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Lasdon, William S. (Estate of) - Order 2, September 19, 1994

Order 2, September 19, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of a Significant Threat to the Environment at an Inactive Hazardous Waste Disposal Site, Under Article 27, Title 13, of the Environmental Conservation Law of the State of New York (the "ECL") by

ESTATE OF WILLIAM S. LASDON,
Respondent.

Index Nos. W3-006-8101 (Harriman) and W3-006-8102 (Maybrook)

ORDER

Although this proceeding relates to two matters involving the Estate of William Lasdon (the "Respondent"), [(Index Nos. W3-006-8101 (the "Maybrook Site") and W3-006-8102 (the "Harriman Site")], this Order resolves questions solely concerning the Maybrook Site. This Order arises out of a direction provided in my March 1, 1994 Order which provided the opportunity to the Department Staff to address one of the affirmative defenses presented in the Respondent's answer. The defense relates to whether the Maybrook Site by definition an "inactive hazardous waste disposal site."

The Respondent has cited exclusions in two of the definitions applicable to Environmental Conservation Law ("ECL") Article 27 Title 13 which it maintains demonstrate that the Maybrook Site cannot be treated as an inactive hazardous waste disposal site. The first appears in the definition of "inactive hazardous waste disposal site" and the second in the definition of "waste." Although the March 1, 1994 Order only remands consideration of the exclusion in the latter definition, the two are related and both will be addressed below for the sake of completeness.

It is clear that the exclusion in the first definition is not relevant to this case. It states:

Inactive hazardous waste disposal site means any area or structure used for the long term storage or final placement of hazardous waste including, but not limited to, dumps, landfills, lagoons and artificial treatment ponds, as to which area or structure no permit or authorization issued by the department or a federal agency for the disposal of hazardous waste was in effect after the effective date of this title. [ECL 27-1301(2)]

A plain reading of this provision shows that it does not exclude all sites for which a permit or authorization had been issued. It only excludes those for which such a permit or authorization was in effect after the effective date of ECL Article 27 Title 13 (i.e., August 25, 1979). There is no allegation that any such permit or authorization existed since that date.

The second provision at issue reads as follows:

Waste means any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility, and other discarded material, whether or not such material may eventually be used for some other purpose, including solid, liquid, semi-solid, or contained gaseous material resulting from industrial, commercial, mining and agricultural operations or from community activities, and source, special nuclear or by-product material as defined in the Atomic Energy Act of 1954, as amended, except as may be provided by existing agreements between the state of New York and the government of the United States, but does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under article seventeen of this chapter. [ECL 27-1301(5)]

Respondent argues that all of the materials that were disposed of at the Maybrook Site by Nepera Chemical Co. Inc. ("Old Nepera") were industrial discharges that were permitted pursuant to a predecessor statute of ECL Article 17. The only question relates to whether the exclusion for "...solid or dissolved material in ... industrial discharges which are point sources subject to permits under article seventeen of [the ECL]" encompasses industrial discharges that were subject to permit under predecessor statutes.

The Respondent has produced documentary evidence showing that a permit was issued on January 13, 1953 to Old Nepera by the N.Y.S. Water Pollution Control Board, an arm of the N.Y.S. Department of Health. That permit authorized the discharge of industrial waste effluents which were generated at Old Nepera's factory in the Town of Hamptonburg i.e., from the facility located at the Harriman Site. The Respondent argues that this permit predates the permitting program established under ECL Article 17 but that it was issued under the authority of a predecessor statute. It argues that the language in ECL 27-1301(5) relating to permits issued pursuant to ECL Article 17 is intended to apply equally to permits issued under predecessor statutes.

The Respondent has not asserted that there is any general principle of statutory construction that would warrant interpreting a reference to another statute as implicitly including its predecessors. Rather it bases its argument on the assertion that reading the exemption language to include predecessor statutes would best fulfill the intent that the Legislature had when it enacted ECL Article 27 Title 13. The Department Staff also maintains that the issue should be resolved strictly as a matter of legislative intent but offers a different view of what the Legislature intended.

If the material in question is not definitionally a "waste," it also follows that the material cannot be a "hazardous waste" because all "hazardous wastes" must first be "wastes" [ECL 27-1301(1)]. By similar logic, if the materials are not "hazardous wastes," the site of their disposition cannot be an "inactive hazardous waste disposal site" [ECL 27-1301(2)]. The existence of an "inactive hazardous waste disposal site" is a prerequisite for an order pursuant to ECL 27-1313.

Although both parties maintain that this definitional question should be decided based on a correct reading of legislative intent, neither has presented a credible basis for ascertaining that intent. No documentation has been produced that provides any insight as to why the Legislature decided to provide specific exclusions from the definition of "waste" in the context of ECL Article 27 Title 13. The only documentation which bears upon a related issue was found in the May 19, 1980 edition of the Federal Register, of which I am taking official notice. In that document, the U.S. Environmental Protection Agency ("EPA"), in an explanation of Congressional intent accompanying its rulemaking implementing the basic provisions of Subtitle C of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. 6921-6934, addressed the statutory exclusion of industrial point source discharges from the definition of "solid waste" in RCRA. It states:

The obvious purpose of the industrial point source discharge exclusion in Section 1004(27) [of RCRA] was to avoid duplicative regulation of point source discharges under RCRA and the Clean Water Act. Without such a provision, the discharge of wastewater into navigable waters would be `disposal' of solid waste and potentially subject to regulation under both the Clean Water Act and Subtitle C. These considerations do not apply to industrial wastewaters prior to discharge since most of the environmental hazards posed by wastewaters in treatment and holding facilities - primarily groundwater contamination - cannot be controlled under the Clean Water Act or other EPA statute. [45 FR 33098]

However, even if the intent to avoid duplicative regulation could be imputed to the New York Legislature, it would only explain the exclusion from the regulatory program [see ECL 27-0901(11)], not from the remedial program. Duplicative regulation is not an issue in the case of a remedial program. In fact, the possibility of duplicative enforcement provisions is not even an issue since, under both ECL Article 17 and its predecessors, there are no provisions that would allow for enforcement comparable to what is available under ECL Article 27 Title 13.

Furthermore, as a general rule, statutes whose purpose is the protection of public health and welfare as well as those that are remedial in nature are generally interpreted broadly [U.S. v. Conservation Chemical Co., 619 F.Supp. 162 (W.D. Mo. 1985)]. A logical corollary to this rule is that exclusions to such statutes should be interpreted narrowly in order to better effect their purposes.

Without any source of legislative intent, I conclude that there is no basis to extend the exclusion beyond the explicit terms in the statute, particularly in light of the general rule cited above for interpreting remedial statutes. The explicit terms at issue only provide for an exclusion of point source discharges that are subject to permits under ECL Article 17, not those that are or were subject to permits under a predecessor statute. At the time ECL Article 27 Title 13 was adopted, the Legislature was aware of the fact that predecessor authorities existed. Nonetheless, the exclusion provided was specific to the permit program established by the ECL. If the Legislature had intended otherwise, it would have been a simple matter to use more inclusive language.

Conclusion

Both of the exclusions in the definitions at issue are inapplicable to this case. As stated in my March 1, 1994 Order, the consequence is that it is concluded that hazardous wastes were disposed of at the Maybrook Site during the period that William Lasdon was an operator of the site. Therefore, I determine that the Respondent is a party responsible for implementing an inactive hazardous waste disposal site remedial program.

NOW, THEREFORE, HAVING CONSIDERED THIS MATTER, IT IS ORDERED THAT:

  1. The Respondent develop an inactive hazardous waste disposal site remedial program for the Maybrook Site, subject to the approval of the Department and on a schedule to be established by the Department.
  2. After the approval of the program by the Department, the Respondent shall implement it on a schedule to be established by the Department.
  3. All communications between the Respondent and the Department concerning the Maybrook site shall be made to the Department's Region 3 Sub-Office, 200 White Plains Road, Tarrytown, New York 10591.
  4. The provisions, terms and conditions of this Order shall bind the Respondent, its officers, directors, agents, servants, employees, successors, assigns, and all persons, firms and corporations acting for or on behalf of Respondent.
  5. This proceeding is remanded to Administrative Law Judge Edward Buhrmaster to hold a hearing consistent with the terms of my March 1, 1994 Order.

NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION

/S/
LANGDON MARSH
COMMISSIONER
Dated: September 19, 1994
Albany, New York

To: Joel H. Sachs, Esq.
Keane & Beane, P.C.
14 Mamaroneck Avenue
White Plains, NY 10601

Howard B. Epstein, Esq.
Lord Day & Lord, Barrett Smith
1675 Broadway
New York, NY 10019-5874

Lou Oliva, Esq.
Division of Environmental Enforcement
NYSDEC - Region 3 Sub-Office
200 White Plains Road - 5th Floor
Tarrytown, NY 10591

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