of about one mile downstream from the discharge point.

The penalty for the fourth cause of action is set by ECL 71-0925(5). It provides for not less than $500 nor more than $1,000 for each offense and an additional penalty of $10 for each fish killed in violation of ECL 11-0503(1).

Finally, the complaint seeks "such other and further relief" as the Commissioner shall deem just and appropriate. No remedial work is requested.

Department Evidence

The Department provided affidavits from two of its Environmental Conservation Officers, Thomas Moran and Thomas Harrington, who made site observations and spoke to people affiliated with the Respondent corporation. Affidavits were also provided from Darcee Duke Strube, a nearby homeowner; Cesare Manfredi, a DEC water engineer; and Wayne Elliot, a DEC aquatic biologist. An affirmation in support of the complaint and describing settlement efforts was submitted by Mr. Lesser, the DEC prosecutor.

Position of the Respondent

The Respondent did not file an answer or appear on the hearing date. However, its president, Edward Feder, wrote a letter to Mr. Lesser, dated January 23, 1991, in which he described the incident as a "spill of non-toxic chemicals." He said it was caused by one of his employees who worked in the facility's warehouse, that this person no longer worked there, and that the spill occurred without Mr. Feder's knowledge.

Findings of Fact

  1. During the spring of 1989, the Respondent, Kleen Aid Corporation, operated a storage and business facility, including a warehouse, in the Tall Pines Industrial Park in Tallman, Rockland County.
  2. As part of the facility's operations, the Respondent used ammonium laureth sulfate, an industrial liquid chemical. This substance was used in diluted form as a degreaser in the maintenance of cesspools.
  3. The Respondent's facility was next to a stream known as the west branch of the Saddle River. As of May, 1989, this stream had large quantities of freshwater fish, including but not limited to large mouth bass, golden shiners, bass, carp, chubs and rainbow trout.
  4. During the afternoon of May 8, 1989, an employee of the Respondent discharged or caused the discharge of ammonium laureth sulfate into the waters of the stream. This discharge was from a 55-gallon drum marked "AMMONIUM LAURETH SULFATE". On its shipping label, the Respondent was named as receiving party.
  5. The drum had been taken out behind the Respondent's warehouse at or about noon on May 8, 1989, and left with facility garbage. It was found empty and lying on its side, next to the river, about seven hours later.
  6. Upon discharge, the ammonium laureth sulfate created a large amount of foam that quickly spread downstream about one mile along the property of Darcee Strube. At her property the stream expands to about 100 feet in width, creating a small pond. The pond surface was totally covered by foam, which first appeared at about 6 p.m. on May 8, 1989, and did not fully dissipate until a heavy rainfall two days later.
  7. The foaming action of the ammonium laureth sulfate consumed dissolved oxygen which was needed to support the stream's resident fish populations.
  8. As a result of the chemical discharge, about 2,000 fish were killed in a stretch of between one and two miles downstream from the Respondent's facility. At the site of the Strube pond, fish and frogs, as well as underwater plant life, did not return until the spring of 1990. Herons and cranes, which forage along the stream, also left the affected area, returning the following year.
  9. The discharge of ammonium laureth sulfate occurred without a SPDES permit or any other DEC authorization.
  10. A Notice of Hearing and Complaint, dated November 13, 1990, was sent that same day to Burt Schain, manager of Kleen Aid, at its then-existing business office at 115 North Main Street, Spring Valley, New York, 10977. The notice was sent by certified mail and received, according to the postal receipt (or "green card") returned to the Department.

Discussion

First Cause of Action

The Respondent is charged with violating ECL 17-0501, which states it shall be unlawful for any person, directly or indirectly, to throw, drain, run or otherwise discharge into the waters of the state organic or inorganic matter that shall cause or contribute to a condition in contravention of the standards adopted by the Department pursuant to ECL 17-0301.

The waters of the state are defined by regulation and assigned different classifications, in accordance with their best usage [see ECL 17-0301]. The west branch of the Saddle River, into which the discharge occurred, is identified as a class "D" fresh surface water (item number 195NJ8), according to 6 NYCRR 865.6.

The best usage for class "D" fresh surface waters is fishing [see former 6 NYCRR 701.19, repealed in 1991; and current 6 NYCRR 701.9, as added in 1991]. At the time of the alleged violation, the standard for substances "deleterious" to these waters included amounts that would be "injurious to fish life" or that would "impair" the waters for their best usage [see former 6 NYCRR 701.19, repealed in 1991].

The evidence here demonstrates that an inorganic substance, ammonium laureth sulfate, was discharged from a drum into a stream that forms the west branch of the Saddle River. It is shown that this occurred where the stream flows by the Respondent's facility. This substance was "deleterious" in the sense it caused injury and had a harmful effect on the stream.

On the day after the incident, Jean Jacques, an employee of the Respondent, admitted putting the drum out behind the facility building. It is unclear how the discharge then occurred, although Edward Feder, company president, wrote a letter admitting the discharge was "caused" by one of the Respondent's warehouse workers.

To establish its first cause of action, the Department had to show that the discharge caused or contributed to a condition in violation of water quality standards. This was established given the fish kill that occurred after the discharge. Needless to say, the kill was "injurious" to fish life. In addition, it impaired the class "D" waterway for its best usage, which is fishing. This impairment continued for about a year, until the ecosystem revived.

Second Cause of Action

The Respondent is charged with violating ECL 17-0701. In relevant part, this section prohibits use of any "point source" for the discharge of "wastes" into the "waters of the state" unless the discharge is authorized by a written SPDES permit [see ECL 17-0701(1)(a)].

A "point source" is defined to include any "container" from which pollutants are or may be discharged [ECL 17-0105(16)]. The 55-gallon drum would certainly meet this definition, and its contents would be "wastes", as defined to include "chemicals . . and all other discarded matter . . . which may cause or might be reasonably expected to cause pollution of the waters of the state" [ECL 17-0701(2)(b)].

The drum was "discarded" as it was placed with facility garbage. Its contents were such that, if spilled, they would likely cause stream pollution. The discharge that occurred was to the "waters of the state" as defined by ECL 17-0105(2) to include rivers, streams and ponds which are wholly or partially within or bordering the state or within its jurisdiction.

Third Cause of Action

The Respondent is charged with violating ECL 17-0803. With exceptions not relevant here, this section prohibits the discharge of "pollutants" to the waters of the state from any outlet or point source without a SPDES permit.

"Pollutant" is defined to include "chemical wastes" [ECL 17-0105(17)] and would therefore encompass ammonium laureth sulfate, to the extent it was being discarded. The Respondent's discarding of the chemical is shown by its placement, with garbage, outside the facility warehouse.

Fourth Cause of Action

The Respondent is charged with violating ECL 11-0503(1). In relevant part, it states that no "deleterious" substance shall be thrown or allowed to run into any waters, either private or public, in quantities injurious to fish life.

Ammonium laureth sulfate was in this case deleterious because it caused injury and had a harmful effect. It was allowed to enter the stream in an amount that killed 2,000 fish.

Civil Penalty Calculation

The Department established the four violations alleged in its complaint, as shown by the preceding discussion. The Department has charged each violation as a separate cause of action and is seeking separate penalties for each. As a matter of law, separate penalties may be assessed for each cause of action since they relate to separate statutory provisions. For the first three causes of action, ECL 71-1929(1) provides that a person who violates any of the three provisions charged "shall be liable to a penalty of not to exceed $25,000 per day for each violation" (Emphasis added).

In his discretion, the Commissioner could assess a combined penalty of $75,000 for the first three causes of action. However, on the facts of this case, I recommend $50,000, with $25,000 for the first cause of action, and $25,000 for the combination of the second and third causes of action. To assess separate penalties for the second and third causes of action would be excessive since as proven, they are in essence the same offense. Both concern the point source discharge of a chemical, ammonium laureth sulfate, to the waters of the state without a SPDES permit.

In the second cause of action, the chemical is a "waste" [citing ECL 17-0701(1)(a)] and in the third cause of action, it is a "pollutant" [citing ECL 17-0803]. This is not a meaningful distinction, as shown by how these terms are applied. In the second cause of action, the chemical is a "waste" because it can cause "pollution" to the waters of the state [see ECL 17-0701(2)(b)]. In the third cause of action, it is a "pollutant" because it is a "chemical waste" [ECL 17-0105(17)]. In other words, the chemical is a "waste" because it is a "pollutant" and, vice versa, it is a "pollutant" because it is a "waste".

While charged in different language, with two different statutory citations, the second and third causes of action are essentially redundant. Neither requires proof of a fact that the other does not, and the theory of proving both is the same.

Therefore, the Respondent may reasonably be assessed up to $25,000 for the first cause of action, and up to $25,000 for the combined violations in the second and third causes of action.

For the fourth cause of action, the Respondent may be assessed up to $1,000 and an additional penalty of $10 for each fish killed. The facts show that 2,000 fish were killed, although the complaint states vaguely that the fish kill numbered "up to but not limited to five hundred fish."

As written, the complaint fails to give notice of how great an "additional" penalty is sought for the fourth cause of action. As the Respondent failed to appear at the hearing, there was no opportunity to correct this problem. Under the circumstances, this penalty must be limited to $5000 ($10 for each of 500 fish) since, at the least, the Respondent should have expected an attempt to show up to 500 fish were killed. Therefore, for the fourth cause of action, the penalty may be up to $6000 ($1,000 plus an additional penalty of $5,000).

Civil Penalty Assessment

From the preceding discussion, the maximum civil penalty one could fairly assess in this matter is $56,000. Such a penalty is warranted, based on the factors cited below:

  • Actual environmental harm. More than posing a threat of potential damage, the acts of the Respondent caused significant actual harm. Fish were killed for a length of one to two miles downstream from the chemical discharge. Plant life was destroyed and animals that live and forage near the stream did not return for almost a year, until its ecosystem revived.
  • Importance to the regulatory scheme. The violations committed involve activities requiring permits from the Department. Discharging pollutants without needed permits directly undermines the SPDES program.
  • Culpability. Although it is not established how the discharge occurred, it was at least negligent to leave the drum outside the back of the warehouse, with other garbage, in proximity to the stream. The violations charged carry strict liability, although negligence, recklessness, or intentional conduct may warrant an upward penalty adjustment.
  • Violator Cooperation. An upward penalty adjustment may also be warranted where the Respondent fails to act responsibly in addressing its violations. Such failure is plain in this matter, where the Respondent, by its president, Edward Feder, admitted the discharge was caused by one of its workers, and had the hearing adjourned on the claim it would rather enter a settlement.

The parties did in fact reach a tentative settlement, although the Respondent failed to sign and return a draft consent order, confirming settlement terms, that was sent to it in March, 1991.

Rather than settle the case or advance a request for hearing, the Respondent basically hid itself away: leaving its old place of business, disconnecting its phone, and failing to pick up mail sent to its last to its last known address, a post office box in Monsey, New York. All this is confirmed by an affirmation written by Mr. Lesser, and is accepted as true, for the purpose of my determining civil penalties.

The Respondent's behavior - - assuming responsibility, then negotiating in bad faith - - has wasted Department resources that were spent presenting and deciding this matter. This is considered, with other factors (as noted above), in my recommending that a $56,000 penalty be assessed.

Motion to Amend Complaint

With the submission of its evidence, the Department Staff moved to amend its complaint. The amendments would establish the Respondent as operating the facility in the Tall Pines Industrial Park in Tallman, Rockland County, as well as that facility's location adjacent to the stream known as the west branch of the Saddle River. The motion to amend is granted since it merely clarifies ambiguities in the prior complaint and does not add any charge or alter any element of the four causes of action alleged in that complaint. In other words, it does not affect the substance of the charges.

Notice of Rescheduled Hearing

Although the Department secured good service of its initial Notice of Hearing, there is some question whether the Respondent had actual notice of the rescheduled hearing date. My letter announcing that date was sent to the Respondent at its last address known to the Department (P.O. Box 142, Monsey, New York, 10952). It was sent twice, once by certified mail (in an envelope later returned, marked "UNCLAIMED") and once by regular mail (in an unreturned envelope, suggesting its receipt).

On October 3, 1991, Mr. Lesser sent a letter to ALJ Bentley requesting this matter's rescheduling and outlining his attempts to contact the Respondent. A copy of that letter was sent, certified mail, to the Respondent at its post office address, and was received, according to Mr. Lesser. This is the last Department letter known to have reached the Respondent.

Under the circumstances, this matter could proceed as a default, as there was proven valid service of the notice and complaint. If the Respondent did not actually know of the rescheduled hearing date, this was its own fault for having abandoned contact with DEC, despite the agency's reasonable attempts to follow up on its settlement offer, and my efforts to inform the Respondent of the new hearing date.

Conclusion

The Respondent, Kleen Aid Corporation, is liable for all violations alleged in the Department's complaint.

Recommendation

The Respondent should be assessed a $56,000 civil penalty: $25,000 for the first cause of action; $25,000 for the combination of the second and third causes of action; and $6,000 for the fourth cause of action.

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